--- /dev/null
+<html><head><meta http-equiv="Content-Type" content="text/html; charset=ISO-8859-1"><title>Free Culture</title><meta name="generator" content="DocBook XSL Stylesheets V1.78.1"><meta name="description" content="ABOUT THE AUTHOR LAWRENCE LESSIG (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). 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 Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, twice listed in BusinessWeek's e.biz 25, and named one of Scientific American's 50 visionaries. A graduate of the University of Pennsylvania, Cambridge University, and Yale Law School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals."></head><body bgcolor="white" text="black" link="#0000FF" vlink="#840084" alink="#0000FF"><div lang="en" class="book"><div class="titlepage"><div><div><h1 class="title"><a name="index"></a>Free Culture</h1></div><div><h2 class="subtitle">HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
+ CULTURE AND CONTROL CREATIVITY</h2></div><div><div class="authorgroup"><div class="author"><h3 class="author"><span class="firstname">Lawrence</span> <span class="surname">Lessig</span></h3></div></div></div><div><p class="releaseinfo">Version 2004-02-10</p></div><div><p class="copyright">Copyright © 2004 Lawrence Lessig</p></div><div><div class="legalnotice"><a name="idp3355616"></a><p>
+ <span class="inlinemediaobject"><img src="images/cc.png" align="middle" height="38" alt="Creative Commons, Some rights reserved"></span>
+ </p><p>
+This version of <em class="citetitle">Free Culture</em> 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
+<a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
+ </p></div></div><div><p class="pubdate">2004-03-25</p></div><div><div class="abstract"><p class="title"><b>ABOUT THE AUTHOR</b></p><p>
+LAWRENCE LESSIG
+(<a class="ulink" href="http://www.lessig.org" target="_top">http://www.lessig.org</a>),
+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
+(<a class="ulink" href="http://creativecommons.org" target="_top">http://creativecommons.org</a>).
+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
+Foundation, and Public Knowledge. He was the winner of the Free
+Software Foundation's Award for the Advancement of Free Software,
+twice listed in BusinessWeek's <span class="quote">«<span class="quote">e.biz 25,</span>»</span> and named one of Scientific
+American's <span class="quote">«<span class="quote">50 visionaries.</span>»</span> A graduate of the University of
+Pennsylvania, Cambridge University, and Yale Law School, Lessig
+clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
+Appeals.
+ </p></div></div></div><hr></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="alsobylessig"></a></h1></div></div></div><p>
+ALSO BY LAWRENCE LESSIG
+</p><p>
+The Future of Ideas: The Fate of the Commons in a Connected World
+</p><p>
+Code: And Other Laws of Cyberspace
+</p></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="idp235680"></a></h1></div></div></div><p>
+To Eric Eldred — whose work first drew me to this cause, and for whom
+it continues still.
+</p></div><div class="toc"><dl class="toc"><dt><span class="preface"><a href="#preface">PREFACE</a></span></dt><dt><span class="chapter">0. <a href="#c-introduction">INTRODUCTION</a></span></dt><dt><span class="part">I. <a href="#c-piracy"><span class="quote">«<span class="quote">PIRACY</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">1. <a href="#creators">CHAPTER ONE: Creators</a></span></dt><dt><span class="chapter">2. <a href="#mere-copyists">CHAPTER TWO: <span class="quote">«<span class="quote">Mere Copyists</span>»</span></a></span></dt><dt><span class="chapter">3. <a href="#catalogs">CHAPTER THREE: Catalogs</a></span></dt><dt><span class="chapter">4. <a href="#pirates">CHAPTER FOUR: <span class="quote">«<span class="quote">Pirates</span>»</span></a></span></dt><dd><dl><dt><span class="section">4.1. <a href="#film">Film</a></span></dt><dt><span class="section">4.2. <a href="#recordedmusic">Recorded Music</a></span></dt><dt><span class="section">4.3. <a href="#radio">Radio</a></span></dt><dt><span class="section">4.4. <a href="#cabletv">Cable TV</a></span></dt></dl></dd><dt><span class="chapter">5. <a href="#piracy">CHAPTER FIVE: <span class="quote">«<span class="quote">Piracy</span>»</span></a></span></dt><dd><dl><dt><span class="section">5.1. <a href="#piracy-i">Piracy I</a></span></dt><dt><span class="section">5.2. <a href="#piracy-ii">Piracy II</a></span></dt></dl></dd></dl></dd><dt><span class="part">II. <a href="#c-property"><span class="quote">«<span class="quote">PROPERTY</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">6. <a href="#founders">CHAPTER SIX: Founders</a></span></dt><dt><span class="chapter">7. <a href="#recorders">CHAPTER SEVEN: Recorders</a></span></dt><dt><span class="chapter">8. <a href="#transformers">CHAPTER EIGHT: Transformers</a></span></dt><dt><span class="chapter">9. <a href="#collectors">CHAPTER NINE: Collectors</a></span></dt><dt><span class="chapter">10. <a href="#property-i">CHAPTER TEN: <span class="quote">«<span class="quote">Property</span>»</span></a></span></dt><dd><dl><dt><span class="section">10.1. <a href="#hollywood">Why Hollywood Is Right</a></span></dt><dt><span class="section">10.2. <a href="#beginnings">Beginnings</a></span></dt><dt><span class="section">10.3. <a href="#lawduration">Law: Duration</a></span></dt><dt><span class="section">10.4. <a href="#lawscope">Law: Scope</a></span></dt><dt><span class="section">10.5. <a href="#lawreach">Law and Architecture: Reach</a></span></dt><dt><span class="section">10.6. <a href="#lawforce">Architecture and Law: Force</a></span></dt><dt><span class="section">10.7. <a href="#marketconcentration">Market: Concentration</a></span></dt><dt><span class="section">10.8. <a href="#together">Together</a></span></dt></dl></dd></dl></dd><dt><span class="part">III. <a href="#c-puzzles">PUZZLES</a></span></dt><dd><dl><dt><span class="chapter">11. <a href="#chimera">CHAPTER ELEVEN: Chimera</a></span></dt><dt><span class="chapter">12. <a href="#harms">CHAPTER TWELVE: Harms</a></span></dt><dd><dl><dt><span class="section">12.1. <a href="#constrain">Constraining Creators</a></span></dt><dt><span class="section">12.2. <a href="#innovators">Constraining Innovators</a></span></dt><dt><span class="section">12.3. <a href="#corruptingcitizens">Corrupting Citizens</a></span></dt></dl></dd></dl></dd><dt><span class="part">IV. <a href="#c-balances">BALANCES</a></span></dt><dd><dl><dt><span class="chapter">13. <a href="#eldred">CHAPTER THIRTEEN: Eldred</a></span></dt><dt><span class="chapter">14. <a href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></span></dt></dl></dd><dt><span class="chapter">15. <a href="#c-conclusion">CONCLUSION</a></span></dt><dt><span class="chapter">16. <a href="#c-afterword">AFTERWORD</a></span></dt><dd><dl><dt><span class="section">16.1. <a href="#usnow">US, NOW</a></span></dt><dd><dl><dt><span class="section">16.1.1. <a href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></span></dt><dt><span class="section">16.1.2. <a href="#oneidea">Rebuilding Free Culture: One Idea</a></span></dt></dl></dd><dt><span class="section">16.2. <a href="#themsoon">THEM, SOON</a></span></dt><dd><dl><dt><span class="section">16.2.1. <a href="#formalities">1. More Formalities</a></span></dt><dd><dl><dt><span class="section">16.2.1.1. <a href="#registration">REGISTRATION AND RENEWAL</a></span></dt><dt><span class="section">16.2.1.2. <a href="#marking">MARKING</a></span></dt></dl></dd><dt><span class="section">16.2.2. <a href="#shortterms">2. Shorter Terms</a></span></dt><dt><span class="section">16.2.3. <a href="#freefairuse">3. Free Use Vs. Fair Use</a></span></dt><dt><span class="section">16.2.4. <a href="#liberatemusic">4. Liberate the Music—Again</a></span></dt><dt><span class="section">16.2.5. <a href="#firelawyers">5. Fire Lots of Lawyers</a></span></dt></dl></dd></dl></dd><dt><span class="chapter">17. <a href="#c-notes">NOTES</a></span></dt><dt><span class="chapter">18. <a href="#c-acknowledgments">ACKNOWLEDGMENTS</a></span></dt><dt><span class="index"><a href="#idp10742528">Index</a></span></dt></dl></div><div class="preface"><div class="titlepage"><div><div><h1 class="title"><a name="preface"></a>PREFACE</h1></div></div></div><a class="indexterm" name="idxpoguedavid"></a><p>
+<span class="bold"><strong>At the end</strong></span> of his review of my first
+book, <em class="citetitle">Code: And Other Laws of Cyberspace</em>, David
+Pogue, a brilliant writer and author of countless technical and
+computer-related texts, wrote this:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.<a href="#ftn.preface01" class="footnote" name="preface01"><sup class="footnote">[1]</sup></a>
+</p></blockquote></div><p>
+Pogue was skeptical of the core argument of the book—that
+software, or <span class="quote">«<span class="quote">code,</span>»</span> functioned as a kind of law—and his review
+suggested the happy thought that if life in cyberspace got bad, we
+could always <span class="quote">«<span class="quote">drizzle, drazzle, druzzle, drome</span>»</span>-like simply flip a
+switch and be back home. Turn off the modem, unplug the computer, and
+any troubles that exist in <span class="emphasis"><em>that</em></span> space wouldn't
+<span class="quote">«<span class="quote">affect</span>»</span> us anymore.
+</p><p>
+Pogue might have been right in 1999—I'm skeptical, but maybe.
+But even if he was right then, the point is not right now:
+<em class="citetitle">Free Culture</em> is about the troubles the Internet
+causes even after the modem is turned
+
+off. It is an argument about how the battles that now rage regarding life
+on-line have fundamentally affected <span class="quote">«<span class="quote">people who aren't online.</span>»</span> There
+is no switch that will insulate us from the Internet's effect.
+</p><a class="indexterm" name="idp63136"></a><p>
+But unlike <em class="citetitle">Code</em>, the argument here is not much
+about the Internet itself. It is instead about the consequence of the
+Internet to a part of our tradition that is much more fundamental,
+and, as hard as this is for a geek-wanna-be to admit, much more
+important.
+</p><p>
+That tradition is the way our culture gets made. As I explain in the
+pages that follow, we come from a tradition of <span class="quote">«<span class="quote">free culture</span>»</span>—not
+<span class="quote">«<span class="quote">free</span>»</span> as in <span class="quote">«<span class="quote">free beer</span>»</span> (to borrow a phrase from the founder of the
+free software movement<a href="#ftn.idp79312" class="footnote" name="idp79312"><sup class="footnote">[2]</sup></a>), but <span class="quote">«<span class="quote">free</span>»</span> as in <span class="quote">«<span class="quote">free speech,</span>»</span> <span class="quote">«<span class="quote">free markets,</span>»</span>
+<span class="quote">«<span class="quote">free trade,</span>»</span> <span class="quote">«<span class="quote">free enterprise,</span>»</span> <span class="quote">«<span class="quote">free will,</span>»</span> and <span class="quote">«<span class="quote">free elections.</span>»</span> A
+free culture supports and protects creators and innovators. It does
+this directly by granting intellectual property rights. But it does so
+indirectly by limiting the reach of those rights, to guarantee that
+follow-on creators and innovators remain <span class="emphasis"><em>as free as
+possible</em></span> from the control of the past. A free culture is
+not a culture without property, just as a free market is not a market
+in which everything is free. The opposite of a free culture is a
+<span class="quote">«<span class="quote">permission culture</span>»</span>—a culture in which creators get to create
+only with the permission of the powerful, or of creators from the
+past.
+</p><p>
+If we understood this change, I believe we would resist it. Not <span class="quote">«<span class="quote">we</span>»</span>
+on the Left or <span class="quote">«<span class="quote">you</span>»</span> on the Right, but we who have no stake in the
+particular industries of culture that defined the twentieth century.
+Whether you are on the Left or the Right, if you are in this sense
+disinterested, then the story I tell here will trouble you. For the
+changes I describe affect values that both sides of our political
+culture deem fundamental.
+</p><a class="indexterm" name="idxpowerconcentrationof"></a><a class="indexterm" name="idp88064"></a><a class="indexterm" name="idp88880"></a><a class="indexterm" name="idp89696"></a><p>
+We saw a glimpse of this bipartisan outrage in the early summer of
+2003. As the FCC considered changes in media ownership rules that
+would relax limits on media concentration, an extraordinary coalition
+generated more than 700,000 letters to the FCC opposing the change.
+As William Safire described marching <span class="quote">«<span class="quote">uncomfortably alongside CodePink
+Women for Peace and the National Rifle Association, between liberal
+Olympia Snowe and conservative Ted Stevens,</span>»</span> he formulated perhaps
+most simply just what was at stake: the concentration of power. And as
+he asked,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Does that sound unconservative? Not to me. The concentration of
+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.<a href="#ftn.idp84656" class="footnote" name="idp84656"><sup class="footnote">[3]</sup></a>
+</p></blockquote></div><p>
+This idea is an element of the argument of <em class="citetitle">Free Culture</em>, though my
+focus is not just on the concentration of power produced by
+concentrations in ownership, but more importantly, if because less
+visibly, on the concentration of power produced by a radical change in
+the effective scope of the law. The law is changing; that change is
+altering the way our culture gets made; that change should worry
+you—whether or not you care about the Internet, and whether you're on
+Safire's left or on his right.
+</p><a class="indexterm" name="idp6030000"></a><p>
+<span class="strong"><strong>The inspiration</strong></span> for the title and for
+much of the argument of this book comes from the work of Richard
+Stallman and the Free Software Foundation. Indeed, as I reread
+Stallman's own work, especially the essays in <em class="citetitle">Free Software, Free
+Society</em>, I realize that all of the theoretical insights I develop here
+are insights Stallman described decades ago. One could thus well argue
+that this work is <span class="quote">«<span class="quote">merely</span>»</span> derivative.
+</p><p>
+I accept that criticism, if indeed it is a criticism. The work of a
+lawyer is always derivative, and I mean to do nothing more in this
+book than to remind a culture about a tradition that has always been
+its own. Like Stallman, I defend that tradition on the basis of
+values. Like Stallman, I believe those are the values of freedom. And
+like Stallman, I believe those are values of our past that will need
+to be defended in our future. A free culture has been our past, but it
+will only be our future if we change the path we are on right now.
+
+
+Like Stallman's arguments for free software, an argument for free
+culture stumbles on a confusion that is hard to avoid, and even harder
+to understand. A free culture is not a culture without property; it is not
+a culture in which artists don't get paid. A culture without property, or
+in which creators can't get paid, is anarchy, not freedom. Anarchy is not
+what I advance here.
+</p><p>
+Instead, the free culture that I defend in this book is a balance
+between anarchy and control. A free culture, like a free market, is
+filled with property. It is filled with rules of property and contract
+that get enforced by the state. But just as a free market is perverted
+if its property becomes feudal, so too can a free culture be queered
+by extremism in the property rights that define it. That is what I
+fear about our culture today. It is against that extremism that this
+book is written.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.preface01" class="footnote"><p><a href="#preface01" class="para"><sup class="para">[1] </sup></a>
+David Pogue, <span class="quote">«<span class="quote">Don't Just Chat, Do Something,</span>»</span> <em class="citetitle">New York Times</em>, 30 January 2000.
+</p></div><div id="ftn.idp79312" class="footnote"><p><a href="#idp79312" class="para"><sup class="para">[2] </sup></a>
+Richard M. Stallman, <em class="citetitle">Free Software, Free Societies</em> 57 (Joshua Gay, ed. 2002).
+</p></div><div id="ftn.idp84656" class="footnote"><p><a href="#idp84656" class="para"><sup class="para">[3] </sup></a> William Safire,
+<span class="quote">«<span class="quote">The Great Media Gulp,</span>»</span> <em class="citetitle">New York Times</em>, 22 May 2003.
+<a class="indexterm" name="idp6028336"></a>
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-introduction"></a>Chapter 0. INTRODUCTION</h1></div></div></div><a class="indexterm" name="idxwrightbrothers"></a><p>
+<span class="strong"><strong>On December 17</strong></span>, 1903, on a windy North Carolina beach for just
+shy of one hundred seconds, the Wright brothers demonstrated that a
+heavier-than-air, self-propelled vehicle could fly. The moment was electric
+and its importance widely understood. Almost immediately, there
+was an explosion of interest in this newfound technology of manned
+flight, and a gaggle of innovators began to build upon it.
+</p><a class="indexterm" name="idxairtrafficlandownershipvs"></a><a class="indexterm" name="idxlandownershipairtrafficand"></a><a class="indexterm" name="idxpropertyrightsairtrafficvs"></a><p>
+At the time the Wright brothers invented the airplane, American
+law held that a property owner presumptively owned not just the surface
+of his land, but all the land below, down to the center of the earth,
+and all the space above, to <span class="quote">«<span class="quote">an indefinite extent, upwards.</span>»</span><a href="#ftn.idp6045344" class="footnote" name="idp6045344"><sup class="footnote">[4]</sup></a>
+For many
+years, scholars had puzzled about how best to interpret the idea that
+rights in land ran to the heavens. Did that mean that you owned the
+stars? Could you prosecute geese for their willful and regular trespass?
+</p><a class="indexterm" name="idp6046608"></a><p>
+Then came airplanes, and for the first time, this principle of American
+law—deep within the foundations of our tradition, and acknowledged
+by the most important legal thinkers of our past—mattered. If
+my land reaches to the heavens, what happens when United flies over
+my field? Do I have the right to banish it from my property? Am I allowed
+to enter into an exclusive license with Delta Airlines? Could we
+set up an auction to decide how much these rights are worth?
+</p><a class="indexterm" name="idp6048464"></a><a class="indexterm" name="idp6049216"></a><p>
+In 1945, these questions became a federal case. When North Carolina
+farmers Thomas Lee and Tinie Causby started losing chickens
+because of low-flying military aircraft (the terrified chickens apparently
+flew into the barn walls and died), the Causbys filed a lawsuit saying
+that the government was trespassing on their land. The airplanes,
+of course, never touched the surface of the Causbys' land. But if, as
+Blackstone, Kent, and Coke had said, their land reached to <span class="quote">«<span class="quote">an indefinite
+extent, upwards,</span>»</span> then the government was trespassing on their
+property, and the Causbys wanted it to stop.
+</p><a class="indexterm" name="idp6051328"></a><a class="indexterm" name="idp6052080"></a><a class="indexterm" name="idxdouglaswilliamo"></a><a class="indexterm" name="idxsupremecourtusonairspacevslandrights"></a><p>
+The Supreme Court agreed to hear the Causbys' case. Congress had
+declared the airways public, but if one's property really extended to the
+heavens, then Congress's declaration could well have been an unconstitutional
+<span class="quote">«<span class="quote">taking</span>»</span> of property without compensation. The Court acknowledged
+that <span class="quote">«<span class="quote">it is ancient doctrine that common law ownership of
+the land extended to the periphery of the universe.</span>»</span> But Justice Douglas
+had no patience for ancient doctrine. In a single paragraph, hundreds of
+years of property law were erased. As he wrote for the Court,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+[The] doctrine has no place in the modern world. The air is a
+public highway, as Congress has declared. Were that not true,
+every transcontinental flight would subject the operator to countless
+trespass suits. Common sense revolts at the idea. To recognize
+such private claims to the airspace would clog these highways,
+seriously interfere with their control and development in the public
+interest, and transfer into private ownership that to which only
+the public has a just claim.<a href="#ftn.idp6058240" class="footnote" name="idp6058240"><sup class="footnote">[5]</sup></a>
+</p></blockquote></div><p>
+<span class="quote">«<span class="quote">Common sense revolts at the idea.</span>»</span>
+</p><a class="indexterm" name="idp6063488"></a><p>
+This is how the law usually works. Not often this abruptly or
+impatiently, but eventually, this is how it works. It was Douglas's style not to
+dither. Other justices would have blathered on for pages to reach the
+
+conclusion that Douglas holds in a single line: <span class="quote">«<span class="quote">Common sense revolts
+at the idea.</span>»</span> But whether it takes pages or a few words, it is the special
+genius of a common law system, as ours is, that the law adjusts to the
+technologies of the time. And as it adjusts, it changes. Ideas that were
+as solid as rock in one age crumble in another.
+</p><a class="indexterm" name="idp6066368"></a><a class="indexterm" name="idp6067152"></a><a class="indexterm" name="idp6067968"></a><p>
+Or at least, this is how things happen when there's no one powerful
+on the other side of the change. The Causbys were just farmers. And
+though there were no doubt many like them who were upset by the
+growing traffic in the air (though one hopes not many chickens flew
+themselves into walls), the Causbys of the world would find it very
+hard to unite and stop the idea, and the technology, that the Wright
+brothers had birthed. The Wright brothers spat airplanes into the
+technological meme pool; the idea then spread like a virus in a chicken
+coop; farmers like the Causbys found themselves surrounded by <span class="quote">«<span class="quote">what
+seemed reasonable</span>»</span> given the technology that the Wrights had produced.
+They could stand on their farms, dead chickens in hand, and
+shake their fists at these newfangled technologies all they wanted.
+They could call their representatives or even file a lawsuit. But in the
+end, the force of what seems <span class="quote">«<span class="quote">obvious</span>»</span> to everyone else—the power of
+<span class="quote">«<span class="quote">common sense</span>»</span>—would prevail. Their <span class="quote">«<span class="quote">private interest</span>»</span> would not be
+allowed to defeat an obvious public gain.
+</p><a class="indexterm" name="idp6071856"></a><a class="indexterm" name="idp6073184"></a><a class="indexterm" name="idp6074528"></a><a class="indexterm" name="idp6075504"></a><a class="indexterm" name="idxarmstrongedwinhoward"></a><a class="indexterm" name="idp6077712"></a><a class="indexterm" name="idp6078464"></a><a class="indexterm" name="idp6079216"></a><a class="indexterm" name="idxradiofmspectrumof"></a><p>
+<span class="strong"><strong>Edwin Howard Armstrong</strong></span> is one of
+America's forgotten inventor geniuses. He came to the great American
+inventor scene just after the titans Thomas Edison and Alexander
+Graham Bell. But his work in the area of radio technology was perhaps
+the most important of any single inventor in the first fifty years of
+radio. He was better educated than Michael Faraday, who as a
+bookbinder's apprentice had discovered electric induction in 1831. But
+he had the same intuition about how the world of radio worked, and on
+at least three occasions, Armstrong invented profoundly important
+technologies that advanced our understanding of radio.
+
+</p><p>
+On the day after Christmas, 1933, four patents were issued to Armstrong
+for his most significant invention—FM radio. Until then, consumer radio
+had been amplitude-modulated (AM) radio. The theorists
+of the day had said that frequency-modulated (FM) radio could never
+work. They were right about FM radio in a narrow band of spectrum.
+But Armstrong discovered that frequency-modulated radio in a wide
+band of spectrum would deliver an astonishing fidelity of sound, with
+much less transmitter power and static.
+</p><p>
+On November 5, 1935, he demonstrated the technology at a meeting of
+the Institute of Radio Engineers at the Empire State Building in New
+York City. He tuned his radio dial across a range of AM stations,
+until the radio locked on a broadcast that he had arranged from
+seventeen miles away. The radio fell totally silent, as if dead, and
+then with a clarity no one else in that room had ever heard from an
+electrical device, it produced the sound of an announcer's voice:
+<span class="quote">«<span class="quote">This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters.</span>»</span>
+</p><p>
+The audience was hearing something no one had thought possible:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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 <span class="quote">«<span class="quote">music
+box.</span>»</span><a href="#ftn.idm87904" class="footnote" name="idm87904"><sup class="footnote">[6]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idxrca"></a><a class="indexterm" name="idxmediaownershipconcentrationin"></a><p>
+As our own common sense tells us, Armstrong had discovered a vastly
+superior radio technology. But at the time of his invention, Armstrong
+was working for RCA. RCA was the dominant player in the then dominant
+AM radio market. By 1935, there were a thousand radio stations across
+the United States, but the stations in large cities were all owned by
+a handful of networks.
+
+</p><a class="indexterm" name="idp6101168"></a><p>
+RCA's president, David Sarnoff, a friend of Armstrong's, was eager
+that Armstrong discover a way to remove static from AM radio. So
+Sarnoff was quite excited when Armstrong told him he had a device
+that removed static from <span class="quote">«<span class="quote">radio.</span>»</span> But when Armstrong demonstrated
+his invention, Sarnoff was not pleased.
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.<a href="#ftn.idp6083728" class="footnote" name="idp6083728"><sup class="footnote">[7]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idxfmradio"></a><a class="indexterm" name="idp6106672"></a><p>
+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,
+</p><a class="indexterm" name="idxlessinglawrence"></a><div class="blockquote"><blockquote class="blockquote"><p>
+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
+on which RCA had grown to power.<a href="#ftn.idp6110016" class="footnote" name="idp6110016"><sup class="footnote">[8]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idxfcconfmradio"></a><p>
+RCA at first kept the technology in house, insisting that further
+tests were needed. When, after two years of testing, Armstrong grew
+impatient, RCA began to use its power with the government to stall
+FM radio's deployment generally. In 1936, RCA hired the former head
+of the FCC and assigned him the task of assuring that the FCC assign
+spectrum in a way that would castrate FM—principally by moving FM
+radio to a different band of spectrum. At first, these efforts failed. But
+when Armstrong and the nation were distracted by World War II,
+RCA's work began to be more successful. Soon after the war ended, the
+FCC announced a set of policies that would have one clear effect: FM
+radio would be crippled. As Lawrence Lessing described it,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+The series of body blows that FM radio received right after the
+war, in a series of rulings manipulated through the FCC by the
+big radio interests, were almost incredible in their force and
+deviousness.<a href="#ftn.idp6114560" class="footnote" name="idp6114560"><sup class="footnote">[9]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp6115328"></a><a class="indexterm" name="idp6116304"></a><p>
+To make room in the spectrum for RCA's latest gamble, television,
+FM radio users were to be moved to a totally new spectrum band. The
+power of FM radio stations was also cut, meaning FM could no longer
+be used to beam programs from one part of the country to another.
+(This change was strongly supported by AT&T, because the loss of
+FM relaying stations would mean radio stations would have to buy
+wired links from AT&T.) The spread of FM radio was thus choked, at
+least temporarily.
+</p><a class="indexterm" name="idp6118080"></a><a class="indexterm" name="idp6119056"></a><p>
+Armstrong resisted RCA's efforts. In response, RCA resisted
+Armstrong's patents. After incorporating FM technology into the
+emerging standard for television, RCA declared the patents
+invalid—baselessly, and almost fifteen years after they were
+issued. It thus refused to pay him royalties. For six years, Armstrong
+fought an expensive war of litigation to defend the patents. Finally,
+just as the patents expired, RCA offered a settlement so low that it
+would not even cover Armstrong's lawyers' fees. Defeated, broken, and
+now broke, in 1954 Armstrong wrote a short note to his wife and then
+stepped out of a thirteenth-story window to his death.
+</p><a class="indexterm" name="idp6120288"></a><a class="indexterm" name="idp6122144"></a><a class="indexterm" name="idp6123120"></a><a class="indexterm" name="idp6123872"></a><p>
+This is how the law sometimes works. Not often this tragically, and
+rarely with heroic drama, but sometimes, this is how it works. From
+the beginning, government and government agencies have been subject to
+capture. They are more likely captured when a powerful interest is
+threatened by either a legal or technical change. That powerful
+interest too often exerts its influence within the government to get
+the government to protect it. The rhetoric of this protection is of
+course always public spirited; the reality is something
+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.
+</p><a class="indexterm" name="idp6126112"></a><a class="indexterm" name="idp6127088"></a><a class="indexterm" name="idxinternetdevelopmentof"></a><p>
+<span class="strong"><strong>There's no</strong></span> 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.<a href="#ftn.idp6130768" class="footnote" name="idp6130768"><sup class="footnote">[10]</sup></a>
+That number could well exceed two thirds of the nation by the end
+of 2004.
+</p><p>
+As the Internet has been integrated into ordinary life, it has
+changed things. Some of these changes are technical—the Internet has
+made communication faster, it has lowered the cost of gathering data,
+and so on. These technical changes are not the focus of this book. They
+are important. They are not well understood. But they are the sort of
+thing that would simply go away if we all just switched the Internet off.
+They don't affect people who don't use the Internet, or at least they
+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.
+</p><p>
+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.
+</p><a class="indexterm" name="idp6134480"></a><a class="indexterm" name="idp6135456"></a><a class="indexterm" name="idxculturecommercialvsnoncommercial"></a><a class="indexterm" name="idp6137696"></a><p>
+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 <span class="quote">«<span class="quote">commercial culture</span>»</span> I mean that part of our
+culture that is produced and sold or produced to be sold. By
+<span class="quote">«<span class="quote">noncommercial culture</span>»</span> 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 <span class="quote">«<span class="quote">Reader,</span>»</span> or
+Joel Barlow his poetry, that was commercial culture.
+</p><p>
+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 <span class="quote">«<span class="quote">free.</span>»</span> 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.
+</p><a class="indexterm" name="idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof"></a><p>
+The focus of the law was on commercial creativity. At first slightly,
+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.<a href="#ftn.idp6934816" class="footnote" name="idp6934816"><sup class="footnote">[11]</sup></a>
+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.
+</p><a class="indexterm" name="idp6937472"></a><a class="indexterm" name="idp6938480"></a><p>
+This rough divide between the free and the controlled has now
+been erased.<a href="#ftn.idp6939744" class="footnote" name="idp6939744"><sup class="footnote">[12]</sup></a>
+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.
+</p><a class="indexterm" name="idp6941648"></a><a class="indexterm" name="idp6943248"></a><a class="indexterm" name="idp6944000"></a><p>
+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.
+</p><a class="indexterm" name="idp6945824"></a><p>
+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.
+</p><p>
+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.
+</p><a class="indexterm" name="idp6948112"></a><a class="indexterm" name="idp6950464"></a><p>
+It doesn't seem this way to many. The battles over copyright and the
+
+Internet seem remote to most. To the few who follow them, they seem
+mainly about a much simpler brace of questions—whether <span class="quote">«<span class="quote">piracy</span>»</span> will
+be permitted, and whether <span class="quote">«<span class="quote">property</span>»</span> will be protected. The <span class="quote">«<span class="quote">war</span>»</span> that
+has been waged against the technologies of the Internet—what
+Motion Picture Association of America (MPAA) president Jack Valenti
+calls his <span class="quote">«<span class="quote">own terrorist war</span>»</span><a href="#ftn.idp6953696" class="footnote" name="idp6953696"><sup class="footnote">[13]</sup></a>—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
+against it.
+</p><p>
+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
+<span class="quote">«<span class="quote">creative property.</span>»</span> I believe that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that the
+law, properly tuned, should punish <span class="quote">«<span class="quote">piracy,</span>»</span> whether on or off the
+Internet.
+</p><p>
+But those simple beliefs mask a much more fundamental question
+and a much more dramatic change. My fear is that unless we come to see
+this change, the war to rid the world of Internet <span class="quote">«<span class="quote">pirates</span>»</span> will also rid our
+culture of values that have been integral to our tradition from the start.
+</p><a class="indexterm" name="idp6958352"></a><a class="indexterm" name="idp6959360"></a><a class="indexterm" name="idp6960368"></a><a class="indexterm" name="idp6961120"></a><p>
+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,<a href="#ftn.idp6962480" class="footnote" name="idp6962480"><sup class="footnote">[14]</sup></a>
+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.
+</p><p>
+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.
+</p><p>
+The story that follows is about this war. It is not about the
+<span class="quote">«<span class="quote">centrality of technology</span>»</span> 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.
+</p><p>
+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.
+</p><a class="indexterm" name="idp6968384"></a><a class="indexterm" name="idp6969136"></a><a class="indexterm" name="idxintellectualpropertyrights"></a><p>
+<span class="strong"><strong>Like the Causbys'</strong></span> battle, this war is, in part, about <span class="quote">«<span class="quote">property.</span>»</span> 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 <span class="quote">«<span class="quote">property</span>»</span> 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 <span class="quote">«<span class="quote">intellectual property</span>»</span> 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
+<span class="quote">«<span class="quote">trespassing</span>»</span> upon legitimate claims of <span class="quote">«<span class="quote">property.</span>»</span> It is as plain to
+us as it was to them that the law should intervene to stop this
+trespass.
+</p><a class="indexterm" name="idp6974800"></a><a class="indexterm" name="idp6975552"></a><a class="indexterm" name="idp6976304"></a><p>
+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
+
+the lucky Wright brothers, the Internet has not inspired a revolution
+on its side.
+</p><a class="indexterm" name="idp6977984"></a><p>
+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 <span class="quote">«<span class="quote">culture</span>»</span> was as <span class="quote">«<span class="quote">owned</span>»</span> as it is now. And yet there has never
+been a time when the concentration of power to control the
+<span class="emphasis"><em>uses</em></span> of culture has been as unquestioningly
+accepted as it is now.
+</p><p>
+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?
+</p><p>
+Or is it because the idea of absolute property over ideas and culture
+benefits the RCAs of our time and fits our own unreflective intuitions?
+</p><p>
+Is the radical shift away from our tradition of free culture an instance
+of America correcting a mistake from its past, as we did after a bloody
+war with slavery, and as we are slowly doing with inequality? Or is the
+radical shift away from our tradition of free culture yet another example
+of a political system captured by a few powerful special interests?
+</p><p>
+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?
+</p><a class="indexterm" name="idp6983408"></a><a class="indexterm" name="idp6984160"></a><p>
+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 <span class="quote">«<span class="quote">intellectual
+property.</span>»</span> 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.
+
+</p><a class="indexterm" name="idp6986400"></a><p>
+<span class="strong"><strong>The struggle</strong></span> that rages just now centers on two ideas: <span class="quote">«<span class="quote">piracy</span>»</span> and
+<span class="quote">«<span class="quote">property.</span>»</span> My aim in this book's next two parts is to explore these two
+ideas.
+</p><p>
+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.
+</p><p>
+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 <span class="quote">«<span class="quote">something new,</span>»</span> is
+destroying something very old. Rather than understanding the changes
+the Internet might permit, and rather than taking time to let <span class="quote">«<span class="quote">common
+sense</span>»</span> 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.
+</p><p>
+We allow this, I believe, not because it is right, and not because
+most of us really believe in these changes. We allow it because the
+interests most threatened are among the most powerful players in our
+depressingly compromised process of making law. This book is the story
+of one more consequence of this form of corruption—a consequence
+to which most of us remain oblivious.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp6045344" class="footnote"><p><a href="#idp6045344" class="para"><sup class="para">[4] </sup></a>
+St. George Tucker, <em class="citetitle">Blackstone's Commentaries</em> 3 (South Hackensack, N.J.:
+Rothman Reprints, 1969), 18.
+</p></div><div id="ftn.idp6058240" class="footnote"><p><a href="#idp6058240" class="para"><sup class="para">[5] </sup></a>
+United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
+that there could be a <span class="quote">«<span class="quote">taking</span>»</span> if the government's use of its land
+effectively destroyed the value of the Causbys' land. This example was
+suggested to me by Keith Aoki's wonderful piece, <span class="quote">«<span class="quote">(Intellectual)
+Property and Sovereignty: Notes Toward a Cultural Geography of
+Authorship,</span>»</span> <em class="citetitle">Stanford Law Review</em> 48 (1996): 1293, 1333. See also Paul
+Goldstein, <em class="citetitle">Real Property</em> (Mineola, N.Y.: Foundation Press, 1984),
+1112–13.
+<a class="indexterm" name="idp6061584"></a>
+<a class="indexterm" name="idp6061200"></a>
+</p></div><div id="ftn.idm87904" class="footnote"><p><a href="#idm87904" class="para"><sup class="para">[6] </sup></a>
+Lawrence Lessing, <em class="citetitle">Man of High Fidelity: Edwin Howard Armstrong</em>
+(Philadelphia: J. B. Lipincott Company, 1956), 209.
+</p></div><div id="ftn.idp6083728" class="footnote"><p><a href="#idp6083728" class="para"><sup class="para">[7] </sup></a> See <span class="quote">«<span class="quote">Saints: The Heroes and Geniuses of the
+Electronic Era,</span>»</span> First Electronic Church of America, at
+www.webstationone.com/fecha, available at
+
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #1</a>.
+</p></div><div id="ftn.idp6110016" class="footnote"><p><a href="#idp6110016" class="para"><sup class="para">[8] </sup></a>Lessing, 226.
+</p></div><div id="ftn.idp6114560" class="footnote"><p><a href="#idp6114560" class="para"><sup class="para">[9] </sup></a>
+Lessing, 256.
+</p></div><div id="ftn.idp6130768" class="footnote"><p><a href="#idp6130768" class="para"><sup class="para">[10] </sup></a>
+Amanda Lenhart, <span class="quote">«<span class="quote">The Ever-Shifting Internet Population: A New Look at
+Internet Access and the Digital Divide,</span>»</span> Pew Internet and American
+Life Project, 15 April 2003: 6, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #2</a>.
+</p></div><div id="ftn.idp6934816" class="footnote"><p><a href="#idp6934816" class="para"><sup class="para">[11] </sup></a>
+This is not the only purpose of copyright, though it is the overwhelmingly
+primary purpose of the copyright established in the federal constitution.
+State copyright law historically protected not just the commercial interest in
+publication, but also a privacy interest. By granting authors the exclusive
+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, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span> Harvard Law Review 4 (1890): 193,
+198–200.
+<a class="indexterm" name="idp6061456"></a>
+</p></div><div id="ftn.idp6939744" class="footnote"><p><a href="#idp6939744" class="para"><sup class="para">[12] </sup></a>
+See Jessica Litman, <em class="citetitle">Digital Copyright</em> (New York: Prometheus Books,
+2001), ch. 13.
+<a class="indexterm" name="idp6940512"></a>
+</p></div><div id="ftn.idp6953696" class="footnote"><p><a href="#idp6953696" class="para"><sup class="para">[13] </sup></a>
+Amy Harmon, <span class="quote">«<span class="quote">Black Hawk Download: Moving Beyond Music, Pirates
+Use New Tools to Turn the Net into an Illicit Video Club,</span>»</span> <em class="citetitle">New York
+Times</em>, 17 January 2002.
+</p></div><div id="ftn.idp6962480" class="footnote"><p><a href="#idp6962480" class="para"><sup class="para">[14] </sup></a>
+Neil W. Netanel, <span class="quote">«<span class="quote">Copyright and a Democratic Civil Society,</span>»</span> <em class="citetitle">Yale Law
+Journal</em> 106 (1996): 283.
+<a class="indexterm" name="idp6963760"></a>
+</p></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-piracy"></a>Part I. <span class="quote">«<span class="quote">PIRACY</span>»</span></h1></div></div></div><div class="partintro"><div></div><a class="indexterm" name="idp6994560"></a><a class="indexterm" name="idxmansfieldwilliammurraylord"></a><a class="indexterm" name="idp6996800"></a><a class="indexterm" name="idp6997552"></a><p>
+<span class="strong"><strong>Since the inception</strong></span> of the law regulating creative property, there has
+been a war against <span class="quote">«<span class="quote">piracy.</span>»</span> The precise contours of this concept,
+<span class="quote">«<span class="quote">piracy,</span>»</span> are hard to sketch, but the animating injustice is easy to
+capture. As Lord Mansfield wrote in a case that extended the reach of
+English copyright law to include sheet music,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.<a href="#ftn.idp7001040" class="footnote" name="idp7001040"><sup class="footnote">[15]</sup></a>
+</p><a class="indexterm" name="idp7002704"></a></blockquote></div><a class="indexterm" name="idp7003808"></a><a class="indexterm" name="idxpeertopeerppfilesharingefficiencyof"></a><p>
+Today we are in the middle of another <span class="quote">«<span class="quote">war</span>»</span> against <span class="quote">«<span class="quote">piracy.</span>»</span> The
+Internet has provoked this war. The Internet makes possible the
+efficient spread of content. Peer-to-peer (p2p) file sharing is among
+the most efficient of the efficient technologies the Internet
+enables. Using distributed intelligence, p2p systems facilitate the
+easy spread of content in a way unimagined a generation ago.
+
+</p><p>
+This efficiency does not respect the traditional lines of copyright.
+The network doesn't discriminate between the sharing of copyrighted
+and uncopyrighted content. Thus has there been a vast amount of
+sharing of copyrighted content. That sharing in turn has excited the
+war, as copyright owners fear the sharing will <span class="quote">«<span class="quote">rob the author of the
+profit.</span>»</span>
+</p><a class="indexterm" name="idp7009168"></a><p>
+The warriors have turned to the courts, to the legislatures, and
+increasingly to technology to defend their <span class="quote">«<span class="quote">property</span>»</span> against this
+<span class="quote">«<span class="quote">piracy.</span>»</span> A generation of Americans, the warriors warn, is being
+raised to believe that <span class="quote">«<span class="quote">property</span>»</span> should be <span class="quote">«<span class="quote">free.</span>»</span> Forget tattoos,
+never mind body piercing—our kids are becoming
+<span class="emphasis"><em>thieves</em></span>!
+</p><p>
+There's no doubt that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that pirates should be
+punished. But before we summon the executioners, we should put this
+notion of <span class="quote">«<span class="quote">piracy</span>»</span> in some context. For as the concept is increasingly
+used, at its core is an extraordinary idea that is almost certainly wrong.
+</p><p>
+The idea goes something like this:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Creative work has value; whenever I use, or take, or build upon
+the creative work of others, I am taking from them something of
+value. Whenever I take something of value from someone else, I
+should have their permission. The taking of something of value
+from someone else without permission is wrong. It is a form of
+piracy.
+</p></blockquote></div><a class="indexterm" name="idp7015664"></a><a class="indexterm" name="idp7016416"></a><a class="indexterm" name="idp7017168"></a><a class="indexterm" name="idxcreativepropertyifvaluethenrighttheoryof"></a><a class="indexterm" name="idxifvaluethenrighttheory"></a><p>
+This view runs deep within the current debates. It is what NYU law
+professor Rochelle Dreyfuss criticizes as the <span class="quote">«<span class="quote">if value, then right</span>»</span>
+theory of creative property<a href="#ftn.idp7021920" class="footnote" name="idp7021920"><sup class="footnote">[16]</sup></a>
+—if there is value, then someone must have a
+right to that value. It is the perspective that led a composers' rights
+organization, ASCAP, to sue the Girl Scouts for failing to pay for the
+songs that girls sang around Girl Scout campfires.<a href="#ftn.idp7012160" class="footnote" name="idp7012160"><sup class="footnote">[17]</sup></a>
+There was <span class="quote">«<span class="quote">value</span>»</span> (the songs) so there must have been a
+<span class="quote">«<span class="quote">right</span>»</span>—even against the Girl Scouts.
+</p><a class="indexterm" name="idp7028544"></a><p>
+This idea is certainly a possible understanding of how creative
+property should work. It might well be a possible design for a system
+
+of law protecting creative property. But the <span class="quote">«<span class="quote">if value, then right</span>»</span>
+theory of creative property has never been America's theory of
+creative property. It has never taken hold within our law.
+</p><a class="indexterm" name="idp7030832"></a><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork"></a><a class="indexterm" name="idxcreativitylegalrestrictionson"></a><p>
+Instead, in our tradition, intellectual property is an instrument. It
+sets the groundwork for a richly creative society but remains
+subservient to the value of creativity. The current debate has this
+turned around. We have become so concerned with protecting the
+instrument that we are losing sight of the value.
+</p><p>
+The source of this confusion is a distinction that the law no longer
+takes care to draw—the distinction between republishing someone's
+work on the one hand and building upon or transforming that work on
+the other. Copyright law at its birth had only publishing as its concern;
+copyright law today regulates both.
+</p><a class="indexterm" name="idp7036576"></a><p>
+Before the technologies of the Internet, this conflation didn't matter
+all that much. The technologies of publishing were expensive; that
+meant the vast majority of publishing was commercial. Commercial
+entities could bear the burden of the law—even the burden of the
+Byzantine complexity that copyright law has become. It was just one
+more expense of doing business.
+</p><a class="indexterm" name="idp7037856"></a><a class="indexterm" name="idp7039392"></a><a class="indexterm" name="idp7040144"></a><p>
+But with the birth of the Internet, this natural limit to the reach of
+the law has disappeared. The law controls not just the creativity of
+commercial creators but effectively that of anyone. Although that
+expansion would not matter much if copyright law regulated only
+<span class="quote">«<span class="quote">copying,</span>»</span> when the law regulates as broadly and obscurely as it does,
+the extension matters a lot. The burden of this law now vastly
+outweighs any original benefit—certainly as it affects
+noncommercial creativity, and increasingly as it affects commercial
+creativity as well. Thus, as we'll see more clearly in the chapters
+below, the law's role is less and less to support creativity, and more
+and more to protect certain industries against competition. Just at
+the time digital technology could unleash an extraordinary range of
+commercial and noncommercial creativity, the law burdens this
+creativity with insanely complex and vague rules and with the threat
+of obscenely severe penalties. We may
+
+be seeing, as Richard Florida writes, the <span class="quote">«<span class="quote">Rise of the Creative
+Class.</span>»</span><a href="#ftn.idp7043088" class="footnote" name="idp7043088"><sup class="footnote">[18]</sup></a>
+Unfortunately, we are also seeing an extraordinary rise of regulation of
+this creative class.
+</p><a class="indexterm" name="idp7046528"></a><p>
+These burdens make no sense in our tradition. We should begin by
+understanding that tradition a bit more and by placing in their proper
+context the current battles about behavior labeled <span class="quote">«<span class="quote">piracy.</span>»</span>
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7001040" class="footnote"><p><a href="#idp7001040" class="para"><sup class="para">[15] </sup></a>
+
+<em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777) (Mansfield).
+</p></div><div id="ftn.idp7021920" class="footnote"><p><a href="#idp7021920" class="para"><sup class="para">[16] </sup></a>
+
+See Rochelle Dreyfuss, <span class="quote">«<span class="quote">Expressive Genericity: Trademarks as Language
+in the Pepsi Generation,</span>»</span> <em class="citetitle">Notre Dame Law Review</em> 65 (1990): 397.
+</p></div><div id="ftn.idp7012160" class="footnote"><p><a href="#idp7012160" class="para"><sup class="para">[17] </sup></a>
+
+Lisa Bannon, <span class="quote">«<span class="quote">The Birds May Sing, but Campers Can't Unless They Pay
+Up,</span>»</span> <em class="citetitle">Wall Street Journal</em>, 21 August 1996, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #3</a>; Jonathan
+Zittrain, <span class="quote">«<span class="quote">Calling Off the Copyright War: In Battle of Property vs. Free
+Speech, No One Wins,</span>»</span> <em class="citetitle">Boston Globe</em>, 24 November 2002.
+<a class="indexterm" name="idp7026768"></a>
+</p></div><div id="ftn.idp7043088" class="footnote"><p><a href="#idp7043088" class="para"><sup class="para">[18] </sup></a>
+
+In <em class="citetitle">The Rise of the Creative Class</em> (New York:
+Basic Books, 2002), Richard Florida documents a shift in the nature of
+labor toward a labor of creativity. His work, however, doesn't
+directly address the legal conditions under which that creativity is
+enabled or stifled. I certainly agree with him about the importance
+and significance of this change, but I also believe the conditions
+under which it will be enabled are much more tenuous.
+
+<a class="indexterm" name="idp7044656"></a>
+<a class="indexterm" name="idp7045408"></a>
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="creators"></a>Chapter 1. CHAPTER ONE: Creators</h2></div></div></div><a class="indexterm" name="idxanimatedcartoons"></a><a class="indexterm" name="idxcartoonfilms"></a><a class="indexterm" name="idxfilmsanimated"></a><a class="indexterm" name="idxsteamboatwillie"></a><a class="indexterm" name="idxmickeymouse"></a><p>
+<span class="strong"><strong>In 1928</strong></span>, a cartoon character was born. An early Mickey Mouse
+made his debut in May of that year, in a silent flop called <em class="citetitle">Plane Crazy</em>.
+In November, in New York City's Colony Theater, in the first widely
+distributed cartoon synchronized with sound, <em class="citetitle">Steamboat Willie</em> brought
+to life the character that would become Mickey Mouse.
+</p><a class="indexterm" name="idxdisneywalt"></a><p>
+Synchronized sound had been introduced to film a year earlier in the
+movie <em class="citetitle">The Jazz Singer</em>. That success led Walt Disney to copy the
+technique and mix sound with cartoons. No one knew whether it would
+work or, if it did work, whether it would win an audience. But when
+Disney ran a test in the summer of 1928, the results were unambiguous.
+As Disney describes that first experiment,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+A couple of my boys could read music, and one of them could play
+a mouth organ. We put them in a room where they could not see
+the screen and arranged to pipe their sound into the room where
+our wives and friends were going to see the picture.
+
+</p><p>
+The boys worked from a music and sound-effects score. After several
+false starts, sound and action got off with the gun. The mouth
+organist played the tune, the rest of us in the sound department
+bammed tin pans and blew slide whistles on the beat. The
+synchronization was pretty close.
+</p><p>
+The effect on our little audience was nothing less than electric.
+They responded almost instinctively to this union of sound and
+motion. I thought they were kidding me. So they put me in the audience
+and ran the action again. It was terrible, but it was wonderful! And
+it was something new!<a href="#ftn.idp7063232" class="footnote" name="idp7063232"><sup class="footnote">[19]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp7064720"></a><p>
+Disney's then partner, and one of animation's most extraordinary
+talents, Ub Iwerks, put it more strongly: <span class="quote">«<span class="quote">I have never been so thrilled
+in my life. Nothing since has ever equaled it.</span>»</span>
+</p><p>
+Disney had created something very new, based upon something relatively
+new. Synchronized sound brought life to a form of creativity that had
+rarely—except in Disney's hands—been anything more than
+filler for other films. Throughout animation's early history, it was
+Disney's invention that set the standard that others struggled to
+match. And quite often, Disney's great genius, his spark of
+creativity, was built upon the work of others.
+</p><a class="indexterm" name="idp7066720"></a><a class="indexterm" name="idxkeatonbuster"></a><a class="indexterm" name="idxsteamboatbilljr"></a><p>
+This much is familiar. What you might not know is that 1928 also marks
+another important transition. In that year, a comic (as opposed to
+cartoon) genius created his last independently produced silent film.
+That genius was Buster Keaton. The film was <em class="citetitle">Steamboat Bill, Jr</em>.
+</p><p>
+Keaton was born into a vaudeville family in 1895. In the era of silent
+film, he had mastered using broad physical comedy as a way to spark
+uncontrollable laughter from his audience. <em class="citetitle">Steamboat Bill,
+Jr</em>. was a classic of this form, famous among film buffs for its
+incredible stunts. The film was classic Keaton—wildly popular
+and among the best of its genre.
+</p><a class="indexterm" name="idxderivativeworkspiracyvs"></a><a class="indexterm" name="idxpiracyderivativeworkvs"></a><p>
+<em class="citetitle">Steamboat Bill, Jr</em>. appeared before Disney's cartoon Steamboat
+Willie.
+
+The coincidence of titles is not coincidental. Steamboat Willie is a
+direct cartoon parody of Steamboat Bill,<a href="#ftn.idp7076960" class="footnote" name="idp7076960"><sup class="footnote">[20]</sup></a>
+and both are built upon a common song as a source. It is not just from
+the invention of synchronized sound in <em class="citetitle">The Jazz Singer</em> that we
+get <em class="citetitle">Steamboat Willie</em>. It is also from Buster Keaton's invention of
+Steamboat Bill, Jr., itself inspired by the song <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span>
+that we get Steamboat Willie, and then from Steamboat Willie, Mickey
+Mouse.
+</p><a class="indexterm" name="idp7083008"></a><a class="indexterm" name="idp7083984"></a><a class="indexterm" name="idp7084960"></a><a class="indexterm" name="idp7085936"></a><a class="indexterm" name="idxcreativitybytransformingpreviousworks"></a><a class="indexterm" name="idxdisneyinc"></a><p>
+This <span class="quote">«<span class="quote">borrowing</span>»</span> was nothing unique, either for Disney or for the
+industry. Disney was always parroting the feature-length mainstream
+films of his day.<a href="#ftn.idp7090416" class="footnote" name="idp7090416"><sup class="footnote">[21]</sup></a>
+So did many others. Early cartoons are filled with
+knockoffs—slight variations on winning themes; retellings of
+ancient stories. The key to success was the brilliance of the
+differences. With Disney, it was sound that gave his animation its
+spark. Later, it was the quality of his work relative to the
+production-line cartoons with which he competed. Yet these additions
+were built upon a base that was borrowed. Disney added to the work of
+others before him, creating something new out of something just barely
+old.
+</p><a class="indexterm" name="idxgrimmfairytales"></a><p>
+Sometimes this borrowing was slight. Sometimes it was significant.
+Think about the fairy tales of the Brothers Grimm. If you're as
+oblivious as I was, you're likely to think that these tales are happy,
+sweet stories, appropriate for any child at bedtime. In fact, the
+Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
+overly ambitious parent who would dare to read these bloody,
+moralistic stories to his or her child, at bedtime or anytime.
+</p><p>
+Disney took these stories and retold them in a way that carried them
+into a new age. He animated the stories, with both characters and
+light. Without removing the elements of fear and danger altogether, he
+made funny what was dark and injected a genuine emotion of compassion
+where before there was fear. And not just with the work of the
+Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
+work of others is astonishing when set together: <em class="citetitle">Snow White</em>
+(1937), <em class="citetitle">Fantasia</em> (1940), <em class="citetitle">Pinocchio</em> (1940), <em class="citetitle">Dumbo</em>
+(1941), <em class="citetitle">Bambi</em> (1942), <em class="citetitle">Song of the South</em> (1946),
+<em class="citetitle">Cinderella</em> (1950), <em class="citetitle">Alice in Wonderland</em> (1951), <em class="citetitle">Robin
+Hood</em> (1952), <em class="citetitle">Peter Pan</em> (1953), <em class="citetitle">Lady and the Tramp</em>
+
+(1955), <em class="citetitle">Mulan</em> (1998), <em class="citetitle">Sleeping Beauty</em> (1959), <em class="citetitle">101
+Dalmatians</em> (1961), <em class="citetitle">The Sword in the Stone</em> (1963), and
+<em class="citetitle">The Jungle Book</em> (1967)—not to mention a recent example
+that we should perhaps quickly forget, <em class="citetitle">Treasure Planet</em>
+(2003). In all of these cases, Disney (or Disney, Inc.) ripped
+creativity from the culture around him, mixed that creativity with his
+own extraordinary talent, and then burned that mix into the soul of
+his culture. Rip, mix, and burn.
+</p><a class="indexterm" name="idp7103120"></a><p>
+This is a kind of creativity. It is a creativity that we should
+remember and celebrate. There are some who would say that there is no
+creativity except this kind. We don't need to go that far to recognize
+its importance. We could call this <span class="quote">«<span class="quote">Disney creativity,</span>»</span> though that
+would be a bit misleading. It is, more precisely, <span class="quote">«<span class="quote">Walt Disney
+creativity</span>»</span>—a form of expression and genius that builds upon the
+culture around us and makes it something different.
+</p><a class="indexterm" name="idp7105632"></a><a class="indexterm" name="idp7106608"></a><a class="indexterm" name="idp7107584"></a><a class="indexterm" name="idxcopyrightdurationof"></a><a class="indexterm" name="idxpublicdomaindefined"></a><a class="indexterm" name="idxpublicdomaintraditionaltermforconversionto"></a><p> In 1928, the culture that Disney was free to draw upon was
+relatively fresh. The public domain in 1928 was not very old and was
+therefore quite vibrant. The average term of copyright was just around
+thirty years—for that minority of creative work that was in fact
+copyrighted.<a href="#ftn.idp7105248" class="footnote" name="idp7105248"><sup class="footnote">[22]</sup></a>
+That means that for thirty years, on average, the authors or
+copyright holders of a creative work had an <span class="quote">«<span class="quote">exclusive right</span>»</span> to control
+certain uses of the work. To use this copyrighted work in limited ways
+required the permission of the copyright owner.
+</p><p>
+At the end of a copyright term, a work passes into the public domain.
+No permission is then needed to draw upon or use that work. No
+permission and, hence, no lawyers. The public domain is a <span class="quote">«<span class="quote">lawyer-free
+zone.</span>»</span> Thus, most of the content from the nineteenth century was free
+for Disney to use and build upon in 1928. It was free for
+anyone— whether connected or not, whether rich or not, whether
+approved or not—to use and build upon.
+</p><a class="indexterm" name="idp7117968"></a><a class="indexterm" name="idp7119328"></a><p>
+This is the ways things always were—until quite recently. For most
+of our history, the public domain was just over the horizon. From
+until 1978, the average copyright term was never more than thirty-two
+years, meaning that most culture just a generation and a half old was
+
+
+free for anyone to build upon without the permission of anyone else.
+Today's equivalent would be for creative work from the 1960s and 1970s
+to now be free for the next Walt Disney to build upon without
+permission. Yet today, the public domain is presumptive only for
+content from before the Great Depression.
+</p><a class="indexterm" name="idp7121552"></a><a class="indexterm" name="idp7122528"></a><a class="indexterm" name="idp7123504"></a><a class="indexterm" name="idp7124480"></a><a class="indexterm" name="idp7125456"></a><a class="indexterm" name="idp7126432"></a><p>
+<span class="strong"><strong>Of course</strong></span>, Walt Disney had no monopoly on <span class="quote">«<span class="quote">Walt Disney creativity.</span>»</span>
+Nor does America. The norm of free culture has, until recently, and
+except within totalitarian nations, been broadly exploited and quite
+universal.
+</p><a class="indexterm" name="idxcomicsjapanese"></a><a class="indexterm" name="idxderivativeworkspiracyvs2"></a><a class="indexterm" name="idxjapanesecomics"></a><a class="indexterm" name="idxmanga"></a><a class="indexterm" name="idxpiracyderivativeworkvs2"></a><p>
+Consider, for example, a form of creativity that seems strange to many
+Americans but that is inescapable within Japanese culture: <em class="citetitle">manga</em>, or
+comics. The Japanese are fanatics about comics. Some 40 percent of
+publications are comics, and 30 percent of publication revenue derives
+from comics. They are everywhere in Japanese society, at every
+magazine stand, carried by a large proportion of commuters on Japan's
+extraordinary system of public transportation.
+</p><p>
+Americans tend to look down upon this form of culture. That's an
+unattractive characteristic of ours. We're likely to misunderstand
+much about manga, because few of us have ever read anything close to
+the stories that these <span class="quote">«<span class="quote">graphic novels</span>»</span> tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are <span class="quote">«<span class="quote">men in tights.</span>»</span>
+And anyway, it's not as if the New York subways are filled with
+readers of Joyce or even Hemingway. People of different cultures
+distract themselves in different ways, the Japanese in this
+interestingly different way.
+</p><p>
+But my purpose here is not to understand manga. It is to describe a
+variant on manga that from a lawyer's perspective is quite odd, but
+from a Disney perspective is quite familiar.
+</p><a class="indexterm" name="idxcreativitybytransformingpreviousworks2"></a><a class="indexterm" name="idxdoujinshicomics"></a><p>
+This is the phenomenon of <em class="citetitle">doujinshi</em>. Doujinshi are also comics, but
+they are a kind of copycat comic. A rich ethic governs the creation of
+doujinshi. It is not doujinshi if it is <span class="emphasis"><em>just</em></span> a
+copy; the artist must make a contribution to the art he copies, by
+transforming it either subtly or
+
+significantly. A doujinshi comic can thus take a mainstream comic and
+develop it differently—with a different story line. Or the comic can
+keep the character in character but change its look slightly. There is no
+formula for what makes the doujinshi sufficiently <span class="quote">«<span class="quote">different.</span>»</span> But they
+must be different if they are to be considered true doujinshi. Indeed,
+there are committees that review doujinshi for inclusion within shows
+and reject any copycat comic that is merely a copy.
+</p><a class="indexterm" name="idxdisneywalt2"></a><p>
+These copycat comics are not a tiny part of the manga market. They are
+huge. More than 33,000 <span class="quote">«<span class="quote">circles</span>»</span> of creators from across Japan produce
+these bits of Walt Disney creativity. More than 450,000 Japanese come
+together twice a year, in the largest public gathering in the country,
+to exchange and sell them. This market exists in parallel to the
+mainstream commercial manga market. In some ways, it obviously
+competes with that market, but there is no sustained effort by those
+who control the commercial manga market to shut the doujinshi market
+down. It flourishes, despite the competition and despite the law.
+</p><a class="indexterm" name="idxcopyrightlawjapanese"></a><a class="indexterm" name="idp7148288"></a><p>
+The most puzzling feature of the doujinshi market, for those trained
+in the law, at least, is that it is allowed to exist at all. Under
+Japanese copyright law, which in this respect (on paper) mirrors
+American copyright law, the doujinshi market is an illegal
+one. Doujinshi are plainly <span class="quote">«<span class="quote">derivative works.</span>»</span> There is no general
+practice by doujinshi artists of securing the permission of the manga
+creators. Instead, the practice is simply to take and modify the
+creations of others, as Walt Disney did with <em class="citetitle">Steamboat Bill,
+Jr</em>. Under both Japanese and American law, that <span class="quote">«<span class="quote">taking</span>»</span> without
+the permission of the original copyright owner is illegal. It is an
+infringement of the original copyright to make a copy or a derivative
+work without the original copyright owner's permission.
+</p><a class="indexterm" name="idp7151328"></a><a class="indexterm" name="idxwinickjudd"></a><p>
+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, <span class="quote">«<span class="quote">The
+early days of comics in America are very much like what's going on
+in Japan now. … American comics were born out of copying each
+
+other. … That's how [the artists] learn to draw — by going into comic
+books and not tracing them, but looking at them and copying them</span>»</span>
+and building from them.<a href="#ftn.idp7155072" class="footnote" name="idp7155072"><sup class="footnote">[23]</sup></a>
+</p><a class="indexterm" name="idp7156352"></a><a class="indexterm" name="idp7157328"></a><p>
+American comics now are quite different, Winick explains, in part
+because of the legal difficulty of adapting comics the way doujinshi are
+allowed. Speaking of Superman, Winick told me, <span class="quote">«<span class="quote">there are these rules
+and you have to stick to them.</span>»</span> There are things Superman <span class="quote">«<span class="quote">cannot</span>»</span>
+do. <span class="quote">«<span class="quote">As a creator, it's frustrating having to stick to some parameters
+which are fifty years old.</span>»</span>
+</p><a class="indexterm" name="idp7159936"></a><a class="indexterm" name="idxcopyrightlawjapanese2"></a><a class="indexterm" name="idp7162400"></a><a class="indexterm" name="idxmehrasalil"></a><p>
+The norm in Japan mitigates this legal difficulty. Some say it is
+precisely the benefit accruing to the Japanese manga market that
+explains the mitigation. Temple University law professor Salil Mehra,
+for example, hypothesizes that the manga market accepts these
+technical violations because they spur the manga market to be more
+wealthy and productive. Everyone would be worse off if doujinshi were
+banned, so the law does not ban doujinshi.<a href="#ftn.idp7165104" class="footnote" name="idp7165104"><sup class="footnote">[24]</sup></a>
+</p><a class="indexterm" name="idp7167632"></a><a class="indexterm" name="idp7168608"></a><a class="indexterm" name="idp7169584"></a><p>
+The problem with this story, however, as Mehra plainly acknowledges,
+is that the mechanism producing this laissez faire response is not
+clear. It may well be that the market as a whole is better off if
+doujinshi are permitted rather than banned, but that doesn't explain
+why individual copyright owners don't sue nonetheless. If the law has
+no general exception for doujinshi, and indeed in some cases
+individual manga artists have sued doujinshi artists, why is there not
+a more general pattern of blocking this <span class="quote">«<span class="quote">free taking</span>»</span> by the doujinshi
+culture?
+</p><a class="indexterm" name="idp7171856"></a><a class="indexterm" name="idp7172832"></a><p>
+I spent four wonderful months in Japan, and I asked this question
+as often as I could. Perhaps the best account in the end was offered by
+a friend from a major Japanese law firm. <span class="quote">«<span class="quote">We don't have enough
+lawyers,</span>»</span> he told me one afternoon. There <span class="quote">«<span class="quote">just aren't enough resources
+to prosecute cases like this.</span>»</span>
+</p><p>
+This is a theme to which we will return: that regulation by law is a
+function of both the words on the books and the costs of making those
+words have effect. For now, focus on the obvious question that is
+begged: Would Japan be better off with more lawyers? Would manga
+
+be richer if doujinshi artists were regularly prosecuted? Would the
+Japanese gain something important if they could end this practice of
+uncompensated sharing? Does piracy here hurt the victims of the
+piracy, or does it help them? Would lawyers fighting this piracy help
+their clients or hurt them?
+</p><a class="indexterm" name="idp7176480"></a><p>
+<span class="strong"><strong>Let's pause</strong></span> for a moment.
+</p><p>
+If you're like I was a decade ago, or like most people are when they
+first start thinking about these issues, then just about now you should
+be puzzled about something you hadn't thought through before.
+</p><p>
+We live in a world that celebrates <span class="quote">«<span class="quote">property.</span>»</span> I am one of those
+celebrants. I believe in the value of property in general, and I also
+believe in the value of that weird form of property that lawyers call
+<span class="quote">«<span class="quote">intellectual property.</span>»</span><a href="#ftn.idp7180144" class="footnote" name="idp7180144"><sup class="footnote">[25]</sup></a>
+A large, diverse society cannot survive without property; a large,
+diverse, and modern society cannot flourish without intellectual
+property.
+</p><a class="indexterm" name="idxdisneywalt3"></a><a class="indexterm" name="idxgrimmfairytales2"></a><a class="indexterm" name="idp7186256"></a><p>
+But it takes just a second's reflection to realize that there is
+plenty of value out there that <span class="quote">«<span class="quote">property</span>»</span> doesn't capture. I don't
+mean <span class="quote">«<span class="quote">money can't buy you love,</span>»</span> but rather, value that is plainly
+part of a process of production, including commercial as well as
+noncommercial production. If Disney animators had stolen a set of
+pencils to draw Steamboat Willie, we'd have no hesitation in
+condemning that taking as wrong— even though trivial, even if
+unnoticed. Yet there was nothing wrong, at least under the law of the
+day, with Disney's taking from Buster Keaton or from the Brothers
+Grimm. There was nothing wrong with the taking from Keaton because
+Disney's use would have been considered <span class="quote">«<span class="quote">fair.</span>»</span> There was nothing
+wrong with the taking from the Grimms because the Grimms' work was in
+the public domain.
+</p><a class="indexterm" name="idxfreeculturederivativeworksbasedon"></a><p>
+Thus, even though the things that Disney took—or more generally,
+the things taken by anyone exercising Walt Disney creativity—are
+valuable, our tradition does not treat those takings as wrong. Some
+
+
+things remain free for the taking within a free culture, and that
+freedom is good.
+</p><a class="indexterm" name="idp7191792"></a><a class="indexterm" name="idxcopyrightlawjapanese3"></a><a class="indexterm" name="idp7194256"></a><a class="indexterm" name="idxdoujinshicomics2"></a><a class="indexterm" name="idxjapanesecomics2"></a><a class="indexterm" name="idxmanga2"></a><p>
+The same with the doujinshi culture. If a doujinshi artist broke into
+a publisher's office and ran off with a thousand copies of his latest
+work—or even one copy—without paying, we'd have no hesitation in
+saying the artist was wrong. In addition to having trespassed, he would
+have stolen something of value. The law bans that stealing in whatever
+form, whether large or small.
+</p><a class="indexterm" name="idp7198960"></a><p>
+Yet there is an obvious reluctance, even among Japanese lawyers, to
+say that the copycat comic artists are <span class="quote">«<span class="quote">stealing.</span>»</span> This form of Walt
+Disney creativity is seen as fair and right, even if lawyers in
+particular find it hard to say why.
+</p><a class="indexterm" name="idp7201520"></a><a class="indexterm" name="idp7202496"></a><a class="indexterm" name="idp7203472"></a><a class="indexterm" name="idp7204448"></a><a class="indexterm" name="idp7205424"></a><a class="indexterm" name="idp7206400"></a><a class="indexterm" name="idp7207376"></a><p>
+It's the same with a thousand examples that appear everywhere once you
+begin to look. Scientists build upon the work of other scientists
+without asking or paying for the privilege. (<span class="quote">«<span class="quote">Excuse me, Professor
+Einstein, but may I have permission to use your theory of relativity
+to show that you were wrong about quantum physics?</span>»</span>) Acting companies
+perform adaptations of the works of Shakespeare without securing
+permission from anyone. (Does <span class="emphasis"><em>anyone</em></span> believe
+Shakespeare would be better spread within our culture if there were a
+central Shakespeare rights clearinghouse that all productions of
+Shakespeare must appeal to first?) And Hollywood goes through cycles
+with a certain kind of movie: five asteroid films in the late 1990s;
+two volcano disaster films in 1997.
+</p><p>
+Creators here and everywhere are always and at all times building
+upon the creativity that went before and that surrounds them now.
+That building is always and everywhere at least partially done without
+permission and without compensating the original creator. No society,
+free or controlled, has ever demanded that every use be paid for or that
+permission for Walt Disney creativity must always be sought. Instead,
+every society has left a certain bit of its culture free for the taking—free
+societies more fully than unfree, perhaps, but all societies to some degree.
+
+</p><a class="indexterm" name="idp7210608"></a><p>
+The hard question is therefore not <span class="emphasis"><em>whether</em></span> a
+culture is free. All cultures are free to some degree. The hard
+question instead is <span class="quote">«<span class="quote"><span class="emphasis"><em>How</em></span> free is this culture?</span>»</span>
+How much, and how broadly, is the culture free for others to take and
+build upon? Is that freedom limited to party members? To members of
+the royal family? To the top ten corporations on the New York Stock
+Exchange? Or is that freedom spread broadly? To artists generally,
+whether affiliated with the Met or not? To musicians generally,
+whether white or not? To filmmakers generally, whether affiliated with
+a studio or not?
+</p><p>
+Free cultures are cultures that leave a great deal open for others to
+build upon; unfree, or permission, cultures leave much less. Ours was a
+free culture. It is becoming much less so.
+</p><a class="indexterm" name="idp7214864"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7063232" class="footnote"><p><a href="#idp7063232" class="para"><sup class="para">[19] </sup></a>
+
+Leonard Maltin, <em class="citetitle">Of Mice and Magic: A History of American Animated
+Cartoons</em> (New York: Penguin Books, 1987), 34–35.
+</p></div><div id="ftn.idp7076960" class="footnote"><p><a href="#idp7076960" class="para"><sup class="para">[20] </sup></a>
+
+I am grateful to David Gerstein and his careful history, described at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #4</a>.
+According to Dave Smith of the Disney Archives, Disney paid royalties to
+use the music for five songs in <em class="citetitle">Steamboat Willie</em>: <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span> <span class="quote">«<span class="quote">The
+Simpleton</span>»</span> (Delille), <span class="quote">«<span class="quote">Mischief Makers</span>»</span> (Carbonara), <span class="quote">«<span class="quote">Joyful Hurry No. 1</span>»</span>
+(Baron), and <span class="quote">«<span class="quote">Gawky Rube</span>»</span> (Lakay). A sixth song, <span class="quote">«<span class="quote">The Turkey in the
+Straw,</span>»</span> was already in the public domain. Letter from David Smith to
+Harry Surden, 10 July 2003, on file with author.
+</p></div><div id="ftn.idp7090416" class="footnote"><p><a href="#idp7090416" class="para"><sup class="para">[21] </sup></a>
+
+He was also a fan of the public domain. See Chris Sprigman, <span class="quote">«<span class="quote">The Mouse
+that Ate the Public Domain,</span>»</span> Findlaw, 5 March 2002, at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #5</a>.
+</p></div><div id="ftn.idp7105248" class="footnote"><p><a href="#idp7105248" class="para"><sup class="para">[22] </sup></a>
+
+Until 1976, copyright law granted an author the possibility of two terms: an
+initial term and a renewal term. I have calculated the <span class="quote">«<span class="quote">average</span>»</span> term by
+determining
+the weighted average of total registrations for any particular year,
+and the proportion renewing. Thus, if 100 copyrights are registered in year
+1, and only 15 are renewed, and the renewal term is 28 years, then the
+average
+term is 32.2 years. For the renewal data and other relevant data, see the
+Web site associated with this book, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #6</a>.
+</p></div><div id="ftn.idp7155072" class="footnote"><p><a href="#idp7155072" class="para"><sup class="para">[23] </sup></a>
+
+For an excellent history, see Scott McCloud, <em class="citetitle">Reinventing Comics</em> (New
+York: Perennial, 2000).
+</p></div><div id="ftn.idp7165104" class="footnote"><p><a href="#idp7165104" class="para"><sup class="para">[24] </sup></a>
+
+See Salil K. Mehra, <span class="quote">«<span class="quote">Copyright and Comics in Japan: Does Law Explain
+Why All the Comics My Kid Watches Are Japanese Imports?</span>»</span> <em class="citetitle">Rutgers Law
+Review</em> 55 (2002): 155, 182. <span class="quote">«<span class="quote">[T]here might be a collective economic
+rationality that would lead manga and anime artists to forgo bringing
+legal actions for infringement. One hypothesis is that all manga
+artists may be better off collectively if they set aside their
+individual self-interest and decide not to press their legal
+rights. This is essentially a prisoner's dilemma solved.</span>»</span>
+</p></div><div id="ftn.idp7180144" class="footnote"><p><a href="#idp7180144" class="para"><sup class="para">[25] </sup></a>
+
+<a class="indexterm" name="idp7180784"></a>
+The term <em class="citetitle">intellectual property</em> is of relatively recent origin. See
+Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 11 (New York: New York
+University Press, 2001). See also Lawrence Lessig, <em class="citetitle">The Future of Ideas</em>
+(New York: Random House, 2001), 293 n. 26. The term accurately
+describes a set of <span class="quote">«<span class="quote">property</span>»</span> rights — copyright, patents,
+trademark, and trade-secret — but the nature of those rights is
+very different.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="mere-copyists"></a>Chapter 2. CHAPTER TWO: <span class="quote">«<span class="quote">Mere Copyists</span>»</span></h2></div></div></div><a class="indexterm" name="idp7217600"></a><a class="indexterm" name="idxcameratechnology"></a><a class="indexterm" name="idxphotography"></a><p>
+<span class="strong"><strong>In 1839</strong></span>, Louis Daguerre invented
+the first practical technology for producing what we would call
+<span class="quote">«<span class="quote">photographs.</span>»</span> Appropriately enough, they were called
+<span class="quote">«<span class="quote">daguerreotypes.</span>»</span> The process was complicated and
+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.)
+</p><a class="indexterm" name="idp7223024"></a><p>
+Yet despite high prices, the demand for daguerreotypes was strong.
+This pushed inventors to find simpler and cheaper ways to make
+<span class="quote">«<span class="quote">automatic pictures.</span>»</span> William Talbot soon discovered a process for
+making <span class="quote">«<span class="quote">negatives.</span>»</span> But because the negatives were glass, and had to
+be kept wet, the process still remained expensive and cumbersome. In
+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.
+</p><a class="indexterm" name="idxeastmangeorge"></a><p>
+The technological change that made mass photography possible
+didn't happen until 1888, and was the creation of a single man. George
+
+Eastman, himself an amateur photographer, was frustrated by the
+technology of photographs made with plates. In a flash of insight (so
+to speak), Eastman saw that if the film could be made to be flexible,
+it could be held on a single spindle. That roll could then be sent to
+a developer, driving the costs of photography down substantially. By
+lowering the costs, Eastman expected he could dramatically broaden the
+population of photographers.
+</p><a class="indexterm" name="idxkodakcameras"></a><a class="indexterm" name="idxkodakprimertheeastman"></a><p>
+Eastman developed flexible, emulsion-coated paper film and placed
+rolls of it in small, simple cameras: the Kodak. The device was
+marketed on the basis of its simplicity. <span class="quote">«<span class="quote">You press the button and we
+do the rest.</span>»</span><a href="#ftn.idp7231072" class="footnote" name="idp7231072"><sup class="footnote">[26]</sup></a> As he described in <em class="citetitle">The Kodak Primer</em>:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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
+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.<a href="#ftn.idp7154784" class="footnote" name="idp7154784"><sup class="footnote">[27]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp7236224"></a><p>
+For $25, anyone could make pictures. The camera came preloaded
+with film, and when it had been used, the camera was returned to an
+Eastman factory, where the film was developed. Over time, of course,
+the cost of the camera and the ease with which it could be used both
+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 11
+percent.<a href="#ftn.idp7238096" class="footnote" name="idp7238096"><sup class="footnote">[28]</sup></a> Eastman Kodak's sales during the same period experienced
+an average annual increase of over 17 percent.<a href="#ftn.idp7238992" class="footnote" name="idp7238992"><sup class="footnote">[29]</sup></a>
+</p><a class="indexterm" name="idp7239888"></a><p>
+
+
+The real significance of Eastman's invention, however, was not
+economic. It was social. Professional photography gave individuals a
+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, <span class="quote">«<span class="quote">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
+time in history there exists an authentic visual record of the
+appearance and activities of the common man made without [literary]
+interpretation or bias.</span>»</span><a href="#ftn.idp7233504" class="footnote" name="idp7233504"><sup class="footnote">[30]</sup></a>
+</p><a class="indexterm" name="idp7242976"></a><a class="indexterm" name="idp7243984"></a><p>
+In this way, the Kodak camera and film were technologies of
+expression. The pencil or paintbrush was also a technology of
+expression, of course. But it took years of training before they could
+be deployed by amateurs in any useful or effective way. With the
+Kodak, expression was possible much sooner and more simply. The
+barrier to expression was lowered. Snobs would sneer at its <span class="quote">«<span class="quote">quality</span>»</span>;
+professionals would discount it as irrelevant. But watch a child study
+how best to frame a picture and you get a sense of the experience of
+creativity that the Kodak enabled. Democratic tools gave ordinary
+people a way to express themselves more easily than any tools could
+have before.
+</p><a class="indexterm" name="idp7246464"></a><a class="indexterm" name="idxpermissionsphotographyexemptedfrom"></a><p>
+What was required for this technology to flourish? Obviously,
+Eastman's genius was an important part. But also important was the
+legal environment within which Eastman's invention grew. For early in
+the history of photography, there was a series of judicial decisions
+that could well have changed the course of photography substantially.
+Courts were asked whether the photographer, amateur or professional,
+required permission before he could capture and print whatever image
+he wanted. Their answer was no.<a href="#ftn.idp7249712" class="footnote" name="idp7249712"><sup class="footnote">[31]</sup></a>
+</p><a class="indexterm" name="idp7252912"></a><a class="indexterm" name="idxdisneywalt4"></a><a class="indexterm" name="idximagesownershipof"></a><p>
+The arguments in favor of requiring permission will sound surprisingly
+familiar. The photographer was <span class="quote">«<span class="quote">taking</span>»</span> something from the person or
+building whose photograph he shot—pirating something of
+value. Some even thought he was taking the target's soul. Just as
+Disney was not free to take the pencils that his animators used to
+draw
+
+Mickey, so, too, should these photographers not be free to take images
+that they thought valuable.
+</p><a class="indexterm" name="idp7257920"></a><a class="indexterm" name="idp7258672"></a><a class="indexterm" name="idxcameratechnology2"></a><p>
+On the other side was an argument that should be familiar, as well.
+Sure, there may be something of value being used. But citizens should
+have the right to capture at least those images that stand in public view.
+(Louis Brandeis, who would become a Supreme Court Justice, thought
+the rule should be different for images from private spaces.<a href="#ftn.idp7261264" class="footnote" name="idp7261264"><sup class="footnote">[32]</sup></a>) It may be that this means that the photographer
+gets something for nothing. Just as Disney could take inspiration from
+<em class="citetitle">Steamboat Bill, Jr</em>. or the Brothers Grimm, the photographer should be
+free to capture an image without compensating the source.
+</p><a class="indexterm" name="idp7265216"></a><p>
+Fortunately for Mr. Eastman, and for photography in general, these
+early decisions went in favor of the pirates. In general, no
+permission would be required before an image could be captured and
+shared with others. Instead, permission was presumed. Freedom was the
+default. (The law would eventually craft an exception for famous
+people: commercial photographers who snap pictures of famous people
+for commercial purposes have more restrictions than the rest of
+us. But in the ordinary case, the image can be captured without
+clearing the rights to do the capturing.<a href="#ftn.idp7267040" class="footnote" name="idp7267040"><sup class="footnote">[33]</sup></a>)
+</p><a class="indexterm" name="idp7270240"></a><a class="indexterm" name="idp7270992"></a><p>
+We can only speculate about how photography would have developed had
+the law gone the other way. If the presumption had been against the
+photographer, then the photographer would have had to demonstrate
+permission. Perhaps Eastman Kodak would have had to demonstrate
+permission, too, before it developed the film upon which images were
+captured. After all, if permission were not granted, then Eastman
+Kodak would be benefiting from the <span class="quote">«<span class="quote">theft</span>»</span> committed by the
+photographer. Just as Napster benefited from the copyright
+infringements committed by Napster users, Kodak would be benefiting
+from the <span class="quote">«<span class="quote">image-right</span>»</span> infringement of its photographers. We could
+imagine the law then requiring that some form of permission be
+demonstrated before a company developed pictures. We could imagine a
+system developing to demonstrate that permission.
+</p><a class="indexterm" name="idp7273760"></a><a class="indexterm" name="idxcameratechnology3"></a><a class="indexterm" name="idp7275968"></a><a class="indexterm" name="idp7276976"></a><p>
+
+
+But though we could imagine this system of permission, it would be
+very hard to see how photography could have flourished as it did if
+the requirement for permission had been built into the rules that
+govern it. Photography would have existed. It would have grown in
+importance over time. Professionals would have continued to use the
+technology as they did—since professionals could have more
+easily borne the burdens of the permission system. But the spread of
+photography to ordinary people would not have occurred. Nothing like
+that growth would have been realized. And certainly, nothing like that
+growth in a democratic technology of expression would have been
+realized.
+</p><a class="indexterm" name="idp7278496"></a><a class="indexterm" name="idp7280304"></a><a class="indexterm" name="idp7281280"></a><a class="indexterm" name="idp7282256"></a><a class="indexterm" name="idp7283232"></a><a class="indexterm" name="idxjustthink"></a><p>
+<span class="strong"><strong>If you drive</strong></span> through San
+Francisco's Presidio, you might see two gaudy yellow school buses
+painted over with colorful and striking images, and the logo
+<span class="quote">«<span class="quote">Just Think!</span>»</span> in place of the name of a school. But
+there's little that's <span class="quote">«<span class="quote">just</span>»</span> cerebral in the projects
+that these busses enable. These buses are filled with technologies
+that teach kids to tinker with film. Not the film of Eastman. Not even
+the film of your VCR. Rather the <span class="quote">«<span class="quote">film</span>»</span> of digital
+cameras. Just Think! is a project that enables kids to make films, as
+a way to understand and critique the filmed culture that they find all
+around them. Each year, these busses travel to more than thirty
+schools and enable three hundred to five hundred children to learn
+something about media by doing something with media. By doing, they
+think. By tinkering, they learn.
+</p><a class="indexterm" name="idxeducationinmedialiteracy"></a><a class="indexterm" name="idxmedialiteracy"></a><a class="indexterm" name="idxexpressiontechnologiesofmedialiteracyand"></a><p>
+These buses are not cheap, but the technology they carry is
+increasingly so. The cost of a high-quality digital video system has
+fallen dramatically. As one analyst puts it, <span class="quote">«<span class="quote">Five years ago, a good
+real-time digital video editing system cost $25,000. Today you can get
+professional quality for $595.</span>»</span><a href="#ftn.idp7293280" class="footnote" name="idp7293280"><sup class="footnote">[34]</sup></a>
+These buses are filled with technology that would have cost hundreds
+of thousands just ten years ago. And it is now feasible to imagine not
+just buses like this, but classrooms across the country where kids are
+learning more and more of something teachers call <span class="quote">«<span class="quote">media literacy.</span>»</span>
+</p><a class="indexterm" name="idp7295968"></a><p>
+
+<span class="quote">«<span class="quote">Media literacy,</span>»</span> as Dave Yanofsky, the executive director of Just
+Think!, puts it, <span class="quote">«<span class="quote">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.</span>»</span>
+</p><a class="indexterm" name="idp7298432"></a><p>
+This may seem like an odd way to think about <span class="quote">«<span class="quote">literacy.</span>»</span> For most
+people, literacy is about reading and writing. Faulkner and Hemingway
+and noticing split infinitives are the things that <span class="quote">«<span class="quote">literate</span>»</span> people know
+about.
+</p><a class="indexterm" name="idp7300704"></a><a class="indexterm" name="idp7301456"></a><a class="indexterm" name="idp7302208"></a><p>
+Maybe. But in a world where children see on average 390 hours of
+television commercials per year, or between 20,000 and 45,000
+commercials generally,<a href="#ftn.idp7303632" class="footnote" name="idp7303632"><sup class="footnote">[35]</sup></a>
+it is increasingly important to understand the <span class="quote">«<span class="quote">grammar</span>»</span> of media. For
+just as there is a grammar for the written word, so, too, is there one
+for media. And just as kids learn how to write by writing lots of
+terrible prose, kids learn how to write media by constructing lots of
+(at least at first) terrible media.
+</p><p>
+A growing field of academics and activists sees this form of literacy
+as crucial to the next generation of culture. For though anyone who
+has written understands how difficult writing is—how difficult
+it is to sequence the story, to keep a reader's attention, to craft
+language to be understandable—few of us have any real sense of
+how difficult media is. Or more fundamentally, few of us have a sense
+of how media works, how it holds an audience or leads it through a
+story, how it triggers emotion or builds suspense.
+</p><a class="indexterm" name="idp7306592"></a><p>
+It took filmmaking a generation before it could do these things well.
+But even then, the knowledge was in the filming, not in writing about
+the film. The skill came from experiencing the making of a film, not
+from reading a book about it. One learns to write by writing and then
+reflecting upon what one has written. One learns to write with images
+by making them and then reflecting upon what one has created.
+</p><a class="indexterm" name="idxdaleyelizabeth"></a><a class="indexterm" name="idp7310368"></a><p>
+This grammar has changed as media has changed. When it was just film,
+as Elizabeth Daley, executive director of the University of Southern
+California's Annenberg Center for Communication and dean of the
+
+
+USC School of Cinema-Television, explained to me, the grammar was
+about <span class="quote">«<span class="quote">the placement of objects, color, … rhythm, pacing, and
+texture.</span>»</span><a href="#ftn.idp7297952" class="footnote" name="idp7297952"><sup class="footnote">[36]</sup></a>
+But as computers open up an interactive space where a story is
+<span class="quote">«<span class="quote">played</span>»</span> as well as experienced, that grammar changes. The simple
+control of narrative is lost, and so other techniques are necessary. Author
+Michael Crichton had mastered the narrative of science fiction.
+But when he tried to design a computer game based on one of his
+works, it was a new craft he had to learn. How to lead people through
+a game without their feeling they have been led was not obvious, even
+to a wildly successful author.<a href="#ftn.idp7315616" class="footnote" name="idp7315616"><sup class="footnote">[37]</sup></a>
+</p><a class="indexterm" name="idp7318528"></a><p>
+This skill is precisely the craft a filmmaker learns. As Daley
+describes, <span class="quote">«<span class="quote">people are very surprised about how they are led through a
+film. [I]t is perfectly constructed to keep you from seeing it, so you
+have no idea. If a filmmaker succeeds you do not know how you were
+led.</span>»</span> If you know you were led through a film, the film has failed.
+</p><p>
+Yet the push for an expanded literacy—one that goes beyond text
+to include audio and visual elements—is not about making better
+film directors. The aim is not to improve the profession of
+filmmaking at all. Instead, as Daley explained,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+From my perspective, probably the most important digital divide
+is not access to a box. It's the ability to be empowered with the
+language that that box works in. Otherwise only a very few people
+can write with this language, and all the rest of us are reduced to
+being read-only.
+</p></blockquote></div><p>
+<span class="quote">«<span class="quote">Read-only.</span>»</span> Passive recipients of culture produced elsewhere.
+Couch potatoes. Consumers. This is the world of media from the
+twentieth century.
+</p><p>
+The twenty-first century could be different. This is the crucial
+point: It could be both read and write. Or at least reading and better
+understanding the craft of writing. Or best, reading and understanding
+the tools that enable the writing to lead or mislead. The aim of any
+literacy,
+
+and this literacy in particular, is to <span class="quote">«<span class="quote">empower people to choose the
+appropriate language for what they need to create or
+express.</span>»</span><a href="#ftn.idp7324256" class="footnote" name="idp7324256"><sup class="footnote">[38]</sup></a> It is to enable students <span class="quote">«<span class="quote">to communicate in the
+language of the twenty-first century.</span>»</span><a href="#ftn.idp7326240" class="footnote" name="idp7326240"><sup class="footnote">[39]</sup></a>
+</p><a class="indexterm" name="idxbarishstephanie"></a><p>
+As with any language, this language comes more easily to some than to
+others. It doesn't necessarily come more easily to those who excel in
+written language. Daley and Stephanie Barish, director of the
+Institute for Multimedia Literacy at the Annenberg Center, describe
+one particularly poignant example of a project they ran in a high
+school. The high school was a very poor inner-city Los Angeles
+school. In all the traditional measures of success, this school was a
+failure. But Daley and Barish ran a program that gave kids an
+opportunity to use film to express meaning about something the
+students know something about—gun violence.
+</p><a class="indexterm" name="idp7328624"></a><p>
+The class was held on Friday afternoons, and it created a relatively
+new problem for the school. While the challenge in most classes was
+getting the kids to come, the challenge in this class was keeping them
+away. The <span class="quote">«<span class="quote">kids were showing up at 6 A.M. and leaving at 5 at night,</span>»</span>
+said Barish. They were working harder than in any other class to do
+what education should be about—learning how to express themselves.
+</p><p>
+Using whatever <span class="quote">«<span class="quote">free web stuff they could find,</span>»</span> and relatively simple
+tools to enable the kids to mix <span class="quote">«<span class="quote">image, sound, and text,</span>»</span> Barish said
+this class produced a series of projects that showed something about
+gun violence that few would otherwise understand. This was an issue
+close to the lives of these students. The project <span class="quote">«<span class="quote">gave them a tool
+and empowered them to be able to both understand it and talk about
+it,</span>»</span> Barish explained. That tool succeeded in creating
+expression—far more successfully and powerfully than could have
+been created using only text. <span class="quote">«<span class="quote">If you had said to these students, `you
+have to do it in text,' they would've just thrown their hands up and
+gone and done something else,</span>»</span> Barish described, in part, no doubt,
+because expressing themselves in text is not something these students
+can do well. Yet neither is text a form in which
+<span class="emphasis"><em>these</em></span> ideas can be expressed well. The power of
+this message depended upon its connection to this form of expression.
+</p><a class="indexterm" name="idp7335344"></a><a class="indexterm" name="idxdaleyelizabeth2"></a><p>
+
+
+<span class="quote">«<span class="quote">But isn't education about teaching kids to write?</span>»</span> I asked. In part,
+of course, it is. But why are we teaching kids to write? Education,
+Daley explained, is about giving students a way of <span class="quote">«<span class="quote">constructing
+meaning.</span>»</span> To say that that means just writing is like saying teaching
+writing is only about teaching kids how to spell. Text is one
+part—and increasingly, not the most powerful part—of
+constructing meaning. As Daley explained in the most moving part of
+our interview,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+What you want is to give these students ways of constructing
+meaning. If all you give them is text, they're not going to do it.
+Because they can't. You know, you've got Johnny who can look at a
+video, he can play a video game, he can do graffiti all over your
+walls, he can take your car apart, and he can do all sorts of other
+things. He just can't read your text. So Johnny comes to school and
+you say, <span class="quote">«<span class="quote">Johnny, you're illiterate. Nothing you can do matters.</span>»</span>
+Well, Johnny then has two choices: He can dismiss you or he [can]
+dismiss himself. If his ego is healthy at all, he's going to dismiss
+you. [But i]nstead, if you say, <span class="quote">«<span class="quote">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.</span>»</span> Not by giving a kid a video
+camera and … saying, <span class="quote">«<span class="quote">Let's go have fun with the video camera and
+make a little movie.</span>»</span> But instead, really help you take these elements
+that you understand, that are your language, and construct meaning
+about the topic.…
+</p><a class="indexterm" name="idp7342224"></a><p>
+That empowers enormously. And then what happens, of
+course, is eventually, as it has happened in all these classes, they
+bump up against the fact, <span class="quote">«<span class="quote">I need to explain this and I really need
+to write something.</span>»</span> And as one of the teachers told Stephanie,
+they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
+</p><p>
+Because they needed to. There was a reason for doing it. They
+needed to say something, as opposed to just jumping through
+your hoops. They actually needed to use a language that they
+
+didn't speak very well. But they had come to understand that they
+had a lot of power with this language.
+</p></blockquote></div><a class="indexterm" name="idp7345904"></a><a class="indexterm" name="idp7346880"></a><a class="indexterm" name="idp7347856"></a><a class="indexterm" name="idp7348832"></a><a class="indexterm" name="idxseptemberterroristattacksof"></a><a class="indexterm" name="idp7351040"></a><a class="indexterm" name="idxnewscoverage"></a><p>
+<span class="strong"><strong>When two planes</strong></span> crashed into the
+World Trade Center, another into the Pentagon, and a fourth into a
+Pennsylvania field, all media around the world shifted to this
+news. Every moment of just about every day for that week, and for
+weeks after, television in particular, and media generally, retold the
+story of the events we had just witnessed. The telling was a
+retelling, because we had seen the events that were described. The
+genius of this awful act of terrorism was that the delayed second
+attack was perfectly timed to assure that the whole world would be
+watching.
+</p><p>
+These retellings had an increasingly familiar feel. There was music
+scored for the intermissions, and fancy graphics that flashed across
+the screen. There was a formula to interviews. There was <span class="quote">«<span class="quote">balance,</span>»</span>
+and seriousness. This was news choreographed in the way we have
+increasingly come to expect it, <span class="quote">«<span class="quote">news as entertainment,</span>»</span> even if the
+entertainment is tragedy.
+</p><a class="indexterm" name="idp7356080"></a><a class="indexterm" name="idp7356832"></a><p>
+But in addition to this produced news about the <span class="quote">«<span class="quote">tragedy of September
+11,</span>»</span> those of us tied to the Internet came to see a very different
+production as well. The Internet was filled with accounts of the same
+events. Yet these Internet accounts had a very different flavor. Some
+people constructed photo pages that captured images from around the
+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 <em class="citetitle">Cyber Rights</em>, around a news event that had
+captured the attention of the world. There was ABC and CBS, but there
+was also the Internet.
+</p><a class="indexterm" name="idp7360032"></a><p>
+I don't mean simply to praise the Internet—though I do think the
+people who supported this form of speech should be praised. I mean
+instead to point to a significance in this form of speech. For like a
+Kodak, the Internet enables people to capture images. And like in a
+movie
+
+by a student on the <span class="quote">«<span class="quote">Just Think!</span>»</span> bus, the visual images could be mixed
+with sound or text.
+</p><p>
+But unlike any technology for simply capturing images, the Internet
+allows these creations to be shared with an extraordinary number of
+people, practically instantaneously. This is something new in our
+tradition—not just that culture can be captured mechanically,
+and obviously not just that events are commented upon critically, but
+that this mix of captured images, sound, and commentary can be widely
+spread practically instantaneously.
+</p><a class="indexterm" name="idp7362656"></a><a class="indexterm" name="idxblogsweblogs"></a><a class="indexterm" name="idxinternetblogson"></a><a class="indexterm" name="idxweblogsblogs"></a><p>
+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 <em class="citetitle">Jerry Springer</em>, available anywhere in the world.
+</p><a class="indexterm" name="idp7369392"></a><a class="indexterm" name="idxinternetpublicdiscourseconductedon"></a><p>
+But in the United States, blogs have taken on a very different
+character. There are some who use the space simply to talk about
+their private life. But there are many who use the space to engage in
+public discourse. Discussing matters of public import, criticizing
+others who are mistaken in their views, criticizing politicians about
+the decisions they make, offering solutions to problems we all see:
+blogs create the sense of a virtual public meeting, but one in which
+we don't all hope to be there at the same time and in which
+conversations are not necessarily linked. The best of the blog entries
+are relatively short; they point directly to words used by others,
+criticizing with or adding to them. They are arguably the most
+important form of unchoreographed public discourse that we have.
+</p><a class="indexterm" name="idxdemocracyintechnologiesofexpression"></a><a class="indexterm" name="idxelections"></a><a class="indexterm" name="idxexpressiontechnologiesofdemocratic"></a><p>
+That's a strong statement. Yet it says as much about our democracy as
+it does about blogs. This is the part of America that is most
+difficult for those of us who love America to accept: Our democracy
+has atrophied. Of course we have elections, and most of the time the
+courts allow those elections to count. A relatively small number of
+people vote
+
+in those elections. The cycle of these elections has become totally
+professionalized and routinized. Most of us think this is democracy.
+</p><a class="indexterm" name="idp7378208"></a><a class="indexterm" name="idp7379184"></a><a class="indexterm" name="idp7380160"></a><a class="indexterm" name="idp7381136"></a><a class="indexterm" name="idxdemocracypublicdiscoursein"></a><a class="indexterm" name="idp7383376"></a><p>
+But democracy has never just been about elections. Democracy
+means rule by the people, but rule means something more than mere
+elections. In our tradition, it also means control through reasoned
+discourse. This was the idea that captured the imagination of Alexis
+de Tocqueville, the nineteenth-century French lawyer who wrote the
+most important account of early <span class="quote">«<span class="quote">Democracy in America.</span>»</span> It wasn't
+popular elections that fascinated him—it was the jury, an
+institution that gave ordinary people the right to choose life or
+death for other citizens. And most fascinating for him was that the
+jury didn't just vote about the outcome they would impose. They
+deliberated. Members argued about the <span class="quote">«<span class="quote">right</span>»</span> result; they tried to
+persuade each other of the <span class="quote">«<span class="quote">right</span>»</span> result, and in criminal cases at
+least, they had to agree upon a unanimous result for the process to
+come to an end.<a href="#ftn.idp7386368" class="footnote" name="idp7386368"><sup class="footnote">[40]</sup></a>
+</p><a class="indexterm" name="idp7387648"></a><p>
+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.<a href="#ftn.idp7389088" class="footnote" name="idp7389088"><sup class="footnote">[41]</sup></a>
+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 <span class="quote">«<span class="quote">democratic deliberation</span>»</span> to occur.
+</p><a class="indexterm" name="idxpoliticaldiscourse"></a><p>
+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.<a href="#ftn.idp7393200" class="footnote" name="idp7393200"><sup class="footnote">[42]</sup></a> We say what our friends want to hear, and hear very
+little beyond what our friends say.
+</p><a class="indexterm" name="idxblogsweblogs2"></a><a class="indexterm" name="idp7395824"></a><a class="indexterm" name="idxinternetblogson2"></a><a class="indexterm" name="idxweblogsblogs2"></a><a class="indexterm" name="idp7399296"></a><a class="indexterm" name="idp7400272"></a><a class="indexterm" name="idp7401248"></a><p>
+Enter the blog. The blog's very architecture solves one part of this
+problem. People post when they want to post, and people read when they
+want to read. The most difficult time is synchronous time.
+Technologies that enable asynchronous communication, such as e-mail,
+increase the opportunity for communication. Blogs allow for public
+
+
+discourse without the public ever needing to gather in a single public
+place.
+</p><p>
+But beyond architecture, blogs also have solved the problem of
+norms. There's no norm (yet) in blog space not to talk about politics.
+Indeed, the space is filled with political speech, on both the right and
+the left. Some of the most popular sites are conservative or libertarian,
+but there are many of all political stripes. And even blogs that are not
+political cover political issues when the occasion merits.
+</p><a class="indexterm" name="idp7404128"></a><p>
+The significance of these blogs is tiny now, though not so tiny. The
+name Howard Dean may well have faded from the 2004 presidential race
+but for blogs. Yet even if the number of readers is small, the reading
+is having an effect.
+</p><a class="indexterm" name="idp7405504"></a><a class="indexterm" name="idp7406256"></a><a class="indexterm" name="idxmediablogpressureon"></a><a class="indexterm" name="idxinternetnewseventson2"></a><p>
+One direct effect is on stories that had a different life cycle in the
+mainstream media. The Trent Lott affair is an example. When Lott
+<span class="quote">«<span class="quote">misspoke</span>»</span> at a party for Senator Strom Thurmond, essentially praising
+Thurmond's segregationist policies, he calculated correctly that this
+story would disappear from the mainstream press within forty-eight
+hours. It did. But he didn't calculate its life cycle in blog
+space. The bloggers kept researching the story. Over time, more and
+more instances of the same <span class="quote">«<span class="quote">misspeaking</span>»</span> emerged. Finally, the story
+broke back into the mainstream press. In the end, Lott was forced to
+resign as senate majority leader.<a href="#ftn.idp7411680" class="footnote" name="idp7411680"><sup class="footnote">[43]</sup></a>
+</p><a class="indexterm" name="idxmediacommercialimperativesof"></a><p>
+This different cycle is possible because the same commercial pressures
+don't exist with blogs as with other ventures. Television and
+newspapers are commercial entities. They must work to keep attention.
+If they lose readers, they lose revenue. Like sharks, they must move
+on.
+</p><a class="indexterm" name="idp7415120"></a><a class="indexterm" name="idp7416096"></a><p>
+But bloggers don't have a similar constraint. They can obsess, they
+can focus, they can get serious. If a particular blogger writes a
+particularly interesting story, more and more people link to that
+story. And as the number of links to a particular story increases, it
+rises in the ranks of stories. People read what is popular; what is
+popular has been selected by a very democratic process of
+peer-generated rankings.
+</p><a class="indexterm" name="idp7417920"></a><a class="indexterm" name="idxjournalism"></a><a class="indexterm" name="idxwinerdave"></a><p>
+There's a second way, as well, in which blogs have a different cycle
+
+from the mainstream press. As Dave Winer, one of the fathers of this
+movement and a software author for many decades, told me, another
+difference is the absence of a financial <span class="quote">«<span class="quote">conflict of interest.</span>»</span> <span class="quote">«<span class="quote">I think you
+have to take the conflict of interest</span>»</span> out of journalism, Winer told me.
+<span class="quote">«<span class="quote">An amateur journalist simply doesn't have a conflict of interest, or the
+conflict of interest is so easily disclosed that you know you can sort of
+get it out of the way.</span>»</span>
+</p><a class="indexterm" name="idp7423616"></a><a class="indexterm" name="idp7424368"></a><a class="indexterm" name="idp7425376"></a><a class="indexterm" name="idp7426128"></a><p>
+These conflicts become more important as media becomes more
+concentrated (more on this below). A concentrated media can hide more
+from the public than an unconcentrated media can—as CNN admitted
+it did after the Iraq war because it was afraid of the consequences to
+its own employees.<a href="#ftn.idp7385152" class="footnote" name="idp7385152"><sup class="footnote">[44]</sup></a>
+It also needs to sustain a more coherent account. (In the middle of
+the Iraq war, I read a post on the Internet from someone who was at
+that time listening to a satellite uplink with a reporter in Iraq. The
+New York headquarters was telling the reporter over and over that her
+account of the war was too bleak: She needed to offer a more
+optimistic story. When she told New York that wasn't warranted, they
+told her that <span class="emphasis"><em>they</em></span> were writing <span class="quote">«<span class="quote">the story.</span>»</span>)
+</p><a class="indexterm" name="idp7429856"></a><p>
+Blog space gives amateurs a way to enter the
+debate—<span class="quote">«<span class="quote">amateur</span>»</span> not in the sense of inexperienced,
+but in the sense of an Olympic athlete, meaning not paid by anyone to
+give their reports. It allows for a much broader range of input into a
+story, as reporting on the Columbia disaster revealed, when hundreds
+from across the southwest United States turned to the Internet to
+retell what they had seen.<a href="#ftn.idp7431824" class="footnote" name="idp7431824"><sup class="footnote">[45]</sup></a>
+And it drives readers to read across the range of accounts and
+<span class="quote">«<span class="quote">triangulate,</span>»</span> as Winer puts it, the truth. Blogs, Winer says, are
+<span class="quote">«<span class="quote">communicating directly with our constituency, and the middle man is
+out of it</span>»</span>—with all the benefits, and costs, that might entail.
+</p><p>
+Winer is optimistic about the future of journalism infected
+with blogs. <span class="quote">«<span class="quote">It's going to become an essential skill,</span>»</span> Winer predicts,
+for public figures and increasingly for private figures as well. It's
+not clear that <span class="quote">«<span class="quote">journalism</span>»</span> is happy about this—some journalists
+have been told to curtail their blogging.<a href="#ftn.idp7435344" class="footnote" name="idp7435344"><sup class="footnote">[46]</sup></a>
+But it is clear that we are still in transition. <span class="quote">«<span class="quote">A
+
+
+lot of what we are doing now is warm-up exercises,</span>»</span> Winer told me.
+There is a lot that must mature before this space has its mature effect.
+And as the inclusion of content in this space is the least infringing use
+of the Internet (meaning infringing on copyright), Winer said, <span class="quote">«<span class="quote">we will
+be the last thing that gets shut down.</span>»</span>
+</p><a class="indexterm" name="idp7444272"></a><p>
+This speech affects democracy. Winer thinks that happens because <span class="quote">«<span class="quote">you
+don't have to work for somebody who controls, [for] a gatekeeper.</span>»</span>
+That is true. But it affects democracy in another way as well. As
+more and more citizens express what they think, and defend it in
+writing, that will change the way people understand public issues. It
+is easy to be wrong and misguided in your head. It is harder when the
+product of your mind can be criticized by others. Of course, it is a
+rare human who admits that he has been persuaded that he is wrong. But
+it is even rarer for a human to ignore when he has been proven wrong.
+The writing of ideas, arguments, and criticism improves democracy.
+Today there are probably a couple of million blogs where such writing
+happens. When there are ten million, there will be something
+extraordinary to report.
+</p><a class="indexterm" name="idp7446896"></a><a class="indexterm" name="idp7447872"></a><a class="indexterm" name="idp7448848"></a><a class="indexterm" name="idp7449824"></a><a class="indexterm" name="idp7450800"></a><a class="indexterm" name="idp7451776"></a><a class="indexterm" name="idp7452752"></a><a class="indexterm" name="idxbrownjohnseely"></a><a class="indexterm" name="idxadvertising1"></a><p>
+<span class="strong"><strong>John Seely Brown</strong></span> is the chief
+scientist of the Xerox Corporation. His work, as his Web site
+describes it, is <span class="quote">«<span class="quote">human learning and … the creation of
+knowledge ecologies for creating … innovation.</span>»</span>
+</p><p>
+Brown thus looks at these technologies of digital creativity a bit
+differently from the perspectives I've sketched so far. I'm sure he
+would be excited about any technology that might improve
+democracy. But his real excitement comes from how these technologies
+affect learning.
+</p><p>
+As Brown believes, we learn by tinkering. When <span class="quote">«<span class="quote">a lot of us grew up,</span>»</span>
+he explains, that tinkering was done <span class="quote">«<span class="quote">on motorcycle engines, lawnmower
+engines, automobiles, radios, and so on.</span>»</span> But digital technologies
+enable a different kind of tinkering—with abstract ideas though
+in concrete form. The kids at Just Think! not only think about how a
+commercial portrays a politician; using digital technology, they can
+
+take the commercial apart and manipulate it, tinker with it to see how
+it does what it does. Digital technologies launch a kind of bricolage,
+or <span class="quote">«<span class="quote">free collage,</span>»</span> as Brown calls it. Many get to add to or transform
+the tinkering of many others.
+</p><p>
+The best large-scale example of this kind of tinkering so far is free
+software or open-source software (FS/OSS). FS/OSS is software whose
+source code is shared. Anyone can download the technology that makes a
+FS/OSS program run. And anyone eager to learn how a particular bit of
+FS/OSS technology works can tinker with the code.
+</p><p>
+This opportunity creates a <span class="quote">«<span class="quote">completely new kind of learning platform,</span>»</span>
+as Brown describes. <span class="quote">«<span class="quote">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.</span>»</span> Each effort is a kind of
+apprenticeship. <span class="quote">«<span class="quote">Open source becomes a major apprenticeship platform.</span>»</span>
+</p><p>
+In this process, <span class="quote">«<span class="quote">the concrete things you tinker with are abstract.
+They are code.</span>»</span> Kids are <span class="quote">«<span class="quote">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
+you tinker the more you improve.</span>»</span> The more you improve, the more you
+learn.
+</p><p>
+This same thing happens with content, too. And it happens in the same
+collaborative way when that content is part of the Web. As Brown puts
+it, <span class="quote">«<span class="quote">the Web [is] the first medium that truly honors multiple forms of
+intelligence.</span>»</span> Earlier technologies, such as the typewriter or word
+processors, helped amplify text. But the Web amplifies much more than
+text. <span class="quote">«<span class="quote">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.</span>»</span>
+</p><a class="indexterm" name="idp7466720"></a><a class="indexterm" name="idp7467696"></a><p>
+Brown is talking about what Elizabeth Daley, Stephanie Barish, and
+Just Think! teach: that this tinkering with culture teaches as well
+
+
+as creates. It develops talents differently, and it builds a different
+kind of recognition.
+</p><p>
+Yet the freedom to tinker with these objects is not guaranteed.
+Indeed, as we'll see through the course of this book, that freedom is
+increasingly highly contested. While there's no doubt that your father
+had the right to tinker with the car engine, there's great doubt that
+your child will have the right to tinker with the images she finds all
+around. The law and, increasingly, technology interfere with a
+freedom that technology, and curiosity, would otherwise ensure.
+</p><p>
+These restrictions have become the focus of researchers and scholars.
+Professor Ed Felten of Princeton (whom we'll see more of in chapter
+<a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>)
+has developed a powerful argument in favor of the <span class="quote">«<span class="quote">right to
+tinker</span>»</span> as it applies to computer science and to knowledge in
+general.<a href="#ftn.idp7471856" class="footnote" name="idp7471856"><sup class="footnote">[47]</sup></a>
+But Brown's concern is earlier, or younger, or more fundamental. It is
+about the learning that kids can do, or can't do, because of the law.
+</p><p>
+<span class="quote">«<span class="quote">This is where education in the twenty-first century is going,</span>»</span> Brown
+explains. We need to <span class="quote">«<span class="quote">understand how kids who grow up digital think
+and want to learn.</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">Yet,</span>»</span> as Brown continued, and as the balance of this book will
+evince, <span class="quote">«<span class="quote">we are building a legal system that completely suppresses the
+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.</span>»</span>
+</p><a class="indexterm" name="idp7476640"></a><p>
+We're building a technology that takes the magic of Kodak, mixes
+moving images and sound, and adds a space for commentary and an
+opportunity to spread that creativity everywhere. But we're building
+the law to close down that technology.
+</p><p>
+<span class="quote">«<span class="quote">No way to run a culture,</span>»</span> as Brewster Kahle, whom we'll meet in
+chapter <a class="xref" href="#collectors" title="Chapter 9. CHAPTER NINE: Collectors">9</a>,
+quipped to me in a rare moment of despondence.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7231072" class="footnote"><p><a href="#idp7231072" class="para"><sup class="para">[26] </sup></a>
+
+Reese V. Jenkins, <em class="citetitle">Images and Enterprise</em> (Baltimore: Johns Hopkins University Press, 1975), 112.
+</p></div><div id="ftn.idp7154784" class="footnote"><p><a href="#idp7154784" class="para"><sup class="para">[27] </sup></a>
+
+<a class="indexterm" name="idp7234704"></a>
+Brian Coe, <em class="citetitle">The Birth of Photography</em> (New York: Taplinger Publishing,
+1977), 53.
+</p></div><div id="ftn.idp7238096" class="footnote"><p><a href="#idp7238096" class="para"><sup class="para">[28] </sup></a>
+
+Jenkins, 177.
+</p></div><div id="ftn.idp7238992" class="footnote"><p><a href="#idp7238992" class="para"><sup class="para">[29] </sup></a>
+
+Based on a chart in Jenkins, p. 178.
+</p></div><div id="ftn.idp7233504" class="footnote"><p><a href="#idp7233504" class="para"><sup class="para">[30] </sup></a>
+
+Coe, 58.
+</p></div><div id="ftn.idp7249712" class="footnote"><p><a href="#idp7249712" class="para"><sup class="para">[31] </sup></a>
+
+For illustrative cases, see, for example, <em class="citetitle">Pavesich</em>
+v. <em class="citetitle">N.E. Life Ins. Co</em>., 50 S.E. 68 (Ga. 1905);
+<em class="citetitle">Foster-Milburn Co</em>. v. <em class="citetitle">Chinn</em>, 123090 S.W. 364, 366
+(Ky. 1909); <em class="citetitle">Corliss</em> v. <em class="citetitle">Walker</em>, 64 F. 280 (Mass.
+Dist. Ct. 1894).
+</p></div><div id="ftn.idp7261264" class="footnote"><p><a href="#idp7261264" class="para"><sup class="para">[32] </sup></a>
+
+Samuel D. Warren and Louis D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span>
+<em class="citetitle">Harvard Law Review</em> 4 (1890): 193.
+<a class="indexterm" name="idp7262800"></a>
+<a class="indexterm" name="idp7263552"></a>
+</p></div><div id="ftn.idp7267040" class="footnote"><p><a href="#idp7267040" class="para"><sup class="para">[33] </sup></a>
+
+See Melville B. Nimmer, <span class="quote">«<span class="quote">The Right of Publicity,</span>»</span> <em class="citetitle">Law and Contemporary
+Problems</em> 19 (1954): 203; William L. Prosser, <span class="quote">«<span class="quote">Privacy,</span>»</span> <em class="citetitle">California Law
+Review</em> 48 (1960) 398–407; <em class="citetitle">White</em> v. <em class="citetitle">Samsung Electronics America,
+Inc</em>., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
+(1993).
+</p></div><div id="ftn.idp7293280" class="footnote"><p><a href="#idp7293280" class="para"><sup class="para">[34] </sup></a>
+
+H. Edward Goldberg, <span class="quote">«<span class="quote">Essential Presentation Tools: Hardware and
+Software You Need to Create Digital Multimedia Presentations,</span>»</span>
+cadalyst, February 2002, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #7</a>.
+</p></div><div id="ftn.idp7303632" class="footnote"><p><a href="#idp7303632" class="para"><sup class="para">[35] </sup></a>
+
+Judith Van Evra, <em class="citetitle">Television and Child Development</em> (Hillsdale, N.J.:
+Lawrence Erlbaum Associates, 1990); <span class="quote">«<span class="quote">Findings on Family and TV
+Study,</span>»</span> <em class="citetitle">Denver Post</em>, 25 May 1997, B6.
+</p></div><div id="ftn.idp7297952" class="footnote"><p><a href="#idp7297952" class="para"><sup class="para">[36] </sup></a>
+
+Interview with Elizabeth Daley and Stephanie Barish, 13 December
+2002.
+<a class="indexterm" name="idp7313072"></a>
+<a class="indexterm" name="idp7313824"></a>
+</p></div><div id="ftn.idp7315616" class="footnote"><p><a href="#idp7315616" class="para"><sup class="para">[37] </sup></a>
+
+See Scott Steinberg, <span class="quote">«<span class="quote">Crichton Gets Medieval on PCs,</span>»</span> E!online, 4
+November 2000, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #8</a>; <span class="quote">«<span class="quote">Timeline,</span>»</span> 22 November 2000,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #9</a>.
+</p></div><div id="ftn.idp7324256" class="footnote"><p><a href="#idp7324256" class="para"><sup class="para">[38] </sup></a>
+
+Interview with Daley and Barish.
+<a class="indexterm" name="idp7325024"></a>
+</p></div><div id="ftn.idp7326240" class="footnote"><p><a href="#idp7326240" class="para"><sup class="para">[39] </sup></a>
+
+Ibid.
+</p></div><div id="ftn.idp7386368" class="footnote"><p><a href="#idp7386368" class="para"><sup class="para">[40] </sup></a>
+
+See, for example, Alexis de Tocqueville, <em class="citetitle">Democracy in America</em>,
+bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
+</p></div><div id="ftn.idp7389088" class="footnote"><p><a href="#idp7389088" class="para"><sup class="para">[41] </sup></a>
+
+Bruce Ackerman and James Fishkin, <span class="quote">«<span class="quote">Deliberation Day,</span>»</span> <em class="citetitle">Journal of
+Political Philosophy</em> 10 (2) (2002): 129.
+</p></div><div id="ftn.idp7393200" class="footnote"><p><a href="#idp7393200" class="para"><sup class="para">[42] </sup></a>
+
+Cass Sunstein, <em class="citetitle">Republic.com</em> (Princeton: Princeton University Press, 2001),
+65–80, 175, 182, 183, 192.
+</p></div><div id="ftn.idp7411680" class="footnote"><p><a href="#idp7411680" class="para"><sup class="para">[43] </sup></a>
+
+Noah Shachtman, <span class="quote">«<span class="quote">With Incessant Postings, a Pundit Stirs the Pot,</span>»</span> New
+York Times, 16 January 2003, G5.
+</p></div><div id="ftn.idp7385152" class="footnote"><p><a href="#idp7385152" class="para"><sup class="para">[44] </sup></a>
+
+Telephone interview with David Winer, 16 April 2003.
+</p></div><div id="ftn.idp7431824" class="footnote"><p><a href="#idp7431824" class="para"><sup class="para">[45] </sup></a>
+
+John Schwartz, <span class="quote">«<span class="quote">Loss of the Shuttle: The Internet; A Wealth of
+Information Online,</span>»</span> <em class="citetitle">New York Times</em>, 2 February 2003, A28; Staci
+D. Kramer, <span class="quote">«<span class="quote">Shuttle Disaster Coverage Mixed, but Strong Overall,</span>»</span>
+Online Journalism Review, 2 February 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #10</a>.
+</p></div><div id="ftn.idp7435344" class="footnote"><p><a href="#idp7435344" class="para"><sup class="para">[46] </sup></a>
+
+<a class="indexterm" name="idp7437776"></a>
+<a class="indexterm" name="idp7438528"></a>
+<a class="indexterm" name="idp7439280"></a>
+<a class="indexterm" name="idp7440032"></a>
+See Michael Falcone, <span class="quote">«<span class="quote">Does an Editor's Pencil Ruin a Web Log?</span>»</span> <em class="citetitle">New
+York Times</em>, 29 September 2003, C4. (<span class="quote">«<span class="quote">Not all news organizations have
+been as accepting of employees who blog. Kevin Sites, a CNN
+correspondent in Iraq who started a blog about his reporting of the
+war on March 9, stopped posting 12 days later at his bosses'
+request. Last year Steve Olafson, a <em class="citetitle">Houston Chronicle</em> reporter, was
+fired for keeping a personal Web log, published under a pseudonym,
+that dealt with some of the issues and people he was covering.</span>»</span>)
+</p></div><div id="ftn.idp7471856" class="footnote"><p><a href="#idp7471856" class="para"><sup class="para">[47] </sup></a>
+
+See, for example, Edward Felten and Andrew Appel, <span class="quote">«<span class="quote">Technological Access
+Control Interferes with Noninfringing Scholarship,</span>»</span> <em class="citetitle">Communications
+of the Association for Computer Machinery</em> 43 (2000): 9.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="catalogs"></a>Chapter 3. CHAPTER THREE: Catalogs</h2></div></div></div><a class="indexterm" name="idp7481264"></a><a class="indexterm" name="idp7482016"></a><a class="indexterm" name="idxrensselaer"></a><a class="indexterm" name="idxrensselaerpolytechnicinstituterpicomputernetworksearchengineof"></a><a class="indexterm" name="idxsearchengines"></a><a class="indexterm" name="idxuniversitycomputernetworksppsharingon"></a><a class="indexterm" name="idxinternetsearchenginesusedon"></a><p>
+<span class="strong"><strong>In the fall</strong></span> of 2002, Jesse Jordan
+of Oceanside, New York, enrolled as a freshman at Rensselaer
+Polytechnic Institute, in Troy, New York. His major at RPI was
+information technology. Though he is not a programmer, in October
+Jesse decided to begin to tinker with search engine technology that
+was available on the RPI network.
+</p><p>
+RPI is one of America's foremost technological research institutions.
+It offers degrees in fields ranging from architecture and engineering
+to information sciences. More than 65 percent of its five thousand
+undergraduates finished in the top 10 percent of their high school
+class. The school is thus a perfect mix of talent and experience to
+imagine and then build, a generation for the network age.
+</p><p>
+RPI's computer network links students, faculty, and administration to
+one another. It also links RPI to the Internet. Not everything
+available on the RPI network is available on the Internet. But the
+network is designed to enable students to get access to the Internet,
+as well as more intimate access to other members of the RPI community.
+</p><a class="indexterm" name="idxgoogle"></a><p>
+Search engines are a measure of a network's intimacy. Google
+
+brought the Internet much closer to all of us by fantastically
+improving the quality of search on the network. Specialty search
+engines can do this even better. The idea of <span class="quote">«<span class="quote">intranet</span>»</span> search
+engines, search engines that search within the network of a particular
+institution, is to provide users of that institution with better
+access to material from that institution. Businesses do this all the
+time, enabling employees to have access to material that people
+outside the business can't get. Universities do it as well.
+</p><a class="indexterm" name="idp7495616"></a><a class="indexterm" name="idxjordanjesse"></a><a class="indexterm" name="idxmicrosoftnetworkfilesystemof"></a><p>
+These engines are enabled by the network technology itself.
+Microsoft, for example, has a network file system that makes it very
+easy for search engines tuned to that network to query the system for
+information about the publicly (within that network) available
+content. Jesse's search engine was built to take advantage of this
+technology. It used Microsoft's network file system to build an index
+of all the files available within the RPI network.
+</p><a class="indexterm" name="idp7500160"></a><p>
+Jesse's wasn't the first search engine built for the RPI network.
+Indeed, his engine was a simple modification of engines that others
+had built. His single most important improvement over those engines
+was to fix a bug within the Microsoft file-sharing system that could
+cause a user's computer to crash. With the engines that existed
+before, if you tried to access a file through a Windows browser that
+was on a computer that was off-line, your computer could crash. Jesse
+modified the system a bit to fix that problem, by adding a button that
+a user could click to see if the machine holding the file was still
+on-line.
+</p><a class="indexterm" name="idp7502784"></a><p>
+Jesse's engine went on-line in late October. Over the following six
+months, he continued to tweak it to improve its functionality. By
+March, the system was functioning quite well. Jesse had more than one
+million files in his directory, including every type of content that might
+be on users' computers.
+</p><a class="indexterm" name="idp7504464"></a><p>
+Thus the index his search engine produced included pictures, which
+students could use to put on their own Web sites; copies of notes or
+research; copies of information pamphlets; movie clips that students
+might have created; university brochures—basically anything that
+
+users of the RPI network made available in a public folder of their
+computer.
+</p><a class="indexterm" name="idp7506496"></a><a class="indexterm" name="idp7507248"></a><p>
+But the index also included music files. In fact, one quarter of the
+files that Jesse's search engine listed were music files. But that
+means, of course, that three quarters were not, and—so that this
+point is absolutely clear—Jesse did nothing to induce people to
+put music files in their public folders. He did nothing to target the
+search engine to these files. He was a kid tinkering with a
+Google-like technology at a university where he was studying
+information science, and hence, tinkering was the aim. Unlike Google,
+or Microsoft, for that matter, he made no money from this tinkering;
+he was not connected to any business that would make any money from
+this experiment. He was a kid tinkering with technology in an
+environment where tinkering with technology was precisely what he was
+supposed to do.
+</p><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsagainststudentfilesharing"></a><a class="indexterm" name="idxrecordingindustrycopyrightinfringementlawsuitsof"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaacopyrightinfringementlawsuitsfiledby"></a><a class="indexterm" name="idp7515952"></a><p>
+On April 3, 2003, Jesse was contacted by the dean of students at
+RPI. The dean informed Jesse that the Recording Industry Association
+of America, the RIAA, would be filing a lawsuit against him and three
+other students whom he didn't even know, two of them at other
+universities. A few hours later, Jesse was served with papers from
+the suit. As he read these papers and watched the news reports about
+them, he was increasingly astonished.
+</p><p>
+<span class="quote">«<span class="quote">It was absurd,</span>»</span> he told me. <span class="quote">«<span class="quote">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
+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</span>»</span>—again, a <span class="emphasis"><em>search engine</em></span>,
+which Jesse had not himself built, using the Windows filesharing
+system, which Jesse had not himself built, to enable members of the
+RPI community to get access to content, which Jesse had not himself
+created or posted, and the vast majority of which had nothing to do
+with music.
+</p><a class="indexterm" name="idp7520368"></a><a class="indexterm" name="idp7521344"></a><a class="indexterm" name="idp7522352"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby"></a><a class="indexterm" name="idp7525008"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaintimidationtacticsof"></a><p>
+But the RIAA branded Jesse a pirate. They claimed he operated a
+network and had therefore <span class="quote">«<span class="quote">willfully</span>»</span> violated copyright laws. They
+
+demanded that he pay them the damages for his wrong. For cases of
+<span class="quote">«<span class="quote">willful infringement,</span>»</span> the Copyright Act specifies something lawyers
+call <span class="quote">«<span class="quote">statutory damages.</span>»</span> These damages permit a copyright owner to
+claim $150,000 per infringement. As the RIAA alleged more than one
+hundred specific copyright infringements, they therefore demanded that
+Jesse pay them at least $15,000,000.
+</p><a class="indexterm" name="idp7529552"></a><a class="indexterm" name="idp7530304"></a><p>
+Similar lawsuits were brought against three other students: one other
+student at RPI, one at Michigan Technical University, and one at
+Princeton. Their situations were similar to Jesse's. Though each case
+was different in detail, the bottom line in each was exactly the same:
+huge demands for <span class="quote">«<span class="quote">damages</span>»</span> that the RIAA claimed it was entitled to.
+If you added up the claims, these four lawsuits were asking courts in
+the United States to award the plaintiffs close to $100
+<span class="emphasis"><em>billion</em></span>—six times the
+<span class="emphasis"><em>total</em></span> profit of the film industry in
+2001.<a href="#ftn.idp7532960" class="footnote" name="idp7532960"><sup class="footnote">[48]</sup></a>
+</p><a class="indexterm" name="idp7534736"></a><p>
+Jesse called his parents. They were supportive but a bit frightened.
+An uncle was a lawyer. He began negotiations with the RIAA. They
+demanded to know how much money Jesse had. Jesse had saved
+$12,000 from summer jobs and other employment. They demanded
+$12,000 to dismiss the case.
+</p><a class="indexterm" name="idp7536400"></a><p>
+The RIAA wanted Jesse to admit to doing something wrong. He
+refused. They wanted him to agree to an injunction that would
+essentially make it impossible for him to work in many fields of
+technology for the rest of his life. He refused. They made him
+understand that this process of being sued was not going to be
+pleasant. (As Jesse's father recounted to me, the chief lawyer on the
+case, Matt Oppenheimer, told Jesse, <span class="quote">«<span class="quote">You don't want to pay another
+visit to a dentist like me.</span>»</span>) And throughout, the RIAA insisted it
+would not settle the case until it took every penny Jesse had saved.
+</p><a class="indexterm" name="idp7538560"></a><p>
+Jesse's family was outraged at these claims. They wanted to fight.
+But Jesse's uncle worked to educate the family about the nature of the
+American legal system. Jesse could fight the RIAA. He might even
+win. But the cost of fighting a lawsuit like this, Jesse was told, would be
+at least $250,000. If he won, he would not recover that money. If he
+
+won, he would have a piece of paper saying he had won, and a piece of
+paper saying he and his family were bankrupt.
+</p><p>
+So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
+or $12,000 and a settlement.
+</p><a class="indexterm" name="idp7540944"></a><a class="indexterm" name="idp7541952"></a><a class="indexterm" name="idp7542960"></a><p>
+The recording industry insists this is a matter of law and morality.
+Let's put the law aside for a moment and think about the morality.
+Where is the morality in a lawsuit like this? What is the virtue in
+scapegoatism? The RIAA is an extraordinarily powerful lobby. The
+president of the RIAA is reported to make more than $1 million a year.
+Artists, on the other hand, are not well paid. The average recording
+artist makes $45,900.<a href="#ftn.idp7544672" class="footnote" name="idp7544672"><sup class="footnote">[49]</sup></a>
+There are plenty of ways for the RIAA to affect
+and direct policy. So where is the morality in taking money from a
+student for running a search engine?<a href="#ftn.idp7546240" class="footnote" name="idp7546240"><sup class="footnote">[50]</sup></a>
+</p><a class="indexterm" name="idp7547904"></a><a class="indexterm" name="idp7549040"></a><p>
+On June 23, Jesse wired his savings to the lawyer working for the
+RIAA. The case against him was then dismissed. And with this, this
+kid who had tinkered a computer into a $15 million lawsuit became an
+activist:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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
+ever foresee anything like this, but I think it's just completely
+absurd what the RIAA has done.
+</p></blockquote></div><p>
+Jesse's parents betray a certain pride in their reluctant activist. As
+his father told me, Jesse <span class="quote">«<span class="quote">considers himself very conservative, and so do
+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.</span>»</span>
+</p><a class="indexterm" name="idp7552944"></a><a class="indexterm" name="idp7553920"></a><a class="indexterm" name="idp7554896"></a><a class="indexterm" name="idp7555872"></a><a class="indexterm" name="idp7557008"></a><a class="indexterm" name="idp7557984"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7532960" class="footnote"><p><a href="#idp7532960" class="para"><sup class="para">[48] </sup></a>
+
+
+Tim Goral, <span class="quote">«<span class="quote">Recording Industry Goes After Campus P-2-P Networks:
+Suit Alleges $97.8 Billion in Damages,</span>»</span> <em class="citetitle">Professional Media Group LCC</em> 6
+(2003): 5, available at 2003 WL 55179443.
+</p></div><div id="ftn.idp7544672" class="footnote"><p><a href="#idp7544672" class="para"><sup class="para">[49] </sup></a>
+
+Occupational Employment Survey, U.S. Dept. of Labor (2001)
+(27–2042—Musicians and Singers). See also National Endowment for
+the Arts, <em class="citetitle">More Than One in a Blue Moon</em> (2000).
+</p></div><div id="ftn.idp7546240" class="footnote"><p><a href="#idp7546240" class="para"><sup class="para">[50] </sup></a>
+
+Douglas Lichtman makes a related point in <span class="quote">«<span class="quote">KaZaA and Punishment,</span>»</span>
+<em class="citetitle">Wall Street Journal</em>, 10 September 2003, A24.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="pirates"></a>Chapter 4. CHAPTER FOUR: <span class="quote">«<span class="quote">Pirates</span>»</span></h2></div></div></div><a class="indexterm" name="idxpiracyindevelopmentofcontentindustry"></a><a class="indexterm" name="idp7562400"></a><p>
+<span class="strong"><strong>If <span class="quote">«<span class="quote">piracy</span>»</span> means</strong></span>
+using the creative property of others without their
+permission—if <span class="quote">«<span class="quote">if value, then right</span>»</span> is
+true—then the history of the content industry is a history of
+piracy. Every important sector of <span class="quote">«<span class="quote">big media</span>»</span>
+today—film, records, radio, and cable TV—was born of a
+kind of piracy so defined. The consistent story is how last
+generation's pirates join this generation's country club—until
+now.
+</p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="film"></a>4.1. Film</h2></div></div></div><p>
+The film industry of Hollywood was built by fleeing pirates.<a href="#ftn.idp7567104" class="footnote" name="idp7567104"><sup class="footnote">[51]</sup></a>
+Creators and directors migrated from the East Coast to California in
+the early twentieth century in part to escape controls that patents
+granted the inventor of filmmaking, Thomas Edison. These controls were
+exercised through a monopoly <span class="quote">«<span class="quote">trust,</span>»</span> the Motion Pictures Patents
+Company, and were based on Thomas Edison's creative
+property—patents. Edison formed the MPPC to exercise the rights
+this creative property
+
+gave him, and the MPPC was serious about the control it demanded.
+</p><p>
+As one commentator tells one part of the story,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+A January 1909 deadline was set for all companies to comply with
+the license. By February, unlicensed outlaws, who referred to
+themselves as independents protested the trust and carried on
+business without submitting to the Edison monopoly. In the
+summer of 1909 the independent movement was in full-swing,
+with producers and theater owners using illegal equipment and
+imported film stock to create their own underground market.
+</p><a class="indexterm" name="idp7572400"></a><a class="indexterm" name="idp7573040"></a><a class="indexterm" name="idp7573792"></a><p>
+With the country experiencing a tremendous expansion in the number of
+nickelodeons, the Patents Company reacted to the independent movement
+by forming a strong-arm subsidiary known as the General Film Company
+to block the entry of non-licensed independents. With coercive tactics
+that have become legendary, General Film confiscated unlicensed
+equipment, discontinued product supply to theaters which showed
+unlicensed films, and effectively monopolized distribution with the
+acquisition of all U.S. film exchanges, except for the one owned by
+the independent William Fox who defied the Trust even after his
+license was revoked.<a href="#ftn.idp7575440" class="footnote" name="idp7575440"><sup class="footnote">[52]</sup></a>
+</p></blockquote></div><p>
+The Napsters of those days, the <span class="quote">«<span class="quote">independents,</span>»</span> were companies like
+Fox. And no less than today, these independents were vigorously
+resisted. <span class="quote">«<span class="quote">Shooting was disrupted by machinery stolen, and
+`accidents' resulting in loss of negatives, equipment, buildings and
+sometimes life and limb frequently occurred.</span>»</span><a href="#ftn.idp7580896" class="footnote" name="idp7580896"><sup class="footnote">[53]</sup></a>
+That led the independents to flee the East
+Coast. California was remote enough from Edison's reach that
+filmmakers there could pirate his inventions without fear of the
+law. And the leaders of Hollywood filmmaking, Fox most prominently,
+did just that.
+</p><p>
+Of course, California grew quickly, and the effective enforcement
+of federal law eventually spread west. But because patents grant the
+patent holder a truly <span class="quote">«<span class="quote">limited</span>»</span> monopoly (just seventeen years at that
+
+
+time), by the time enough federal marshals appeared, the patents had
+expired. A new industry had been born, in part from the piracy of
+Edison's creative property.
+</p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="recordedmusic"></a>4.2. Recorded Music</h2></div></div></div><a class="indexterm" name="idxcopyrightlawonmusicrecordings"></a><p>
+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.
+</p><a class="indexterm" name="idxfourneauxhenri"></a><a class="indexterm" name="idp7589104"></a><p>
+At the time that Edison and Henri Fourneaux invented machines
+for reproducing music (Edison the phonograph, Fourneaux the player
+piano), the law gave composers the exclusive right to control copies of
+their music and the exclusive right to control public performances of
+their music. In other words, in 1900, if I wanted a copy of Phil Russel's
+1899 hit <span class="quote">«<span class="quote">Happy Mose,</span>»</span> the law said I would have to pay for the right
+to get a copy of the musical score, and I would also have to pay for the
+right to perform it publicly.
+</p><a class="indexterm" name="idp7591152"></a><p>
+But what if I wanted to record <span class="quote">«<span class="quote">Happy Mose,</span>»</span> using Edison's phonograph
+or Fourneaux's player piano? Here the law stumbled. It was clear
+enough that I would have to buy any copy of the musical score that I
+performed in making this recording. And it was clear enough that I
+would have to pay for any public performance of the work I was
+recording. But it wasn't totally clear that I would have to pay for a
+<span class="quote">«<span class="quote">public performance</span>»</span> if I recorded the song in my own house (even
+today, you don't owe the Beatles anything if you sing their songs in
+the shower), or if I recorded the song from memory (copies in your
+brain are not—yet— regulated by copyright law). So if I
+simply sang the song into a recording device in the privacy of my own
+home, it wasn't clear that I owed the composer anything. And more
+importantly, it wasn't clear whether I owed the composer anything if I
+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.
+</p><a class="indexterm" name="idp7593312"></a><p>
+The composers (and publishers) were none too happy about
+
+this capacity to pirate. As South Dakota senator Alfred Kittredge
+put it,
+<a class="indexterm" name="idp7595728"></a>
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Imagine the injustice of the thing. A composer writes a song or an
+opera. A publisher buys at great expense the rights to the same and
+copyrights it. Along come the phonographic companies and companies who
+cut music rolls and deliberately steal the work of the brain of the
+composer and publisher without any regard for [their]
+rights.<a href="#ftn.idp7597472" class="footnote" name="idp7597472"><sup class="footnote">[54]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp7600016"></a><p>
+The innovators who developed the technology to record other
+people's works were <span class="quote">«<span class="quote">sponging upon the toil, the work, the talent, and
+genius of American composers,</span>»</span><a href="#ftn.idp7601472" class="footnote" name="idp7601472"><sup class="footnote">[55]</sup></a>
+and the <span class="quote">«<span class="quote">music publishing industry</span>»</span>
+was thereby <span class="quote">«<span class="quote">at the complete mercy of this one pirate.</span>»</span><a href="#ftn.idp7603040" class="footnote" name="idp7603040"><sup class="footnote">[56]</sup></a>
+As John Philip
+Sousa put it, in as direct a way as possible, <span class="quote">«<span class="quote">When they make money
+out of my pieces, I want a share of it.</span>»</span><a href="#ftn.idp7604384" class="footnote" name="idp7604384"><sup class="footnote">[57]</sup></a>
+</p><a class="indexterm" name="idp7605408"></a><a class="indexterm" name="idp7606160"></a><a class="indexterm" name="idp7606912"></a><a class="indexterm" name="idxcongressusoncopyrightlaws"></a><a class="indexterm" name="idxcongressusonrecordingindustry"></a><a class="indexterm" name="idxcopyrightlawstatutorylicensesin"></a><a class="indexterm" name="idxrecordingindustrystatutorylicensesystemin"></a><p>
+These arguments have familiar echoes in the wars of our day. So, too,
+do the arguments on the other side. The innovators who developed the
+player piano argued that <span class="quote">«<span class="quote">it is perfectly demonstrable that the
+introduction of automatic music players has not deprived any composer
+of anything he had before their introduction.</span>»</span> Rather, the machines
+increased the sales of sheet music.<a href="#ftn.idp7614688" class="footnote" name="idp7614688"><sup class="footnote">[58]</sup></a> In any case, the innovators argued, the job of
+Congress was <span class="quote">«<span class="quote">to consider first the interest of [the public], whom
+they represent, and whose servants they are.</span>»</span> <span class="quote">«<span class="quote">All talk about
+`theft,'</span>»</span> the general counsel of the American Graphophone Company
+wrote, <span class="quote">«<span class="quote">is the merest claptrap, for there exists no property in ideas
+musical, literary or artistic, except as defined by
+statute.</span>»</span><a href="#ftn.idp7617072" class="footnote" name="idp7617072"><sup class="footnote">[59]</sup></a>
+</p><a class="indexterm" name="idp7618160"></a><p>
+The law soon resolved this battle in favor of the composer
+<span class="emphasis"><em>and</em></span> the recording artist. Congress amended the
+law to make sure that composers would be paid for the <span class="quote">«<span class="quote">mechanical
+reproductions</span>»</span> of their music. But rather than simply granting the
+composer complete control over the right to make mechanical
+reproductions, Congress gave recording artists a right to record the
+music, at a price set by Congress, once the composer allowed it to be
+recorded once. This is the part of
+
+
+copyright law that makes cover songs possible. Once a composer
+authorizes a recording of his song, others are free to record the same
+song, so long as they pay the original composer a fee set by the law.
+</p><a class="indexterm" name="idxcompulsorylicense"></a><a class="indexterm" name="idxstatutorylicenses"></a><p>
+American law ordinarily calls this a <span class="quote">«<span class="quote">compulsory license,</span>»</span> but I will
+refer to it as a <span class="quote">«<span class="quote">statutory license.</span>»</span> A statutory license is a license
+whose key terms are set by law. After Congress's amendment of the
+Copyright Act in 1909, record companies were free to distribute copies
+of recordings so long as they paid the composer (or copyright holder)
+the fee set by the statute.
+</p><a class="indexterm" name="idxgrishamjohn"></a><p>
+This is an exception within the law of copyright. When John Grisham
+writes a novel, a publisher is free to publish that novel only if
+Grisham gives the publisher permission. Grisham, in turn, is free to
+charge whatever he wants for that permission. The price to publish
+Grisham is thus set by Grisham, and copyright law ordinarily says you
+have no permission to use Grisham's work except with permission of
+Grisham.
+</p><a class="indexterm" name="idp7626992"></a><a class="indexterm" name="idp7627968"></a><p>
+But the law governing recordings gives recording artists less. And
+thus, in effect, the law <span class="emphasis"><em>subsidizes</em></span> the recording
+industry through a kind of piracy—by giving recording artists a
+weaker right than it otherwise gives creative authors. The Beatles
+have less control over their creative work than Grisham does. And the
+beneficiaries of this less control are the recording industry and the
+public. The recording industry gets something of value for less than
+it otherwise would pay; the public gets access to a much wider range
+of musical creativity. Indeed, Congress was quite explicit about its
+reasons for granting this right. Its fear was the monopoly power of
+rights holders, and that that power would stifle follow-on
+creativity.<a href="#ftn.idp7570272" class="footnote" name="idp7570272"><sup class="footnote">[60]</sup></a>
+</p><a class="indexterm" name="idp7631744"></a><a class="indexterm" name="idp7632720"></a><a class="indexterm" name="idp7633696"></a><p>
+While the recording industry has been quite coy about this recently,
+historically it has been quite a supporter of the statutory license for
+records. As a 1967 report from the House Committee on the Judiciary
+relates,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+the record producers argued vigorously that the compulsory
+
+license system must be retained. They asserted that the record
+industry is a half-billion-dollar business of great economic
+importance in the United States and throughout the world; records
+today are the principal means of disseminating music, and this creates
+special problems, since performers need unhampered access to musical
+material on nondiscriminatory terms. Historically, the record
+producers pointed out, there were no recording rights before 1909 and
+the 1909 statute adopted the compulsory license as a deliberate
+anti-monopoly condition on the grant of these rights. They argue that
+the result has been an outpouring of recorded music, with the public
+being given lower prices, improved quality, and a greater
+choice.<a href="#ftn.idp7636896" class="footnote" name="idp7636896"><sup class="footnote">[61]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp7638160"></a><a class="indexterm" name="idp7639136"></a><a class="indexterm" name="idp7640112"></a><a class="indexterm" name="idp7641088"></a><p>
+By limiting the rights musicians have, by partially pirating their
+creative work, the record producers, and the public, benefit.
+</p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="radio"></a>4.3. Radio</h2></div></div></div><a class="indexterm" name="idxrecordingindustryradiobroadcastand"></a><a class="indexterm" name="idxartistsrecordingindustrypaymentsto"></a><p>
+Radio was also born of piracy.
+</p><p>
+When a radio station plays a record on the air, that constitutes a
+<span class="quote">«<span class="quote">public performance</span>»</span> of the composer's work.<a href="#ftn.idp7647680" class="footnote" name="idp7647680"><sup class="footnote">[62]</sup></a>
+As I described above, the law gives the composer (or copyright holder)
+an exclusive right to public performances of his work. The radio
+station thus owes the composer money for that performance.
+</p><p>
+But when the radio station plays a record, it is not only performing a
+copy of the <span class="emphasis"><em>composer's</em></span> work. The radio station is
+also performing a copy of the <span class="emphasis"><em>recording artist's</em></span>
+work. It's one thing to have <span class="quote">«<span class="quote">Happy Birthday</span>»</span> sung on the radio by the
+local children's choir; it's quite another to have it sung by the
+Rolling Stones or Lyle Lovett. The recording artist is adding to the
+value of the composition performed on the radio station. And if the
+law were perfectly consistent, the radio station would have to pay the
+recording artist for his work, just as it pays the composer of the
+music for his work.
+<a class="indexterm" name="idp7655104"></a>
+
+
+</p><p>
+But it doesn't. Under the law governing radio performances, the radio
+station does not have to pay the recording artist. The radio station
+need only pay the composer. The radio station thus gets a bit of
+something for nothing. It gets to perform the recording artist's work
+for free, even if it must pay the composer something for the privilege
+of playing the song.
+</p><a class="indexterm" name="idxmadonna"></a><p>
+This difference can be huge. Imagine you compose a piece of music.
+Imagine it is your first. You own the exclusive right to authorize
+public performances of that music. So if Madonna wants to sing your
+song in public, she has to get your permission.
+</p><p>
+Imagine she does sing your song, and imagine she likes it a lot. She
+then decides to make a recording of your song, and it becomes a top
+hit. Under our law, every time a radio station plays your song, you
+get some money. But Madonna gets nothing, save the indirect effect on
+the sale of her CDs. The public performance of her recording is not a
+<span class="quote">«<span class="quote">protected</span>»</span> right. The radio station thus gets to
+<span class="emphasis"><em>pirate</em></span> the value of Madonna's work without paying
+her anything.
+</p><a class="indexterm" name="idp7660496"></a><a class="indexterm" name="idp7661472"></a><p>
+No doubt, one might argue that, on balance, the recording artists
+benefit. On average, the promotion they get is worth more than the
+performance rights they give up. Maybe. But even if so, the law
+ordinarily gives the creator the right to make this choice. By making
+the choice for him or her, the law gives the radio station the right
+to take something for nothing.
+</p><a class="indexterm" name="idp7663216"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="cabletv"></a>4.4. Cable TV</h2></div></div></div><a class="indexterm" name="idxcabletelevision"></a><p>
+Cable TV was also born of a kind of piracy.
+</p><p>
+When cable entrepreneurs first started wiring communities with cable
+television in 1948, most refused to pay broadcasters for the content
+that they echoed to their customers. Even when the cable companies
+started selling access to television broadcasts, they refused to pay
+
+for what they sold. Cable companies were thus Napsterizing
+broadcasters' content, but more egregiously than anything Napster ever
+did— Napster never charged for the content it enabled others to
+give away.
+</p><a class="indexterm" name="idp7667616"></a><a class="indexterm" name="idp7668736"></a><a class="indexterm" name="idp7669488"></a><p>
+Broadcasters and copyright owners were quick to attack this theft.
+Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
+<span class="quote">«<span class="quote">unfair and potentially destructive competition.</span>»</span><a href="#ftn.idp7670896" class="footnote" name="idp7670896"><sup class="footnote">[63]</sup></a>
+There may have been a <span class="quote">«<span class="quote">public interest</span>»</span> in spreading the reach of cable
+TV, but as Douglas Anello, general counsel to the National Association
+of Broadcasters, asked Senator Quentin Burdick during testimony, <span class="quote">«<span class="quote">Does public
+interest dictate that you use somebody else's property?</span>»</span><a href="#ftn.idp7673616" class="footnote" name="idp7673616"><sup class="footnote">[64]</sup></a>
+As another broadcaster put it,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+The extraordinary thing about the CATV business is that it is the
+only business I know of where the product that is being sold is not
+paid for.<a href="#ftn.idp7675328" class="footnote" name="idp7675328"><sup class="footnote">[65]</sup></a>
+</p></blockquote></div><p>
+Again, the demand of the copyright holders seemed reasonable enough:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+All we are asking for is a very simple thing, that people who now
+take our property for nothing pay for it. We are trying to stop
+piracy and I don't think there is any lesser word to describe it. I
+think there are harsher words which would fit it.<a href="#ftn.idp7677760" class="footnote" name="idp7677760"><sup class="footnote">[66]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp7678976"></a><p>
+These were <span class="quote">«<span class="quote">free-ride[rs],</span>»</span> Screen Actor's Guild president Charlton
+Heston said, who were <span class="quote">«<span class="quote">depriving actors of
+compensation.</span>»</span><a href="#ftn.idp7680704" class="footnote" name="idp7680704"><sup class="footnote">[67]</sup></a>
+</p><p>
+But again, there was another side to the debate. As Assistant Attorney
+General Edwin Zimmerman put it,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.<a href="#ftn.idp7683760" class="footnote" name="idp7683760"><sup class="footnote">[68]</sup></a>
+<a class="indexterm" name="idp7685952"></a>
+</p></blockquote></div><p>
+Copyright owners took the cable companies to court. Twice the Supreme
+Court held that the cable companies owed the copyright owners nothing.
+</p><p>
+It took Congress almost thirty years before it resolved the question
+of whether cable companies had to pay for the content they <span class="quote">«<span class="quote">pirated.</span>»</span>
+In the end, Congress resolved this question in the same way that it
+resolved the question about record players and player pianos. Yes,
+cable companies would have to pay for the content that they broadcast;
+but the price they would have to pay was not set by the copyright
+owner. The price was set by law, so that the broadcasters couldn't
+exercise veto power over the emerging technologies of cable. Cable
+companies thus built their empire in part upon a <span class="quote">«<span class="quote">piracy</span>»</span> of the value
+created by broadcasters' content.
+</p><a class="indexterm" name="idp7689280"></a><a class="indexterm" name="idp7690256"></a><p>
+<span class="strong"><strong>These separate stories</strong></span> sing a
+common theme. If <span class="quote">«<span class="quote">piracy</span>»</span> means using value from someone
+else's creative property without permission from that creator—as
+it is increasingly described today<a href="#ftn.idp7684944" class="footnote" name="idp7684944"><sup class="footnote">[69]</sup></a>
+— then <span class="emphasis"><em>every</em></span> 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
+could well be expanded. Every generation welcomes the pirates from the
+last. Every generation—until now.
+</p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7567104" class="footnote"><p><a href="#idp7567104" class="para"><sup class="para">[51] </sup></a>
+
+<a class="indexterm" name="idp7567744"></a>
+I am grateful to Peter DiMauro for pointing me to this extraordinary
+history. See also Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 87–93,
+which details Edison's <span class="quote">«<span class="quote">adventures</span>»</span> with copyright and patent.
+</p></div><div id="ftn.idp7575440" class="footnote"><p><a href="#idp7575440" class="para"><sup class="para">[52] </sup></a>
+
+J. A. Aberdeen, <em class="citetitle">Hollywood Renegades: The Society of Independent Motion
+Picture Producers</em> (Cobblestone Entertainment, 2000) and expanded texts
+posted at <span class="quote">«<span class="quote">The Edison Movie Monopoly: The Motion Picture Patents
+Company vs. the Independent Outlaws,</span>»</span> available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #11</a>. For a
+discussion of the economic motive behind both these limits and the
+limits imposed by Victor on phonographs, see Randal C. Picker, <span class="quote">«<span class="quote">From
+Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
+the Propertization of Copyright</span>»</span> (September 2002), University of
+Chicago Law School, James M. Olin Program in Law and Economics,
+Working Paper No. 159.
+<a class="indexterm" name="idp7578480"></a>
+</p></div><div id="ftn.idp7580896" class="footnote"><p><a href="#idp7580896" class="para"><sup class="para">[53] </sup></a>
+
+Marc Wanamaker, <span class="quote">«<span class="quote">The First Studios,</span>»</span> <em class="citetitle">The Silents Majority</em>, archived at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #12</a>.
+</p></div><div id="ftn.idp7597472" class="footnote"><p><a href="#idp7597472" class="para"><sup class="para">[54] </sup></a>
+
+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 <em class="citetitle">Legislative History of the
+Copyright Act</em>, E. Fulton Brylawski and Abe Goldman, eds. (South
+Hackensack, N.J.: Rothman Reprints, 1976).
+<a class="indexterm" name="idp7598880"></a>
+</p></div><div id="ftn.idp7601472" class="footnote"><p><a href="#idp7601472" class="para"><sup class="para">[55] </sup></a>
+
+To Amend and Consolidate the Acts Respecting Copyright, 223
+(statement of Nathan Burkan, attorney for the Music Publishers Association).
+</p></div><div id="ftn.idp7603040" class="footnote"><p><a href="#idp7603040" class="para"><sup class="para">[56] </sup></a>
+
+To Amend and Consolidate the Acts Respecting Copyright, 226
+(statement of Nathan Burkan, attorney for the Music Publishers Association).
+</p></div><div id="ftn.idp7604384" class="footnote"><p><a href="#idp7604384" class="para"><sup class="para">[57] </sup></a>
+
+To Amend and Consolidate the Acts Respecting Copyright, 23
+(statement of John Philip Sousa, composer).
+</p></div><div id="ftn.idp7614688" class="footnote"><p><a href="#idp7614688" class="para"><sup class="para">[58] </sup></a>
+
+
+To Amend and Consolidate the Acts Respecting Copyright, 283–84
+(statement of Albert Walker, representative of the Auto-Music
+Perforating Company of New York).
+</p></div><div id="ftn.idp7617072" class="footnote"><p><a href="#idp7617072" class="para"><sup class="para">[59] </sup></a>
+
+To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
+memorandum of Philip Mauro, general patent counsel of the American
+Graphophone Company Association).
+</p></div><div id="ftn.idp7570272" class="footnote"><p><a href="#idp7570272" class="para"><sup class="para">[60] </sup></a>
+
+
+Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
+H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st
+sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
+in <em class="citetitle">Legislative History of the 1909 Copyright Act</em>, E. Fulton Brylawski and
+Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
+</p></div><div id="ftn.idp7636896" class="footnote"><p><a href="#idp7636896" class="para"><sup class="para">[61] </sup></a>
+
+Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
+on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
+March 1967). I am grateful to Glenn Brown for drawing my attention to
+this report.</p></div><div id="ftn.idp7647680" class="footnote"><p><a href="#idp7647680" class="para"><sup class="para">[62] </sup></a>
+
+See 17 <em class="citetitle">United States Code</em>, sections 106 and 110. At the beginning,
+record companies printed <span class="quote">«<span class="quote">Not Licensed for Radio Broadcast</span>»</span> and other
+messages purporting to restrict the ability to play a record on a
+radio station. Judge Learned Hand rejected the argument that a
+warning attached to a record might restrict the rights of the radio
+station. See <em class="citetitle">RCA Manufacturing Co</em>. v. <em class="citetitle">Whiteman</em>, 114 F. 2d 86 (2nd
+Cir. 1940). See also Randal C. Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast
+Flag: Mechanisms of Consent and Refusal and the Propertization of
+Copyright,</span>»</span> <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 281.
+<a class="indexterm" name="idp7651152"></a>
+<a class="indexterm" name="idp7651904"></a>
+</p></div><div id="ftn.idp7670896" class="footnote"><p><a href="#idp7670896" class="para"><sup class="para">[63] </sup></a>
+
+Copyright Law Revision—CATV: Hearing on S. 1006 Before the
+Subcommittee on Patents, Trademarks, and Copyrights of the Senate
+Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
+(statement of Rosel H. Hyde, chairman of the Federal Communications
+Commission).
+<a class="indexterm" name="idp7667760"></a>
+</p></div><div id="ftn.idp7673616" class="footnote"><p><a href="#idp7673616" class="para"><sup class="para">[64] </sup></a>
+
+Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
+general counsel of the National Association of Broadcasters).
+</p></div><div id="ftn.idp7675328" class="footnote"><p><a href="#idp7675328" class="para"><sup class="para">[65] </sup></a>
+
+Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes,
+general counsel of the Association of Maximum Service Telecasters, Inc.).
+</p></div><div id="ftn.idp7677760" class="footnote"><p><a href="#idp7677760" class="para"><sup class="para">[66] </sup></a>
+
+Copyright Law Revision—CATV, 169 (joint statement of Arthur B.
+Krim, president of United Artists Corp., and John Sinn, president of
+United Artists Television, Inc.).
+</p></div><div id="ftn.idp7680704" class="footnote"><p><a href="#idp7680704" class="para"><sup class="para">[67] </sup></a>
+
+Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
+president of the Screen Actors Guild).
+<a class="indexterm" name="idp7681472"></a>
+</p></div><div id="ftn.idp7683760" class="footnote"><p><a href="#idp7683760" class="para"><sup class="para">[68] </sup></a>
+
+Copyright Law Revision—CATV, 216 (statement of Edwin M.
+Zimmerman, acting assistant attorney general).
+<a class="indexterm" name="idp7685072"></a>
+</p></div><div id="ftn.idp7684944" class="footnote"><p><a href="#idp7684944" class="para"><sup class="para">[69] </sup></a>
+
+See, for example, National Music Publisher's Association, <em class="citetitle">The Engine
+of Free Expression: Copyright on the Internet—The Myth of Free
+Information</em>, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #13</a>. <span class="quote">«<span class="quote">The
+threat of piracy—the use of someone else's creative work without
+permission or compensation—has grown with the Internet.</span>»</span>
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="piracy"></a>Chapter 5. CHAPTER FIVE: <span class="quote">«<span class="quote">Piracy</span>»</span></h2></div></div></div><p>
+<span class="strong"><strong>There is piracy</strong></span> of copyrighted
+material. Lots of it. This piracy comes in many forms. The most
+significant is commercial piracy, the unauthorized taking of other
+people's content within a commercial context. Despite the many
+justifications that are offered in its defense, this taking is
+wrong. No one should condone it, and the law should stop it.
+</p><p>
+But as well as copy-shop piracy, there is another kind of <span class="quote">«<span class="quote">taking</span>»</span>
+that is more directly related to the Internet. That taking, too, seems
+wrong to many, and it is wrong much of the time. Before we paint this
+taking <span class="quote">«<span class="quote">piracy,</span>»</span> however, we should understand its nature a bit more.
+For the harm of this taking is significantly more ambiguous than
+outright copying, and the law should account for that ambiguity, as it
+has so often done in the past.
+
+</p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="piracy-i"></a>5.1. Piracy I</h2></div></div></div><a class="indexterm" name="idp7701936"></a><a class="indexterm" name="idxcdsforeign"></a><p>
+All across the world, but especially in Asia and Eastern Europe, there
+are businesses that do nothing but take others people's copyrighted
+content, copy it, and sell it—all without the permission of a copyright
+owner. The recording industry estimates that it loses about $4.6 billion
+every year to physical piracy<a href="#ftn.idp7683888" class="footnote" name="idp7683888"><sup class="footnote">[70]</sup></a>
+(that works out to one in three CDs sold worldwide). The MPAA
+estimates that it loses $3 billion annually worldwide to piracy.
+</p><p>
+This is piracy plain and simple. Nothing in the argument of this
+book, nor in the argument that most people make when talking about
+the subject of this book, should draw into doubt this simple point:
+This piracy is wrong.
+</p><p>
+Which is not to say that excuses and justifications couldn't be made
+for it. We could, for example, remind ourselves that for the first one
+hundred years of the American Republic, America did not honor foreign
+copyrights. We were born, in this sense, a pirate nation. It might
+therefore seem hypocritical for us to insist so strongly that other
+developing nations treat as wrong what we, for the first hundred years
+of our existence, treated as right.
+</p><p>
+That excuse isn't terribly strong. Technically, our law did not ban
+the taking of foreign works. It explicitly limited itself to American
+works. Thus the American publishers who published foreign works
+without the permission of foreign authors were not violating any rule.
+The copy shops in Asia, by contrast, are violating Asian law. Asian
+law does protect foreign copyrights, and the actions of the copy shops
+violate that law. So the wrong of piracy that they engage in is not
+just a moral wrong, but a legal wrong, and not just an internationally
+legal wrong, but a locally legal wrong as well.
+</p><p>
+True, these local rules have, in effect, been imposed upon these
+countries. No country can be part of the world economy and choose
+
+not to protect copyright internationally. We may have been born a
+pirate nation, but we will not allow any other nation to have a
+similar childhood.
+</p><p>
+If a country is to be treated as a sovereign, however, then its laws are
+its laws regardless of their source. The international law under which
+these nations live gives them some opportunities to escape the burden
+of intellectual property law.<a href="#ftn.idp7711664" class="footnote" name="idp7711664"><sup class="footnote">[71]</sup></a> In my view, more developing nations should take
+advantage of that opportunity, but when they don't, then their laws
+should be respected. And under the laws of these nations, this piracy
+is wrong.
+</p><a class="indexterm" name="idp7715584"></a><p>
+Alternatively, we could try to excuse this piracy by noting that in
+any case, it does no harm to the industry. The Chinese who get access
+to American CDs at 50 cents a copy are not people who would have
+bought those American CDs at $15 a copy. So no one really has any
+less money than they otherwise would have had.<a href="#ftn.idp7716928" class="footnote" name="idp7716928"><sup class="footnote">[72]</sup></a>
+</p><p>
+This is often true (though I have friends who have purchased many
+thousands of pirated DVDs who certainly have enough money to pay
+for the content they have taken), and it does mitigate to some degree
+the harm caused by such taking. Extremists in this debate love to say,
+<span class="quote">«<span class="quote">You wouldn't go into Barnes & Noble and take a book off of the shelf
+without paying; why should it be any different with on-line music?</span>»</span>
+The difference is, of course, that when you take a book from Barnes &
+Noble, it has one less book to sell. By contrast, when you take an MP3
+from a computer network, there is not one less CD that can be sold.
+The physics of piracy of the intangible are different from the physics of
+piracy of the tangible.
+</p><a class="indexterm" name="idp7721920"></a><p>
+This argument is still very weak. However, although copyright is a
+property right of a very special sort, it <span class="emphasis"><em>is</em></span> a
+property right. Like all property rights, the copyright gives the
+owner the right to decide the terms under which content is shared. If
+the copyright owner doesn't want to sell, she doesn't have to. There
+are exceptions: important statutory licenses that apply to copyrighted
+content regardless of the wish of the copyright owner. Those licenses
+give people the right to <span class="quote">«<span class="quote">take</span>»</span> copyrighted content whether or not the
+copyright owner wants to sell. But
+
+
+where the law does not give people the right to take content, it is
+wrong to take that content even if the wrong does no harm. If we have
+a property system, and that system is properly balanced to the
+technology of a time, then it is wrong to take property without the
+permission of a property owner. That is exactly what <span class="quote">«<span class="quote">property</span>»</span> means.
+</p><a class="indexterm" name="idp7725632"></a><a class="indexterm" name="idp7726384"></a><a class="indexterm" name="idp7727392"></a><a class="indexterm" name="idp7728144"></a><a class="indexterm" name="idp7728896"></a><a class="indexterm" name="idp7729648"></a><a class="indexterm" name="idp7730656"></a><a class="indexterm" name="idp7731408"></a><a class="indexterm" name="idp7732416"></a><p>
+Finally, we could try to excuse this piracy with the argument that the
+piracy actually helps the copyright owner. When the Chinese <span class="quote">«<span class="quote">steal</span>»</span>
+Windows, that makes the Chinese dependent on Microsoft. Microsoft
+loses the value of the software that was taken. But it gains users who
+are used to life in the Microsoft world. Over time, as the nation
+grows more wealthy, more and more people will buy software rather than
+steal it. And hence over time, because that buying will benefit
+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.
+</p><a class="indexterm" name="idp7734944"></a><p>
+This argument, too, is somewhat true. The addiction strategy is a good
+one. Many businesses practice it. Some thrive because of it. Law
+students, for example, are given free access to the two largest legal
+databases. The companies marketing both hope the students will become
+so used to their service that they will want to use it and not the
+other when they become lawyers (and must pay high subscription fees).
+</p><a class="indexterm" name="idp7736768"></a><a class="indexterm" name="idp7737520"></a><a class="indexterm" name="idp7738272"></a><a class="indexterm" name="idp7739024"></a><p>
+Still, the argument is not terribly persuasive. We don't give the
+alcoholic a defense when he steals his first beer, merely because that
+will make it more likely that he will buy the next three. Instead, we
+ordinarily allow businesses to decide for themselves when it is best
+to give their product away. If Microsoft fears the competition of
+GNU/Linux, then Microsoft can give its product away, as it did, for
+example, with Internet Explorer to fight Netscape. A property right
+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.
+</p><p>
+
+Thus, while I understand the pull of these justifications for piracy,
+and I certainly see the motivation, in my view, in the end, these efforts
+at justifying commercial piracy simply don't cut it. This kind of piracy
+is rampant and just plain wrong. It doesn't transform the content it
+steals; it doesn't transform the market it competes in. It merely gives
+someone access to something that the law says he should not have.
+Nothing has changed to draw that law into doubt. This form of piracy
+is flat out wrong.
+</p><p>
+But as the examples from the four chapters that introduced this part
+suggest, even if some piracy is plainly wrong, not all <span class="quote">«<span class="quote">piracy</span>»</span> is. Or
+at least, not all <span class="quote">«<span class="quote">piracy</span>»</span> is wrong if that term is understood in the
+way it is increasingly used today. Many kinds of <span class="quote">«<span class="quote">piracy</span>»</span> are useful
+and productive, to produce either new content or new ways of doing
+business. Neither our tradition nor any tradition has ever banned all
+<span class="quote">«<span class="quote">piracy</span>»</span> in that sense of the term.
+</p><p>
+This doesn't mean that there are no questions raised by the latest
+piracy concern, peer-to-peer file sharing. But it does mean that we
+need to understand the harm in peer-to-peer sharing a bit more before
+we condemn it to the gallows with the charge of piracy.
+</p><p>
+For (1) like the original Hollywood, p2p sharing escapes an overly
+controlling industry; and (2) like the original recording industry, it
+simply exploits a new way to distribute content; but (3) unlike cable
+TV, no one is selling the content that is shared on p2p services.
+</p><p>
+These differences distinguish p2p sharing from true piracy. They
+should push us to find a way to protect artists while enabling this
+sharing to survive.
+</p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="piracy-ii"></a>5.2. Piracy II</h2></div></div></div><p>
+The key to the <span class="quote">«<span class="quote">piracy</span>»</span> that the law aims to quash is a use that <span class="quote">«<span class="quote">rob[s]
+the author of [his] profit.</span>»</span><a href="#ftn.idp7748240" class="footnote" name="idp7748240"><sup class="footnote">[73]</sup></a>
+This means we must determine whether
+and how much p2p sharing harms before we know how strongly the
+
+law should seek to either prevent it or find an alternative to assure the
+author of his profit.
+</p><p>
+<a class="indexterm" name="idp7750640"></a>
+<a class="indexterm" name="idp7751392"></a>
+<a class="indexterm" name="idxnapster"></a>
+Peer-to-peer sharing was made famous by Napster. But the inventors of
+the Napster technology had not made any major technological
+innovations. Like every great advance in innovation on the Internet
+(and, arguably, off the Internet as well<a href="#ftn.idp7753632" class="footnote" name="idp7753632"><sup class="footnote">[74]</sup></a>), Shawn Fanning and crew had simply
+put together components that had been developed independently.
+</p><p>
+<a class="indexterm" name="idp7757696"></a>
+<a class="indexterm" name="idp7758448"></a>
+<a class="indexterm" name="idp7759456"></a>
+The result was spontaneous combustion. Launched in July 1999,
+Napster amassed over 10 million users within nine months. After
+eighteen months, there were close to 80 million registered users of the
+system.<a href="#ftn.idp7760688" class="footnote" name="idp7760688"><sup class="footnote">[75]</sup></a>
+Courts quickly shut Napster down, but other services emerged
+to take its place. (Kazaa is currently the most popular p2p service. It
+boasts over 100 million members.) These services' systems are different
+architecturally, though not very different in function: Each enables
+users to make content available to any number of other users. With a
+p2p system, you can share your favorite songs with your best friend—
+or your 20,000 best friends.
+</p><a class="indexterm" name="idp7765296"></a><p>
+According to a number of estimates, a huge proportion of Americans
+have tasted file-sharing technology. A study by Ipsos-Insight in
+September 2002 estimated that 60 million Americans had downloaded
+music—28 percent of Americans older than 12.<a href="#ftn.idp7765728" class="footnote" name="idp7765728"><sup class="footnote">[76]</sup></a>
+A survey by the NPD group quoted in <em class="citetitle">The New York Times</em>
+estimated that 43 million citizens used file-sharing networks to
+exchange content in May 2003.<a href="#ftn.idp7769408" class="footnote" name="idp7769408"><sup class="footnote">[77]</sup></a>
+The vast majority of these are not kids. Whatever the actual figure, a
+massive quantity of content is being <span class="quote">«<span class="quote">taken</span>»</span> on these networks. The
+ease and inexpensiveness of file-sharing networks have inspired
+millions to enjoy music in a way that they hadn't before.
+</p><p>
+Some of this enjoying involves copyright infringement. Some of it does
+not. And even among the part that is technically copyright
+infringement, calculating the actual harm to copyright owners is more
+complicated than one might think. So consider—a bit more
+carefully than the polarized voices around this debate usually
+do—the kinds of sharing that file sharing enables, and the kinds
+of harm it entails.
+</p><p>
+
+File sharers share different kinds of content. We can divide these
+different kinds into four types.
+</p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><a class="indexterm" name="idp7774544"></a><p>
+
+There are some who use sharing networks as substitutes for purchasing
+content. Thus, when a new Madonna CD is released, rather than buying
+the CD, these users simply take it. We might quibble about whether
+everyone who takes it would actually have bought it if sharing didn't
+make it available for free. Most probably wouldn't have, but clearly
+there are some who would. The latter are the target of category A:
+users who download instead of purchasing.
+</p></li><li class="listitem"><p>
+
+There are some who use sharing networks to sample music before
+purchasing it. Thus, a friend sends another friend an MP3 of an artist
+he's not heard of. The other friend then buys CDs by that artist. This
+is a kind of targeted advertising, quite likely to succeed. If the
+friend recommending the album gains nothing from a bad recommendation,
+then one could expect that the recommendations will actually be quite
+good. The net effect of this sharing could increase the quantity of
+music purchased.
+</p></li><li class="listitem"><p>
+
+There are many who use sharing networks to get access to copyrighted
+content that is no longer sold or that they would not have purchased
+because the transaction costs off the Net are too high. This use of
+sharing networks is among the most rewarding for many. Songs that were
+part of your childhood but have long vanished from the marketplace
+magically appear again on the network. (One friend told me that when
+she discovered Napster, she spent a solid weekend <span class="quote">«<span class="quote">recalling</span>»</span> old
+songs. She was astonished at the range and mix of content that was
+available.) For content not sold, this is still technically a
+violation of copyright, though because the copyright owner is not
+selling the content anymore, the economic harm is zero—the same
+harm that occurs when I sell my collection of 1960s 45-rpm records to
+a local collector.
+</p></li><li class="listitem"><p>
+
+
+Finally, there are many who use sharing networks to get access
+to content that is not copyrighted or that the copyright owner
+wants to give away.
+</p></li></ol></div><p>
+How do these different types of sharing balance out?
+</p><p>
+Let's start with some simple but important points. From the
+perspective of the law, only type D sharing is clearly legal. From the
+perspective of economics, only type A sharing is clearly
+harmful.<a href="#ftn.idp7781872" class="footnote" name="idp7781872"><sup class="footnote">[78]</sup></a>
+Type B sharing is illegal but plainly beneficial. Type C sharing is
+illegal, yet good for society (since more exposure to music is good)
+and harmless to the artist (since the work is not otherwise
+available). So how sharing matters on balance is a hard question to
+answer—and certainly much more difficult than the current
+rhetoric around the issue suggests.
+</p><p>
+Whether on balance sharing is harmful depends importantly on how
+harmful type A sharing is. Just as Edison complained about Hollywood,
+composers complained about piano rolls, recording artists complained
+about radio, and broadcasters complained about cable TV, the music
+industry complains that type A sharing is a kind of <span class="quote">«<span class="quote">theft</span>»</span> that is
+<span class="quote">«<span class="quote">devastating</span>»</span> the industry.
+</p><a class="indexterm" name="idxcassette"></a><p>
+While the numbers do suggest that sharing is harmful, how
+harmful is harder to reckon. It has long been the recording industry's
+practice to blame technology for any drop in sales. The history of
+cassette recording is a good example. As a study by Cap Gemini Ernst
+& Young put it, <span class="quote">«<span class="quote">Rather than exploiting this new, popular
+technology, the labels fought it.</span>»</span><a href="#ftn.idp7788352" class="footnote" name="idp7788352"><sup class="footnote">[79]</sup></a>
+The labels claimed that every album taped was an album unsold, and
+when record sales fell by 11.4 percent in 1981, the industry claimed
+that its point was proved. Technology was the problem, and banning or
+regulating technology was the answer.
+</p><a class="indexterm" name="idp7792272"></a><p>
+Yet soon thereafter, and before Congress was given an opportunity
+to enact regulation, MTV was launched, and the industry had a record
+turnaround. <span class="quote">«<span class="quote">In the end,</span>»</span> Cap Gemini concludes, <span class="quote">«<span class="quote">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
+innovation at the major labels.</span>»</span><a href="#ftn.idp7718304" class="footnote" name="idp7718304"><sup class="footnote">[80]</sup></a>
+</p><a class="indexterm" name="idp7795840"></a><p>
+But just because the industry was wrong before does not mean it is
+wrong today. To evaluate the real threat that p2p sharing presents to
+the industry in particular, and society in general—or at least
+the society that inherits the tradition that gave us the film
+industry, the record industry, the radio industry, cable TV, and the
+VCR—the question is not simply whether type A sharing is
+harmful. The question is also <span class="emphasis"><em>how</em></span> harmful type A
+sharing is, and how beneficial the other types of sharing are.
+</p><p>
+We start to answer this question by focusing on the net harm, from the
+standpoint of the industry as a whole, that sharing networks cause.
+The <span class="quote">«<span class="quote">net harm</span>»</span> to the industry as a whole is the amount by which type
+A sharing exceeds type B. If the record companies sold more records
+through sampling than they lost through substitution, then sharing
+networks would actually benefit music companies on balance. They would
+therefore have little <span class="emphasis"><em>static</em></span> reason to resist
+them.
+
+</p><a class="indexterm" name="idxcdssales"></a><p>
+Could that be true? Could the industry as a whole be gaining because
+of file sharing? Odd as that might sound, the data about CD sales
+actually suggest it might be close.
+</p><p>
+In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
+from 882 million to 803 million units; revenues fell 6.7
+percent.<a href="#ftn.idp7802176" class="footnote" name="idp7802176"><sup class="footnote">[81]</sup></a>
+This confirms a trend over the past few years. The RIAA blames
+Internet piracy for the trend, though there are many other causes that
+could account for this drop. SoundScan, for example, reports a more
+than 20 percent drop in the number of CDs released since 1999. That no
+doubt accounts for some of the decrease in sales. Rising prices could
+account for at least some of the loss. <span class="quote">«<span class="quote">From 1999 to 2001, the average
+price of a CD rose 7.2 percent, from $13.04 to $14.19.</span>»</span><a href="#ftn.idp7806704" class="footnote" name="idp7806704"><sup class="footnote">[82]</sup></a>
+Competition from other forms of media could also account for some of
+the decline. As Jane Black of <em class="citetitle">BusinessWeek</em> notes, <span class="quote">«<span class="quote">The
+soundtrack to the film <em class="citetitle">High Fidelity</em> has a list price of
+$18.98. You could get the whole movie [on DVD] for
+$19.99.</span>»</span><a href="#ftn.idp7810720" class="footnote" name="idp7810720"><sup class="footnote">[83]</sup></a>
+</p><p>
+
+
+But let's assume the RIAA is right, and all of the decline in CD sales
+is because of Internet sharing. Here's the rub: In the same period
+that the RIAA estimates that 803 million CDs were sold, the RIAA
+estimates that 2.1 billion CDs were downloaded for free. Thus,
+although 2.6 times the total number of CDs sold were downloaded for
+free, sales revenue fell by just 6.7 percent.
+</p><p>
+There are too many different things happening at the same time to
+explain these numbers definitively, but one conclusion is unavoidable:
+The recording industry constantly asks, <span class="quote">«<span class="quote">What's the difference between
+downloading a song and stealing a CD?</span>»</span>—but their own numbers
+reveal the difference. If I steal a CD, then there is one less CD to
+sell. Every taking is a lost sale. But on the basis of the numbers the
+RIAA provides, it is absolutely clear that the same is not true of
+downloads. If every download were a lost sale—if every use of
+Kazaa <span class="quote">«<span class="quote">rob[bed] the author of [his] profit</span>»</span>—then the industry
+would have suffered a 100 percent drop in sales last year, not a 7
+percent drop. If 2.6 times the number of CDs sold were downloaded for
+free, and yet sales revenue dropped by just 6.7 percent, then there is
+a huge difference between <span class="quote">«<span class="quote">downloading a song and stealing a CD.</span>»</span>
+</p><a class="indexterm" name="idp7815136"></a><p>
+These are the harms—alleged and perhaps exaggerated but, let's
+assume, real. What of the benefits? File sharing may impose costs on
+the recording industry. What value does it produce in addition to
+these costs?
+</p><p>
+One benefit is type C sharing—making available content that
+is technically still under copyright but is no longer commercially
+available. This is not a small category of content. There are
+millions of tracks that are no longer commercially
+available.<a href="#ftn.idp7816256" class="footnote" name="idp7816256"><sup class="footnote">[84]</sup></a>
+And while it's conceivable that some of this content is not available
+because the artist producing the content doesn't want it to be made
+available, the vast majority of it is unavailable solely because the
+publisher or the distributor has decided it no longer makes economic
+sense <span class="emphasis"><em>to the company</em></span> to make it available.
+</p><a class="indexterm" name="idp7819744"></a><p>
+In real space—long before the Internet—the market had a simple
+
+response to this problem: used book and record stores. There are
+thousands of used book and used record stores in America
+today.<a href="#ftn.idp7821488" class="footnote" name="idp7821488"><sup class="footnote">[85]</sup></a>
+These stores buy content from owners, then sell the content they
+buy. And under American copyright law, when they buy and sell this
+content, <span class="emphasis"><em>even if the content is still under
+copyright</em></span>, the copyright owner doesn't get a dime. Used
+book and record stores are commercial entities; their owners make
+money from the content they sell; but as with cable companies before
+statutory licensing, they don't have to pay the copyright owner for
+the content they sell.
+</p><a class="indexterm" name="idp7826672"></a><a class="indexterm" name="idp7827680"></a><a class="indexterm" name="idxinternetbookson"></a><p>
+Type C sharing, then, is very much like used book stores or used
+record stores. It is different, of course, because the person making
+the content available isn't making money from making the content
+available. It is also different, of course, because in real space,
+when I sell a record, I don't have it anymore, while in cyberspace,
+when someone shares my 1949 recording of Bernstein's <span class="quote">«<span class="quote">Two Love Songs,</span>»</span>
+I still have it. That difference would matter economically if the
+owner of the copyright were selling the record in competition to my
+sharing. But we're talking about the class of content that is not
+currently commercially available. The Internet is making it available,
+through cooperative sharing, without competing with the market.
+</p><p>
+It may well be, all things considered, that it would be better if the
+copyright owner got something from this trade. But just because it may
+well be better, it doesn't follow that it would be good to ban used book
+stores. Or put differently, if you think that type C sharing should be
+stopped, do you think that libraries and used book stores should be
+shut as well?
+</p><a class="indexterm" name="idxbooksfreeonline1"></a><a class="indexterm" name="idp7833696"></a><a class="indexterm" name="idp7834448"></a><p>
+Finally, and perhaps most importantly, file-sharing networks enable
+type D sharing to occur—the sharing of content that copyright owners
+want to have shared or for which there is no continuing copyright. This
+sharing clearly benefits authors and society. Science fiction author
+Cory Doctorow, for example, released his first novel, <em class="citetitle">Down and Out in
+the Magic Kingdom</em>, both free on-line and in bookstores on the same
+
+
+day. His (and his publisher's) thinking was that the on-line distribution
+would be a great advertisement for the <span class="quote">«<span class="quote">real</span>»</span> book. People would read
+part on-line, and then decide whether they liked the book or not. If
+they liked it, they would be more likely to buy it. Doctorow's content is
+type D content. If sharing networks enable his work to be spread, then
+both he and society are better off. (Actually, much better off: It is a
+great book!)
+</p><a class="indexterm" name="idp7837536"></a><p>
+Likewise for work in the public domain: This sharing benefits society
+with no legal harm to authors at all. If efforts to solve the problem
+of type A sharing destroy the opportunity for type D sharing, then we
+lose something important in order to protect type A content.
+</p><p>
+The point throughout is this: While the recording industry
+understandably says, <span class="quote">«<span class="quote">This is how much we've lost,</span>»</span> we must also ask,
+<span class="quote">«<span class="quote">How much has society gained from p2p sharing? What are the
+efficiencies? What is the content that otherwise would be
+unavailable?</span>»</span>
+</p><a class="indexterm" name="idp7840464"></a><p>
+For unlike the piracy I described in the first section of this
+chapter, much of the <span class="quote">«<span class="quote">piracy</span>»</span> that file sharing enables is plainly
+legal and good. And like the piracy I described in chapter
+<a class="xref" href="#pirates" title="Chapter 4. CHAPTER FOUR: «Pirates»">4</a>, 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
+cable TV, the question we should be asking about file sharing is how
+best to preserve its benefits while minimizing (to the extent
+possible) the wrongful harm it causes artists. The question is one of
+balance. The law should seek that balance, and that balance will be
+found only with time.
+</p><p>
+<span class="quote">«<span class="quote">But isn't the war just a war against illegal sharing? Isn't the target
+just what you call type A sharing?</span>»</span>
+</p><p>
+You would think. And we should hope. But so far, it is not. The effect
+of the war purportedly on type A sharing alone has been felt far
+beyond that one class of sharing. That much is obvious from the
+Napster case itself. When Napster told the district court that it had
+developed a technology to block the transfer of 99.4 percent of
+identified
+
+
+infringing material, the district court told counsel for Napster 99.4
+percent was not good enough. Napster had to push the infringements
+<span class="quote">«<span class="quote">down to zero.</span>»</span><a href="#ftn.idp7845872" class="footnote" name="idp7845872"><sup class="footnote">[86]</sup></a>
+</p><p>
+If 99.4 percent is not good enough, then this is a war on file-sharing
+technologies, not a war on copyright infringement. There is no way to
+assure that a p2p system is used 100 percent of the time in compliance
+with the law, any more than there is a way to assure that 100 percent of
+VCRs or 100 percent of Xerox machines or 100 percent of handguns
+are used in compliance with the law. Zero tolerance means zero p2p.
+The court's ruling means that we as a society must lose the benefits of
+p2p, even for the totally legal and beneficial uses they serve, simply to
+assure that there are zero copyright infringements caused by p2p.
+</p><p>
+Zero tolerance has not been our history. It has not produced the
+content industry that we know today. The history of American law has
+been a process of balance. As new technologies changed the way content
+was distributed, the law adjusted, after some time, to the new
+technology. In this adjustment, the law sought to ensure the
+legitimate rights of creators while protecting innovation. Sometimes
+this has meant more rights for creators. Sometimes less.
+</p><a class="indexterm" name="idp7850016"></a><a class="indexterm" name="idp7851024"></a><a class="indexterm" name="idxcongressusoncopyrightlaws2"></a><a class="indexterm" name="idxcongressusonrecordingindustry2"></a><a class="indexterm" name="idxcopyrightlawonmusicrecordings2"></a><a class="indexterm" name="idxcopyrightlawstatutorylicensesin2"></a><a class="indexterm" name="idp7857728"></a><a class="indexterm" name="idp7858736"></a><a class="indexterm" name="idp7859744"></a><a class="indexterm" name="idp7860752"></a><a class="indexterm" name="idp7861760"></a><a class="indexterm" name="idp7862512"></a><p>
+So, as we've seen, when <span class="quote">«<span class="quote">mechanical reproduction</span>»</span> threatened the
+interests of composers, Congress balanced the rights of composers
+against the interests of the recording industry. It granted rights to
+composers, but also to the recording artists: Composers were to be
+paid, but at a price set by Congress. But when radio started
+broadcasting the recordings made by these recording artists, and they
+complained to Congress that their <span class="quote">«<span class="quote">creative property</span>»</span> was not being
+respected (since the radio station did not have to pay them for the
+creativity it broadcast), Congress rejected their claim. An indirect
+benefit was enough.
+</p><a class="indexterm" name="idxcabletv2"></a><p>
+Cable TV followed the pattern of record albums. When the courts
+rejected the claim that cable broadcasters had to pay for the content
+they rebroadcast, Congress responded by giving broadcasters a right to
+compensation, but at a level set by the law. It likewise gave cable
+companies the right to the content, so long as they paid the statutory
+price.
+</p><a class="indexterm" name="idp7866992"></a><p>
+
+
+This compromise, like the compromise affecting records and player
+pianos, served two important goals—indeed, the two central goals
+of any copyright legislation. First, the law assured that new
+innovators would have the freedom to develop new ways to deliver
+content. Second, the law assured that copyright holders would be paid
+for the content that was distributed. One fear was that if Congress
+simply required cable TV to pay copyright holders whatever they
+demanded for their content, then copyright holders associated with
+broadcasters would use their power to stifle this new technology,
+cable. But if Congress had permitted cable to use broadcasters'
+content for free, then it would have unfairly subsidized cable. Thus
+Congress chose a path that would assure
+<span class="emphasis"><em>compensation</em></span> without giving the past
+(broadcasters) control over the future (cable).
+</p><a class="indexterm" name="idp7869984"></a><a class="indexterm" name="idp7870848"></a><a class="indexterm" name="idp7871824"></a><a class="indexterm" name="idxbetamax"></a><a class="indexterm" name="idxcassettevcrs1"></a><p>
+In the same year that Congress struck this balance, two major
+producers and distributors of film content filed a lawsuit against
+another technology, the video tape recorder (VTR, or as we refer to
+them today, VCRs) that Sony had produced, the Betamax. Disney's and
+Universal's claim against Sony was relatively simple: Sony produced a
+device, Disney and Universal claimed, that enabled consumers to engage
+in copyright infringement. Because the device that Sony built had a
+<span class="quote">«<span class="quote">record</span>»</span> button, the device could be used to record copyrighted movies
+and shows. Sony was therefore benefiting from the copyright
+infringement of its customers. It should therefore, Disney and
+Universal claimed, be partially liable for that infringement.
+</p><a class="indexterm" name="idp7877056"></a><p>
+There was something to Disney's and Universal's claim. Sony did
+decide to design its machine to make it very simple to record television
+shows. It could have built the machine to block or inhibit any direct
+copying from a television broadcast. Or possibly, it could have built the
+machine to copy only if there were a special <span class="quote">«<span class="quote">copy me</span>»</span> signal on the
+line. It was clear that there were many television shows that did not
+grant anyone permission to copy. Indeed, if anyone had asked, no
+doubt the majority of shows would not have authorized copying. And
+
+in the face of this obvious preference, Sony could have designed its
+system to minimize the opportunity for copyright infringement. It did
+not, and for that, Disney and Universal wanted to hold it responsible
+for the architecture it chose.
+</p><a class="indexterm" name="idxcongressusoncopyrightlaws3"></a><a class="indexterm" name="idp7881376"></a><p>
+MPAA president Jack Valenti became the studios' most vocal
+champion. Valenti called VCRs <span class="quote">«<span class="quote">tapeworms.</span>»</span> He warned, <span class="quote">«<span class="quote">When there are
+20, 30, 40 million of these VCRs in the land, we will be invaded by
+millions of `tapeworms,' eating away at the very heart and essence of
+the most precious asset the copyright owner has, his
+copyright.</span>»</span><a href="#ftn.idp7883632" class="footnote" name="idp7883632"><sup class="footnote">[87]</sup></a>
+<span class="quote">«<span class="quote">One does not have to be trained in sophisticated marketing and
+creative judgment,</span>»</span> he told Congress, <span class="quote">«<span class="quote">to understand the devastation
+on the after-theater marketplace caused by the hundreds of millions of
+tapings that will adversely impact on the future of the creative
+community in this country. It is simply a question of basic economics
+and plain common sense.</span>»</span><a href="#ftn.idp7885664" class="footnote" name="idp7885664"><sup class="footnote">[88]</sup></a>
+Indeed, as surveys would later show, 45
+percent of VCR owners had movie libraries of ten videos or more<a href="#ftn.idp7886640" class="footnote" name="idp7886640"><sup class="footnote">[89]</sup></a>
+— a use the Court would later hold was not <span class="quote">«<span class="quote">fair.</span>»</span> By
+<span class="quote">«<span class="quote">allowing VCR owners to copy freely by the means of an exemption from
+copyright infringement without creating a mechanism to compensate
+copyright owners,</span>»</span> Valenti testified, Congress would <span class="quote">«<span class="quote">take from the
+owners the very essence of their property: the exclusive right to
+control who may use their work, that is, who may copy it and thereby
+profit from its reproduction.</span>»</span><a href="#ftn.idp7889568" class="footnote" name="idp7889568"><sup class="footnote">[90]</sup></a>
+</p><a class="indexterm" name="idp7890560"></a><p>
+It took eight years for this case to be resolved by the Supreme
+Court. In the interim, the Ninth Circuit Court of Appeals, which
+includes Hollywood in its jurisdiction—leading Judge Alex
+Kozinski, who sits on that court, refers to it as the <span class="quote">«<span class="quote">Hollywood
+Circuit</span>»</span>—held that Sony would be liable for the copyright
+infringement made possible by its machines. Under the Ninth Circuit's
+rule, this totally familiar technology—which Jack Valenti had
+called <span class="quote">«<span class="quote">the Boston Strangler of the American film industry</span>»</span> (worse
+yet, it was a <span class="emphasis"><em>Japanese</em></span> Boston Strangler of the
+American film industry)—was an illegal
+technology.<a href="#ftn.idp7892672" class="footnote" name="idp7892672"><sup class="footnote">[91]</sup></a>
+<a class="indexterm" name="idp7895152"></a>
+</p><p>
+But the Supreme Court reversed the decision of the Ninth Circuit.
+
+
+And in its reversal, the Court clearly articulated its understanding of
+when and whether courts should intervene in such disputes. As the
+Court wrote,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Sound policy, as well as history, supports our consistent deference
+to Congress when major technological innovations alter the
+ market
+for copyrighted materials. Congress has the constitutional
+ authority
+and the institutional ability to accommodate fully the
+varied permutations of competing interests that are inevitably
+ implicated
+by such new technology.<a href="#ftn.idp7897824" class="footnote" name="idp7897824"><sup class="footnote">[92]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp7899616"></a><p>
+Congress was asked to respond to the Supreme Court's decision. But as
+with the plea of recording artists about radio broadcasts, Congress
+ignored the request. Congress was convinced that American film got
+enough, this <span class="quote">«<span class="quote">taking</span>»</span> notwithstanding. If we put these cases
+together, a pattern is clear:
+</p><div class="informaltable"><a name="t1"></a><table border="1"><colgroup><col><col><col><col></colgroup><thead><tr><th align="left">CASE</th><th align="left">WHOSE VALUE WAS <span class="quote">«<span class="quote">PIRATED</span>»</span></th><th align="left">RESPONSE OF THE COURTS</th><th align="left">RESPONSE OF CONGRESS</th></tr></thead><tbody><tr><td align="left">Recordings</td><td align="left">Composers</td><td align="left">No protection</td><td align="left">Statutory license</td></tr><tr><td align="left">Radio</td><td align="left">Recording artists</td><td align="left">N/A</td><td align="left">Nothing</td></tr><tr><td align="left">Cable TV</td><td align="left">Broadcasters</td><td align="left">No protection</td><td align="left">Statutory license</td></tr><tr><td align="left">VCR</td><td align="left">Film creators</td><td align="left">No protection</td><td align="left">Nothing</td></tr></tbody></table></div><a class="indexterm" name="idp7913792"></a><p>
+In each case throughout our history, a new technology changed the
+way content was distributed.<a href="#ftn.idp7915136" class="footnote" name="idp7915136"><sup class="footnote">[93]</sup></a>
+In each case, throughout our history,
+that change meant that someone got a <span class="quote">«<span class="quote">free ride</span>»</span> on someone else's
+work.
+</p><p>
+In <span class="emphasis"><em>none</em></span> of these cases did either the courts or
+Congress eliminate all free riding. In <span class="emphasis"><em>none</em></span> of
+these cases did the courts or Congress insist that the law should
+assure that the copyright holder get all the value that his copyright
+created. In every case, the copyright owners complained of <span class="quote">«<span class="quote">piracy.</span>»</span>
+In every case, Congress acted to recognize some of the legitimacy in
+the behavior of the <span class="quote">«<span class="quote">pirates.</span>»</span> In each case, Congress allowed some new
+technology to benefit from content made before. It balanced the
+interests at stake.
+
+</p><a class="indexterm" name="idp7923072"></a><p>
+When you think across these examples, and the other examples that
+make up the first four chapters of this section, this balance makes
+sense. Was Walt Disney a pirate? Would doujinshi be better if creators
+had to ask permission? Should tools that enable others to capture and
+spread images as a way to cultivate or criticize our culture be better
+ regulated?
+Is it really right that building a search engine should expose you
+to $15 million in damages? Would it have been better if Edison had
+controlled film? Should every cover band have to hire a lawyer to get
+permission to record a song?
+</p><a class="indexterm" name="idp7924816"></a><p>
+We could answer yes to each of these questions, but our tradition
+has answered no. In our tradition, as the Supreme Court has stated,
+copyright <span class="quote">«<span class="quote">has never accorded the copyright owner complete control
+over all possible uses of his work.</span>»</span><a href="#ftn.idp7926608" class="footnote" name="idp7926608"><sup class="footnote">[94]</sup></a>
+Instead, the particular uses that the law regulates have been defined
+by balancing the good that comes from granting an exclusive right
+against the burdens such an exclusive right creates. And this
+balancing has historically been done <span class="emphasis"><em>after</em></span> a
+technology has matured, or settled into the mix of technologies that
+facilitate the distribution of content.
+</p><p>
+We should be doing the same thing today. The technology of the
+Internet is changing quickly. The way people connect to the Internet
+(wires vs. wireless) is changing very quickly. No doubt the network
+should not become a tool for <span class="quote">«<span class="quote">stealing</span>»</span> from artists. But neither
+should the law become a tool to entrench one particular way in which
+artists (or more accurately, distributors) get paid. As I describe in
+some detail in the last chapter of this book, we should be securing
+income to artists while we allow the market to secure the most
+efficient way to promote and distribute content. This will require
+changes in the law, at least in the interim. These changes should be
+designed to balance the protection of the law against the strong
+public interest that innovation continue.
+</p><p>
+
+
+This is especially true when a new technology enables a vastly
+superior mode of distribution. And this p2p has done. P2p technologies
+can be ideally efficient in moving content across a widely diverse
+network. Left to develop, they could make the network vastly more
+efficient. Yet these <span class="quote">«<span class="quote">potential public benefits,</span>»</span> as John Schwartz
+writes in <em class="citetitle">The New York Times</em>, <span class="quote">«<span class="quote">could be delayed in the P2P
+fight.</span>»</span><a href="#ftn.idp7932448" class="footnote" name="idp7932448"><sup class="footnote">[95]</sup></a>
+</p><p>
+<span class="strong"><strong>Yet when anyone</strong></span> begins to talk
+about <span class="quote">«<span class="quote">balance,</span>»</span> the copyright warriors raise a different
+argument. <span class="quote">«<span class="quote">All this hand waving about balance and
+incentives,</span>»</span> they say, <span class="quote">«<span class="quote">misses a fundamental point. Our
+content,</span>»</span> the warriors insist, <span class="quote">«<span class="quote">is our
+<span class="emphasis"><em>property</em></span>. Why should we wait for Congress to
+`rebalance' our property rights? Do you have to wait before calling
+the police when your car has been stolen? And why should Congress
+deliberate at all about the merits of this theft? Do we ask whether
+the car thief had a good use for the car before we arrest him?</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">It is <span class="emphasis"><em>our property</em></span>,</span>»</span> the warriors
+insist. <span class="quote">«<span class="quote">And it should be protected just as any other property
+is protected.</span>»</span>
+</p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7683888" class="footnote"><p><a href="#idp7683888" class="para"><sup class="para">[70] </sup></a>
+
+See IFPI (International Federation of the Phonographic Industry), <em class="citetitle">The
+Recording Industry Commercial Piracy Report 2003</em>, July 2003, available
+at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #14</a>. See
+also Ben Hunt, <span class="quote">«<span class="quote">Companies Warned on Music Piracy Risk,</span>»</span> <em class="citetitle">Financial
+Times</em>, 14 February 2003, 11.
+</p></div><div id="ftn.idp7711664" class="footnote"><p><a href="#idp7711664" class="para"><sup class="para">[71] </sup></a>
+
+See Peter Drahos with John Braithwaite, Information Feudalism:
+<em class="citetitle">Who Owns the Knowledge Economy?</em> (New York: The
+New Press, 2003), 10–13, 209. The Trade-Related Aspects of
+Intellectual Property Rights (TRIPS) agreement obligates member
+nations to create administrative and enforcement mechanisms for
+intellectual property rights, a costly proposition for developing
+countries. Additionally, patent rights may lead to higher prices for
+staple industries such as agriculture. Critics of TRIPS question the
+disparity between burdens imposed upon developing countries and
+benefits conferred to industrialized nations. TRIPS does permit
+governments to use patents for public, noncommercial uses without
+first obtaining the patent holder's permission. Developing nations may
+be able to use this to gain the benefits of foreign patents at lower
+prices. This is a promising strategy for developing nations within the
+TRIPS framework.
+<a class="indexterm" name="idp7615408"></a>
+<a class="indexterm" name="idp7714368"></a>
+</p></div><div id="ftn.idp7716928" class="footnote"><p><a href="#idp7716928" class="para"><sup class="para">[72] </sup></a>
+
+For an analysis of the economic impact of copying technology, see Stan
+Liebowitz, <em class="citetitle">Rethinking the Network Economy</em> (New York: Amacom, 2002),
+144–90. <span class="quote">«<span class="quote">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
+pirating were not an option.</span>»</span> Ibid., 149.
+<a class="indexterm" name="idp7718736"></a>
+</p></div><div id="ftn.idp7748240" class="footnote"><p><a href="#idp7748240" class="para"><sup class="para">[73] </sup></a>
+
+<em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777).
+</p></div><div id="ftn.idp7753632" class="footnote"><p><a href="#idp7753632" class="para"><sup class="para">[74] </sup></a>
+
+<a class="indexterm" name="idp7754272"></a>
+See Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The Revolutionary
+National Bestseller That Changed the Way We Do Business</em> (New York:
+HarperBusiness, 2000). Professor Christensen examines why companies
+that give rise to and dominate a product area are frequently unable to
+come up with the most creative, paradigm-shifting uses for their own
+products. This job usually falls to outside innovators, who
+reassemble existing technology in inventive ways. For a discussion of
+Christensen's ideas, see Lawrence Lessig, <em class="citetitle">Future</em>, 89–92, 139.
+
+<a class="indexterm" name="idp7718048"></a>
+</p></div><div id="ftn.idp7760688" class="footnote"><p><a href="#idp7760688" class="para"><sup class="para">[75] </sup></a>
+
+See Carolyn Lochhead, <span class="quote">«<span class="quote">Silicon Valley Dream, Hollywood Nightmare,</span>»</span> <em class="citetitle">San
+Francisco Chronicle</em>, 24 September 2002, A1; <span class="quote">«<span class="quote">Rock 'n' Roll Suicide,</span>»</span>
+<em class="citetitle">New Scientist</em>, 6 July 2002, 42; Benny Evangelista, <span class="quote">«<span class="quote">Napster Names CEO,
+Secures New Financing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 23 May 2003, C1;
+<span class="quote">«<span class="quote">Napster's Wake-Up Call,</span>»</span> <em class="citetitle">Economist</em>, 24 June 2000, 23; John Naughton,
+<span class="quote">«<span class="quote">Hollywood at War with the Internet</span>»</span> (London) <em class="citetitle">Times</em>, 26 July 2002, 18.
+</p></div><div id="ftn.idp7765728" class="footnote"><p><a href="#idp7765728" class="para"><sup class="para">[76] </sup></a>
+
+
+See Ipsos-Insight, <em class="citetitle">TEMPO: Keeping Pace with Online Music Distribution</em>
+(September 2002), reporting that 28 percent of Americans aged twelve
+and older have downloaded music off of the Internet and 30 percent have
+listened to digital music files stored on their computers.
+</p></div><div id="ftn.idp7769408" class="footnote"><p><a href="#idp7769408" class="para"><sup class="para">[77] </sup></a>
+
+Amy Harmon, <span class="quote">«<span class="quote">Industry Offers a Carrot in Online Music Fight,</span>»</span> <em class="citetitle">New
+York Times</em>, 6 June 2003, A1.
+</p></div><div id="ftn.idp7781872" class="footnote"><p><a href="#idp7781872" class="para"><sup class="para">[78] </sup></a>
+
+See Liebowitz, <em class="citetitle">Rethinking the Network Economy</em>, 148–49.
+<a class="indexterm" name="idp7756320"></a>
+</p></div><div id="ftn.idp7788352" class="footnote"><p><a href="#idp7788352" class="para"><sup class="para">[79] </sup></a>
+
+<a class="indexterm" name="idp7788992"></a>
+See Cap Gemini Ernst & Young, <em class="citetitle">Technology Evolution and the
+Music Industry's Business Model Crisis</em> (2003), 3. This report
+describes the music industry's effort to stigmatize the budding
+practice of cassette taping in the 1970s, including an advertising
+campaign featuring a cassette-shape skull and the caption <span class="quote">«<span class="quote">Home taping
+is killing music.</span>»</span> At the time digital audio tape became a threat,
+the Office of Technical Assessment conducted a survey of consumer
+behavior. In 1988, 40 percent of consumers older than ten had taped
+music to a cassette format. U.S. Congress, Office of Technology
+Assessment, <em class="citetitle">Copyright and Home Copying: Technology Challenges the Law</em>,
+OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office,
+October 1989), 145–56. </p></div><div id="ftn.idp7718304" class="footnote"><p><a href="#idp7718304" class="para"><sup class="para">[80] </sup></a>
+
+U.S. Congress, <em class="citetitle">Copyright and Home Copying</em>, 4.
+</p></div><div id="ftn.idp7802176" class="footnote"><p><a href="#idp7802176" class="para"><sup class="para">[81] </sup></a>
+
+See Recording Industry Association of America, <em class="citetitle">2002 Yearend Statistics</em>,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #15</a>. A later
+report indicates even greater losses. See Recording Industry
+Association of America, <em class="citetitle">Some Facts About Music Piracy</em>, 25 June 2003,
+available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
+#16</a>: <span class="quote">«<span class="quote">In the past four years, unit shipments of recorded music
+have fallen by 26 percent from 1.16 billion units in to 860 million
+units in 2002 in the United States (based on units shipped). In terms
+of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
+billion last year (based on U.S. dollar value of shipments). The music
+industry worldwide has gone from a $39 billion industry in 2000 down
+to a $32 billion industry in 2002 (based on U.S. dollar value of
+shipments).</span>»</span>
+</p></div><div id="ftn.idp7806704" class="footnote"><p><a href="#idp7806704" class="para"><sup class="para">[82] </sup></a>
+Jane Black, <span class="quote">«<span class="quote">Big Music's Broken Record,</span>»</span> BusinessWeek online, 13
+February 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #17</a>.
+<a class="indexterm" name="idp7808480"></a>
+</p></div><div id="ftn.idp7810720" class="footnote"><p><a href="#idp7810720" class="para"><sup class="para">[83] </sup></a>
+
+Ibid.
+</p></div><div id="ftn.idp7816256" class="footnote"><p><a href="#idp7816256" class="para"><sup class="para">[84] </sup></a>
+
+By one estimate, 75 percent of the music released by the major labels
+is no longer in print. See Online Entertainment and Copyright
+Law—Coming Soon to a Digital Device Near You: Hearing Before the
+Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
+2001) (prepared statement of the Future of Music Coalition), available
+at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #18</a>.
+</p></div><div id="ftn.idp7821488" class="footnote"><p><a href="#idp7821488" class="para"><sup class="para">[85] </sup></a>
+
+<a class="indexterm" name="idp7822128"></a>
+While there are not good estimates of the number of used record stores
+in existence, in 2002, there were 7,198 used book dealers in the
+United States, an increase of 20 percent since 1993. See Book Hunter
+Press, <em class="citetitle">The Quiet Revolution: The Expansion of the Used Book
+Market</em> (2002), available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #19</a>. Used
+records accounted for $260 million in sales in 2002. See National
+Association of Recording Merchandisers, <span class="quote">«<span class="quote">2002 Annual Survey
+Results,</span>»</span> available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #20</a>.
+</p></div><div id="ftn.idp7845872" class="footnote"><p><a href="#idp7845872" class="para"><sup class="para">[86] </sup></a>
+
+See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
+35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
+MHP, available at
+
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #21</a>. For an
+account of the litigation and its toll on Napster, see Joseph Menn,
+<em class="citetitle">All the Rave: The Rise and Fall of Shawn Fanning's Napster</em> (New
+York: Crown Business, 2003), 269–82.
+</p></div><div id="ftn.idp7883632" class="footnote"><p><a href="#idp7883632" class="para"><sup class="para">[87] </sup></a>
+
+Copyright Infringements (Audio and Video Recorders): Hearing on
+S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
+and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
+Picture Association of America, Inc.).
+</p></div><div id="ftn.idp7885664" class="footnote"><p><a href="#idp7885664" class="para"><sup class="para">[88] </sup></a>
+
+Copyright Infringements (Audio and Video Recorders), 475.
+</p></div><div id="ftn.idp7886640" class="footnote"><p><a href="#idp7886640" class="para"><sup class="para">[89] </sup></a>
+
+<em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 480 F. Supp. 429,
+(C.D. Cal., 1979).
+</p></div><div id="ftn.idp7889568" class="footnote"><p><a href="#idp7889568" class="para"><sup class="para">[90] </sup></a>
+
+Copyright Infringements (Audio and Video Recorders), 485 (testimony
+of Jack Valenti).
+</p></div><div id="ftn.idp7892672" class="footnote"><p><a href="#idp7892672" class="para"><sup class="para">[91] </sup></a>
+
+<em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 659 F. 2d 963 (9th Cir.
+1981).
+</p></div><div id="ftn.idp7897824" class="footnote"><p><a href="#idp7897824" class="para"><sup class="para">[92] </sup></a>
+
+<em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417, 431 (1984).
+</p></div><div id="ftn.idp7915136" class="footnote"><p><a href="#idp7915136" class="para"><sup class="para">[93] </sup></a>
+
+These are the most important instances in our history, but there are other
+cases as well. The technology of digital audio tape (DAT), for example,
+was regulated by Congress to minimize the risk of piracy. The remedy
+Congress imposed did burden DAT producers, by taxing tape sales and
+controlling the technology of DAT. See Audio Home Recording Act of
+1992 (Title 17 of the <em class="citetitle">United States Code</em>), Pub. L. No. 102-563, 106 Stat.
+4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
+eliminate the opportunity for free riding in the sense I've described. See
+Lessig, <em class="citetitle">Future</em>, 71. See also Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast Flag,</span>»</span>
+<em class="citetitle">University of Chicago Law Review</em> 70 (2003): 293–96.
+<a class="indexterm" name="idp7847872"></a>
+<a class="indexterm" name="idp7918848"></a>
+</p></div><div id="ftn.idp7926608" class="footnote"><p><a href="#idp7926608" class="para"><sup class="para">[94] </sup></a>
+
+<em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
+(1984).
+</p></div><div id="ftn.idp7932448" class="footnote"><p><a href="#idp7932448" class="para"><sup class="para">[95] </sup></a>
+
+John Schwartz, <span class="quote">«<span class="quote">New Economy: The Attack on Peer-to-Peer Software
+Echoes Past Efforts,</span>»</span> <em class="citetitle">New York Times</em>, 22 September 2003, C3.
+</p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-property"></a>Part II. <span class="quote">«<span class="quote">PROPERTY</span>»</span></h1></div></div></div><div class="partintro"><div></div><p>
+
+
+<span class="strong"><strong>The copyright warriors</strong></span> are right: A
+copyright is a kind of property. It can be owned and sold, and the law
+protects against its theft. Ordinarily, the copyright owner gets to
+hold out for any price he wants. Markets reckon the supply and demand
+that partially determine the price she can get.
+</p><p>
+But in ordinary language, to call a copyright a <span class="quote">«<span class="quote">property</span>»</span> right is a
+bit misleading, for the property of copyright is an odd kind of
+property. Indeed, the very idea of property in any idea or any
+expression is very odd. I understand what I am taking when I take the
+picnic table you put in your backyard. I am taking a thing, the picnic
+table, and after I take it, you don't have it. But what am I taking
+when I take the good <span class="emphasis"><em>idea</em></span> you had to put a picnic
+table in the backyard—by, for example, going to Sears, buying a
+table, and putting it in my backyard? What is the thing I am taking
+then?
+</p><a class="indexterm" name="idp7944224"></a><p>
+The point is not just about the thingness of picnic tables versus
+ideas, though that's an important difference. The point instead is that
+
+in the ordinary case—indeed, in practically every case except for a
+ narrow
+range of exceptions—ideas released to the world are free. I don't
+take anything from you when I copy the way you dress—though I
+might seem weird if I did it every day, and especially weird if you are a
+woman. Instead, as Thomas Jefferson said (and as is especially true
+when I copy the way someone else dresses), <span class="quote">«<span class="quote">He who receives an idea
+from me, receives instruction himself without lessening mine; as he who
+lights his taper at mine, receives light without darkening me.</span>»</span><a href="#ftn.idp7946496" class="footnote" name="idp7946496"><sup class="footnote">[96]</sup></a>
+</p><a class="indexterm" name="idp7947952"></a><p>
+The exceptions to free use are ideas and expressions within the
+reach of the law of patent and copyright, and a few other domains that
+I won't discuss here. Here the law says you can't take my idea or
+ expression
+without my permission: The law turns the intangible into
+property.
+</p><p>
+But how, and to what extent, and in what form—the details,
+in other words—matter. To get a good sense of how this practice
+of turning the intangible into property emerged, we need to place this
+<span class="quote">«<span class="quote">property</span>»</span> in its proper context.<a href="#ftn.idp7950496" class="footnote" name="idp7950496"><sup class="footnote">[97]</sup></a>
+</p><p>
+My strategy in doing this will be the same as my strategy in the
+preceding part. I offer four stories to help put the idea of
+<span class="quote">«<span class="quote">copyright material is property</span>»</span> in context. Where did the idea come
+from? What are its limits? How does it function in practice? After
+these stories, the significance of this true
+statement—<span class="quote">«<span class="quote">copyright material is property</span>»</span>— will be a bit
+more clear, and its implications will be revealed as quite different
+from the implications that the copyright warriors would have us draw.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7946496" class="footnote"><p><a href="#idp7946496" class="para"><sup class="para">[96] </sup></a>
+
+Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
+<em class="citetitle">The Writings of Thomas Jefferson</em>, vol. 6 (Andrew A. Lipscomb and Albert
+Ellery Bergh, eds., 1903), 330, 333–34.
+</p></div><div id="ftn.idp7950496" class="footnote"><p><a href="#idp7950496" class="para"><sup class="para">[97] </sup></a>
+
+As the legal realists taught American law, all property rights are
+intangible. A property right is simply a right that an individual has
+against the world to do or not do certain things that may or may not
+attach to a physical object. The right itself is intangible, even if
+the object to which it is (metaphorically) attached is tangible. See
+Adam Mossoff, <span class="quote">«<span class="quote">What Is Property? Putting the Pieces Back Together,</span>»</span>
+<em class="citetitle">Arizona Law Review</em> 45 (2003): 373, 429 n. 241.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="founders"></a>Chapter 6. CHAPTER SIX: Founders</h2></div></div></div><a class="indexterm" name="idxbooksenglishcopyrightlawdevelopedfor"></a><a class="indexterm" name="idxcopyrightlawdevelopmentof"></a><a class="indexterm" name="idxcopyrightlawenglish"></a><a class="indexterm" name="idxenglandcopyrightlawsdevelopedin"></a><a class="indexterm" name="idxunitedkingdomhistoryofcopyrightlawin"></a><a class="indexterm" name="idp7962880"></a><a class="indexterm" name="idp7963632"></a><a class="indexterm" name="idp7964384"></a><a class="indexterm" name="idxromeoandjulietshakespeare"></a><p>
+<span class="strong"><strong>William Shakespeare</strong></span> wrote
+<em class="citetitle">Romeo and Juliet</em> in 1595. The play was first
+published in 1597. It was the eleventh major play that Shakespeare had
+written. He would continue to write plays through 1613, and the plays
+that he wrote have continued to define Anglo-American culture ever
+since. So deeply have the works of a sixteenth-century writer seeped
+into our culture that we often don't even recognize their source. I
+once overheard someone commenting on Kenneth Branagh's adaptation of
+Henry V: <span class="quote">«<span class="quote">I liked it, but Shakespeare is so full of
+clichés.</span>»</span>
+</p><a class="indexterm" name="idp7968720"></a><a class="indexterm" name="idxtonsonjacob"></a><p>
+In 1774, almost 180 years after <em class="citetitle">Romeo and Juliet</em> was written, the
+<span class="quote">«<span class="quote">copy-right</span>»</span> for the work was still thought by many to be the exclusive
+right of a single London publisher, Jacob Tonson.<a href="#ftn.idp7971856" class="footnote" name="idp7971856"><sup class="footnote">[98]</sup></a>
+Tonson was the most prominent of a small group of publishers called
+the Conger<a href="#ftn.idp7976160" class="footnote" name="idp7976160"><sup class="footnote">[99]</sup></a>
+who controlled bookselling in England during the eighteenth
+century. The Conger claimed a perpetual right to control the <span class="quote">«<span class="quote">copy</span>»</span> of
+books that they had acquired from authors. That perpetual right meant
+that no
+
+one else could publish copies of a book to which they held the
+copyright. Prices of the classics were thus kept high; competition to
+produce better or cheaper editions was eliminated.
+</p><a class="indexterm" name="idp7978608"></a><a class="indexterm" name="idxcopyrightdurationof2"></a><a class="indexterm" name="idp7980848"></a><a class="indexterm" name="idp7981920"></a><p>
+Now, there's something puzzling about the year 1774 to anyone who
+knows a little about copyright law. The better-known year in the
+history of copyright is 1710, the year that the British Parliament
+adopted the first <span class="quote">«<span class="quote">copyright</span>»</span> act. Known as the Statute of Anne, the
+act stated that all published works would get a copyright term of
+fourteen years, renewable once if the author was alive, and that all
+works already published by 1710 would get a single term of twenty-one
+additional years.<a href="#ftn.idp7983824" class="footnote" name="idp7983824"><sup class="footnote">[100]</sup></a> Under this law, <em class="citetitle">Romeo and Juliet</em> should have been
+free in 1731. So why was there any issue about it still being under
+Tonson's control in 1774?
+</p><a class="indexterm" name="idp7986832"></a><a class="indexterm" name="idp7987808"></a><a class="indexterm" name="idxlawcommonvspositive"></a><a class="indexterm" name="idp7990272"></a><a class="indexterm" name="idp7991024"></a><p>
+The reason is that the English hadn't yet agreed on what a <span class="quote">«<span class="quote">copyright</span>»</span>
+was—indeed, no one had. At the time the English passed the
+Statute of Anne, there was no other legislation governing copyrights.
+The last law regulating publishers, the Licensing Act of 1662, had
+expired in 1695. That law gave publishers a monopoly over publishing,
+as a way to make it easier for the Crown to control what was
+published. But after it expired, there was no positive law that said
+that the publishers, or <span class="quote">«<span class="quote">Stationers,</span>»</span> had an exclusive right to print
+books.
+</p><a class="indexterm" name="idp7993456"></a><a class="indexterm" name="idp7994432"></a><p>
+There was no <span class="emphasis"><em>positive</em></span> law, but that didn't mean
+that there was no law. The Anglo-American legal tradition looks to
+both the words of legislatures and the words of judges to know the
+rules that are to govern how people are to behave. We call the words
+from legislatures <span class="quote">«<span class="quote">positive law.</span>»</span> We call the words from judges
+<span class="quote">«<span class="quote">common law.</span>»</span> The common law sets the background against which
+legislatures legislate; the legislature, ordinarily, can trump that
+background only if it passes a law to displace it. And so the real
+question after the licensing statutes had expired was whether the
+common law protected a copyright, independent of any positive law.
+</p><a class="indexterm" name="idp7997328"></a><a class="indexterm" name="idp7998304"></a><a class="indexterm" name="idxbritishparliament"></a><a class="indexterm" name="idp8000288"></a><a class="indexterm" name="idxstatuteofanne"></a><p>
+This question was important to the publishers, or <span class="quote">«<span class="quote">booksellers,</span>»</span> as
+they were called, because there was growing competition from foreign
+publishers. The Scottish, in particular, were increasingly publishing
+and exporting books to England. That competition reduced the profits
+
+
+of the Conger, which reacted by demanding that Parliament pass a law
+to again give them exclusive control over publishing. That demand
+ ultimately
+resulted in the Statute of Anne.
+</p><a class="indexterm" name="idxcopyrightasnarrowmonopolyright"></a><p>
+The Statute of Anne granted the author or <span class="quote">«<span class="quote">proprietor</span>»</span> of a book an
+exclusive right to print that book. In an important limitation,
+however, and to the horror of the booksellers, the law gave the
+bookseller that right for a limited term. At the end of that term, the
+copyright <span class="quote">«<span class="quote">expired,</span>»</span> and the work would then be free and could be
+published by anyone. Or so the legislature is thought to have
+believed.
+</p><a class="indexterm" name="idp8006720"></a><p>
+Now, the thing to puzzle about for a moment is this: Why would
+Parliament limit the exclusive right? Not why would they limit it to
+the particular limit they set, but why would they limit the right
+<span class="emphasis"><em>at all?</em></span>
+</p><a class="indexterm" name="idp8008672"></a><a class="indexterm" name="idp8009648"></a><a class="indexterm" name="idp8010400"></a><p>
+For the booksellers, and the authors whom they represented, had a very
+strong claim. Take <em class="citetitle">Romeo and Juliet</em> as an example: That play
+was written by Shakespeare. It was his genius that brought it into the
+world. He didn't take anybody's property when he created this play
+(that's a controversial claim, but never mind), and by his creating
+this play, he didn't make it any harder for others to craft a play. So
+why is it that the law would ever allow someone else to come along and
+take Shakespeare's play without his, or his estate's, permission? What
+reason is there to allow someone else to <span class="quote">«<span class="quote">steal</span>»</span> Shakespeare's work?
+</p><a class="indexterm" name="idp8012912"></a><p>
+The answer comes in two parts. We first need to see something special
+about the notion of <span class="quote">«<span class="quote">copyright</span>»</span> that existed at the time of the
+Statute of Anne. Second, we have to see something important about
+<span class="quote">«<span class="quote">booksellers.</span>»</span>
+</p><a class="indexterm" name="idp8015040"></a><p>
+First, about copyright. In the last three hundred years, we have come
+to apply the concept of <span class="quote">«<span class="quote">copyright</span>»</span> ever more broadly. But in 1710, it
+wasn't so much a concept as it was a very particular right. The
+copyright was born as a very specific set of restrictions: It forbade
+others from reprinting a book. In 1710, the <span class="quote">«<span class="quote">copy-right</span>»</span> was a right
+to use a particular machine to replicate a particular work. It did not
+go beyond that very narrow right. It did not control any more
+generally how
+
+a work could be <span class="emphasis"><em>used</em></span>. Today the right includes a
+large collection of restrictions on the freedom of others: It grants
+the author the exclusive right to copy, the exclusive right to
+distribute, the exclusive right to perform, and so on.
+</p><a class="indexterm" name="idp8018592"></a><a class="indexterm" name="idp8019344"></a><p>
+So, for example, even if the copyright to Shakespeare's works were
+perpetual, all that would have meant under the original meaning of the
+term was that no one could reprint Shakespeare's work without the
+permission of the Shakespeare estate. It would not have controlled
+anything, for example, about how the work could be performed, whether
+the work could be translated, or whether Kenneth Branagh would be
+allowed to make his films. The <span class="quote">«<span class="quote">copy-right</span>»</span> was only an exclusive
+right to print—no less, of course, but also no more.
+</p><a class="indexterm" name="idp8021408"></a><a class="indexterm" name="idxmonopolycopyrightas"></a><a class="indexterm" name="idp8023392"></a><p>
+Even that limited right was viewed with skepticism by the British.
+They had had a long and ugly experience with <span class="quote">«<span class="quote">exclusive rights,</span>»</span>
+especially <span class="quote">«<span class="quote">exclusive rights</span>»</span> granted by the Crown. The English had
+fought a civil war in part about the Crown's practice of handing out
+monopolies—especially monopolies for works that already
+existed. King Henry VIII granted a patent to print the Bible and a
+monopoly to Darcy to print playing cards. The English Parliament began
+to fight back against this power of the Crown. In 1656, it passed the
+Statute of Monopolies, limiting monopolies to patents for new
+inventions. And by 1710, Parliament was eager to deal with the growing
+monopoly in publishing.
+</p><p>
+Thus the <span class="quote">«<span class="quote">copy-right,</span>»</span> when viewed as a monopoly right, was naturally
+viewed as a right that should be limited. (However convincing the
+claim that <span class="quote">«<span class="quote">it's my property, and I should have it forever,</span>»</span> try
+sounding convincing when uttering, <span class="quote">«<span class="quote">It's my monopoly, and I should
+have it forever.</span>»</span>) The state would protect the exclusive right, but
+only so long as it benefited society. The British saw the harms from
+specialinterest favors; they passed a law to stop them.
+</p><a class="indexterm" name="idp8027840"></a><a class="indexterm" name="idxbooksellersenglish"></a><a class="indexterm" name="idp8029824"></a><a class="indexterm" name="idxcopyrightdurationof3"></a><p>
+Second, about booksellers. It wasn't just that the copyright was a
+monopoly. It was also that it was a monopoly held by the booksellers.
+Booksellers sound quaint and harmless to us. They were not viewed
+as harmless in seventeenth-century England. Members of the Conger
+
+
+were increasingly seen as monopolists of the worst
+kind—tools of the Crown's repression, selling the liberty of
+England to guarantee themselves a monopoly profit. The attacks against
+these monopolists were harsh: Milton described them as <span class="quote">«<span class="quote">old patentees
+and monopolizers in the trade of book-selling</span>»</span>; they were <span class="quote">«<span class="quote">men who do
+not therefore labour in an honest profession to which learning is
+indetted.</span>»</span><a href="#ftn.idp8033936" class="footnote" name="idp8033936"><sup class="footnote">[101]</sup></a>
+</p><a class="indexterm" name="idp8035216"></a><a class="indexterm" name="idp8035968"></a><p>
+Many believed the power the booksellers exercised over the spread of
+knowledge was harming that spread, just at the time the Enlightenment
+was teaching the importance of education and knowledge spread
+generally. The idea that knowledge should be free was a hallmark of
+the time, and these powerful commercial interests were interfering
+with that idea.
+</p><a class="indexterm" name="idxbritishparliament2"></a><p>
+To balance this power, Parliament decided to increase competition
+among booksellers, and the simplest way to do that was to spread the
+wealth of valuable books. Parliament therefore limited the term of
+copyrights, and thereby guaranteed that valuable books would become
+open to any publisher to publish after a limited time. Thus the setting
+of the term for existing works to just twenty-one years was a
+ compromise
+to fight the power of the booksellers. The limitation on terms was
+an indirect way to assure competition among publishers, and thus the
+construction and spread of culture.
+</p><a class="indexterm" name="idxstatuteofanne2"></a><a class="indexterm" name="idxcopyrightinperpetuity"></a><p>
+When 1731 (1710 + 21) came along, however, the booksellers were
+getting anxious. They saw the consequences of more competition, and
+like every competitor, they didn't like them. At first booksellers simply
+ignored the Statute of Anne, continuing to insist on the perpetual right
+to control publication. But in 1735 and 1737, they tried to persuade
+Parliament to extend their terms. Twenty-one years was not enough,
+they said; they needed more time.
+</p><p>
+Parliament rejected their requests. As one pamphleteer put it, in
+words that echo today,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+I see no Reason for granting a further Term now, which will not
+hold as well for granting it again and again, as often as the Old
+
+ones Expire; so that should this Bill pass, it will in Effect be
+establishing a perpetual Monopoly, a Thing deservedly odious in the
+Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
+Learning, no Benefit to the Authors, but a general Tax on the Publick;
+and all this only to increase the private Gain of the
+Booksellers.<a href="#ftn.idp8045024" class="footnote" name="idp8045024"><sup class="footnote">[102]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp8047248"></a><a class="indexterm" name="idp8048224"></a><a class="indexterm" name="idp8049200"></a><a class="indexterm" name="idp8049952"></a><a class="indexterm" name="idp8050960"></a><p>
+Having failed in Parliament, the publishers turned to the courts in a
+series of cases. Their argument was simple and direct: The Statute of
+Anne gave authors certain protections through positive law, but those
+protections were not intended as replacements for the common law.
+Instead, they were intended simply to supplement the common law.
+Under common law, it was already wrong to take another person's
+creative <span class="quote">«<span class="quote">property</span>»</span> and use it without his permission. The Statute of
+Anne, the booksellers argued, didn't change that. Therefore, just
+because the protections of the Statute of Anne expired, that didn't
+mean the protections of the common law expired: Under the common law
+they had the right to ban the publication of a book, even if its
+Statute of Anne copyright had expired. This, they argued, was the only
+way to protect authors.
+</p><a class="indexterm" name="idp8053344"></a><p>
+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,
+<span class="quote">«<span class="quote">The publishers … had as much concern for authors as a cattle
+rancher has for cattle.</span>»</span><a href="#ftn.idp7794080" class="footnote" name="idp7794080"><sup class="footnote">[103]</sup></a>
+The bookseller didn't care squat for the rights of the author. His
+concern was the monopoly profit that the author's work gave.
+</p><a class="indexterm" name="idxdonaldsonalexander"></a><a class="indexterm" name="idp8059792"></a><a class="indexterm" name="idxscottishpublishers"></a><p>
+The booksellers' argument was not accepted without a fight.
+The hero of this fight was a Scottish bookseller named Alexander
+Donaldson.<a href="#ftn.idp8062192" class="footnote" name="idp8062192"><sup class="footnote">[104]</sup></a>
+</p><a class="indexterm" name="idxstatuteofanne3"></a><a class="indexterm" name="idxconger"></a><a class="indexterm" name="idp8065936"></a><a class="indexterm" name="idp8066688"></a><p>
+Donaldson was an outsider to the London Conger. He began his
+career in Edinburgh in 1750. The focus of his business was inexpensive
+reprints <span class="quote">«<span class="quote">of standard works whose copyright term had expired,</span>»</span> at least
+under the Statute of Anne.<a href="#ftn.idp8068240" class="footnote" name="idp8068240"><sup class="footnote">[105]</sup></a>
+Donaldson's publishing house prospered
+
+and became <span class="quote">«<span class="quote">something of a center for literary Scotsmen.</span>»</span> <span class="quote">«<span class="quote">[A]mong
+them,</span>»</span> Professor Mark Rose writes, was <span class="quote">«<span class="quote">the young James Boswell
+who, together with his friend Andrew Erskine, published an anthology
+of contemporary Scottish poems with Donaldson.</span>»</span><a href="#ftn.idp8071584" class="footnote" name="idp8071584"><sup class="footnote">[106]</sup></a>
+</p><a class="indexterm" name="idxcommonlaw"></a><p>
+When the London booksellers tried to shut down Donaldson's shop in
+Scotland, he responded by moving his shop to London, where he sold
+inexpensive editions <span class="quote">«<span class="quote">of the most popular English books, in defiance
+of the supposed common law right of Literary
+Property.</span>»</span><a href="#ftn.idp8074512" class="footnote" name="idp8074512"><sup class="footnote">[107]</sup></a>
+His books undercut the Conger prices by 30 to 50 percent, and he
+rested his right to compete upon the ground that, under the Statute of
+Anne, the works he was selling had passed out of protection.
+</p><a class="indexterm" name="idp8076752"></a><a class="indexterm" name="idxmillarvtaylor"></a><p>
+The London booksellers quickly brought suit to block <span class="quote">«<span class="quote">piracy</span>»</span> like
+Donaldson's. A number of actions were successful against the <span class="quote">«<span class="quote">pirates,</span>»</span>
+the most important early victory being <em class="citetitle">Millar</em> v. <em class="citetitle">Taylor</em>.
+</p><a class="indexterm" name="idp8080960"></a><a class="indexterm" name="idp8081936"></a><a class="indexterm" name="idxthomsonjames"></a><a class="indexterm" name="idxcopyrightinperpetuity2"></a><a class="indexterm" name="idp8085632"></a><a class="indexterm" name="idp8086384"></a><p>
+Millar was a bookseller who in 1729 had purchased the rights to James
+Thomson's poem <span class="quote">«<span class="quote">The Seasons.</span>»</span> Millar complied with the requirements of
+the Statute of Anne, and therefore received the full protection of the
+statute. After the term of copyright ended, Robert Taylor began
+printing a competing volume. Millar sued, claiming a perpetual common
+law right, the Statute of Anne notwithstanding.<a href="#ftn.idp8088176" class="footnote" name="idp8088176"><sup class="footnote">[108]</sup></a>
+</p><a class="indexterm" name="idxmansfieldwilliammurraylord2"></a><p>
+Astonishingly to modern lawyers, one of the greatest judges in English
+history, Lord Mansfield, agreed with the booksellers. Whatever
+protection the Statute of Anne gave booksellers, it did not, he held,
+extinguish any common law right. The question was whether the common
+law would protect the author against subsequent <span class="quote">«<span class="quote">pirates.</span>»</span>
+Mansfield's answer was yes: The common law would bar Taylor from
+reprinting Thomson's poem without Millar's permission. That common law
+rule thus effectively gave the booksellers a perpetual right to
+control the publication of any book assigned to them.
+</p><a class="indexterm" name="idp8092560"></a><a class="indexterm" name="idp8093536"></a><a class="indexterm" name="idp8094512"></a><a class="indexterm" name="idxbritishparliament3"></a><p>
+Considered as a matter of abstract justice—reasoning as if
+justice were just a matter of logical deduction from first
+principles—Mansfield's conclusion might make some sense. But
+what it ignored was the larger issue that Parliament had struggled
+with in 1710: How best to limit
+
+the monopoly power of publishers? Parliament's strategy was to offer a
+term for existing works that was long enough to buy peace in 1710, but
+short enough to assure that culture would pass into competition within
+a reasonable period of time. Within twenty-one years, Parliament
+believed, Britain would mature from the controlled culture that the
+Crown coveted to the free culture that we inherited.
+</p><a class="indexterm" name="idp8098080"></a><a class="indexterm" name="idxdonaldsonalexander2"></a><a class="indexterm" name="idxscottishpublishers2"></a><p>
+The fight to defend the limits of the Statute of Anne was not to end
+there, however, and it is here that Donaldson enters the mix.
+</p><a class="indexterm" name="idp8102048"></a><a class="indexterm" name="idp8102800"></a><a class="indexterm" name="idxhouseoflords"></a><a class="indexterm" name="idxsupremecourtushouseoflordsvs"></a><p>
+Millar died soon after his victory, so his case was not appealed. His
+estate sold Thomson's poems to a syndicate of printers that included
+Thomas Beckett.<a href="#ftn.idp8106704" class="footnote" name="idp8106704"><sup class="footnote">[109]</sup></a>
+Donaldson then released an unauthorized edition
+of Thomson's works. Beckett, on the strength of the decision in <em class="citetitle">Millar</em>,
+got an injunction against Donaldson. Donaldson appealed the case to
+the House of Lords, which functioned much like our own Supreme
+Court. In February of 1774, that body had the chance to interpret the
+meaning of Parliament's limits from sixty years before.
+</p><a class="indexterm" name="idp8108384"></a><a class="indexterm" name="idp8109360"></a><a class="indexterm" name="idxdonaldsonvbeckett"></a><a class="indexterm" name="idxcommonlaw2"></a><p>
+As few legal cases ever do, <em class="citetitle">Donaldson</em> v. <em class="citetitle">Beckett</em> drew an
+enormous amount of attention throughout Britain. Donaldson's lawyers
+argued that whatever rights may have existed under the common law, the
+Statute of Anne terminated those rights. After passage of the Statute
+of Anne, the only legal protection for an exclusive right to control
+publication came from that statute. Thus, they argued, after the term
+specified in the Statute of Anne expired, works that had been
+protected by the statute were no longer protected.
+</p><a class="indexterm" name="idp8114432"></a><p>
+The House of Lords was an odd institution. Legal questions were
+presented to the House and voted upon first by the <span class="quote">«<span class="quote">law lords,</span>»</span>
+members of special legal distinction who functioned much like the
+Justices in our Supreme Court. Then, after the law lords voted, the
+House of Lords generally voted.
+</p><a class="indexterm" name="idp8116480"></a><a class="indexterm" name="idxcopyrightinperpetuity3"></a><a class="indexterm" name="idxpublicdomainenglishlegalestablishmentof"></a><p>
+The reports about the law lords' votes are mixed. On some counts,
+it looks as if perpetual copyright prevailed. But there is no ambiguity
+
+about how the House of Lords voted as whole. By a two-to-one majority
+(22 to 11) they voted to reject the idea of perpetual copyrights.
+Whatever one's understanding of the common law, now a copyright was
+fixed for a limited time, after which the work protected by copyright
+passed into the public domain.
+</p><a class="indexterm" name="idp8121552"></a><a class="indexterm" name="idp8122304"></a><a class="indexterm" name="idp8123056"></a><a class="indexterm" name="idp8123808"></a><a class="indexterm" name="idp8124560"></a><p>
+<span class="quote">«<span class="quote">The public domain.</span>»</span> Before the case of <em class="citetitle">Donaldson</em>
+v. <em class="citetitle">Beckett</em>, there was no clear idea of a public domain in
+England. Before 1774, there was a strong argument that common law
+copyrights were perpetual. After 1774, the public domain was
+born. For the first time in Anglo-American history, the legal control
+over creative works expired, and the greatest works in English
+history—including those of Shakespeare, Bacon, Milton, Johnson,
+and Bunyan—were free of legal restraint.
+</p><a class="indexterm" name="idp8126720"></a><a class="indexterm" name="idp8128352"></a><a class="indexterm" name="idp8129328"></a><a class="indexterm" name="idp8130304"></a><a class="indexterm" name="idp8131280"></a><a class="indexterm" name="idp8132256"></a><p>
+It is hard for us to imagine, but this decision by the House of Lords
+fueled an extraordinarily popular and political reaction. In Scotland,
+where most of the <span class="quote">«<span class="quote">pirate publishers</span>»</span> did their work, people
+celebrated the decision in the streets. As the <em class="citetitle">Edinburgh Advertiser</em>
+reported, <span class="quote">«<span class="quote">No private cause has so much engrossed the attention of the
+public, and none has been tried before the House of Lords in the
+decision of which so many individuals were interested.</span>»</span> <span class="quote">«<span class="quote">Great
+rejoicing in Edinburgh upon victory over literary property: bonfires
+and illuminations.</span>»</span><a href="#ftn.idp8135152" class="footnote" name="idp8135152"><sup class="footnote">[110]</sup></a>
+</p><a class="indexterm" name="idp8136048"></a><p>
+In London, however, at least among publishers, the reaction was
+equally strong in the opposite direction. The <em class="citetitle">Morning Chronicle</em>
+reported:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.<a href="#ftn.idp8055056" class="footnote" name="idp8055056"><sup class="footnote">[111]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp8139952"></a><a class="indexterm" name="idp8140704"></a><p>
+
+<span class="quote">«<span class="quote">Ruined</span>»</span> 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
+<span class="emphasis"><em>free</em></span>. 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 <span class="emphasis"><em>free</em></span> 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 <span class="emphasis"><em>competitive
+context</em></span>, 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.
+</p><a class="indexterm" name="idp8145184"></a><a class="indexterm" name="idp8146160"></a><p>
+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.
+</p><a class="indexterm" name="idp8147536"></a><a class="indexterm" name="idp8148512"></a><a class="indexterm" name="idp8149488"></a><a class="indexterm" name="idp8150464"></a><a class="indexterm" name="idp8151440"></a><a class="indexterm" name="idp8152416"></a><a class="indexterm" name="idp8153392"></a><a class="indexterm" name="idp8154368"></a><a class="indexterm" name="idp8155344"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7971856" class="footnote"><p><a href="#idp7971856" class="para"><sup class="para">[98] </sup></a>
+
+<a class="indexterm" name="idp7972496"></a>
+<a class="indexterm" name="idp7973248"></a>
+Jacob Tonson is typically remembered for his associations with prominent
+eighteenth-century literary figures, especially John Dryden, and for his
+handsome <span class="quote">«<span class="quote">definitive editions</span>»</span> of classic works. In addition to <em class="citetitle">Romeo and
+Juliet</em>, he published an astonishing array of works that still remain at the
+heart of the English canon, including collected works of Shakespeare, Ben
+Jonson, John Milton, and John Dryden. See Keith Walker, <span class="quote">«<span class="quote">Jacob Tonson,
+Bookseller,</span>»</span> <em class="citetitle">American Scholar</em> 61:3 (1992): 424–31.
+</p></div><div id="ftn.idp7976160" class="footnote"><p><a href="#idp7976160" class="para"><sup class="para">[99] </sup></a>
+
+Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em> (Nashville:
+Vanderbilt University Press, 1968), 151–52.
+</p></div><div id="ftn.idp7983824" class="footnote"><p><a href="#idp7983824" class="para"><sup class="para">[100] </sup></a>
+
+<a class="indexterm" name="idp7984464"></a>
+As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
+<span class="quote">«<span class="quote">copyright law.</span>»</span> See Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 40.
+</p></div><div id="ftn.idp8033936" class="footnote"><p><a href="#idp8033936" class="para"><sup class="para">[101] </sup></a>
+
+
+Philip Wittenberg, <em class="citetitle">The Protection and Marketing of Literary
+Property</em> (New York: J. Messner, Inc., 1937), 31.
+</p></div><div id="ftn.idp8045024" class="footnote"><p><a href="#idp8045024" class="para"><sup class="para">[102] </sup></a>
+
+A Letter to a Member of Parliament concerning the Bill now depending
+in the House of Commons, for making more effectual an Act in the
+Eighth Year of the Reign of Queen Anne, entitled, An Act for the
+Encouragement of Learning, by Vesting the Copies of Printed Books in
+the Authors or Purchasers of such Copies, during the Times therein
+mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
+al., 8, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537 U.S. 186 (2003) (No. 01-618).
+</p></div><div id="ftn.idp7794080" class="footnote"><p><a href="#idp7794080" class="para"><sup class="para">[103] </sup></a>
+
+<a class="indexterm" name="idp8055792"></a>
+<a class="indexterm" name="idp8056544"></a>
+Lyman Ray Patterson, <span class="quote">«<span class="quote">Free Speech, Copyright, and Fair Use,</span>»</span> <em class="citetitle">Vanderbilt
+Law Review</em> 40 (1987): 28. For a wonderfully compelling account, see
+Vaidhyanathan, 37–48.
+</p></div><div id="ftn.idp8062192" class="footnote"><p><a href="#idp8062192" class="para"><sup class="para">[104] </sup></a>
+
+For a compelling account, see David Saunders, <em class="citetitle">Authorship and Copyright</em>
+(London: Routledge, 1992), 62–69.
+</p></div><div id="ftn.idp8068240" class="footnote"><p><a href="#idp8068240" class="para"><sup class="para">[105] </sup></a>
+
+Mark Rose, <em class="citetitle">Authors and Owners</em> (Cambridge: Harvard University Press,
+1993), 92.
+<a class="indexterm" name="idp8069264"></a>
+</p></div><div id="ftn.idp8071584" class="footnote"><p><a href="#idp8071584" class="para"><sup class="para">[106] </sup></a>
+
+Ibid., 93.
+</p></div><div id="ftn.idp8074512" class="footnote"><p><a href="#idp8074512" class="para"><sup class="para">[107] </sup></a>
+
+<a class="indexterm" name="idp8075152"></a>
+Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em>, 167 (quoting
+Borwell).
+</p></div><div id="ftn.idp8088176" class="footnote"><p><a href="#idp8088176" class="para"><sup class="para">[108] </sup></a>
+
+Howard B. Abrams, <span class="quote">«<span class="quote">The Historic Foundation of American Copyright Law:
+Exploding the Myth of Common Law Copyright,</span>»</span> <em class="citetitle">Wayne Law Review</em> 29
+(1983): 1152.
+</p></div><div id="ftn.idp8106704" class="footnote"><p><a href="#idp8106704" class="para"><sup class="para">[109] </sup></a>
+
+Ibid., 1156.
+</p></div><div id="ftn.idp8135152" class="footnote"><p><a href="#idp8135152" class="para"><sup class="para">[110] </sup></a>
+
+Rose, 97.
+</p></div><div id="ftn.idp8055056" class="footnote"><p><a href="#idp8055056" class="para"><sup class="para">[111] </sup></a>
+
+Ibid.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="recorders"></a>Chapter 7. CHAPTER SEVEN: Recorders</h2></div></div></div><a class="indexterm" name="idxcopyrightlawfairuseand"></a><a class="indexterm" name="idxdocumentaryfilm"></a><a class="indexterm" name="idxelsejon"></a><a class="indexterm" name="idxfairuseindocumentaryfilm"></a><a class="indexterm" name="idxfilmsfairuseofcopyrightedmaterialin"></a><p>
+<span class="strong"><strong>Jon Else</strong></span> is a filmmaker. He is best
+known for his documentaries and has been very successful in spreading
+his art. He is also a teacher, and as a teacher myself, I envy the
+loyalty and admiration that his students feel for him. (I met, by
+accident, two of his students at a dinner party. He was their god.)
+</p><p>
+Else worked on a documentary that I was involved in. At a break,
+he told me a story about the freedom to create with film in America
+today.
+</p><a class="indexterm" name="idxwagnerrichard"></a><a class="indexterm" name="idp8167856"></a><p>
+In 1990, Else was working on a documentary about Wagner's Ring
+Cycle. The focus was stagehands at the San Francisco Opera.
+Stagehands are a particularly funny and colorful element of an opera.
+During a show, they hang out below the stage in the grips' lounge and
+in the lighting loft. They make a perfect contrast to the art on the
+stage.
+</p><a class="indexterm" name="idxsimpsonsthe"></a><p>
+During one of the performances, Else was shooting some stagehands
+playing checkers. In one corner of the room was a television set.
+Playing on the television set, while the stagehands played checkers
+and the opera company played Wagner, was <em class="citetitle">The Simpsons</em>. As Else judged
+
+it, this touch of cartoon helped capture the flavor of what was special
+about the scene.
+</p><a class="indexterm" name="idp8171968"></a><a class="indexterm" name="idp8172944"></a><p>
+Years later, when he finally got funding to complete the film, Else
+attempted to clear the rights for those few seconds of <em class="citetitle">The Simpsons</em>.
+For of course, those few seconds are copyrighted; and of course, to use
+copyrighted material you need the permission of the copyright owner,
+unless <span class="quote">«<span class="quote">fair use</span>»</span> or some other privilege applies.
+</p><a class="indexterm" name="idxgraciefilms"></a><a class="indexterm" name="idxgroeningmatt"></a><p>
+Else called <em class="citetitle">Simpsons</em> creator Matt Groening's office to get permission.
+Groening approved the shot. The shot was a four-and-a-halfsecond image
+on a tiny television set in the corner of the room. How could it hurt?
+Groening was happy to have it in the film, but he told Else to contact
+Gracie Films, the company that produces the program.
+</p><a class="indexterm" name="idxfoxfilmcompany"></a><p>
+Gracie Films was okay with it, too, but they, like Groening, wanted
+to be careful. So they told Else to contact Fox, Gracie's parent company.
+Else called Fox and told them about the clip in the corner of the one
+room shot of the film. Matt Groening had already given permission,
+Else said. He was just confirming the permission with Fox.
+</p><a class="indexterm" name="idp8180944"></a><p>
+Then, as Else told me, <span class="quote">«<span class="quote">two things happened. First we discovered
+… that Matt Groening doesn't own his own creation—or at
+least that someone [at Fox] believes he doesn't own his own creation.</span>»</span>
+And second, Fox <span class="quote">«<span class="quote">wanted ten thousand dollars as a licensing fee for us
+to use this four-point-five seconds of … entirely unsolicited
+<em class="citetitle">Simpsons</em> which was in the corner of the shot.</span>»</span>
+</p><a class="indexterm" name="idp8183888"></a><a class="indexterm" name="idp8184752"></a><a class="indexterm" name="idxherrerarebecca"></a><p>
+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, <span class="quote">«<span class="quote">There must be some mistake here. … We're
+asking for your educational rate on this.</span>»</span> That was the educational
+rate, Herrera told Else. A day or so later, Else called again to
+confirm what he had been told.
+</p><a class="indexterm" name="idp8188144"></a><p>
+<span class="quote">«<span class="quote">I wanted to make sure I had my facts straight,</span>»</span> he told me. <span class="quote">«<span class="quote">Yes, you
+have your facts straight,</span>»</span> she said. It would cost $10,000 to use the
+clip of <em class="citetitle">The Simpsons</em> in the corner of a shot in a documentary film
+about
+
+
+Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, <span class="quote">«<span class="quote">And
+if you quote me, I'll turn you over to our attorneys.</span>»</span> As an assistant
+to Herrera told Else later on, <span class="quote">«<span class="quote">They don't give a shit. They just want
+the money.</span>»</span>
+</p><a class="indexterm" name="idp8191616"></a><a class="indexterm" name="idp8192592"></a><a class="indexterm" name="idp8193344"></a><p>
+Else didn't have the money to buy the right to replay what was playing
+on the television backstage at the San Francisco Opera. To reproduce
+this reality was beyond the documentary filmmaker's budget. At the
+very last minute before the film was to be released, Else digitally
+replaced the shot with a clip from another film that he had worked on,
+<em class="citetitle">The Day After Trinity</em>, from ten years before.
+</p><a class="indexterm" name="idxfoxfilmcompany2"></a><a class="indexterm" name="idxgroeningmatt2"></a><p>
+There's no doubt that someone, whether Matt Groening or Fox, owns the
+copyright to <em class="citetitle">The Simpsons</em>. That copyright is their property. To use
+that copyrighted material thus sometimes requires the permission of
+the copyright owner. If the use that Else wanted to make of the
+<em class="citetitle">Simpsons</em> copyright were one of the uses restricted by the law, then he
+would need to get the permission of the copyright owner before he
+could use the work in that way. And in a free market, it is the owner
+of the copyright who gets to set the price for any use that the law
+says the owner gets to control.
+</p><p>
+For example, <span class="quote">«<span class="quote">public performance</span>»</span> is a use of <em class="citetitle">The Simpsons</em> that the
+copyright owner gets to control. If you take a selection of favorite
+episodes, rent a movie theater, and charge for tickets to come see <span class="quote">«<span class="quote">My
+Favorite <em class="citetitle">Simpsons</em>,</span>»</span> then you need to get permission from the copyright
+owner. And the copyright owner (rightly, in my view) can charge
+whatever she wants—$10 or $1,000,000. That's her right, as set
+by the law.
+</p><p>
+But when lawyers hear this story about Jon Else and Fox, their first
+thought is <span class="quote">«<span class="quote">fair use.</span>»</span><a href="#ftn.idp8202368" class="footnote" name="idp8202368"><sup class="footnote">[112]</sup></a>
+Else's use of just 4.5 seconds of an indirect shot of a <em class="citetitle">Simpsons</em>
+episode is clearly a fair use of <em class="citetitle">The Simpsons</em>—and fair use does
+not require the permission of anyone.
+</p><a class="indexterm" name="idp8205696"></a><a class="indexterm" name="idp8206672"></a><p>
+
+So I asked Else why he didn't just rely upon <span class="quote">«<span class="quote">fair use.</span>»</span> Here's his reply:
+</p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst"></a><p>
+The <em class="citetitle">Simpsons</em> 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 <span class="quote">«<span class="quote">clearly
+fair use</span>»</span> in an absolute legal sense. But I couldn't rely on the
+concept in any concrete way. Here's why:
+</p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><a class="indexterm" name="idp8213184"></a><p>
+
+Before our films can be broadcast, the network requires that we buy
+Errors and Omissions insurance. The carriers require a detailed
+<span class="quote">«<span class="quote">visual cue sheet</span>»</span> listing the source and licensing status of each
+shot in the film. They take a dim view of <span class="quote">«<span class="quote">fair use,</span>»</span> and a claim of
+<span class="quote">«<span class="quote">fair use</span>»</span> can grind the application process to a halt.
+</p></li><li class="listitem"><a class="indexterm" name="idxfoxfilmcompany3"></a><a class="indexterm" name="idp8217472"></a><a class="indexterm" name="idp8218224"></a><a class="indexterm" name="idp8218976"></a><p>
+
+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 <em class="citetitle">Simpsons</em> usage, just as George
+Lucas had a very high profile litigating <em class="citetitle">Star Wars</em> usage. So I decided
+to play by the book, thinking that we would be granted free or cheap
+license to four seconds of <em class="citetitle">Simpsons</em>. 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.
+</p></li><li class="listitem"><p>
+
+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 <span class="quote">«<span class="quote">depose and litigate you to within an inch of your
+life,</span>»</span> 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.
+
+</p><a class="indexterm" name="idp8224080"></a></li><li class="listitem"><p>
+
+The question of fair use usually comes up at the end of the
+project, when we are up against a release deadline and out of
+money.
+</p></li></ol></div></blockquote></div><a class="indexterm" name="idp8226352"></a><p>
+In theory, fair use means you need no permission. The theory therefore
+supports free culture and insulates against a permission culture. But
+in practice, fair use functions very differently. The fuzzy lines of
+the law, tied to the extraordinary liability if lines are crossed,
+means that the effective fair use for many types of creators is
+slight. The law has the right aim; practice has defeated the aim.
+</p><p>
+This practice shows just how far the law has come from its
+eighteenth-century roots. The law was born as a shield to protect
+publishers' profits against the unfair competition of a pirate. It has
+matured into a sword that interferes with any use, transformative or
+not.
+</p><a class="indexterm" name="idp8228816"></a><a class="indexterm" name="idp8229792"></a><a class="indexterm" name="idp8230768"></a><a class="indexterm" name="idp8231744"></a><a class="indexterm" name="idp8232720"></a><a class="indexterm" name="idp8233696"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8202368" class="footnote"><p><a href="#idp8202368" class="para"><sup class="para">[112] </sup></a>
+
+For an excellent argument that such use is <span class="quote">«<span class="quote">fair use,</span>»</span> but that
+lawyers don't permit recognition that it is <span class="quote">«<span class="quote">fair use,</span>»</span> see Richard
+A. Posner with William F. Patry, <span class="quote">«<span class="quote">Fair Use and Statutory Reform in the
+Wake of <em class="citetitle">Eldred</em></span>»</span> (draft on file with author), University of Chicago
+Law School, 5 August 2003.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="transformers"></a>Chapter 8. CHAPTER EIGHT: Transformers</h2></div></div></div><a class="indexterm" name="idp8236320"></a><a class="indexterm" name="idxalbenalex1"></a><a class="indexterm" name="idp8238624"></a><p>
+<span class="strong"><strong>In 1993</strong></span>, Alex Alben was a lawyer
+working at Starwave, Inc. Starwave was an innovative company founded
+by Microsoft cofounder Paul Allen to develop digital
+entertainment. Long before the Internet became popular, Starwave began
+investing in new technology for delivering entertainment in
+anticipation of the power of networks.
+</p><a class="indexterm" name="idxartistsretrospective"></a><a class="indexterm" name="idxcdroms"></a><p>
+Alben had a special interest in new technology. He was intrigued by
+the emerging market for CD-ROM technology—not to distribute
+film, but to do things with film that otherwise would be very
+difficult. In 1993, he launched an initiative to develop a product to
+build retrospectives on the work of particular actors. The first actor
+chosen was Clint Eastwood. The idea was to showcase all of the work of
+Eastwood, with clips from his films and interviews with figures
+important to his career.
+</p><p>
+At that time, Eastwood had made more than fifty films, as an actor and
+as a director. Alben began with a series of interviews with Eastwood,
+asking him about his career. Because Starwave produced those
+interviews, it was free to include them on the CD.
+</p><p>
+
+That alone would not have made a very interesting product, so
+Starwave wanted to add content from the movies in Eastwood's career:
+posters, scripts, and other material relating to the films Eastwood
+made. Most of his career was spent at Warner Brothers, and so it was
+relatively easy to get permission for that content.
+</p><p>
+Then Alben and his team decided to include actual film clips. <span class="quote">«<span class="quote">Our
+goal was that we were going to have a clip from every one of
+Eastwood's films,</span>»</span> Alben told me. It was here that the problem
+arose. <span class="quote">«<span class="quote">No one had ever really done this before,</span>»</span> Alben explained. <span class="quote">«<span class="quote">No
+one had ever tried to do this in the context of an artistic look at an
+actor's career.</span>»</span>
+</p><p>
+Alben brought the idea to Michael Slade, the CEO of Starwave.
+Slade asked, <span class="quote">«<span class="quote">Well, what will it take?</span>»</span>
+</p><p>
+Alben replied, <span class="quote">«<span class="quote">Well, we're going to have to clear rights from
+everyone who appears in these films, and the music and everything
+else that we want to use in these film clips.</span>»</span> Slade said, <span class="quote">«<span class="quote">Great! Go
+for it.</span>»</span><a href="#ftn.idp8250752" class="footnote" name="idp8250752"><sup class="footnote">[113]</sup></a>
+</p><p>
+The problem was that neither Alben nor Slade had any idea what
+clearing those rights would mean. Every actor in each of the films
+could have a claim to royalties for the reuse of that film. But CD-
+ROMs had not been specified in the contracts for the actors, so there
+was no clear way to know just what Starwave was to do.
+</p><p>
+I asked Alben how he dealt with the problem. With an obvious
+pride in his resourcefulness that obscured the obvious bizarreness of his
+tale, Alben recounted just what they did:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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 <span class="quote">«<span class="quote">Make my day</span>»</span> clip from <em class="citetitle">Dirty
+Harry</em>. 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.
+</p><p>
+
+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.
+</p></blockquote></div><a class="indexterm" name="idp8258464"></a><p>
+Some actors were glad to help—Donald Sutherland, for example,
+followed up himself to be sure that the rights had been cleared.
+Others were dumbfounded at their good fortune. Alben would ask,
+<span class="quote">«<span class="quote">Hey, can I pay you $600 or maybe if you were in two films, you
+know, $1,200?</span>»</span> And they would say, <span class="quote">«<span class="quote">Are you for real? Hey, I'd love
+to get $1,200.</span>»</span> And some of course were a bit difficult (estranged
+ex-wives, in particular). But eventually, Alben and his team had
+cleared the rights to this retrospective CD-ROM on Clint Eastwood's
+career.
+</p><p>
+It was one <span class="emphasis"><em>year</em></span> later—<span class="quote">«<span class="quote">and even then we
+weren't sure whether we were totally in the clear.</span>»</span>
+</p><p>
+Alben is proud of his work. The project was the first of its kind and
+the only time he knew of that a team had undertaken such a massive
+project for the purpose of releasing a retrospective.
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Everyone thought it would be too hard. Everyone just threw up their
+hands and said, <span class="quote">«<span class="quote">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.</span>»</span> But we just broke it down. We just put it into its
+constituent parts and said, <span class="quote">«<span class="quote">Okay, there's this many actors, this many
+directors, … this many musicians,</span>»</span> and we just went at it very
+systematically and cleared the rights.
+</p></blockquote></div><p>
+
+
+And no doubt, the product itself was exceptionally good. Eastwood
+loved it, and it sold very well.
+</p><a class="indexterm" name="idp8266528"></a><p>
+But I pressed Alben about how weird it seems that it would have to
+take a year's work simply to clear rights. No doubt Alben had done
+this efficiently, but as Peter Drucker has famously quipped, <span class="quote">«<span class="quote">There is
+nothing so useless as doing efficiently that which should not be done
+at all.</span>»</span><a href="#ftn.idp8268128" class="footnote" name="idp8268128"><sup class="footnote">[114]</sup></a>
+Did it make sense, I asked Alben, that this is the way a new work
+has to be made?
+</p><p>
+For, as he acknowledged, <span class="quote">«<span class="quote">very few … have the time and resources,
+and the will to do this,</span>»</span> 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
+you would have to go clear rights for these kinds of clips?
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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
+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
+compensated for that.
+</p></blockquote></div><p>
+Or at least, is this <span class="emphasis"><em>how</em></span> the artist should be
+compensated? Would it make sense, I asked, for there to be some kind
+of statutory license that someone could pay and be free to make
+derivative use of clips like this? Did it really make sense that a
+follow-on creator would have to track down every artist, actor,
+director, musician, and get explicit permission from each? Wouldn't a
+lot more be created if the legal part of the creative process could be
+made to be more clean?
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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, <span class="quote">«<span class="quote">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,</span>»</span> then it becomes difficult to put one of these things together.
+</p></blockquote></div><p>
+Alben worked for a big company. His company was backed by some of the
+richest investors in the world. He therefore had authority and access
+that the average Web designer would not have. So if it took him a
+year, how long would it take someone else? And how much creativity is
+never made just because the costs of clearing the rights are so high?
+</p><a class="indexterm" name="idp8277296"></a><a class="indexterm" name="idp8278400"></a><p>
+These costs are the burdens of a kind of regulation. Put on a
+Republican hat for a moment, and get angry for a bit. The government
+defines the scope of these rights, and the scope defined determines
+how much it's going to cost to negotiate them. (Remember the idea that
+land runs to the heavens, and imagine the pilot purchasing flythrough
+rights as he negotiates to fly from Los Angeles to San Francisco.)
+These rights might well have once made sense; but as circumstances
+change, they make no sense at all. Or at least, a well-trained,
+regulationminimizing Republican should look at the rights and ask,
+<span class="quote">«<span class="quote">Does this still make sense?</span>»</span>
+</p><a class="indexterm" name="idp8281152"></a><p>
+I've seen the flash of recognition when people get this point, but only
+a few times. The first was at a conference of federal judges in California.
+The judges were gathered to discuss the emerging topic of cyber-law. I
+was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
+
+
+from an L.A. firm, introduced the panel with a video that he and a
+friend, Robert Fairbank, had produced.
+</p><p>
+The video was a brilliant collage of film from every period in the
+twentieth century, all framed around the idea of a <em class="citetitle">60 Minutes</em> episode.
+The execution was perfect, down to the sixty-minute stopwatch. The
+judges loved every minute of it.
+</p><a class="indexterm" name="idp8284560"></a><p>
+When the lights came up, I looked over to my copanelist, David
+Nimmer, perhaps the leading copyright scholar and practitioner in the
+nation. He had an astonished look on his face, as he peered across the
+room of over 250 well-entertained judges. Taking an ominous tone, he
+began his talk with a question: <span class="quote">«<span class="quote">Do you know how many federal laws
+were just violated in this room?</span>»</span>
+</p><p>
+<a class="indexterm" name="idp8286800"></a>
+<a class="indexterm" name="idp8287616"></a>
+<a class="indexterm" name="idp8288432"></a>
+<a class="indexterm" name="idp8289536"></a>
+<a class="indexterm" name="idp8290368"></a>
+For of course, the two brilliantly talented creators who made this
+film hadn't done what Alben did. They hadn't spent a year clearing the
+rights to these clips; technically, what they had done violated the
+law. Of course, it wasn't as if they or anyone were going to be
+prosecuted for this violation (the presence of 250 judges and a gaggle
+of federal marshals notwithstanding). But Nimmer was making an
+important point: A year before anyone would have heard of the word
+Napster, and two years before another member of our panel, David
+Boies, would defend Napster before the Ninth Circuit Court of Appeals,
+Nimmer was trying to get the judges to see that the law would not be
+friendly to the capacities that this technology would
+enable. Technology means you can now do amazing things easily; but you
+couldn't easily do them legally.
+</p><p>
+We live in a <span class="quote">«<span class="quote">cut and paste</span>»</span> culture enabled by technology. Anyone
+building a presentation knows the extraordinary freedom that the cut
+and paste architecture of the Internet created—in a second you can
+find just about any image you want; in another second, you can have it
+planted in your presentation.
+</p><a class="indexterm" name="idp8292864"></a><p>
+But presentations are just a tiny beginning. Using the Internet and
+
+its archives, musicians are able to string together mixes of sound
+never before imagined; filmmakers are able to build movies out of
+clips on computers around the world. An extraordinary site in Sweden
+takes images of politicians and blends them with music to create
+biting political commentary. A site called Camp Chaos has produced
+some of the most biting criticism of the record industry that there is
+through the mixing of Flash! and music.
+</p><p>
+All of these creations are technically illegal. Even if the creators
+wanted to be <span class="quote">«<span class="quote">legal,</span>»</span> the cost of complying with the law is impossibly
+high. Therefore, for the law-abiding sorts, a wealth of creativity is
+never made. And for that part that is made, if it doesn't follow the
+clearance rules, it doesn't get released.
+</p><p>
+To some, these stories suggest a solution: Let's alter the mix of
+rights so that people are free to build upon our culture. Free to add
+or mix as they see fit. We could even make this change without
+necessarily requiring that the <span class="quote">«<span class="quote">free</span>»</span> use be free as in <span class="quote">«<span class="quote">free beer.</span>»</span>
+Instead, the system could simply make it easy for follow-on creators
+to compensate artists without requiring an army of lawyers to come
+along: a rule, for example, that says <span class="quote">«<span class="quote">the royalty owed the copyright
+owner of an unregistered work for the derivative reuse of his work
+will be a flat 1 percent of net revenues, to be held in escrow for the
+copyright owner.</span>»</span> Under this rule, the copyright owner could benefit
+from some royalty, but he would not have the benefit of a full
+property right (meaning the right to name his own price) unless he
+registers the work.
+</p><p>
+Who could possibly object to this? And what reason would there be
+for objecting? We're talking about work that is not now being made;
+which if made, under this plan, would produce new income for artists.
+What reason would anyone have to oppose it?
+</p><p>
+<span class="strong"><strong>In February 2003</strong></span>, DreamWorks
+studios announced an agreement with Mike Myers, the comic genius of
+<em class="citetitle">Saturday Night Live</em> and
+
+Austin Powers. According to the announcement, Myers and Dream-Works
+would work together to form a <span class="quote">«<span class="quote">unique filmmaking pact.</span>»</span> Under the
+agreement, DreamWorks <span class="quote">«<span class="quote">will acquire the rights to existing motion
+picture hits and classics, write new storylines and—with the use
+of stateof-the-art digital technology—insert Myers and other
+actors into the film, thereby creating an entirely new piece of
+entertainment.</span>»</span>
+</p><p>
+The announcement called this <span class="quote">«<span class="quote">film sampling.</span>»</span> As Myers explained,
+<span class="quote">«<span class="quote">Film Sampling is an exciting way to put an original spin on existing
+films and allow audiences to see old movies in a new light. Rap
+artists have been doing this for years with music and now we are able
+to take that same concept and apply it to film.</span>»</span> Steven Spielberg is
+quoted as saying, <span class="quote">«<span class="quote">If anyone can create a way to bring old films to
+new audiences, it is Mike.</span>»</span>
+</p><p>
+Spielberg is right. Film sampling by Myers will be brilliant. But if
+you don't think about it, you might miss the truly astonishing point
+about this announcement. As the vast majority of our film heritage
+remains under copyright, the real meaning of the DreamWorks
+announcement is just this: It is Mike Myers and only Mike Myers who is
+free to sample. Any general freedom to build upon the film archive of
+our culture, a freedom in other contexts presumed for us all, is now a
+privilege reserved for the funny and famous—and presumably rich.
+</p><p>
+This privilege becomes reserved for two sorts of reasons. The first
+continues the story of the last chapter: the vagueness of <span class="quote">«<span class="quote">fair use.</span>»</span>
+Much of <span class="quote">«<span class="quote">sampling</span>»</span> should be considered <span class="quote">«<span class="quote">fair use.</span>»</span> But few would
+rely upon so weak a doctrine to create. That leads to the second reason
+that the privilege is reserved for the few: The costs of negotiating the
+legal rights for the creative reuse of content are astronomically high.
+These costs mirror the costs with fair use: You either pay a lawyer to
+defend your fair use rights or pay a lawyer to track down permissions
+so you don't have to rely upon fair use rights. Either way, the creative
+process is a process of paying lawyers—again a privilege, or perhaps a
+curse, reserved for the few.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8250752" class="footnote"><p><a href="#idp8250752" class="para"><sup class="para">[113] </sup></a>
+
+Technically, the rights that Alben had to clear were mainly those of
+publicity—rights an artist has to control the commercial
+exploitation of his image. But these rights, too, burden <span class="quote">«<span class="quote">Rip, Mix,
+Burn</span>»</span> creativity, as this chapter evinces.
+<a class="indexterm" name="idp8252352"></a>
+<a class="indexterm" name="idp8253472"></a>
+</p></div><div id="ftn.idp8268128" class="footnote"><p><a href="#idp8268128" class="para"><sup class="para">[114] </sup></a>
+
+U.S. Department of Commerce Office of Acquisition Management, <em class="citetitle">Seven
+Steps to Performance-Based Services Acquisition</em>, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #22</a>.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="collectors"></a>Chapter 9. CHAPTER NINE: Collectors</h2></div></div></div><a class="indexterm" name="idxarchivesdigital1"></a><a class="indexterm" name="idp8311600"></a><p>
+<span class="strong"><strong>In April 1996</strong></span>, millions of
+<span class="quote">«<span class="quote">bots</span>»</span>—computer codes designed to
+<span class="quote">«<span class="quote">spider,</span>»</span> or automatically search the Internet and copy
+content—began running across the Net. Page by page, these bots
+copied Internet-based information onto a small set of computers
+located in a basement in San Francisco's Presidio. Once the bots
+finished the whole of the Internet, they started again. Over and over
+again, once every two months, these bits of code took copies of the
+Internet and stored them.
+</p><a class="indexterm" name="idp8314912"></a><p>
+By October 2001, the bots had collected more than five years of
+copies. And at a small announcement in Berkeley, California, the
+archive that these copies created, the Internet Archive, was opened to
+the world. Using a technology called <span class="quote">«<span class="quote">the Way Back Machine,</span>»</span> you could
+enter a Web page, and see all of its copies going back to 1996, as
+well as when those pages changed.
+</p><a class="indexterm" name="idxorwellgeorge"></a><p>
+This is the thing about the Internet that Orwell would have
+appreciated. In the dystopia described in <em class="citetitle">1984</em>, old newspapers were
+constantly updated to assure that the current view of the world,
+approved of by the government, was not contradicted by previous news
+reports.
+</p><p>
+
+Thousands of workers constantly reedited the past, meaning there was
+no way ever to know whether the story you were reading today was the
+story that was printed on the date published on the paper.
+</p><p>
+It's the same with the Internet. If you go to a Web page today,
+there's no way for you to know whether the content you are reading is
+the same as the content you read before. The page may seem the same,
+but the content could easily be different. The Internet is Orwell's
+library—constantly updated, without any reliable memory.
+</p><a class="indexterm" name="idp8320640"></a><a class="indexterm" name="idp8322384"></a><p>
+Until the Way Back Machine, at least. With the Way Back Machine, and
+the Internet Archive underlying it, you can see what the Internet
+was. You have the power to see what you remember. More importantly,
+perhaps, you also have the power to find what you don't remember and
+what others might prefer you forget.<a href="#ftn.idp8323776" class="footnote" name="idp8323776"><sup class="footnote">[115]</sup></a>
+</p><a class="indexterm" name="idp8327520"></a><p>
+<span class="strong"><strong>We take it</strong></span> for granted that we can
+go back to see what we remember reading. Think about newspapers. If
+you wanted to study the reaction of your hometown newspaper to the
+race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
+you could go to your public library and look at the newspapers. Those
+papers probably exist on microfiche. If you're lucky, they exist in
+paper, too. Either way, you are free, using a library, to go back and
+remember—not just what it is convenient to remember, but
+remember something close to the truth.
+</p><p>
+It is said that those who fail to remember history are doomed to
+repeat it. That's not quite correct. We <span class="emphasis"><em>all</em></span>
+forget history. The key is whether we have a way to go back to
+rediscover what we forget. More directly, the key is whether an
+objective past can keep us honest. Libraries help do that, by
+collecting content and keeping it, for schoolchildren, for
+researchers, for grandma. A free society presumes this knowedge.
+</p><p>
+The Internet was an exception to this presumption. Until the Internet
+Archive, there was no way to go back. The Internet was the
+quintessentially transitory medium. And yet, as it becomes more
+important in forming and reforming society, it becomes more and more
+
+important to maintain in some historical form. It's just bizarre to
+think that we have scads of archives of newspapers from tiny towns
+around the world, yet there is but one copy of the Internet—the
+one kept by the Internet Archive.
+</p><p>
+Brewster Kahle is the founder of the Internet Archive. He was a very
+successful Internet entrepreneur after he was a successful computer
+researcher. In the 1990s, Kahle decided he had had enough business
+success. It was time to become a different kind of success. So he
+launched a series of projects designed to archive human knowledge. The
+Internet Archive was just the first of the projects of this Andrew
+Carnegie of the Internet. By December of 2002, the archive had over 10
+billion pages, and it was growing at about a billion pages a month.
+</p><a class="indexterm" name="idp8334064"></a><a class="indexterm" name="idp8334816"></a><a class="indexterm" name="idp8335600"></a><a class="indexterm" name="idp8336416"></a><a class="indexterm" name="idp8337232"></a><a class="indexterm" name="idxnewscoverage2"></a><p>
+The Way Back Machine is the largest archive of human knowledge in
+human history. At the end of 2002, it held <span class="quote">«<span class="quote">two hundred and thirty
+terabytes of material</span>»</span>—and was <span class="quote">«<span class="quote">ten times larger than the
+Library of Congress.</span>»</span> And this was just the first of the archives that
+Kahle set out to build. In addition to the Internet Archive, Kahle has
+been constructing the Television Archive. Television, it turns out, is
+even more ephemeral than the Internet. While much of twentieth-century
+culture was constructed through television, only a tiny proportion of
+that culture is available for anyone to see today. Three hours of news
+are recorded each evening by Vanderbilt University—thanks to a
+specific exemption in the copyright law. That content is indexed, and
+is available to scholars for a very low fee. <span class="quote">«<span class="quote">But other than that,
+[television] is almost unavailable,</span>»</span> Kahle told me. <span class="quote">«<span class="quote">If you were
+Barbara Walters you could get access to [the archives], but if you are
+just a graduate student?</span>»</span> As Kahle put it,
+</p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8343200"></a><a class="indexterm" name="idp8344016"></a><p>
+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
+
+
+<em class="citetitle">60 Minutes</em> episode that came out after it … it would be almost
+impossible. … Those materials are almost unfindable. …
+</p></blockquote></div><a class="indexterm" name="idp8346592"></a><p>
+Why is that? Why is it that the part of our culture that is recorded
+in newspapers remains perpetually accessible, while the part that is
+recorded on videotape is not? How is it that we've created a world
+where researchers trying to understand the effect of media on
+nineteenthcentury America will have an easier time than researchers
+trying to understand the effect of media on twentieth-century America?
+</p><p>
+In part, this is because of the law. Early in American copyright law,
+copyright owners were required to deposit copies of their work in
+libraries. These copies were intended both to facilitate the spread
+of knowledge and to assure that a copy of the work would be around
+once the copyright expired, so that others might access and copy the
+work.
+</p><a class="indexterm" name="idp8349216"></a><a class="indexterm" name="idp8350032"></a><p>
+These rules applied to film as well. But in 1915, the Library
+of Congress made an exception for film. Film could be copyrighted so
+long as such deposits were made. But the filmmaker was then allowed to
+borrow back the deposits—for an unlimited time at no cost. In
+1915 alone, there were more than 5,475 films deposited and <span class="quote">«<span class="quote">borrowed
+back.</span>»</span> Thus, when the copyrights to films expire, there is no copy
+held by any library. The copy exists—if it exists at
+all—in the library archive of the film company.<a href="#ftn.idp8352256" class="footnote" name="idp8352256"><sup class="footnote">[116]</sup></a>
+</p><p>
+The same is generally true about television. Television broadcasts
+were originally not copyrighted—there was no way to capture the
+broadcasts, so there was no fear of <span class="quote">«<span class="quote">theft.</span>»</span> But as technology enabled
+capturing, broadcasters relied increasingly upon the law. The law
+required they make a copy of each broadcast for the work to be
+<span class="quote">«<span class="quote">copyrighted.</span>»</span> But those copies were simply kept by the
+broadcasters. No library had any right to them; the government didn't
+demand them. The content of this part of American culture is
+practically invisible to anyone who would look.
+</p><a class="indexterm" name="idp8356752"></a><p>
+Kahle was eager to correct this. Before September 11, 2001, he and
+
+his allies had started capturing television. They selected twenty
+stations from around the world and hit the Record button. After
+September 11, Kahle, working with dozens of others, selected twenty
+stations from around the world and, beginning October 11, 2001, made
+their coverage during the week of September 11 available free on-line.
+Anyone could see how news reports from around the world covered the
+events of that day.
+</p><a class="indexterm" name="idp8358720"></a><a class="indexterm" name="idp8359504"></a><a class="indexterm" name="idp8360608"></a><a class="indexterm" name="idp8361808"></a><a class="indexterm" name="idp8362912"></a><a class="indexterm" name="idp8363728"></a><a class="indexterm" name="idp8364544"></a><a class="indexterm" name="idp8365360"></a><p>
+Kahle had the same idea with film. Working with Rick Prelinger, whose
+archive of film includes close to 45,000 <span class="quote">«<span class="quote">ephemeral films</span>»</span> (meaning
+films other than Hollywood movies, films that were never copyrighted),
+Kahle established the Movie Archive. Prelinger let Kahle digitize
+1,300 films in this archive and post those films on the Internet to be
+downloaded for free. Prelinger's is a for-profit company. It sells
+copies of these films as stock footage. What he has discovered is that
+after he made a significant chunk available for free, his stock
+footage sales went up dramatically. People could easily find the
+material they wanted to use. Some downloaded that material and made
+films on their own. Others purchased copies to enable other films to
+be made. Either way, the archive enabled access to this important
+part of our culture. Want to see a copy of the <span class="quote">«<span class="quote">Duck and Cover</span>»</span> film
+that instructed children how to save themselves in the middle of
+nuclear attack? Go to archive.org, and you can download the film in a
+few minutes—for free.
+</p><p>
+Here again, Kahle is providing access to a part of our culture that we
+otherwise could not get easily, if at all. It is yet another part of
+what defines the twentieth century that we have lost to history. The
+law doesn't require these copies to be kept by anyone, or to be
+deposited in an archive by anyone. Therefore, there is no simple way
+to find them.
+</p><p>
+The key here is access, not price. Kahle wants to enable free access
+to this content, but he also wants to enable others to sell access to
+it. His aim is to ensure competition in access to this important part
+of our culture. Not during the commercial life of a bit of creative
+property, but during a second life that all creative property
+has—a noncommercial life.
+</p><p>
+For here is an idea that we should more clearly recognize. Every bit
+of creative property goes through different <span class="quote">«<span class="quote">lives.</span>»</span> In its first
+life, if the
+
+
+creator is lucky, the content is sold. In such cases the commercial
+market is successful for the creator. The vast majority of creative
+property doesn't enjoy such success, but some clearly does. For that
+content, commercial life is extremely important. Without this
+commercial market, there would be, many argue, much less creativity.
+</p><p>
+After the commercial life of creative property has ended, our
+tradition has always supported a second life as well. A newspaper
+delivers the news every day to the doorsteps of America. The very next
+day, it is used to wrap fish or to fill boxes with fragile gifts or to
+build an archive of knowledge about our history. In this second life,
+the content can continue to inform even if that information is no
+longer sold.
+</p><a class="indexterm" name="idp8372432"></a><p>
+The same has always been true about books. A book goes out of print
+very quickly (the average today is after about a year<a href="#ftn.idp8373904" class="footnote" name="idp8373904"><sup class="footnote">[117]</sup></a>). After
+it is out of print, it can be sold in used book stores without the
+copyright owner getting anything and stored in libraries, where many
+get to read the book, also for free. Used book stores and libraries
+are thus the second life of a book. That second life is extremely
+important to the spread and stability of culture.
+</p><p>
+Yet increasingly, any assumption about a stable second life for
+creative property does not hold true with the most important
+components of popular culture in the twentieth and twenty-first
+centuries. For these—television, movies, music, radio, the
+Internet—there is no guarantee of a second life. For these sorts
+of culture, it is as if we've replaced libraries with Barnes &
+Noble superstores. With this culture, what's accessible is nothing but
+what a certain limited market demands. Beyond that, culture
+disappears.
+</p><p>
+<span class="strong"><strong>For most of</strong></span> the twentieth century,
+it was economics that made this so. It would have been insanely
+expensive to collect and make accessible all television and film and
+music: The cost of analog copies is extraordinarily high. So even
+though the law in principle would have restricted the ability of a
+Brewster Kahle to copy culture generally, the
+
+real restriction was economics. The market made it impossibly
+difficult to do anything about this ephemeral culture; the law had
+little practical effect.
+</p><p>
+Perhaps the single most important feature of the digital revolution is
+that for the first time since the Library of Alexandria, it is
+feasible to imagine constructing archives that hold all culture
+produced or distributed publicly. Technology makes it possible to
+imagine an archive of all books published, and increasingly makes it
+possible to imagine an archive of all moving images and sound.
+</p><p>
+The scale of this potential archive is something we've never imagined
+before. The Brewster Kahles of our history have dreamed about it; but
+we are for the first time at a point where that dream is possible. As
+Kahle describes,
+</p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8383120"></a><p>
+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.
+</p></blockquote></div><a class="indexterm" name="idp8385520"></a><p>
+Kahle is not the only librarian. The Internet Archive is not the only
+archive. But Kahle and the Internet Archive suggest what the future of
+libraries or archives could be. <span class="emphasis"><em>When</em></span> the
+commercial life of creative property ends, I don't know. But it
+does. And whenever it does, Kahle and his archive hint at a world
+where this knowledge, and culture, remains perpetually available. Some
+will draw upon it to understand it;
+
+some to criticize it. Some will use it, as Walt Disney did, to
+re-create the past for the future. These technologies promise
+something that had become unimaginable for much of our past—a
+future <span class="emphasis"><em>for</em></span> our past. The technology of digital
+arts could make the dream of the Library of Alexandria real again.
+</p><p>
+Technologists have thus removed the economic costs of building such an
+archive. But lawyers' costs remain. For as much as we might like to
+call these <span class="quote">«<span class="quote">archives,</span>»</span> as warm as the idea of a <span class="quote">«<span class="quote">library</span>»</span> might seem,
+the <span class="quote">«<span class="quote">content</span>»</span> that is collected in these digital spaces is also
+someone's <span class="quote">«<span class="quote">property.</span>»</span> And the law of property restricts the freedoms
+that Kahle and others would exercise.
+</p><a class="indexterm" name="idp8390992"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8323776" class="footnote"><p><a href="#idp8323776" class="para"><sup class="para">[115] </sup></a>
+
+<a class="indexterm" name="idp8324512"></a>
+<a class="indexterm" name="idp8325296"></a>
+The temptations remain, however. Brewster Kahle reports that the White
+House changes its own press releases without notice. A May 13, 2003,
+press release stated, <span class="quote">«<span class="quote">Combat Operations in Iraq Have Ended.</span>»</span> That was
+later changed, without notice, to <span class="quote">«<span class="quote">Major Combat Operations in Iraq
+Have Ended.</span>»</span> E-mail from Brewster Kahle, 1 December 2003.
+</p></div><div id="ftn.idp8352256" class="footnote"><p><a href="#idp8352256" class="para"><sup class="para">[116] </sup></a>
+
+Doug Herrick, <span class="quote">«<span class="quote">Toward a National Film Collection: Motion Pictures at
+the Library of Congress,</span>»</span> <em class="citetitle">Film Library Quarterly</em> 13 nos. 2–3
+(1980): 5; Anthony Slide, <em class="citetitle">Nitrate Won't Wait: A History of Film
+Preservation in the United States</em> (Jefferson, N.C.: McFarland &
+Co., 1992), 36.
+</p></div><div id="ftn.idp8373904" class="footnote"><p><a href="#idp8373904" class="para"><sup class="para">[117] </sup></a>
+
+<a class="indexterm" name="idp8374640"></a>
+Dave Barns, <span class="quote">«<span class="quote">Fledgling Career in Antique Books: Woodstock Landlord,
+Bar Owner Starts a New Chapter by Adopting Business,</span>»</span> <em class="citetitle">Chicago Tribune</em>,
+5 September 1997, at Metro Lake 1L. Of books published between 1927
+and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
+<span class="quote">«<span class="quote">The First Sale Doctrine in the Era of Digital Networks,</span>»</span> <em class="citetitle">Boston
+College Law Review</em> 44 (2003): 593 n. 51.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="property-i"></a>Chapter 10. CHAPTER TEN: <span class="quote">«<span class="quote">Property</span>»</span></h2></div></div></div><a class="indexterm" name="idp8394256"></a><a class="indexterm" name="idp8395072"></a><p>
+<span class="strong"><strong>Jack Valenti</strong></span> has been the president
+of the Motion Picture Association of America since 1966. He first came
+to Washington, D.C., with Lyndon Johnson's
+administration—literally. The famous picture of Johnson's
+swearing-in on Air Force One after the assassination of President
+Kennedy has Valenti in the background. In his almost forty years of
+running the MPAA, Valenti has established himself as perhaps the most
+prominent and effective lobbyist in Washington.
+</p><a class="indexterm" name="idp8396832"></a><a class="indexterm" name="idp8398256"></a><a class="indexterm" name="idp8399088"></a><a class="indexterm" name="idp8399920"></a><a class="indexterm" name="idp8400736"></a><a class="indexterm" name="idp8401552"></a><a class="indexterm" name="idp8402368"></a><p>
+The MPAA is the American branch of the international Motion Picture
+Association. It was formed in 1922 as a trade association whose goal
+was to defend American movies against increasing domestic criticism.
+The organization now represents not only filmmakers but producers and
+distributors of entertainment for television, video, and cable. Its
+board is made up of the chairmen and presidents of the seven major
+producers and distributors of motion picture and television programs
+in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
+Paramount Pictures, Twentieth Century Fox, Universal Studios, and
+Warner Brothers.
+</p><p>
+
+Valenti is only the third president of the MPAA. No president before
+him has had as much influence over that organization, or over
+Washington. As a Texan, Valenti has mastered the single most important
+political skill of a Southerner—the ability to appear simple and
+slow while hiding a lightning-fast intellect. To this day, Valenti
+plays the simple, humble man. But this Harvard MBA, and author of four
+books, who finished high school at the age of fifteen and flew more
+than fifty combat missions in World War II, is no Mr. Smith. When
+Valenti went to Washington, he mastered the city in a quintessentially
+Washingtonian way.
+</p><p>
+In defending artistic liberty and the freedom of speech that our
+culture depends upon, the MPAA has done important good. In crafting
+the MPAA rating system, it has probably avoided a great deal of
+speech-regulating harm. But there is an aspect to the organization's
+mission that is both the most radical and the most important. This is
+the organization's effort, epitomized in Valenti's every act, to
+redefine the meaning of <span class="quote">«<span class="quote">creative property.</span>»</span>
+</p><p>
+In 1982, Valenti's testimony to Congress captured the strategy
+perfectly:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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: <span class="emphasis"><em>Creative property
+owners must be accorded the same rights and protection resident in all
+other property owners in the nation</em></span>. 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.<a href="#ftn.idp8408768" class="footnote" name="idp8408768"><sup class="footnote">[118]</sup></a>
+</p></blockquote></div><p>
+The strategy of this rhetoric, like the strategy of most of Valenti's
+rhetoric, is brilliant and simple and brilliant because simple. The
+<span class="quote">«<span class="quote">central theme</span>»</span> to which <span class="quote">«<span class="quote">reasonable men and women</span>»</span> will return is
+this:
+
+<span class="quote">«<span class="quote">Creative property owners must be accorded the same rights and
+protections resident in all other property owners in the nation.</span>»</span>
+There are no second-class citizens, Valenti might have
+continued. There should be no second-class property owners.
+</p><p>
+This claim has an obvious and powerful intuitive pull. It is stated
+with such clarity as to make the idea as obvious as the notion that we
+use elections to pick presidents. But in fact, there is no more
+extreme a claim made by <span class="emphasis"><em>anyone</em></span> who is serious in
+this debate than this claim of Valenti's. Jack Valenti, however sweet
+and however brilliant, is perhaps the nation's foremost extremist when
+it comes to the nature and scope of <span class="quote">«<span class="quote">creative property.</span>»</span> His views
+have <span class="emphasis"><em>no</em></span> reasonable connection to our actual legal
+tradition, even if the subtle pull of his Texan charm has slowly
+redefined that tradition, at least in Washington.
+</p><p>
+While <span class="quote">«<span class="quote">creative property</span>»</span> is certainly <span class="quote">«<span class="quote">property</span>»</span> in a nerdy and
+precise sense that lawyers are trained to understand,<a href="#ftn.idp8416144" class="footnote" name="idp8416144"><sup class="footnote">[119]</sup></a> it has never been the case, nor should it be, that
+<span class="quote">«<span class="quote">creative property owners</span>»</span> have been <span class="quote">«<span class="quote">accorded the same rights and
+protection resident in all other property owners.</span>»</span> Indeed, if creative
+property owners were given the same rights as all other property
+owners, that would effect a radical, and radically undesirable, change
+in our tradition.
+</p><p>
+Valenti knows this. But he speaks for an industry that cares squat for
+our tradition and the values it represents. He speaks for an industry
+that is instead fighting to restore the tradition that the British
+overturned in 1710. In the world that Valenti's changes would create,
+a powerful few would exercise powerful control over how our creative
+culture would develop.
+</p><p>
+I have two purposes in this chapter. The first is to convince you
+that, historically, Valenti's claim is absolutely wrong. The second is
+to convince you that it would be terribly wrong for us to reject our
+history. We have always treated rights in creative property
+differently from the rights resident in all other property
+owners. They have never been the same. And they should never be the
+same, because, however counterintuitive this may seem, to make them
+the same would be to
+
+
+fundamentally weaken the opportunity for new creators to create.
+Creativity depends upon the owners of creativity having less than
+perfect control.
+</p><p>
+Organizations such as the MPAA, whose board includes the most powerful
+of the old guard, have little interest, their rhetoric
+notwithstanding, in assuring that the new can displace them. No
+organization does. No person does. (Ask me about tenure, for example.)
+But what's good for the MPAA is not necessarily good for America. A
+society that defends the ideals of free culture must preserve
+precisely the opportunity for new creativity to threaten the old.
+</p><p>
+<span class="strong"><strong>To get</strong></span> just a hint that there is
+something fundamentally wrong in Valenti's argument, we need look no
+further than the United States Constitution itself.
+</p><p>
+The framers of our Constitution loved <span class="quote">«<span class="quote">property.</span>»</span> Indeed, so strongly
+did they love property that they built into the Constitution an
+important requirement. If the government takes your property—if
+it condemns your house, or acquires a slice of land from your
+farm—it is required, under the Fifth Amendment's <span class="quote">«<span class="quote">Takings
+Clause,</span>»</span> to pay you <span class="quote">«<span class="quote">just compensation</span>»</span> for that taking. The
+Constitution thus guarantees that property is, in a certain sense,
+sacred. It cannot <span class="emphasis"><em>ever</em></span> be taken from the property
+owner unless the government pays for the privilege.
+</p><p>
+Yet the very same Constitution speaks very differently about what
+Valenti calls <span class="quote">«<span class="quote">creative property.</span>»</span> In the clause granting Congress the
+power to create <span class="quote">«<span class="quote">creative property,</span>»</span> the Constitution
+<span class="emphasis"><em>requires</em></span> that after a <span class="quote">«<span class="quote">limited time,</span>»</span> Congress
+take back the rights that it has granted and set the <span class="quote">«<span class="quote">creative
+property</span>»</span> free to the public domain. Yet when Congress does this, when
+the expiration of a copyright term <span class="quote">«<span class="quote">takes</span>»</span> your copyright and turns it
+over to the public domain, Congress does not have any obligation to
+pay <span class="quote">«<span class="quote">just compensation</span>»</span> for this <span class="quote">«<span class="quote">taking.</span>»</span> Instead, the same
+Constitution that requires compensation for your land
+
+requires that you lose your <span class="quote">«<span class="quote">creative property</span>»</span> right without any
+compensation at all.
+</p><p>
+The Constitution thus on its face states that these two forms of
+property are not to be accorded the same rights. They are plainly to
+be treated differently. Valenti is therefore not just asking for a
+change in our tradition when he argues that creative-property owners
+should be accorded the same rights as every other property-right
+owner. He is effectively arguing for a change in our Constitution
+itself.
+</p><a class="indexterm" name="idxjeffersonthomas"></a><p>
+Arguing for a change in our Constitution is not necessarily wrong.
+There was much in our original Constitution that was plainly wrong.
+The Constitution of 1789 entrenched slavery; it left senators to be
+appointed rather than elected; it made it possible for the electoral
+college to produce a tie between the president and his own vice
+president (as it did in 1800). The framers were no doubt
+extraordinary, but I would be the first to admit that they made big
+mistakes. We have since rejected some of those mistakes; no doubt
+there could be others that we should reject as well. So my argument is
+not simply that because Jefferson did it, we should, too.
+</p><p>
+Instead, my argument is that because Jefferson did it, we should at
+least try to understand <span class="emphasis"><em>why</em></span>. Why did the framers,
+fanatical property types that they were, reject the claim that
+creative property be given the same rights as all other property? Why
+did they require that for creative property there must be a public
+domain?
+</p><a class="indexterm" name="idp8437792"></a><p>
+To answer this question, we need to get some perspective on the
+history of these <span class="quote">«<span class="quote">creative property</span>»</span> rights, and the control that they
+enabled. Once we see clearly how differently these rights have been
+defined, we will be in a better position to ask the question that
+should be at the core of this war: Not <span class="emphasis"><em>whether</em></span>
+creative property should be protected, but how. Not
+<span class="emphasis"><em>whether</em></span> we will enforce the rights the law gives
+to creative-property owners, but what the particular mix of rights
+ought to be. Not <span class="emphasis"><em>whether</em></span> artists should be paid,
+but whether institutions designed to assure that artists get paid need
+also control how culture develops.
+</p><a class="indexterm" name="idxfreeculturefourmodalitiesofconstrainton"></a><a class="indexterm" name="idxregulationfourmodalitiesof"></a><a class="indexterm" name="idxcopyrightlawasexpostregulationmodality"></a><a class="indexterm" name="idxlawasconstraintmodality"></a><p>
+
+
+To answer these questions, we need a more general way to talk about
+how property is protected. More precisely, we need a more general way
+than the narrow language of the law allows. In <em class="citetitle">Code and Other Laws of
+Cyberspace</em>, I used a simple model to capture this more general
+perspective. For any particular right or regulation, this model asks
+how four different modalities of regulation interact to support or
+weaken the right or regulation. I represented it with this diagram:
+</p><div class="figure"><a name="fig-1331"></a><p class="title"><b>Figure 10.1. How four different modalities of regulation interact to support or weaken the right or regulation.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%" alt="How four different modalities of regulation interact to support or weaken the right or regulation."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8453536"></a><p>
+At the center of this picture is a regulated dot: the individual or
+group that is the target of regulation, or the holder of a right. (In
+each case throughout, we can describe this either as regulation or as
+a right. For simplicity's sake, I will speak only of regulations.)
+The ovals represent four ways in which the individual or group might
+be regulated— either constrained or, alternatively, enabled. Law
+is the most obvious constraint (to lawyers, at least). It constrains
+by threatening punishments after the fact if the rules set in advance
+are violated. So if, for example, you willfully infringe Madonna's
+copyright by copying a song from her latest CD and posting it on the
+Web, you can be punished
+
+with a $150,000 fine. The fine is an ex post punishment for violating
+an ex ante rule. It is imposed by the state.
+<a class="indexterm" name="idp8455872"></a>
+</p><a class="indexterm" name="idp8456752"></a><p>
+Norms are a different kind of constraint. They, too, punish an
+individual for violating a rule. But the punishment of a norm is
+imposed by a community, not (or not only) by the state. There may be
+no law against spitting, but that doesn't mean you won't be punished
+if you spit on the ground while standing in line at a movie. The
+punishment might not be harsh, though depending upon the community, it
+could easily be more harsh than many of the punishments imposed by the
+state. The mark of the difference is not the severity of the rule, but
+the source of the enforcement.
+</p><a class="indexterm" name="idxmarketconstraints"></a><p>
+The market is a third type of constraint. Its constraint is effected
+through conditions: You can do X if you pay Y; you'll be paid M if you
+do N. These constraints are obviously not independent of law or
+norms—it is property law that defines what must be bought if it
+is to be taken legally; it is norms that say what is appropriately
+sold. But given a set of norms, and a background of property and
+contract law, the market imposes a simultaneous constraint upon how an
+individual or group might behave.
+</p><a class="indexterm" name="idp8460352"></a><p>
+Finally, and for the moment, perhaps, most mysteriously,
+<span class="quote">«<span class="quote">architecture</span>»</span>—the physical world as one finds it—is a
+constraint on behavior. A fallen bridge might constrain your ability
+to get across a river. Railroad tracks might constrain the ability of
+a community to integrate its social life. As with the market,
+architecture does not effect its constraint through ex post
+punishments. Instead, also as with the market, architecture effects
+its constraint through simultaneous conditions. These conditions are
+imposed not by courts enforcing contracts, or by police punishing
+theft, but by nature, by <span class="quote">«<span class="quote">architecture.</span>»</span> If a 500-pound boulder
+blocks your way, it is the law of gravity that enforces this
+constraint. If a $500 airplane ticket stands between you and a flight
+to New York, it is the market that enforces this constraint.
+</p><a class="indexterm" name="idp8463984"></a><a class="indexterm" name="idp8465376"></a><a class="indexterm" name="idp8466704"></a><a class="indexterm" name="idxlawasconstraintmodality2"></a><p>
+
+
+So the first point about these four modalities of regulation is
+obvious: They interact. Restrictions imposed by one might be
+reinforced by another. Or restrictions imposed by one might be
+undermined by another.
+</p><p>
+The second point follows directly: If we want to understand the
+effective freedom that anyone has at a given moment to do any
+particular thing, we have to consider how these four modalities
+interact. Whether or not there are other constraints (there may well
+be; my claim is not about comprehensiveness), these four are among the
+most significant, and any regulator (whether controlling or freeing)
+must consider how these four in particular interact.
+</p><a class="indexterm" name="idp8471616"></a><a class="indexterm" name="idp8472432"></a><a class="indexterm" name="idp8473248"></a><a class="indexterm" name="idxdrivingspeedconstraintson"></a><a class="indexterm" name="idxspeedingconstraintson"></a><p>
+So, for example, consider the <span class="quote">«<span class="quote">freedom</span>»</span> to drive a car at a high
+speed. That freedom is in part restricted by laws: speed limits that
+say how fast you can drive in particular places at particular
+times. It is in part restricted by architecture: speed bumps, for
+example, slow most rational drivers; governors in buses, as another
+example, set the maximum rate at which the driver can drive. The
+freedom is in part restricted by the market: Fuel efficiency drops as
+speed increases, thus the price of gasoline indirectly constrains
+speed. And finally, the norms of a community may or may not constrain
+the freedom to speed. Drive at 50 mph by a school in your own
+neighborhood and you're likely to be punished by the neighbors. The
+same norm wouldn't be as effective in a different town, or at night.
+</p><p>
+The final point about this simple model should also be fairly clear:
+While these four modalities are analytically independent, law has a
+special role in affecting the three.<a href="#ftn.idp8479232" class="footnote" name="idp8479232"><sup class="footnote">[120]</sup></a>
+The law, in other words, sometimes operates to increase or decrease
+the constraint of a particular modality. Thus, the law might be used
+to increase taxes on gasoline, so as to increase the incentives to
+drive more slowly. The law might be used to mandate more speed bumps,
+so as to increase the difficulty of driving rapidly. The law might be
+used to fund ads that stigmatize reckless driving. Or the law might be
+used to require that other laws be more
+
+strict—a federal requirement that states decrease the speed
+limit, for example—so as to decrease the attractiveness of fast
+driving.
+</p><a class="indexterm" name="idp8482928"></a><a class="indexterm" name="idp8484256"></a><div class="figure"><a name="fig-1361"></a><p class="title"><b>Figure 10.2. Law has a special role in affecting the three.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1361.svg" align="middle" width="100%" alt="Law has a special role in affecting the three."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8488176"></a><p>
+These constraints can thus change, and they can be changed. To
+understand the effective protection of liberty or protection of
+property at any particular moment, we must track these changes over
+time. A restriction imposed by one modality might be erased by
+another. A freedom enabled by one modality might be displaced by
+another.<a href="#ftn.idp8489632" class="footnote" name="idp8489632"><sup class="footnote">[121]</sup></a>
+</p><a class="indexterm" name="idp8499136"></a><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="hollywood"></a>10.1. Why Hollywood Is Right</h2></div></div></div><a class="indexterm" name="idxcopyrightfourregulatorymodalitieson"></a><p>
+The most obvious point that this model reveals is just why, or just
+how, Hollywood is right. The copyright warriors have rallied Congress
+and the courts to defend copyright. This model helps us see why that
+rallying makes sense.
+</p><p>
+Let's say this is the picture of copyright's regulation before the
+Internet:
+</p><div class="figure"><a name="fig-1371"></a><p class="title"><b>Figure 10.3. Copyright's regulation before the Internet.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%" alt="Copyright's regulation before the Internet."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxarchitectureconstrainteffectedthrough"></a><a class="indexterm" name="idp8508720"></a><a class="indexterm" name="idxnormsregulatoryinfluenceof2"></a><p>
+
+There is balance between law, norms, market, and architecture. The law
+limits the ability to copy and share content, by imposing penalties on
+those who copy and share content. Those penalties are reinforced by
+technologies that make it hard to copy and share content
+(architecture) and expensive to copy and share content
+(market). Finally, those penalties are mitigated by norms we all
+recognize—kids, for example, taping other kids' records. These
+uses of copyrighted material may well be infringement, but the norms
+of our society (before the Internet, at least) had no problem with
+this form of infringement.
+</p><a class="indexterm" name="idxinternetcopyrightregulatorybalancelostwith"></a><a class="indexterm" name="idp8514640"></a><a class="indexterm" name="idp8515776"></a><a class="indexterm" name="idp8516592"></a><p>
+Enter the Internet, or, more precisely, technologies such as MP3s and
+p2p sharing. Now the constraint of architecture changes dramatically,
+as does the constraint of the market. And as both the market and
+architecture relax the regulation of copyright, norms pile on. The
+happy balance (for the warriors, at least) of life before the Internet
+becomes an effective state of anarchy after the Internet.
+</p><a class="indexterm" name="idp8518208"></a><a class="indexterm" name="idp8519584"></a><a class="indexterm" name="idp8520912"></a><p>
+Thus the sense of, and justification for, the warriors' response.
+Technology has changed, the warriors say, and the effect of this
+change, when ramified through the market and norms, is that a balance
+of protection for the copyright owners' rights has been lost. This is
+Iraq
+
+after the fall of Saddam, but this time no government is justifying the
+looting that results.
+</p><div class="figure"><a name="fig-1381"></a><p class="title"><b>Figure 10.4. effective state of anarchy after the Internet.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1381.svg" align="middle" width="100%" alt="effective state of anarchy after the Internet."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8525632"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism"></a><p>
+Neither this analysis nor the conclusions that follow are new to the
+warriors. Indeed, in a <span class="quote">«<span class="quote">White Paper</span>»</span> prepared by the Commerce
+Department (one heavily influenced by the copyright warriors) in 1995,
+this mix of regulatory modalities had already been identified and the
+strategy to respond already mapped. In response to the changes the
+Internet had effected, the White Paper argued (1) Congress should
+strengthen intellectual property law, (2) businesses should adopt
+innovative marketing techniques, (3) technologists should push to
+develop code to protect copyrighted material, and (4) educators should
+educate kids to better protect copyright.
+</p><a class="indexterm" name="idp8529824"></a><a class="indexterm" name="idp8531200"></a><a class="indexterm" name="idp8532528"></a><a class="indexterm" name="idp8533344"></a><p>
+This mixed strategy is just what copyright needed—if it was to
+preserve the particular balance that existed before the change induced
+by the Internet. And it's just what we should expect the content
+industry to push for. It is as American as apple pie to consider the
+happy life you have as an entitlement, and to look to the law to
+protect it if something comes along to change that happy
+life. Homeowners living in a
+
+
+flood plain have no hesitation appealing to the government to rebuild
+(and rebuild again) when a flood (architecture) wipes away their
+property (law). Farmers have no hesitation appealing to the government
+to bail them out when a virus (architecture) devastates their
+crop. Unions have no hesitation appealing to the government to bail
+them out when imports (market) wipe out the U.S. steel industry.
+</p><a class="indexterm" name="idp8535776"></a><a class="indexterm" name="idp8537024"></a><a class="indexterm" name="idp8538416"></a><p>
+Thus, there's nothing wrong or surprising in the content industry's
+campaign to protect itself from the harmful consequences of a
+technological innovation. And I would be the last person to argue that
+the changing technology of the Internet has not had a profound effect
+on the content industry's way of doing business, or as John Seely
+Brown describes it, its <span class="quote">«<span class="quote">architecture of revenue.</span>»</span>
+</p><a class="indexterm" name="idp8540432"></a><a class="indexterm" name="idp8541248"></a><a class="indexterm" name="idp8542352"></a><a class="indexterm" name="idp8543168"></a><a class="indexterm" name="idp8543984"></a><a class="indexterm" name="idp8544800"></a><a class="indexterm" name="idp8545616"></a><a class="indexterm" name="idp8546432"></a><p>
+But just because a particular interest asks for government support, it
+doesn't follow that support should be granted. And just because
+technology has weakened a particular way of doing business, it doesn't
+follow that the government should intervene to support that old way of
+doing business. Kodak, for example, has lost perhaps as much as 20
+percent of their traditional film market to the emerging technologies
+of digital cameras.<a href="#ftn.idp8547952" class="footnote" name="idp8547952"><sup class="footnote">[122]</sup></a>
+
+Does anyone believe the government should ban digital cameras just to
+support Kodak? Highways have weakened the freight business for
+railroads. Does anyone think we should ban trucks from roads
+<span class="emphasis"><em>for the purpose of</em></span> protecting the railroads?
+Closer to the subject of this book, remote channel changers have
+weakened the <span class="quote">«<span class="quote">stickiness</span>»</span> of television advertising (if a boring
+commercial comes on the TV, the remote makes it easy to surf), and it
+may well be that this change has weakened the television advertising
+market. But does anyone believe we should regulate remotes to
+reinforce commercial television? (Maybe by limiting them to function
+only once a second, or to switch to only ten channels within an hour?)
+</p><a class="indexterm" name="idxfreemarkettechnologicalchangesin"></a><a class="indexterm" name="idp8554544"></a><a class="indexterm" name="idp8555360"></a><a class="indexterm" name="idp8556176"></a><a class="indexterm" name="idp8557280"></a><a class="indexterm" name="idp8558096"></a><a class="indexterm" name="idp8558912"></a><p>
+The obvious answer to these obviously rhetorical questions is no.
+In a free society, with a free market, supported by free enterprise and
+free trade, the government's role is not to support one way of doing
+
+business against others. Its role is not to pick winners and protect
+them against loss. If the government did this generally, then we would
+never have any progress. As Microsoft chairman Bill Gates wrote in
+1991, in a memo criticizing software patents, <span class="quote">«<span class="quote">established companies
+have an interest in excluding future competitors.</span>»</span><a href="#ftn.idp8561104" class="footnote" name="idp8561104"><sup class="footnote">[123]</sup></a>
+And relative to a
+startup, established companies also have the means. (Think RCA and
+FM radio.) A world in which competitors with new ideas must fight
+not only the market but also the government is a world in which
+competitors with new ideas will not succeed. It is a world of stasis and
+increasingly concentrated stagnation. It is the Soviet Union under
+Brezhnev.
+</p><p>
+Thus, while it is understandable for industries threatened with new
+technologies that change the way they do business to look to the
+government for protection, it is the special duty of policy makers to
+guarantee that that protection not become a deterrent to progress. It
+is the duty of policy makers, in other words, to assure that the
+changes they create, in response to the request of those hurt by
+changing technology, are changes that preserve the incentives and
+opportunities for innovation and change.
+</p><a class="indexterm" name="idp8564368"></a><a class="indexterm" name="idp8565440"></a><a class="indexterm" name="idp8566256"></a><p>
+In the context of laws regulating speech—which include,
+obviously, copyright law—that duty is even stronger. When the
+industry complaining about changing technologies is asking Congress to
+respond in a way that burdens speech and creativity, policy makers
+should be especially wary of the request. It is always a bad deal for
+the government to get into the business of regulating speech
+markets. The risks and dangers of that game are precisely why our
+framers created the First Amendment to our Constitution: <span class="quote">«<span class="quote">Congress
+shall make no law … abridging the freedom of speech.</span>»</span> So when
+Congress is being asked to pass laws that would <span class="quote">«<span class="quote">abridge</span>»</span> the freedom
+of speech, it should ask— carefully—whether such
+regulation is justified.
+</p><a class="indexterm" name="idp8569504"></a><a class="indexterm" name="idp8570800"></a><p>
+My argument just now, however, has nothing to do with whether
+
+the changes that are being pushed by the copyright warriors are
+<span class="quote">«<span class="quote">justified.</span>»</span> My argument is about their effect. For before we get to
+the question of justification, a hard question that depends a great
+deal upon your values, we should first ask whether we understand the
+effect of the changes the content industry wants.
+</p><p>
+Here's the metaphor that will capture the argument to follow.
+</p><a class="indexterm" name="idxmllerpaulhermann"></a><a class="indexterm" name="idxddt"></a><a class="indexterm" name="idxinsecticideenvironmentalconsequencesof"></a><a class="indexterm" name="idxfarming"></a><p>
+In 1873, the chemical DDT was first synthesized. In 1948, Swiss
+chemist Paul Hermann Müller won the Nobel Prize for his work
+demonstrating the insecticidal properties of DDT. By the 1950s, the
+insecticide was widely used around the world to kill disease-carrying
+pests. It was also used to increase farm production.
+</p><p>
+No one doubts that killing disease-carrying pests or increasing crop
+production is a good thing. No one doubts that the work of Müller was
+important and valuable and probably saved lives, possibly millions.
+</p><a class="indexterm" name="idp8582128"></a><a class="indexterm" name="idp8582944"></a><a class="indexterm" name="idxenvironmentalism"></a><p>
+But in 1962, Rachel Carson published <em class="citetitle">Silent Spring</em>, which argued that
+DDT, whatever its primary benefits, was also having unintended
+environmental consequences. Birds were losing the ability to
+reproduce. Whole chains of the ecology were being destroyed.
+</p><p>
+No one set out to destroy the environment. Paul Müller certainly did
+not aim to harm any birds. But the effort to solve one set of problems
+produced another set which, in the view of some, was far worse than
+the problems that were originally attacked. Or more accurately, the
+problems DDT caused were worse than the problems it solved, at least
+when considering the other, more environmentally friendly ways to
+solve the problems that DDT was meant to solve.
+</p><a class="indexterm" name="idp8587456"></a><a class="indexterm" name="idp8588704"></a><a class="indexterm" name="idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2"></a><p>
+It is to this image precisely that Duke University law professor James
+Boyle appeals when he argues that we need an <span class="quote">«<span class="quote">environmentalism</span>»</span> for
+culture.<a href="#ftn.idp8592416" class="footnote" name="idp8592416"><sup class="footnote">[124]</sup></a>
+His point, and the point I want to develop in the balance of this
+chapter, is not that the aims of copyright are flawed. Or that authors
+should not be paid for their work. Or that music should be given away
+<span class="quote">«<span class="quote">for free.</span>»</span> The point is that some of the ways in which we might
+protect authors will have unintended consequences for the cultural
+environment, much like DDT had for the natural environment. And just
+
+as criticism of DDT is not an endorsement of malaria or an attack on
+farmers, so, too, is criticism of one particular set of regulations
+protecting copyright not an endorsement of anarchy or an attack on
+authors. It is an environment of creativity that we seek, and we
+should be aware of our actions' effects on the environment.
+</p><a class="indexterm" name="idp8595776"></a><p>
+My argument, in the balance of this chapter, tries to map exactly
+this effect. No doubt the technology of the Internet has had a dramatic
+effect on the ability of copyright owners to protect their content. But
+there should also be little doubt that when you add together the
+changes in copyright law over time, plus the change in technology that
+the Internet is undergoing just now, the net effect of these changes will
+not be only that copyrighted work is effectively protected. Also, and
+generally missed, the net effect of this massive increase in protection
+will be devastating to the environment for creativity.
+</p><a class="indexterm" name="idp8598080"></a><p>
+In a line: To kill a gnat, we are spraying DDT with consequences
+for free culture that will be far more devastating than that this gnat will
+be lost.
+</p><a class="indexterm" name="idp8600112"></a><a class="indexterm" name="idp8601424"></a><a class="indexterm" name="idp8602864"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="beginnings"></a>10.2. Beginnings</h2></div></div></div><a class="indexterm" name="idp8605264"></a><a class="indexterm" name="idxconstitutionuscopyrightpurposeestablishedin"></a><a class="indexterm" name="idxconstitutionusprogressclauseof"></a><a class="indexterm" name="idp8610144"></a><a class="indexterm" name="idp8611216"></a><a class="indexterm" name="idxcreativepropertyconstitutionaltraditionon2"></a><a class="indexterm" name="idxprogressclause"></a><a class="indexterm" name="idp8615760"></a><p>
+America copied English copyright law. Actually, we copied and improved
+English copyright law. Our Constitution makes the purpose of <span class="quote">«<span class="quote">creative
+property</span>»</span> rights clear; its express limitations reinforce the English
+aim to avoid overly powerful publishers.
+</p><a class="indexterm" name="idxcongressusinconstitutionalprogressclause"></a><p>
+The power to establish <span class="quote">«<span class="quote">creative property</span>»</span> rights is granted to
+Congress in a way that, for our Constitution, at least, is very
+odd. Article I, section 8, clause 8 of our Constitution states that:
+</p><p>
+Congress has the power to promote the Progress of Science and
+useful Arts, by securing for limited Times to Authors and Inventors
+the exclusive Right to their respective Writings and Discoveries.
+
+
+We can call this the <span class="quote">«<span class="quote">Progress Clause,</span>»</span> for notice what this clause
+does not say. It does not say Congress has the power to grant
+<span class="quote">«<span class="quote">creative property rights.</span>»</span> It says that Congress has the power
+<span class="emphasis"><em>to promote progress</em></span>. The grant of power is its
+purpose, and its purpose is a public one, not the purpose of enriching
+publishers, nor even primarily the purpose of rewarding authors.
+</p><a class="indexterm" name="idp8623456"></a><a class="indexterm" name="idxcopyrightlawasprotectionofcreators"></a><a class="indexterm" name="idxcopyrightlawhistoryofamerican"></a><p>
+The Progress Clause expressly limits the term of copyrights. As we saw
+in chapter <a class="xref" href="#founders" title="Chapter 6. CHAPTER SIX: Founders">6</a>,
+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 <span class="quote">«<span class="quote">to Authors</span>»</span> only.
+</p><a class="indexterm" name="idp8630720"></a><a class="indexterm" name="idp8631536"></a><a class="indexterm" name="idp8632656"></a><p>
+The design of the Progress Clause reflects something about the
+Constitution's design in general. To avoid a problem, the framers
+built structure. To prevent the concentrated power of publishers, they
+built a structure that kept copyrights away from publishers and kept
+them short. To prevent the concentrated power of a church, they banned
+the federal government from establishing a church. To prevent
+concentrating power in the federal government, they built structures
+to reinforce the power of the states—including the Senate, whose
+members were at the time selected by the states, and an electoral
+college, also selected by the states, to select the president. In each
+case, a <span class="emphasis"><em>structure</em></span> built checks and balances into
+the constitutional frame, structured to prevent otherwise inevitable
+concentrations of power.
+</p><a class="indexterm" name="idp8635120"></a><a class="indexterm" name="idp8636448"></a><p>
+I doubt the framers would recognize the regulation we call <span class="quote">«<span class="quote">copyright</span>»</span>
+today. The scope of that regulation is far beyond anything they ever
+considered. To begin to understand what they did, we need to put our
+<span class="quote">«<span class="quote">copyright</span>»</span> in context: We need to see how it has changed in the 210
+years since they first struck its design.
+</p><a class="indexterm" name="idp8639200"></a><a class="indexterm" name="idp8640640"></a><a class="indexterm" name="idp8641952"></a><a class="indexterm" name="idp8643280"></a><p>
+Some of these changes come from the law: some in light of changes
+in technology, and some in light of changes in technology given a
+
+particular concentration of market power. In terms of our model, we
+started here:
+</p><div class="figure"><a name="fig-1441"></a><p class="title"><b>Figure 10.5. Copyright's regulation before the Internet.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%" alt="Copyright's regulation before the Internet."></td></tr></table></div></div></div><br class="figure-break"><p>
+We will end here:
+</p><div class="figure"><a name="fig-1442"></a><p class="title"><b>Figure 10.6. <span class="quote">«<span class="quote">Copyright</span>»</span> today.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1442.svg" align="middle" width="100%" alt="«Copyright» today."></td></tr></table></div></div></div><br class="figure-break"><p>
+Let me explain how.
+
+</p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawduration"></a>10.3. Law: Duration</h2></div></div></div><a class="indexterm" name="idxcopyrightdurationof4"></a><a class="indexterm" name="idxcongressusoncopyrightlaws5"></a><a class="indexterm" name="idxcopyrightact"></a><a class="indexterm" name="idp8658256"></a><a class="indexterm" name="idxpublicdomainbalanceofuscontentin"></a><p>
+When the first Congress enacted laws to protect creative property, it
+faced the same uncertainty about the status of creative property that
+the English had confronted in 1774. Many states had passed laws
+protecting creative property, and some believed that these laws simply
+supplemented common law rights that already protected creative
+authorship.<a href="#ftn.idp8661792" class="footnote" name="idp8661792"><sup class="footnote">[125]</sup></a>
+This meant that there was no guaranteed public domain in the United
+States in 1790. If copyrights were protected by the common law, then
+there was no simple way to know whether a work published in the United
+States was controlled or free. Just as in England, this lingering
+uncertainty would make it hard for publishers to rely upon a public
+domain to reprint and distribute works.
+</p><a class="indexterm" name="idp8665552"></a><a class="indexterm" name="idxlawfederalvsstate"></a><p>
+That uncertainty ended after Congress passed legislation granting
+copyrights. Because federal law overrides any contrary state law,
+federal protections for copyrighted works displaced any state law
+protections. Just as in England the Statute of Anne eventually meant
+that the copyrights for all English works expired, a federal statute
+meant that any state copyrights expired as well.
+</p><a class="indexterm" name="idxcopyrightrenewabilityof"></a><p>
+In 1790, Congress enacted the first copyright law. It created a
+federal copyright and secured that copyright for fourteen years. If
+the author was alive at the end of that fourteen years, then he could
+opt to renew the copyright for another fourteen years. If he did not
+renew the copyright, his work passed into the public domain.
+</p><a class="indexterm" name="idp8671648"></a><p>
+While there were many works created in the United States in the first
+ten years of the Republic, only 5 percent of the works were actually
+registered under the federal copyright regime. Of all the work created
+in the United States both before 1790 and from 1790 through 1800, 95
+percent immediately passed into the public domain; the balance would
+pass into the pubic domain within twenty-eight years at most, and more
+likely within fourteen years.<a href="#ftn.idp8674160" class="footnote" name="idp8674160"><sup class="footnote">[126]</sup></a>
+</p><a class="indexterm" name="idp8678336"></a><a class="indexterm" name="idp8679616"></a><p>
+This system of renewal was a crucial part of the American system
+of copyright. It assured that the maximum terms of copyright would be
+
+granted only for works where they were wanted. After the initial term
+of fourteen years, if it wasn't worth it to an author to renew his
+copyright, then it wasn't worth it to society to insist on the
+copyright, either.
+</p><p>
+Fourteen years may not seem long to us, but for the vast majority of
+copyright owners at that time, it was long enough: Only a small
+minority of them renewed their copyright after fourteen years; the
+balance allowed their work to pass into the public
+domain.<a href="#ftn.idp8682560" class="footnote" name="idp8682560"><sup class="footnote">[127]</sup></a>
+</p><a class="indexterm" name="idp8685728"></a><a class="indexterm" name="idp8687056"></a><a class="indexterm" name="idp8688160"></a><p>
+Even today, this structure would make sense. Most creative work
+has an actual commercial life of just a couple of years. Most books fall
+out of print after one year.<a href="#ftn.idp8689696" class="footnote" name="idp8689696"><sup class="footnote">[128]</sup></a> When that happens, the
+used books are traded free of copyright regulation. Thus the books are
+no longer <span class="emphasis"><em>effectively</em></span> controlled by
+copyright. The only practical commercial use of the books at that time
+is to sell the books as used books; that use—because it does not
+involve publication—is effectively free.
+</p><a class="indexterm" name="idxcongressusoncopyrightlaws6"></a><a class="indexterm" name="idxcongressuscopyrighttermsextendedby"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin"></a><p>
+In the first hundred years of the Republic, the term of copyright was
+changed once. In 1831, the term was increased from a maximum of 28
+years to a maximum of 42 by increasing the initial term of copyright
+from 14 years to 28 years. In the next fifty years of the Republic,
+the term increased once again. In 1909, Congress extended the renewal
+term of 14 years to 28 years, setting a maximum term of 56 years.
+</p><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea"></a><a class="indexterm" name="idxpublicdomainfuturepatentsvsfuturecopyrightsin"></a><p>
+Then, beginning in 1962, Congress started a practice that has defined
+copyright law since. Eleven times in the last forty years, Congress
+has extended the terms of existing copyrights; twice in those forty
+years, Congress extended the term of future copyrights. Initially, the
+extensions of existing copyrights were short, a mere one to two years.
+In 1976, Congress extended all existing copyrights by nineteen years.
+And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
+extended the term of existing and future copyrights by twenty years.
+</p><a class="indexterm" name="idp8702416"></a><p>
+The effect of these extensions is simply to toll, or delay, the passing
+of works into the public domain. This latest extension means that the
+public domain will have been tolled for thirty-nine out of fifty-five
+years, or 70 percent of the time since 1962. Thus, in the twenty years
+
+
+after the Sonny Bono Act, while one million patents will pass into the
+public domain, zero copyrights will pass into the public domain by virtue
+of the expiration of a copyright term.
+</p><a class="indexterm" name="idp8704736"></a><p>
+The effect of these extensions has been exacerbated by another,
+little-noticed change in the copyright law. Remember I said that the
+framers established a two-part copyright regime, requiring a copyright
+owner to renew his copyright after an initial term. The requirement of
+renewal meant that works that no longer needed copyright protection
+would pass more quickly into the public domain. The works remaining
+under protection would be those that had some continuing commercial
+value.
+</p><a class="indexterm" name="idp8706960"></a><a class="indexterm" name="idp8707744"></a><a class="indexterm" name="idp8708864"></a><p>
+The United States abandoned this sensible system in 1976. For
+all works created after 1978, there was only one copyright term—the
+maximum term. For <span class="quote">«<span class="quote">natural</span>»</span> authors, that term was life plus fifty
+years. For corporations, the term was seventy-five years. Then, in 1992,
+Congress abandoned the renewal requirement for all works created
+before 1978. All works still under copyright would be accorded the
+maximum term then available. After the Sonny Bono Act, that term
+was ninety-five years.
+</p><p>
+This change meant that American law no longer had an automatic way to
+assure that works that were no longer exploited passed into the public
+domain. And indeed, after these changes, it is unclear whether it is
+even possible to put works into the public domain. The public domain
+is orphaned by these changes in copyright law. Despite the requirement
+that terms be <span class="quote">«<span class="quote">limited,</span>»</span> we have no evidence that anything will limit
+them.
+</p><a class="indexterm" name="idp8712544"></a><a class="indexterm" name="idp8713936"></a><p>
+The effect of these changes on the average duration of copyright is
+dramatic. In 1973, more than 85 percent of copyright owners failed to
+renew their copyright. That meant that the average term of copyright
+in 1973 was just 32.2 years. Because of the elimination of the renewal
+requirement, the average term of copyright is now the maximum term.
+In thirty years, then, the average term has tripled, from 32.2 years to 95
+years.<a href="#ftn.idp8716032" class="footnote" name="idp8716032"><sup class="footnote">[129]</sup></a>
+</p><a class="indexterm" name="idp8717696"></a><a class="indexterm" name="idp8718944"></a><a class="indexterm" name="idp8720336"></a><a class="indexterm" name="idp8721680"></a><a class="indexterm" name="idp8722960"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawscope"></a>10.4. Law: Scope</h2></div></div></div><a class="indexterm" name="idxcopyrightscopeof"></a><p>
+The <span class="quote">«<span class="quote">scope</span>»</span> of a copyright is the range of rights granted by the law.
+The scope of American copyright has changed dramatically. Those
+changes are not necessarily bad. But we should understand the extent
+of the changes if we're to keep this debate in context.
+</p><a class="indexterm" name="idp8728816"></a><a class="indexterm" name="idxderivativeworkshistoricalshiftincopyrightcoverageof"></a><p>
+In 1790, that scope was very narrow. Copyright covered only <span class="quote">«<span class="quote">maps,
+charts, and books.</span>»</span> That means it didn't cover, for example, music or
+architecture. More significantly, the right granted by a copyright gave
+the author the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> copyrighted works. That
+means someone else violated the copyright only if he republished the
+work without the copyright owner's permission. Finally, the right granted
+by a copyright was an exclusive right to that particular book. The right
+did not extend to what lawyers call <span class="quote">«<span class="quote">derivative works.</span>»</span> It would not,
+therefore, interfere with the right of someone other than the author to
+translate a copyrighted book, or to adapt the story to a different form
+(such as a drama based on a published book).
+</p><p>
+This, too, has changed dramatically. While the contours of copyright
+today are extremely hard to describe simply, in general terms, the
+right covers practically any creative work that is reduced to a
+tangible form. It covers music as well as architecture, drama as well
+as computer programs. It gives the copyright owner of that creative
+work not only the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> the work, but also the
+exclusive right of control over any <span class="quote">«<span class="quote">copies</span>»</span> of that work. And most
+significant for our purposes here, the right gives the copyright owner
+control over not only his or her particular work, but also any
+<span class="quote">«<span class="quote">derivative work</span>»</span> that might grow out of the original work. In this
+way, the right covers more creative work, protects the creative work
+more broadly, and protects works that are based in a significant way
+on the initial creative work.
+</p><a class="indexterm" name="idxcopyrightmarkingof"></a><a class="indexterm" name="idxformalities"></a><a class="indexterm" name="idxcopyrightlawregistrationrequirementof"></a><p>
+At the same time that the scope of copyright has expanded, procedural
+limitations on the right have been relaxed. I've already described the
+complete removal of the renewal requirement in 1992. In addition
+
+to the renewal requirement, for most of the history of American
+copyright law, there was a requirement that a work be registered
+before it could receive the protection of a copyright. There was also
+a requirement that any copyrighted work be marked either with that
+famous © or the word <span class="emphasis"><em>copyright</em></span>. And for most
+of the history of American copyright law, there was a requirement that
+works be deposited with the government before a copyright could be
+secured.
+</p><a class="indexterm" name="idp8743888"></a><p>
+The reason for the registration requirement was the sensible
+understanding that for most works, no copyright was required. Again,
+in the first ten years of the Republic, 95 percent of works eligible
+for copyright were never copyrighted. Thus, the rule reflected the
+norm: Most works apparently didn't need copyright, so registration
+narrowed the regulation of the law to the few that did. The same
+reasoning justified the requirement that a work be marked as
+copyrighted—that way it was easy to know whether a copyright was
+being claimed. The requirement that works be deposited was to assure
+that after the copyright expired, there would be a copy of the work
+somewhere so that it could be copied by others without locating the
+original author.
+</p><a class="indexterm" name="idp8745520"></a><p>
+All of these <span class="quote">«<span class="quote">formalities</span>»</span> were abolished in the American system when
+we decided to follow European copyright law. There is no requirement
+that you register a work to get a copyright; the copyright now is
+automatic; the copyright exists whether or not you mark your work with
+a ©; and the copyright exists whether or not you actually make a
+copy available for others to copy.
+</p><a class="indexterm" name="idp8748816"></a><a class="indexterm" name="idp8750352"></a><a class="indexterm" name="idp8751616"></a><p>
+Consider a practical example to understand the scope of these
+differences.
+</p><a class="indexterm" name="idxcopyrightact2"></a><p>
+If, in 1790, you wrote a book and you were one of the 5 percent who
+actually copyrighted that book, then the copyright law protected you
+against another publisher's taking your book and republishing it
+without your permission. The aim of the act was to regulate publishers
+so as to prevent that kind of unfair competition. In 1790, there were
+174 publishers in the United States.<a href="#ftn.idp8755536" class="footnote" name="idp8755536"><sup class="footnote">[130]</sup></a>
+The Copyright Act was thus a tiny
+regulation of a tiny proportion of a tiny part of the creative market in
+the United States—publishers.
+</p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork2"></a><a class="indexterm" name="idxderivativeworkspiracyvs3"></a><a class="indexterm" name="idxpiracyderivativeworkvs3"></a><p>
+
+The act left other creators totally unregulated. If I copied your poem
+by hand, over and over again, as a way to learn it by heart, my act
+was totally unregulated by the 1790 act. If I took your novel and made
+a play based upon it, or if I translated it or abridged it, none of
+those activities were regulated by the original copyright act. These
+creative activities remained free, while the activities of publishers
+were restrained.
+</p><a class="indexterm" name="idp8764928"></a><p>
+Today the story is very different: If you write a book, your book is
+automatically protected. Indeed, not just your book. Every e-mail,
+every note to your spouse, every doodle, <span class="emphasis"><em>every</em></span>
+creative act that's reduced to a tangible form—all of this is
+automatically copyrighted. There is no need to register or mark your
+work. The protection follows the creation, not the steps you take to
+protect it.
+</p><p>
+That protection gives you the right (subject to a narrow range of
+fair use exceptions) to control how others copy the work, whether they
+copy it to republish it or to share an excerpt.
+</p><p>
+That much is the obvious part. Any system of copyright would
+ control
+competing publishing. But there's a second part to the copyright of
+today that is not at all obvious. This is the protection of <span class="quote">«<span class="quote">derivative
+rights.</span>»</span> If you write a book, no one can make a movie out of your
+book without permission. No one can translate it without permission.
+CliffsNotes can't make an abridgment unless permission is granted. All
+of these derivative uses of your original work are controlled by the
+copyright holder. The copyright, in other words, is now not just an
+ exclusive
+right to your writings, but an exclusive right to your writings
+and a large proportion of the writings inspired by them.
+</p><a class="indexterm" name="idp8769488"></a><p>
+It is this derivative right that would seem most bizarre to our
+framers, though it has become second nature to us. Initially, this
+ expansion
+was created to deal with obvious evasions of a narrower
+ copyright.
+If I write a book, can you change one word and then claim a
+copyright in a new and different book? Obviously that would make a
+joke of the copyright, so the law was properly expanded to include
+those slight modifications as well as the verbatim original work.
+</p><p>
+
+In preventing that joke, the law created an astonishing power
+within a free culture—at least, it's astonishing when you
+understand that the law applies not just to the commercial publisher
+but to anyone with a computer. I understand the wrong in duplicating
+and selling someone else's work. But whatever
+<span class="emphasis"><em>that</em></span> wrong is, transforming someone else's work
+is a different wrong. Some view transformation as no wrong at
+all—they believe that our law, as the framers penned it, should
+not protect derivative rights at all.<a href="#ftn.idp8773008" class="footnote" name="idp8773008"><sup class="footnote">[131]</sup></a>
+Whether or not you go that far, it seems
+plain that whatever wrong is involved is fundamentally different from
+the wrong of direct piracy.
+</p><p>
+Yet copyright law treats these two different wrongs in the same way. I
+can go to court and get an injunction against your pirating my book. I
+can go to court and get an injunction against your transformative use
+of my book.<a href="#ftn.idp8777232" class="footnote" name="idp8777232"><sup class="footnote">[132]</sup></a>
+These two different uses of my creative work are treated the same.
+</p><a class="indexterm" name="idp8780656"></a><a class="indexterm" name="idp8781936"></a><a class="indexterm" name="idp8782752"></a><p>
+This again may seem right to you. If I wrote a book, then why should
+you be able to write a movie that takes my story and makes money from
+it without paying me or crediting me? Or if Disney creates a creature
+called <span class="quote">«<span class="quote">Mickey Mouse,</span>»</span> why should you be able to make Mickey Mouse
+toys and be the one to trade on the value that Disney originally
+created?
+</p><p>
+These are good arguments, and, in general, my point is not that the
+derivative right is unjustified. My aim just now is much narrower:
+simply to make clear that this expansion is a significant change from
+the rights originally granted.
+</p><a class="indexterm" name="idp8785376"></a><a class="indexterm" name="idp8786640"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawreach"></a>10.5. Law and Architecture: Reach</h2></div></div></div><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof"></a><a class="indexterm" name="idxcopyrightlawscopeof"></a><p>
+Whereas originally the law regulated only publishers, the change in
+copyright's scope means that the law today regulates publishers, users,
+and authors. It regulates them because all three are capable of making
+copies, and the core of the regulation of copyright law is copies.<a href="#ftn.idp8793600" class="footnote" name="idp8793600"><sup class="footnote">[133]</sup></a>
+</p><a class="indexterm" name="idp8797456"></a><a class="indexterm" name="idxcreativepropertyotherpropertyrightsvs2"></a><p>
+
+<span class="quote">«<span class="quote">Copies.</span>»</span> That certainly sounds like the obvious thing for
+<span class="emphasis"><em>copy</em></span>right law to regulate. But as with Jack
+Valenti's argument at the start of this chapter, that <span class="quote">«<span class="quote">creative
+property</span>»</span> deserves the <span class="quote">«<span class="quote">same rights</span>»</span> as all other property, it is the
+<span class="emphasis"><em>obvious</em></span> that we need to be most careful
+about. For while it may be obvious that in the world before the
+Internet, copies were the obvious trigger for copyright law, upon
+reflection, it should be obvious that in the world with the Internet,
+copies should <span class="emphasis"><em>not</em></span> be the trigger for copyright
+law. More precisely, they should not <span class="emphasis"><em>always</em></span> be
+the trigger for copyright law.
+</p><a class="indexterm" name="idp8804736"></a><p>
+This is perhaps the central claim of this book, so let me take this
+very slowly so that the point is not easily missed. My claim is that the
+Internet should at least force us to rethink the conditions under which
+the law of copyright automatically applies,<a href="#ftn.idp8806656" class="footnote" name="idp8806656"><sup class="footnote">[134]</sup></a>
+because it is clear that the
+current reach of copyright was never contemplated, much less chosen,
+by the legislators who enacted copyright law.
+</p><a class="indexterm" name="idp8808112"></a><a class="indexterm" name="idp8809280"></a><p>
+We can see this point abstractly by beginning with this largely
+empty circle.
+</p><div class="figure"><a name="fig-1521"></a><p class="title"><b>Figure 10.7. All potential uses of a book.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1521.svg" align="middle" width="100%" alt="All potential uses of a book."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxbooksthreetypesofusesof"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof2"></a><a class="indexterm" name="idxinternetcopyrightapplicabilityalteredbytechnologyof"></a><a class="indexterm" name="idxtechnologycopyrightintentalteredby"></a><a class="indexterm" name="idxderivativeworkspiracyvs4"></a><a class="indexterm" name="idxpiracyderivativeworkvs4"></a><p>
+
+Think about a book in real space, and imagine this circle to represent
+all its potential <span class="emphasis"><em>uses</em></span>. Most of these uses are
+unregulated by copyright law, because the uses don't create a copy. If
+you read a book, that act is not regulated by copyright law. If you
+give someone the book, that act is not regulated by copyright law. If
+you resell a book, that act is not regulated (copyright law expressly
+states that after the first sale of a book, the copyright owner can
+impose no further conditions on the disposition of the book). If you
+sleep on the book or use it to hold up a lamp or let your puppy chew
+it up, those acts are not regulated by copyright law, because those
+acts do not make a copy.
+</p><div class="figure"><a name="fig-1531"></a><p class="title"><b>Figure 10.8. Examples of unregulated uses of a book.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1531.png" align="middle" width="100%" alt="Examples of unregulated uses of a book."></td></tr></table></div></div></div><br class="figure-break"><p>
+Obviously, however, some uses of a copyrighted book are regulated
+by copyright law. Republishing the book, for example, makes a copy. It
+is therefore regulated by copyright law. Indeed, this particular use stands
+at the core of this circle of possible uses of a copyrighted work. It is the
+paradigmatic use properly regulated by copyright regulation (see first
+diagram on next page).
+</p><a class="indexterm" name="idp8830240"></a><a class="indexterm" name="idp8831568"></a><a class="indexterm" name="idxfairuse"></a><a class="indexterm" name="idxcopyrightlawfairuseand2"></a><p>
+Finally, there is a tiny sliver of otherwise regulated copying uses
+that remain unregulated because the law considers these <span class="quote">«<span class="quote">fair uses.</span>»</span>
+</p><div class="figure"><a name="fig-1541"></a><p class="title"><b>Figure 10.9. Republishing stands at the core of this circle of possible uses of a copyrighted work.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1541.svg" align="middle" width="100%" alt="Republishing stands at the core of this circle of possible uses of a copyrighted work."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8839936"></a><a class="indexterm" name="idp8841040"></a><p>
+These are uses that themselves involve copying, but which the law
+treats as unregulated because public policy demands that they remain
+unregulated. You are free to quote from this book, even in a review
+that is quite negative, without my permission, even though that
+quoting makes a copy. That copy would ordinarily give the copyright
+owner the exclusive right to say whether the copy is allowed or not,
+but the law denies the owner any exclusive right over such <span class="quote">«<span class="quote">fair uses</span>»</span>
+for public policy (and possibly First Amendment) reasons.
+</p><div class="figure"><a name="fig-1542"></a><p class="title"><b>Figure 10.10. Unregulated copying considered <span class="quote">«<span class="quote">fair uses.</span>»</span></b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1542.png" align="middle" width="100%" alt="Unregulated copying considered «fair uses.»"></td></tr></table></div></div></div><br class="figure-break"><p> </p><div class="figure"><a name="fig-1551"></a><p class="title"><b>Figure 10.11. Uses that before were presumptively unregulated are now presumptively regulated.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1551.png" align="middle" width="100%" alt="Uses that before were presumptively unregulated are now presumptively regulated."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto"></a><p>
+
+In real space, then, the possible uses of a book are divided into three
+sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
+are nonetheless deemed <span class="quote">«<span class="quote">fair</span>»</span> regardless of the copyright owner's views.
+</p><a class="indexterm" name="idp8852096"></a><a class="indexterm" name="idxbooksoninternet"></a><a class="indexterm" name="idxinternetbookson2"></a><a class="indexterm" name="idp8857152"></a><p>
+Enter the Internet—a distributed, digital network where every use
+of a copyrighted work produces a copy.<a href="#ftn.idp8858704" class="footnote" name="idp8858704"><sup class="footnote">[135]</sup></a>
+And because of this single, arbitrary feature of the design of a
+digital network, the scope of category 1 changes dramatically. Uses
+that before were presumptively unregulated are now presumptively
+regulated. No longer is there a set of presumptively unregulated uses
+that define a freedom associated with a copyrighted work. Instead,
+each use is now subject to the copyright, because each use also makes
+a copy—category 1 gets sucked into category 2. And those who
+would defend the unregulated uses of copyrighted work must look
+exclusively to category 3, fair uses, to bear the burden of this
+shift.
+</p><a class="indexterm" name="idp8860208"></a><a class="indexterm" name="idp8862208"></a><p>
+So let's be very specific to make this general point clear. Before the
+Internet, if you purchased a book and read it ten times, there would
+be no plausible <span class="emphasis"><em>copyright</em></span>-related argument that
+the copyright owner could make to control that use of her
+book. Copyright law would have nothing to say about whether you read
+the book once, ten times, or every
+
+night before you went to bed. None of those instances of
+use—reading— could be regulated by copyright law because
+none of those uses produced a copy.
+</p><a class="indexterm" name="idxebooks"></a><a class="indexterm" name="idxderivativeworkstechnologicaldevelopmentsand"></a><p>
+But the same book as an e-book is effectively governed by a different
+set of rules. Now if the copyright owner says you may read the book
+only once or only once a month, then <span class="emphasis"><em>copyright
+law</em></span> would aid the copyright owner in exercising this degree
+of control, because of the accidental feature of copyright law that
+triggers its application upon there being a copy. Now if you read the
+book ten times and the license says you may read it only five times,
+then whenever you read the book (or any portion of it) beyond the
+fifth time, you are making a copy of the book contrary to the
+copyright owner's wish.
+</p><p>
+There are some people who think this makes perfect sense. My aim
+just now is not to argue about whether it makes sense or not. My aim
+is only to make clear the change. Once you see this point, a few other
+points also become clear:
+</p><p>
+First, making category 1 disappear is not anything any policy maker
+ever intended. Congress did not think through the collapse of the
+presumptively unregulated uses of copyrighted works. There is no
+evidence at all that policy makers had this idea in mind when they
+allowed our policy here to shift. Unregulated uses were an important
+part of free culture before the Internet.
+</p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork3"></a><p>
+Second, this shift is especially troubling in the context of
+transformative uses of creative content. Again, we can all understand
+the wrong in commercial piracy. But the law now purports to regulate
+<span class="emphasis"><em>any</em></span> transformation you make of creative work
+using a machine. <span class="quote">«<span class="quote">Copy and paste</span>»</span> and <span class="quote">«<span class="quote">cut and paste</span>»</span> become
+crimes. Tinkering with a story and releasing it to others exposes the
+tinkerer to at least a requirement of justification. However
+troubling the expansion with respect to copying a particular work, it
+is extraordinarily troubling with respect to transformative uses of
+creative work.
+</p><a class="indexterm" name="idxfairuseinternetburdenson"></a><a class="indexterm" name="idxcopyrightlawfairuseand3"></a><a class="indexterm" name="idxderivativeworksfairusevs"></a><p>
+Third, this shift from category 1 to category 2 puts an extraordinary
+
+
+burden on category 3 (<span class="quote">«<span class="quote">fair use</span>»</span>) that fair use never before had to
+bear. If a copyright owner now tried to control how many times I
+could read a book on-line, the natural response would be to argue that
+this is a violation of my fair use rights. But there has never been
+any litigation about whether I have a fair use right to read, because
+before the Internet, reading did not trigger the application of
+copyright law and hence the need for a fair use defense. The right to
+read was effectively protected before because reading was not
+regulated.
+</p><a class="indexterm" name="idp8882944"></a><a class="indexterm" name="idp8884288"></a><a class="indexterm" name="idp8885616"></a><a class="indexterm" name="idp8886944"></a><a class="indexterm" name="idp8888272"></a><p>
+This point about fair use is totally ignored, even by advocates for
+free culture. We have been cornered into arguing that our rights
+depend upon fair use—never even addressing the earlier question
+about the expansion in effective regulation. A thin protection
+grounded in fair use makes sense when the vast majority of uses are
+<span class="emphasis"><em>unregulated</em></span>. But when everything becomes
+presumptively regulated, then the protections of fair use are not
+enough.
+</p><a class="indexterm" name="idp8891024"></a><a class="indexterm" name="idp8892368"></a><a class="indexterm" name="idp8893568"></a><a class="indexterm" name="idp8894880"></a><a class="indexterm" name="idp8896192"></a><a class="indexterm" name="idp8897520"></a><a class="indexterm" name="idp8898864"></a><a class="indexterm" name="idxvideopipeline"></a><a class="indexterm" name="idxadvertising"></a><a class="indexterm" name="idxfilmindustrytraileradvertisementsof"></a><p>
+The case of Video Pipeline is a good example. Video Pipeline was
+in the business of making <span class="quote">«<span class="quote">trailer</span>»</span> advertisements for movies available
+to video stores. The video stores displayed the trailers as a way to sell
+videos. Video Pipeline got the trailers from the film distributors, put
+the trailers on tape, and sold the tapes to the retail stores.
+</p><a class="indexterm" name="idp8906192"></a><p>
+The company did this for about fifteen years. Then, in 1997, it began
+to think about the Internet as another way to distribute these
+previews. The idea was to expand their <span class="quote">«<span class="quote">selling by sampling</span>»</span>
+technique by giving on-line stores the same ability to enable
+<span class="quote">«<span class="quote">browsing.</span>»</span> Just as in a bookstore you can read a few pages of a book
+before you buy the book, so, too, you would be able to sample a bit
+from the movie on-line before you bought it.
+</p><a class="indexterm" name="idxdisneyinc2"></a><a class="indexterm" name="idp8910176"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof3"></a><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst2"></a><p>
+In 1998, Video Pipeline informed Disney and other film distributors
+that it intended to distribute the trailers through the Internet
+(rather than sending the tapes) to distributors of their videos. Two
+years later, Disney told Video Pipeline to stop. The owner of Video
+
+Pipeline asked Disney to talk about the matter—he had built a
+business on distributing this content as a way to help sell Disney
+films; he had customers who depended upon his delivering this
+content. Disney would agree to talk only if Video Pipeline stopped the
+distribution immediately. Video Pipeline thought it was within their
+<span class="quote">«<span class="quote">fair use</span>»</span> rights to distribute the clips as they had. So they filed a
+lawsuit to ask the court to declare that these rights were in fact
+their rights.
+</p><a class="indexterm" name="idp8916960"></a><a class="indexterm" name="idp8918208"></a><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto2"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitswillfulinfringementfindingsin"></a><a class="indexterm" name="idp8923312"></a><p>
+Disney countersued—for $100 million in damages. Those damages
+were predicated upon a claim that Video Pipeline had <span class="quote">«<span class="quote">willfully
+infringed</span>»</span> on Disney's copyright. When a court makes a finding of
+willful infringement, it can award damages not on the basis of the
+actual harm to the copyright owner, but on the basis of an amount set
+in the statute. Because Video Pipeline had distributed seven hundred
+clips of Disney movies to enable video stores to sell copies of those
+movies, Disney was now suing Video Pipeline for $100 million.
+</p><p>
+Disney has the right to control its property, of course. But the video
+stores that were selling Disney's films also had some sort of right to be
+able to sell the films that they had bought from Disney. Disney's claim
+in court was that the stores were allowed to sell the films and they were
+permitted to list the titles of the films they were selling, but they were
+not allowed to show clips of the films as a way of selling them without
+Disney's permission.
+</p><a class="indexterm" name="idp8926368"></a><p>
+Now, you might think this is a close case, and I think the courts
+would consider it a close case. My point here is to map the change
+that gives Disney this power. Before the Internet, Disney couldn't
+really control how people got access to their content. Once a video
+was in the marketplace, the <span class="quote">«<span class="quote">first-sale doctrine</span>»</span> would free the
+seller to use the video as he wished, including showing portions of it
+in order to engender sales of the entire movie video. But with the
+Internet, it becomes possible for Disney to centralize control over
+access to this content. Because each use of the Internet produces a
+copy, use on the Internet becomes subject to the copyright owner's
+control. The technology expands the scope of effective control,
+because the technology builds a copy into every transaction.
+</p><a class="indexterm" name="idp8928768"></a><a class="indexterm" name="idp8930016"></a><a class="indexterm" name="idp8931264"></a><a class="indexterm" name="idp8932592"></a><a class="indexterm" name="idp8933984"></a><a class="indexterm" name="idp8935296"></a><a class="indexterm" name="idp8936640"></a><a class="indexterm" name="idp8937456"></a><a class="indexterm" name="idp8938272"></a><p>
+
+No doubt, a potential is not yet an abuse, and so the potential for
+control is not yet the abuse of control. Barnes & Noble has the
+right to say you can't touch a book in their store; property law gives
+them that right. But the market effectively protects against that
+abuse. If Barnes & Noble banned browsing, then consumers would
+choose other bookstores. Competition protects against the
+extremes. And it may well be (my argument so far does not even
+question this) that competition would prevent any similar danger when
+it comes to copyright. Sure, publishers exercising the rights that
+authors have assigned to them might try to regulate how many times you
+read a book, or try to stop you from sharing the book with anyone. But
+in a competitive market such as the book market, the dangers of this
+happening are quite slight.
+</p><p>
+Again, my aim so far is simply to map the changes that this changed
+architecture enables. Enabling technology to enforce the control of
+copyright means that the control of copyright is no longer defined by
+balanced policy. The control of copyright is simply what private
+owners choose. In some contexts, at least, that fact is harmless. But
+in some contexts it is a recipe for disaster.
+</p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawforce"></a>10.6. Architecture and Law: Force</h2></div></div></div><p>
+The disappearance of unregulated uses would be change enough, but a
+second important change brought about by the Internet magnifies its
+significance. This second change does not affect the reach of copyright
+regulation; it affects how such regulation is enforced.
+</p><a class="indexterm" name="idp8945312"></a><a class="indexterm" name="idp8946400"></a><p>
+In the world before digital technology, it was generally the law that
+controlled whether and how someone was regulated by copyright law.
+The law, meaning a court, meaning a judge: In the end, it was a human,
+trained in the tradition of the law and cognizant of the balances that
+tradition embraced, who said whether and how the law would restrict
+your freedom.
+</p><a class="indexterm" name="idp8948288"></a><a class="indexterm" name="idxmarxbrothers"></a><a class="indexterm" name="idxwarnerbrothers"></a><p>
+There's a famous story about a battle between the Marx Brothers
+and Warner Brothers. The Marxes intended to make a parody of
+
+<em class="citetitle">Casablanca</em>. Warner Brothers objected. They
+wrote a nasty letter to the Marxes, warning them that there would be
+serious legal consequences if they went forward with their
+plan.<a href="#ftn.idp8953472" class="footnote" name="idp8953472"><sup class="footnote">[136]</sup></a>
+</p><p>
+This led the Marx Brothers to respond in kind. They warned
+Warner Brothers that the Marx Brothers <span class="quote">«<span class="quote">were brothers long before
+you were.</span>»</span><a href="#ftn.idp8956064" class="footnote" name="idp8956064"><sup class="footnote">[137]</sup></a>
+The Marx Brothers therefore owned the word
+<em class="citetitle">brothers</em>, and if Warner Brothers insisted on
+trying to control <em class="citetitle">Casablanca</em>, then the Marx
+Brothers would insist on control over <em class="citetitle">brothers</em>.
+</p><p>
+An absurd and hollow threat, of course, because Warner Brothers,
+like the Marx Brothers, knew that no court would ever enforce such a
+silly claim. This extremism was irrelevant to the real freedoms anyone
+(including Warner Brothers) enjoyed.
+</p><a class="indexterm" name="idxbooksoninternet2"></a><p>
+On the Internet, however, there is no check on silly rules, because on
+the Internet, increasingly, rules are enforced not by a human but by a
+machine: Increasingly, the rules of copyright law, as interpreted by
+the copyright owner, get built into the technology that delivers
+copyrighted content. It is code, rather than law, that rules. And the
+problem with code regulations is that, unlike law, code has no
+shame. Code would not get the humor of the Marx Brothers. The
+consequence of that is not at all funny.
+</p><a class="indexterm" name="idp8963168"></a><a class="indexterm" name="idp8964480"></a><a class="indexterm" name="idxadobeebookreader"></a><p>
+Consider the life of my Adobe eBook Reader.
+</p><p>
+An e-book is a book delivered in electronic form. An Adobe eBook is
+not a book that Adobe has published; Adobe simply produces the
+software that publishers use to deliver e-books. It provides the
+technology, and the publisher delivers the content by using the
+technology.
+</p><p>
+On the next page is a picture of an old version of my Adobe eBook
+Reader.
+</p><p>
+As you can see, I have a small collection of e-books within this
+e-book library. Some of these books reproduce content that is in the
+public domain: <em class="citetitle">Middlemarch</em>, for example, is in
+the public domain. Some of them reproduce content that is not in the
+public domain: My own book <em class="citetitle">The Future of Ideas</em>
+is not yet within the public domain. Consider
+<em class="citetitle">Middlemarch</em> first. If you click on my e-book
+copy of
+
+<em class="citetitle">Middlemarch</em>, you'll see a fancy cover, and then
+a button at the bottom called Permissions.
+</p><div class="figure"><a name="fig-1611"></a><p class="title"><b>Figure 10.12. Picture of an old version of Adobe eBook Reader</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1611.svg" align="middle" width="100%" alt="Picture of an old version of Adobe eBook Reader"></td></tr></table></div></div></div><br class="figure-break"><p>
+If you click on the Permissions button, you'll see a list of the
+permissions that the publisher purports to grant with this book.
+</p><div class="figure"><a name="fig-1612"></a><p class="title"><b>Figure 10.13. List of the permissions that the publisher purports to grant.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1612.png" align="middle" width="100%" alt="List of the permissions that the publisher purports to grant."></td></tr></table></div></div></div><br class="figure-break"><p>
+
+According to my eBook Reader, I have the permission to copy to the
+clipboard of the computer ten text selections every ten days. (So far,
+I've copied no text to the clipboard.) I also have the permission to
+print ten pages from the book every ten days. Lastly, I have the
+permission to use the Read Aloud button to hear <em class="citetitle">Middlemarch</em>
+read aloud through the computer.
+</p><a class="indexterm" name="idp8978800"></a><a class="indexterm" name="idp8979616"></a><p>
+Here's the e-book for another work in the public domain (including the
+translation): Aristotle's <em class="citetitle">Politics</em>.
+</p><div class="figure"><a name="fig-1621"></a><p class="title"><b>Figure 10.14. E-book of Aristotle;s <span class="quote">«<span class="quote">Politics</span>»</span></b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1621.png" align="middle" width="100%" alt="E-book of Aristotle;s «Politics»"></td></tr></table></div></div></div><br class="figure-break"><p>
+According to its permissions, no printing or copying is permitted
+at all. But fortunately, you can use the Read Aloud button to hear
+the book.
+</p><div class="figure"><a name="fig-1622"></a><p class="title"><b>Figure 10.15. List of the permissions for Aristotle;s <span class="quote">«<span class="quote">Politics</span>»</span>.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1622.png" align="middle" width="100%" alt="List of the permissions for Aristotle;s «Politics»."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8988096"></a><a class="indexterm" name="idp8988928"></a><p>
+Finally (and most embarrassingly), here are the permissions for the
+original e-book version of my last book, <em class="citetitle">The Future of
+Ideas</em>:
+</p><div class="figure"><a name="fig-1631"></a><p class="title"><b>Figure 10.16. List of the permissions for <span class="quote">«<span class="quote">The Future of Ideas</span>»</span>.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1631.png" align="middle" width="100%" alt="List of the permissions for «The Future of Ideas»."></td></tr></table></div></div></div><br class="figure-break"><p>
+No copying, no printing, and don't you dare try to listen to this book!
+</p><p>
+Now, the Adobe eBook Reader calls these controls
+<span class="quote">«<span class="quote">permissions</span>»</span>— as if the publisher has the power to control how
+you use these works. For works under copyright, the copyright owner
+certainly does have the power—up to the limits of the copyright
+law. But for work not under copyright, there is no such copyright
+power.<a href="#ftn.idp8995104" class="footnote" name="idp8995104"><sup class="footnote">[138]</sup></a>
+When my e-book of <em class="citetitle">Middlemarch</em> says I have the
+permission to copy only ten text selections into the memory every ten
+days, what that really means is that the eBook Reader has enabled the
+publisher to control how I use the book on my computer, far beyond the
+control that the law would enable.
+</p><p>
+The control comes instead from the code—from the technology
+within which the e-book <span class="quote">«<span class="quote">lives.</span>»</span> Though the e-book says that these are
+permissions, they are not the sort of <span class="quote">«<span class="quote">permissions</span>»</span> that most of us
+deal with. When a teenager gets <span class="quote">«<span class="quote">permission</span>»</span> to stay out till
+midnight, she knows (unless she's Cinderella) that she can stay out
+till 2 A.M., but will suffer a punishment if she's caught. But when
+the Adobe eBook Reader says I have the permission to make ten copies
+of the text into the computer's memory, that means that after I've
+made ten copies, the computer will not make any more. The same with
+the printing restrictions: After ten pages, the eBook Reader will not
+print any more pages. It's the same with the silly restriction that
+says that you can't use the Read Aloud button to read my book
+aloud—it's not that the company will sue you if you do; instead,
+if you push the Read Aloud button with my book, the machine simply
+won't read aloud.
+</p><a class="indexterm" name="idp8999392"></a><a class="indexterm" name="idp9001104"></a><p>
+
+These are <span class="emphasis"><em>controls</em></span>, not permissions. Imagine a
+world where the Marx Brothers sold word processing software that, when
+you tried to type <span class="quote">«<span class="quote">Warner Brothers,</span>»</span> erased <span class="quote">«<span class="quote">Brothers</span>»</span> from the
+sentence.
+</p><p>
+This is the future of copyright law: not so much copyright
+<span class="emphasis"><em>law</em></span> as copyright <span class="emphasis"><em>code</em></span>. The
+controls over access to content will not be controls that are ratified
+by courts; the controls over access to content will be controls that
+are coded by programmers. And whereas the controls that are built into
+the law are always to be checked by a judge, the controls that are
+built into the technology have no similar built-in check.
+</p><p>
+How significant is this? Isn't it always possible to get around the
+controls built into the technology? Software used to be sold with
+technologies that limited the ability of users to copy the software,
+but those were trivial protections to defeat. Why won't it be trivial
+to defeat these protections as well?
+</p><p>
+We've only scratched the surface of this story. Return to the Adobe
+eBook Reader.
+</p><a class="indexterm" name="idxalicesadventuresinwonderlandcarroll"></a><a class="indexterm" name="idxpublicdomainebookrestrictionson2"></a><p>
+Early in the life of the Adobe eBook Reader, Adobe suffered a public
+relations nightmare. Among the books that you could download for free
+on the Adobe site was a copy of <em class="citetitle">Alice's Adventures in
+Wonderland</em>. This wonderful book is in the public
+domain. Yet when you clicked on Permissions for that book, you got the
+following report:
+</p><div class="figure"><a name="fig-1641"></a><p class="title"><b>Figure 10.17. List of the permissions for <span class="quote">«<span class="quote">Alice's Adventures in
+Wonderland</span>»</span>.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1641.png" align="middle" width="100%" alt="List of the permissions for «Alice's Adventures in Wonderland»."></td></tr></table></div></div></div><br class="figure-break"><p>
+Here was a public domain children's book that you were not allowed to
+copy, not allowed to lend, not allowed to give, and, as the
+<span class="quote">«<span class="quote">permissions</span>»</span> indicated, not allowed to <span class="quote">«<span class="quote">read aloud</span>»</span>!
+</p><p>
+The public relations nightmare attached to that final permission.
+For the text did not say that you were not permitted to use the Read
+Aloud button; it said you did not have the permission to read the book
+aloud. That led some people to think that Adobe was restricting the
+right of parents, for example, to read the book to their children, which
+seemed, to say the least, absurd.
+</p><p>
+Adobe responded quickly that it was absurd to think that it was trying
+to restrict the right to read a book aloud. Obviously it was only
+restricting the ability to use the Read Aloud button to have the book
+read aloud. But the question Adobe never did answer is this: Would
+Adobe thus agree that a consumer was free to use software to hack
+around the restrictions built into the eBook Reader? If some company
+(call it Elcomsoft) developed a program to disable the technological
+protection built into an Adobe eBook so that a blind person, say,
+could use a computer to read the book aloud, would Adobe agree that
+such a use of an eBook Reader was fair? Adobe didn't answer because
+the answer, however absurd it might seem, is no.
+</p><a class="indexterm" name="idp9018816"></a><a class="indexterm" name="idp9020144"></a><p>
+The point is not to blame Adobe. Indeed, Adobe is among the most
+innovative companies developing strategies to balance open access to
+content with incentives for companies to innovate. But Adobe's
+technology enables control, and Adobe has an incentive to defend this
+control. That incentive is understandable, yet what it creates is
+often crazy.
+</p><a class="indexterm" name="idp9022240"></a><a class="indexterm" name="idp9023440"></a><p>
+To see the point in a particularly absurd context, consider a favorite
+story of mine that makes the same point.
+</p><a class="indexterm" name="idxaibo1"></a><a class="indexterm" name="idxroboticdog1"></a><a class="indexterm" name="idxsonyaibo1"></a><p>
+Consider the robotic dog made by Sony named <span class="quote">«<span class="quote">Aibo.</span>»</span> The Aibo
+learns tricks, cuddles, and follows you around. It eats only electricity
+and that doesn't leave that much of a mess (at least in your house).
+</p><p>
+The Aibo is expensive and popular. Fans from around the world
+have set up clubs to trade stories. One fan in particular set up a Web
+site to enable information about the Aibo dog to be shared. This fan set
+
+up aibopet.com (and aibohack.com, but that resolves to the same site),
+and on that site he provided information about how to teach an Aibo
+to do tricks in addition to the ones Sony had taught it.
+</p><p>
+<span class="quote">«<span class="quote">Teach</span>»</span> here has a special meaning. Aibos are just cute computers.
+You teach a computer how to do something by programming it
+differently. So to say that aibopet.com was giving information about
+how to teach the dog to do new tricks is just to say that aibopet.com
+was giving information to users of the Aibo pet about how to hack
+their computer <span class="quote">«<span class="quote">dog</span>»</span> to make it do new tricks (thus, aibohack.com).
+</p><a class="indexterm" name="idp9034048"></a><p>
+If you're not a programmer or don't know many programmers, the word
+<em class="citetitle">hack</em> has a particularly unfriendly
+connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
+horror movies do even worse. But to programmers, or coders, as I call
+them, <em class="citetitle">hack</em> is a much more positive
+term. <em class="citetitle">Hack</em> just means code that enables the
+program to do something it wasn't originally intended or enabled to
+do. If you buy a new printer for an old computer, you might find the
+old computer doesn't run, or <span class="quote">«<span class="quote">drive,</span>»</span> the printer. If you discovered
+that, you'd later be happy to discover a hack on the Net by someone
+who has written a driver to enable the computer to drive the printer
+you just bought.
+</p><p>
+Some hacks are easy. Some are unbelievably hard. Hackers as a
+community like to challenge themselves and others with increasingly
+difficult tasks. There's a certain respect that goes with the talent to hack
+well. There's a well-deserved respect that goes with the talent to hack
+ethically.
+</p><p>
+The Aibo fan was displaying a bit of both when he hacked the program
+and offered to the world a bit of code that would enable the Aibo to
+dance jazz. The dog wasn't programmed to dance jazz. It was a clever
+bit of tinkering that turned the dog into a more talented creature
+than Sony had built.
+</p><a class="indexterm" name="idp9039056"></a><a class="indexterm" name="idp9040368"></a><a class="indexterm" name="idp9041680"></a><p>
+I've told this story in many contexts, both inside and outside the
+United States. Once I was asked by a puzzled member of the audience,
+is it permissible for a dog to dance jazz in the United States? We
+forget that stories about the backcountry still flow across much of
+the
+
+
+world. So let's just be clear before we continue: It's not a crime
+anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
+to dance jazz. Nor should it be a crime (though we don't have a lot to
+go on here) to teach your robot dog to dance jazz. Dancing jazz is a
+completely legal activity. One imagines that the owner of aibopet.com
+thought, <span class="emphasis"><em>What possible problem could there be with teaching
+a robot dog to dance?</em></span>
+</p><a class="indexterm" name="idp9044832"></a><p>
+Let's put the dog to sleep for a minute, and turn to a pony show—
+not literally a pony show, but rather a paper that a Princeton academic
+named Ed Felten prepared for a conference. This Princeton academic
+is well known and respected. He was hired by the government in the
+Microsoft case to test Microsoft's claims about what could and could
+not be done with its own code. In that trial, he demonstrated both his
+brilliance and his coolness. Under heavy badgering by Microsoft
+lawyers, Ed Felten stood his ground. He was not about to be bullied
+into being silent about something he knew very well.
+</p><p>
+But Felten's bravery was really tested in April 2001.<a href="#ftn.idp9047344" class="footnote" name="idp9047344"><sup class="footnote">[139]</sup></a>
+He and a group of colleagues were working on a paper to be submitted
+at conference. The paper was intended to describe the weakness in an
+encryption system being developed by the Secure Digital Music
+Initiative as a technique to control the distribution of music.
+</p><p>
+The SDMI coalition had as its goal a technology to enable content
+owners to exercise much better control over their content than the
+Internet, as it originally stood, granted them. Using encryption, SDMI
+hoped to develop a standard that would allow the content owner to say
+<span class="quote">«<span class="quote">this music cannot be copied,</span>»</span> and have a computer respect that
+command. The technology was to be part of a <span class="quote">«<span class="quote">trusted system</span>»</span> of
+control that would get content owners to trust the system of the
+Internet much more.
+</p><p>
+When SDMI thought it was close to a standard, it set up a competition.
+In exchange for providing contestants with the code to an
+SDMI-encrypted bit of content, contestants were to try to crack it
+and, if they did, report the problems to the consortium.
+</p><p>
+
+Felten and his team figured out the encryption system quickly. He and
+the team saw the weakness of this system as a type: Many encryption
+systems would suffer the same weakness, and Felten and his team
+thought it worthwhile to point this out to those who study encryption.
+</p><p>
+Let's review just what Felten was doing. Again, this is the United
+States. We have a principle of free speech. We have this principle not
+just because it is the law, but also because it is a really great
+idea. A strongly protected tradition of free speech is likely to
+encourage a wide range of criticism. That criticism is likely, in
+turn, to improve the systems or people or ideas criticized.
+</p><p>
+What Felten and his colleagues were doing was publishing a paper
+describing the weakness in a technology. They were not spreading free
+music, or building and deploying this technology. The paper was an
+academic essay, unintelligible to most people. But it clearly showed the
+weakness in the SDMI system, and why SDMI would not, as presently
+constituted, succeed.
+</p><a class="indexterm" name="idxaibo2"></a><a class="indexterm" name="idxroboticdog2"></a><a class="indexterm" name="idxsonyaibo2"></a><p>
+What links these two, aibopet.com and Felten, is the letters they
+then received. Aibopet.com received a letter from Sony about the
+aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
+wrote:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Your site contains information providing the means to circumvent
+AIBO-ware's copy protection protocol constituting a violation of the
+anti-circumvention provisions of the Digital Millennium Copyright Act.
+</p></blockquote></div><a class="indexterm" name="idp9067040"></a><a class="indexterm" name="idp9068352"></a><a class="indexterm" name="idp9069664"></a><p>
+And though an academic paper describing the weakness in a system
+of encryption should also be perfectly legal, Felten received a letter
+from an RIAA lawyer that read:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Any disclosure of information gained from participating in the
+
+Public Challenge would be outside the scope of activities permitted by
+the Agreement and could subject you and your research team to actions
+under the Digital Millennium Copyright Act (<span class="quote">«<span class="quote">DMCA</span>»</span>).
+</p></blockquote></div><p>
+In both cases, this weirdly Orwellian law was invoked to control the
+spread of information. The Digital Millennium Copyright Act made
+spreading such information an offense.
+</p><p>
+The DMCA was enacted as a response to copyright owners' first fear
+about cyberspace. The fear was that copyright control was effectively
+dead; the response was to find technologies that might compensate.
+These new technologies would be copyright protection
+technologies— technologies to control the replication and
+distribution of copyrighted material. They were designed as
+<span class="emphasis"><em>code</em></span> to modify the original
+<span class="emphasis"><em>code</em></span> of the Internet, to reestablish some
+protection for copyright owners.
+</p><p>
+The DMCA was a bit of law intended to back up the protection of this
+code designed to protect copyrighted material. It was, we could say,
+<span class="emphasis"><em>legal code</em></span> intended to buttress
+<span class="emphasis"><em>software code</em></span> which itself was intended to
+support the <span class="emphasis"><em>legal code of copyright</em></span>.
+</p><p>
+But the DMCA was not designed merely to protect copyrighted works to
+the extent copyright law protected them. Its protection, that is, did
+not end at the line that copyright law drew. The DMCA regulated
+devices that were designed to circumvent copyright protection
+measures. It was designed to ban those devices, whether or not the use
+of the copyrighted material made possible by that circumvention would
+have been a copyright violation.
+</p><a class="indexterm" name="idp9078416"></a><a class="indexterm" name="idp9079232"></a><a class="indexterm" name="idp9080048"></a><p>
+Aibopet.com and Felten make the point. The Aibo hack circumvented a
+copyright protection system for the purpose of enabling the dog to
+dance jazz. That enablement no doubt involved the use of copyrighted
+material. But as aibopet.com's site was noncommercial, and the use did
+not enable subsequent copyright infringements, there's no doubt that
+aibopet.com's hack was fair use of Sony's copyrighted material. Yet
+fair use is not a defense to the DMCA. The question is not whether the
+
+use of the copyrighted material was a copyright violation. The question
+is whether a copyright protection system was circumvented.
+</p><p>
+The threat against Felten was more attenuated, but it followed the
+same line of reasoning. By publishing a paper describing how a
+copyright protection system could be circumvented, the RIAA lawyer
+suggested, Felten himself was distributing a circumvention technology.
+Thus, even though he was not himself infringing anyone's copyright,
+his academic paper was enabling others to infringe others' copyright.
+</p><a class="indexterm" name="idp9083312"></a><a class="indexterm" name="idxcassettevcrs2"></a><p>
+The bizarreness of these arguments is captured in a cartoon drawn in
+1981 by Paul Conrad. At that time, a court in California had held that
+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 <span class="quote">«<span class="quote"><em class="citetitle">Mr. Rogers</em>,</span>»</span>
+for example, had testified in that case that he wanted people to feel
+free to tape Mr. Rogers' Neighborhood.
+<a class="indexterm" name="idp9087392"></a>
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Some public stations, as well as commercial stations, program the
+<span class="quote">«<span class="quote">Neighborhood</span>»</span> at hours when some children cannot use it. I think that
+it's a real service to families to be able to record such programs and
+show them at appropriate times. I have always felt that with the
+advent of all of this new technology that allows people to tape the
+<span class="quote">«<span class="quote">Neighborhood</span>»</span> off-the-air, and I'm speaking for the <span class="quote">«<span class="quote">Neighborhood</span>»</span>
+because that's what I produce, that they then become much more active
+in the programming of their family's television life. Very frankly, I
+am opposed to people being programmed by others. My whole approach in
+broadcasting has always been <span class="quote">«<span class="quote">You are an important person just the way
+you are. You can make healthy decisions.</span>»</span> Maybe I'm going on too long,
+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.<a href="#ftn.idp9091408" class="footnote" name="idp9091408"><sup class="footnote">[140]</sup></a>
+</p></blockquote></div><p>
+
+Even though there were uses that were legal, because there were
+some uses that were illegal, the court held the companies producing
+the VCR responsible.
+</p><p>
+This led Conrad to draw the cartoon below, which we can adopt to
+the DMCA.
+<a class="indexterm" name="idp9097264"></a>
+</p><p>
+No argument I have can top this picture, but let me try to get close.
+</p><p>
+The anticircumvention provisions of the DMCA target copyright
+circumvention technologies. Circumvention technologies can be used for
+different ends. They can be used, for example, to enable massive
+pirating of copyrighted material—a bad end. Or they can be used
+to enable the use of particular copyrighted materials in ways that
+would be considered fair use—a good end.
+</p><a class="indexterm" name="idxhandguns"></a><p>
+A handgun can be used to shoot a police officer or a child. Most
+
+would agree such a use is bad. Or a handgun can be used for target
+practice or to protect against an intruder. At least some would say that
+such a use would be good. It, too, is a technology that has both good
+and bad uses.
+</p><div class="figure"><a name="fig-1711-vcr-handgun-cartoonfig"></a><p class="title"><b>Figure 10.18. VCR/handgun cartoon.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="70%"><tr><td align="center"><img src="images/1711.png" align="middle" width="100%" alt="VCR/handgun cartoon."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp9104592"></a><p>
+The obvious point of Conrad's cartoon is the weirdness of a world
+where guns are legal, despite the harm they can do, while VCRs (and
+circumvention technologies) are illegal. Flash: <span class="emphasis"><em>No one ever
+died from copyright circumvention</em></span>. 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.
+</p><a class="indexterm" name="idp9106624"></a><a class="indexterm" name="idp9107888"></a><a class="indexterm" name="idp9109200"></a><a class="indexterm" name="idp9110016"></a><a class="indexterm" name="idp9110832"></a><p>
+The Aibo and RIAA examples demonstrate how copyright owners are
+changing the balance that copyright law grants. Using code, copyright
+owners restrict fair use; using the DMCA, they punish those who would
+attempt to evade the restrictions on fair use that they impose through
+code. Technology becomes a means by which fair use can be erased; the
+law of the DMCA backs up that erasing.
+</p><p>
+This is how <span class="emphasis"><em>code</em></span> becomes
+<span class="emphasis"><em>law</em></span>. The controls built into the technology of
+copy and access protection become rules the violation of which is also
+a violation of the law. In this way, the code extends the
+law—increasing its regulation, even if the subject it regulates
+(activities that would otherwise plainly constitute fair use) is
+beyond the reach of the law. Code becomes law; code extends the law;
+code thus extends the control that copyright owners effect—at
+least for those copyright holders with the lawyers who can write the
+nasty letters that Felten and aibopet.com received.
+</p><p>
+There is one final aspect of the interaction between architecture and
+law that contributes to the force of copyright's regulation. This is
+the ease with which infringements of the law can be detected. For
+contrary to the rhetoric common at the birth of cyberspace that on the
+Internet, no one knows you're a dog, increasingly, given changing
+technologies deployed on the Internet, it is easy to find the dog who
+committed a legal wrong. The technologies of the Internet are open to
+snoops as well as sharers, and the snoops are increasingly good at
+tracking down the identity of those who violate the rules.
+</p><p>
+
+
+For example, imagine you were part of a <em class="citetitle">Star Trek</em> fan club. You
+gathered every month to share trivia, and maybe to enact a kind of fan
+fiction about the show. One person would play Spock, another, Captain
+Kirk. The characters would begin with a plot from a real story, then
+simply continue it.<a href="#ftn.idp9116880" class="footnote" name="idp9116880"><sup class="footnote">[141]</sup></a>
+</p><p>
+Before the Internet, this was, in effect, a totally unregulated
+activity. No matter what happened inside your club room, you would
+never be interfered with by the copyright police. You were free in
+that space to do as you wished with this part of our culture. You were
+allowed to build on it as you wished without fear of legal control.
+</p><a class="indexterm" name="idp9119600"></a><p>
+But if you moved your club onto the Internet, and made it generally
+available for others to join, the story would be very different. Bots
+scouring the Net for trademark and copyright infringement would
+quickly find your site. Your posting of fan fiction, depending upon
+the ownership of the series that you're depicting, could well inspire
+a lawyer's threat. And ignoring the lawyer's threat would be extremely
+costly indeed. The law of copyright is extremely efficient. The
+penalties are severe, and the process is quick.
+</p><p>
+This change in the effective force of the law is caused by a change
+in the ease with which the law can be enforced. That change too shifts
+the law's balance radically. It is as if your car transmitted the speed at
+which you traveled at every moment that you drove; that would be just
+one step before the state started issuing tickets based upon the data you
+transmitted. That is, in effect, what is happening here.
+</p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="marketconcentration"></a>10.7. Market: Concentration</h2></div></div></div><p>
+So copyright's duration has increased dramatically—tripled in
+the past thirty years. And copyright's scope has increased as
+well—from regulating only publishers to now regulating just
+about everyone. And copyright's reach has changed, as every action
+becomes a copy and hence presumptively regulated. And as technologists
+find better ways
+
+to control the use of content, and as copyright is increasingly
+enforced through technology, copyright's force changes, too. Misuse is
+easier to find and easier to control. This regulation of the creative
+process, which began as a tiny regulation governing a tiny part of the
+market for creative work, has become the single most important
+regulator of creativity there is. It is a massive expansion in the
+scope of the government's control over innovation and creativity; it
+would be totally unrecognizable to those who gave birth to copyright's
+control.
+</p><p>
+Still, in my view, all of these changes would not matter much if it
+weren't for one more change that we must also consider. This is a
+change that is in some sense the most familiar, though its significance
+and scope are not well understood. It is the one that creates precisely the
+reason to be concerned about all the other changes I have described.
+</p><p>
+This is the change in the concentration and integration of the media.
+In the past twenty years, the nature of media ownership has undergone
+a radical alteration, caused by changes in legal rules governing the
+media. Before this change happened, the different forms of media were
+owned by separate media companies. Now, the media is increasingly
+owned by only a few companies. Indeed, after the changes that the FCC
+announced in June 2003, most expect that within a few years, we will
+live in a world where just three companies control more than 85 percent
+of the media.
+</p><p>
+These changes are of two sorts: the scope of concentration, and its
+nature.
+</p><a class="indexterm" name="idp9127312"></a><a class="indexterm" name="idp9128096"></a><a class="indexterm" name="idp9128880"></a><a class="indexterm" name="idp9129712"></a><a class="indexterm" name="idp9130528"></a><a class="indexterm" name="idp9131344"></a><p>
+Changes in scope are the easier ones to describe. As Senator John
+McCain summarized the data produced in the FCC's review of media
+ownership, <span class="quote">«<span class="quote">five companies control 85 percent of our media sources.</span>»</span><a href="#ftn.idp9132832" class="footnote" name="idp9132832"><sup class="footnote">[142]</sup></a>
+The five recording labels of Universal Music Group, BMG, Sony Music
+Entertainment, Warner Music Group, and EMI control 84.8 percent of the
+U.S. music market.<a href="#ftn.idp9134048" class="footnote" name="idp9134048"><sup class="footnote">[143]</sup></a>
+The <span class="quote">«<span class="quote">five largest cable companies pipe
+programming to 74 percent of the cable subscribers nationwide.</span>»</span><a href="#ftn.idp9136176" class="footnote" name="idp9136176"><sup class="footnote">[144]</sup></a>
+</p><p>
+The story with radio is even more dramatic. Before deregulation,
+the nation's largest radio broadcasting conglomerate owned fewer than
+
+seventy-five stations. Today <span class="emphasis"><em>one</em></span> company owns
+more than 1,200 stations. During that period of consolidation, the
+total number of radio owners dropped by 34 percent. Today, in most
+markets, the two largest broadcasters control 74 percent of that
+market's revenues. Overall, just four companies control 90 percent of
+the nation's radio advertising revenues.
+</p><a class="indexterm" name="idp9139728"></a><p>
+Newspaper ownership is becoming more concentrated as well. Today,
+there are six hundred fewer daily newspapers in the United States than
+there were eighty years ago, and ten companies control half of the
+nation's circulation. There are twenty major newspaper publishers in
+the United States. The top ten film studios receive 99 percent of all
+film revenue. The ten largest cable companies account for 85 percent
+of all cable revenue. This is a market far from the free press the
+framers sought to protect. Indeed, it is a market that is quite well
+protected— by the market.
+</p><a class="indexterm" name="idp9140768"></a><p>
+Concentration in size alone is one thing. The more invidious
+change is in the nature of that concentration. As author James Fallows
+put it in a recent article about Rupert Murdoch,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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
+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
+through which the content reaches the customers. Murdoch's satellite
+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.<a href="#ftn.idp9143568" class="footnote" name="idp9143568"><sup class="footnote">[145]</sup></a>
+</p></blockquote></div><p>
+The pattern with Murdoch is the pattern of modern media. Not
+just large companies owning many radio stations, but a few companies
+owning as many outlets of media as possible. A picture describes this
+pattern better than a thousand words could do:
+</p><div class="figure"><a name="fig-1761-pattern-modern-media-ownership"></a><p class="title"><b>Figure 10.19. Pattern of modern media ownership.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="90%"><tr><td align="center"><img src="images/1761.png" align="middle" width="100%" alt="Pattern of modern media ownership."></td></tr></table></div></div></div><br class="figure-break"><p>
+
+Does this concentration matter? Will it affect what is made, or
+what is distributed? Or is it merely a more efficient way to produce and
+distribute content?
+</p><p>
+My view was that concentration wouldn't matter. I thought it was
+nothing more than a more efficient financial structure. But now, after
+reading and listening to a barrage of creators try to convince me to the
+contrary, I am beginning to change my mind.
+</p><p>
+Here's a representative story that begins to suggest how this
+integration may matter.
+</p><a class="indexterm" name="idp9152224"></a><a class="indexterm" name="idp9153008"></a><a class="indexterm" name="idp9153792"></a><p>
+In 1969, Norman Lear created a pilot for <em class="citetitle">All in the Family</em>. He took
+the pilot to ABC. The network didn't like it. It was too edgy, they told
+Lear. Make it again. Lear made a second pilot, more edgy than the
+first. ABC was exasperated. You're missing the point, they told Lear.
+We wanted less edgy, not more.
+</p><p>
+Rather than comply, Lear simply took the show elsewhere. CBS
+was happy to have the series; ABC could not stop Lear from walking.
+The copyrights that Lear held assured an independence from network
+control.<a href="#ftn.idp9156224" class="footnote" name="idp9156224"><sup class="footnote">[146]</sup></a>
+</p><p>
+
+
+The network did not control those copyrights because the law forbade
+the networks from controlling the content they syndicated. The law
+required a separation between the networks and the content producers;
+that separation would guarantee Lear freedom. And as late as 1992,
+because of these rules, the vast majority of prime time
+television—75 percent of it—was <span class="quote">«<span class="quote">independent</span>»</span> of the
+networks.
+</p><p>
+In 1994, the FCC abandoned the rules that required this independence.
+After that change, the networks quickly changed the balance. In 1985,
+there were twenty-five independent television production studios; in
+2002, only five independent television studios remained. <span class="quote">«<span class="quote">In 1992,
+only 15 percent of new series were produced for a network by a company
+it controlled. Last year, the percentage of shows produced by
+controlled companies more than quintupled to 77 percent.</span>»</span> <span class="quote">«<span class="quote">In 1992, 16
+new series were produced independently of conglomerate control, last
+year there was one.</span>»</span><a href="#ftn.idp9162832" class="footnote" name="idp9162832"><sup class="footnote">[147]</sup></a>
+In 2002, 75 percent of prime time television was owned by the networks
+that ran it. <span class="quote">«<span class="quote">In the ten-year period between 1992 and 2002, the number
+of prime time television hours per week produced by network studios
+increased over 200%, whereas the number of prime time television hours
+per week produced by independent studios decreased
+63%.</span>»</span><a href="#ftn.idp9165376" class="footnote" name="idp9165376"><sup class="footnote">[148]</sup></a>
+</p><a class="indexterm" name="idp9166368"></a><p>
+Today, another Norman Lear with another <em class="citetitle">All in the Family</em> would
+find that he had the choice either to make the show less edgy or to be
+fired: The content of any show developed for a network is increasingly
+owned by the network.
+</p><a class="indexterm" name="idp9168240"></a><a class="indexterm" name="idp9169056"></a><p>
+While the number of channels has increased dramatically, the ownership
+of those channels has narrowed to an ever smaller and smaller few. As
+Barry Diller said to Bill Moyers,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Well, if you have companies that produce, that finance, that air on
+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.<a href="#ftn.idp9171728" class="footnote" name="idp9171728"><sup class="footnote">[149]</sup></a>
+</p></blockquote></div><p>
+This narrowing has an effect on what is produced. The product of such
+large and concentrated networks is increasingly homogenous.
+Increasingly safe. Increasingly sterile. The product of news shows
+from networks like this is increasingly tailored to the message the
+network wants to convey. This is not the communist party, though from
+the inside, it must feel a bit like the communist party. No one can
+question without risk of consequence—not necessarily banishment
+to Siberia, but punishment nonetheless. Independent, critical,
+different views are quashed. This is not the environment for a
+democracy.
+</p><a class="indexterm" name="idp9174688"></a><p>
+Economics itself offers a parallel that explains why this integration
+affects creativity. Clay Christensen has written about the <span class="quote">«<span class="quote">Innovator's
+Dilemma</span>»</span>: the fact that large traditional firms find it rational to ignore
+new, breakthrough technologies that compete with their core business.
+The same analysis could help explain why large, traditional media
+companies would find it rational to ignore new cultural trends.<a href="#ftn.idp9177392" class="footnote" name="idp9177392"><sup class="footnote">[150]</sup></a>
+
+Lumbering giants not only don't, but should not, sprint. Yet if the
+field is only open to the giants, there will be far too little
+sprinting.
+<a class="indexterm" name="idp9180800"></a>
+</p><p>
+I don't think we know enough about the economics of the media
+market to say with certainty what concentration and integration will
+do. The efficiencies are important, and the effect on culture is hard to
+measure.
+</p><p>
+But there is a quintessentially obvious example that does strongly
+suggest the concern.
+</p><p>
+In addition to the copyright wars, we're in the middle of the drug
+wars. Government policy is strongly directed against the drug cartels;
+criminal and civil courts are filled with the consequences of this battle.
+</p><p>
+Let me hereby disqualify myself from any possible appointment to
+any position in government by saying I believe this war is a profound
+mistake. I am not pro drugs. Indeed, I come from a family once
+
+
+wrecked by drugs—though the drugs that wrecked my family were
+all quite legal. I believe this war is a profound mistake because the
+collateral damage from it is so great as to make waging the war
+insane. When you add together the burdens on the criminal justice
+system, the desperation of generations of kids whose only real
+economic opportunities are as drug warriors, the queering of
+constitutional protections because of the constant surveillance this
+war requires, and, most profoundly, the total destruction of the legal
+systems of many South American nations because of the power of the
+local drug cartels, I find it impossible to believe that the marginal
+benefit in reduced drug consumption by Americans could possibly
+outweigh these costs.
+</p><p>
+You may not be convinced. That's fine. We live in a democracy, and it
+is through votes that we are to choose policy. But to do that, we
+depend fundamentally upon the press to help inform Americans about
+these issues.
+</p><a class="indexterm" name="idxadvertising3"></a><a class="indexterm" name="idxcommercials"></a><a class="indexterm" name="idxtelevisionadvertisingon"></a><a class="indexterm" name="idp9191392"></a><p>
+Beginning in 1998, the Office of National Drug Control Policy launched
+a media campaign as part of the <span class="quote">«<span class="quote">war on drugs.</span>»</span> The campaign produced
+scores of short film clips about issues related to illegal drugs. In
+one series (the Nick and Norm series) two men are in a bar, discussing
+the idea of legalizing drugs as a way to avoid some of the collateral
+damage from the war. One advances an argument in favor of drug
+legalization. The other responds in a powerful and effective way
+against the argument of the first. In the end, the first guy changes
+his mind (hey, it's television). The plug at the end is a damning
+attack on the pro-legalization campaign.
+</p><p>
+Fair enough. It's a good ad. Not terribly misleading. It delivers its
+message well. It's a fair and reasonable message.
+</p><p>
+But let's say you think it is a wrong message, and you'd like to run a
+countercommercial. Say you want to run a series of ads that try to
+demonstrate the extraordinary collateral harm that comes from the drug
+war. Can you do it?
+</p><p>
+Well, obviously, these ads cost lots of money. Assume you raise the
+
+money. Assume a group of concerned citizens donates all the money in
+the world to help you get your message out. Can you be sure your
+message will be heard then?
+</p><a class="indexterm" name="idp9195776"></a><a class="indexterm" name="idp9196848"></a><a class="indexterm" name="idp9197664"></a><a class="indexterm" name="idp9198784"></a><p>
+No. You cannot. Television stations have a general policy of avoiding
+<span class="quote">«<span class="quote">controversial</span>»</span> ads. Ads sponsored by the government are deemed
+uncontroversial; ads disagreeing with the government are
+controversial. This selectivity might be thought inconsistent with
+the First Amendment, but the Supreme Court has held that stations have
+the right to choose what they run. Thus, the major channels of
+commercial media will refuse one side of a crucial debate the
+opportunity to present its case. And the courts will defend the
+rights of the stations to be this biased.<a href="#ftn.idp9201136" class="footnote" name="idp9201136"><sup class="footnote">[151]</sup></a>
+</p><a class="indexterm" name="idp9214080"></a><a class="indexterm" name="idp9215392"></a><p>
+I'd be happy to defend the networks' rights, as well—if we lived
+in a media market that was truly diverse. But concentration in the
+media throws that condition into doubt. If a handful of companies
+control access to the media, and that handful of companies gets to
+decide which political positions it will allow to be promoted on its
+channels, then in an obvious and important way, concentration
+matters. You might like the positions the handful of companies
+selects. But you should not like a world in which a mere few get to
+decide which issues the rest of us get to know about.
+</p><a class="indexterm" name="idp9217808"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="together"></a>10.8. Together</h2></div></div></div><p>
+There is something innocent and obvious about the claim of the
+copyright warriors that the government should <span class="quote">«<span class="quote">protect my property.</span>»</span>
+In the abstract, it is obviously true and, ordinarily, totally
+harmless. No sane sort who is not an anarchist could disagree.
+</p><p>
+But when we see how dramatically this <span class="quote">«<span class="quote">property</span>»</span> has changed—
+when we recognize how it might now interact with both technology and
+markets to mean that the effective constraint on the liberty to
+cultivate our culture is dramatically different—the claim begins
+to seem
+
+
+less innocent and obvious. Given (1) the power of technology to
+supplement the law's control, and (2) the power of concentrated
+markets to weaken the opportunity for dissent, if strictly enforcing
+the massively expanded <span class="quote">«<span class="quote">property</span>»</span> rights granted by copyright
+fundamentally changes the freedom within this culture to cultivate and
+build upon our past, then we have to ask whether this property should
+be redefined.
+</p><p>
+Not starkly. Or absolutely. My point is not that we should abolish
+copyright or go back to the eighteenth century. That would be a total
+mistake, disastrous for the most important creative enterprises within
+our culture today.
+</p><p>
+But there is a space between zero and one, Internet culture
+notwithstanding. And these massive shifts in the effective power of
+copyright regulation, tied to increased concentration of the content
+industry and resting in the hands of technology that will increasingly
+enable control over the use of culture, should drive us to consider
+whether another adjustment is called for. Not an adjustment that
+increases copyright's power. Not an adjustment that increases its
+term. Rather, an adjustment to restore the balance that has
+traditionally defined copyright's regulation—a weakening of that
+regulation, to strengthen creativity.
+</p><p>
+Copyright law has not been a rock of Gibraltar. It's not a set of
+constant commitments that, for some mysterious reason, teenagers and
+geeks now flout. Instead, copyright power has grown dramatically in a
+short period of time, as the technologies of distribution and creation
+have changed and as lobbyists have pushed for more control by
+copyright holders. Changes in the past in response to changes in
+technology suggest that we may well need similar changes in the
+future. And these changes have to be <span class="emphasis"><em>reductions</em></span>
+in the scope of copyright, in response to the extraordinary increase
+in control that technology and the market enable.
+</p><p>
+For the single point that is lost in this war on pirates is a point that
+we see only after surveying the range of these changes. When you add
+
+together the effect of changing law, concentrated markets, and
+changing technology, together they produce an astonishing conclusion:
+<span class="emphasis"><em>Never in our history have fewer had a legal right to control
+more of the development of our culture than now</em></span>.
+</p><p>
+Not when copyrights were perpetual, for when copyrights were
+perpetual, they affected only that precise creative work. Not when
+only publishers had the tools to publish, for the market then was much
+more diverse. Not when there were only three television networks, for
+even then, newspapers, film studios, radio stations, and publishers
+were independent of the networks. <span class="emphasis"><em>Never</em></span> has
+copyright protected such a wide range of rights, against as broad a
+range of actors, for a term that was remotely as long. This form of
+regulation—a tiny regulation of a tiny part of the creative
+energy of a nation at the founding—is now a massive regulation
+of the overall creative process. Law plus technology plus the market
+now interact to turn this historically benign regulation into the most
+significant regulation of culture that our free society has
+known.<a href="#ftn.idp9229344" class="footnote" name="idp9229344"><sup class="footnote">[152]</sup></a>
+</p><p>
+<span class="strong"><strong>This has been</strong></span> a long chapter. Its
+point can now be briefly stated.
+</p><p>
+At the start of this book, I distinguished between commercial and
+noncommercial culture. In the course of this chapter, I have
+distinguished between copying a work and transforming it. We can now
+combine these two distinctions and draw a clear map of the changes
+that copyright law has undergone. In 1790, the law looked like this:
+</p><div class="informaltable"><a name="t2"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">PUBLISH</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">Free</td></tr><tr><td align="left">Noncommercial</td><td align="left">Free</td><td align="left">Free</td></tr></tbody></table></div><p>
+The act of publishing a map, chart, and book was regulated by
+copyright law. Nothing else was. Transformations were free. And as
+copyright attached only with registration, and only those who intended
+
+
+to benefit commercially would register, copying through publishing of
+noncommercial work was also free.
+</p><p>
+By the end of the nineteenth century, the law had changed to this:
+</p><div class="informaltable"><a name="t3"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">PUBLISH</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">©</td></tr><tr><td align="left">Noncommercial</td><td align="left">Free</td><td align="left">Free</td></tr></tbody></table></div><p>
+Derivative works were now regulated by copyright law—if
+published, which again, given the economics of publishing at the time,
+means if offered commercially. But noncommercial publishing and
+transformation were still essentially free.
+</p><p>
+In 1909 the law changed to regulate copies, not publishing, and after
+this change, the scope of the law was tied to technology. As the
+technology of copying became more prevalent, the reach of the law
+expanded. Thus by 1975, as photocopying machines became more common,
+we could say the law began to look like this:
+</p><div class="informaltable"><a name="t4"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">COPY</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">©</td></tr><tr><td align="left">Noncommercial</td><td align="left">©/Free</td><td align="left">Free</td></tr></tbody></table></div><p>
+The law was interpreted to reach noncommercial copying through, say,
+copy machines, but still much of copying outside of the commercial
+market remained free. But the consequence of the emergence of digital
+technologies, especially in the context of a digital network, means
+that the law now looks like this:
+</p><div class="informaltable"><a name="t5"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">COPY</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">©</td></tr><tr><td align="left">Noncommercial</td><td align="left">©</td><td align="left">©</td></tr></tbody></table></div><p>
+Every realm is governed by copyright law, whereas before most
+creativity was not. The law now regulates the full range of
+creativity—
+
+commercial or not, transformative or not—with the same rules
+designed to regulate commercial publishers.
+</p><p>
+Obviously, copyright law is not the enemy. The enemy is regulation
+that does no good. So the question that we should be asking just now
+is whether extending the regulations of copyright law into each of
+these domains actually does any good.
+</p><p>
+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
+<a class="xref" href="#recorders" title="Chapter 7. CHAPTER SEVEN: Recorders">7</a> and
+<a class="xref" href="#transformers" title="Chapter 8. CHAPTER EIGHT: Transformers">8</a>, 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.
+</p><p>
+The issue is therefore not simply whether copyright is property. Of
+course copyright is a kind of <span class="quote">«<span class="quote">property,</span>»</span> and of course, as with any
+property, the state ought to protect it. But first impressions
+notwithstanding, historically, this property right (as with all
+property rights<a href="#ftn.idp9271984" class="footnote" name="idp9271984"><sup class="footnote">[153]</sup></a>)
+has been crafted to balance the important need to give authors and
+artists incentives with the equally important need to assure access to
+creative work. This balance has always been struck in light of new
+technologies. And for almost half of our tradition, the <span class="quote">«<span class="quote">copyright</span>»</span>
+did not control <span class="emphasis"><em>at all</em></span> the freedom of others to
+build upon or transform a creative work. American culture was born
+free, and for almost 180 years our country consistently protected a
+vibrant and rich free culture.
+</p><a class="indexterm" name="idp9276320"></a><p>
+We achieved that free culture because our law respected important
+limits on the scope of the interests protected by <span class="quote">«<span class="quote">property.</span>»</span> The very
+birth of <span class="quote">«<span class="quote">copyright</span>»</span> as a statutory right recognized those limits, by
+granting copyright owners protection for a limited time only (the
+story of chapter <a class="xref" href="#founders" title="Chapter 6. CHAPTER SIX: Founders">6</a>). The tradition of <span class="quote">«<span class="quote">fair use</span>»</span> is
+animated by a similar concern that is increasingly under strain as the
+costs of exercising any fair use right become unavoidably high (the
+story of chapter <a class="xref" href="#recorders" title="Chapter 7. CHAPTER SEVEN: Recorders">7</a>). Adding
+
+statutory rights where markets might stifle innovation is another
+familiar limit on the property right that copyright is (chapter <a class="xref" href="#transformers" title="Chapter 8. CHAPTER EIGHT: Transformers">8</a>). And
+granting archives and libraries a broad freedom to collect, claims of
+property notwithstanding, is a crucial part of guaranteeing the soul
+of a culture (chapter <a class="xref" href="#collectors" title="Chapter 9. CHAPTER NINE: Collectors">9</a>). Free cultures, like free markets, are built
+with property. But the nature of the property that builds a free
+culture is very different from the extremist vision that dominates the
+debate today.
+</p><p>
+Free culture is increasingly the casualty in this war on piracy. In
+response to a real, if not yet quantified, threat that the
+technologies of the Internet present to twentieth-century business
+models for producing and distributing culture, the law and technology
+are being transformed in a way that will undermine our tradition of
+free culture. The property right that is copyright is no longer the
+balanced right that it was, or was intended to be. The property right
+that is copyright has become unbalanced, tilted toward an extreme. The
+opportunity to create and transform becomes weakened in a world in
+which creation requires permission and creativity must check with a
+lawyer.
+</p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8408768" class="footnote"><p><a href="#idp8408768" class="para"><sup class="para">[118] </sup></a>
+
+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).
+</p></div><div id="ftn.idp8416144" class="footnote"><p><a href="#idp8416144" class="para"><sup class="para">[119] </sup></a>
+
+Lawyers speak of <span class="quote">«<span class="quote">property</span>»</span> not as an absolute thing, but as a bundle
+of rights that are sometimes associated with a particular
+object. Thus, my <span class="quote">«<span class="quote">property right</span>»</span> to my car gives me the right to
+exclusive use, but not the right to drive at 150 miles an hour. For
+the best effort to connect the ordinary meaning of <span class="quote">«<span class="quote">property</span>»</span> to
+<span class="quote">«<span class="quote">lawyer talk,</span>»</span> see Bruce Ackerman, <em class="citetitle">Private Property and the
+Constitution</em> (New Haven: Yale University Press, 1977), 26–27.
+</p></div><div id="ftn.idp8479232" class="footnote"><p><a href="#idp8479232" class="para"><sup class="para">[120] </sup></a>
+
+By describing the way law affects the other three modalities, I don't
+mean to suggest that the other three don't affect law. Obviously, they
+do. Law's only distinction is that it alone speaks as if it has a
+right self-consciously to change the other three. The right of the
+other three is more timidly expressed. See Lawrence Lessig, <em class="citetitle">Code: And
+Other Laws of Cyberspace</em> (New York: Basic Books, 1999): 90–95;
+Lawrence Lessig, <span class="quote">«<span class="quote">The New Chicago School,</span>»</span> <em class="citetitle">Journal of Legal Studies</em>,
+June 1998.
+</p></div><div id="ftn.idp8489632" class="footnote"><p><a href="#idp8489632" class="para"><sup class="para">[121] </sup></a>
+
+Some people object to this way of talking about <span class="quote">«<span class="quote">liberty.</span>»</span> They object
+because their focus when considering the constraints that exist at any
+particular moment are constraints imposed exclusively by the
+government. For instance, if a storm destroys a bridge, these people
+think it is meaningless to say that one's liberty has been
+restrained. A bridge has washed out, and it's harder to get from one
+place to another. To talk about this as a loss of freedom, they say,
+is to confuse the stuff of politics with the vagaries of ordinary
+life. I don't mean to deny the value in this narrower view, which
+depends upon the context of the inquiry. I do, however, mean to argue
+against any insistence that this narrower view is the only proper view
+of liberty. As I argued in <em class="citetitle">Code</em>, we come from a
+long tradition of political thought with a broader focus than the
+narrow question of what the government did when. John Stuart Mill
+defended freedom of speech, for example, from the tyranny of narrow
+minds, not from the fear of government prosecution; John Stuart Mill,
+<em class="citetitle">On Liberty</em> (Indiana: Hackett Publishing Co.,
+1978), 19. John R. Commons famously defended the economic freedom of
+labor from constraints imposed by the market; John R. Commons, <span class="quote">«<span class="quote">The
+Right to Work,</span>»</span> in Malcom Rutherford and Warren J. Samuels, eds.,
+<em class="citetitle">John R. Commons: Selected Essays</em> (London:
+Routledge: 1997), 62. The Americans with Disabilities Act increases
+the liberty of people with physical disabilities by changing the
+architecture of certain public places, thereby making access to those
+places easier; 42 <em class="citetitle">United States Code</em>, section
+12101 (2000). Each of these interventions to change existing
+conditions changes the liberty of a particular group. The effect of
+those interventions should be accounted for in order to understand the
+effective liberty that each of these groups might face.
+<a class="indexterm" name="idp8495568"></a>
+<a class="indexterm" name="idp8496400"></a>
+<a class="indexterm" name="idp8497216"></a>
+<a class="indexterm" name="idp8498064"></a>
+</p></div><div id="ftn.idp8547952" class="footnote"><p><a href="#idp8547952" class="para"><sup class="para">[122] </sup></a>
+
+See Geoffrey Smith, <span class="quote">«<span class="quote">Film vs. Digital: Can Kodak Build a Bridge?</span>»</span>
+BusinessWeek online, 2 August 1999, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #23</a>. For a more
+recent analysis of Kodak's place in the market, see Chana
+R. Schoenberger, <span class="quote">«<span class="quote">Can Kodak Make Up for Lost Moments?</span>»</span> Forbes.com, 6
+October 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #24</a>.
+</p></div><div id="ftn.idp8561104" class="footnote"><p><a href="#idp8561104" class="para"><sup class="para">[123] </sup></a>
+
+Fred Warshofsky, <em class="citetitle">The Patent Wars</em> (New York: Wiley, 1994), 170–71.
+</p></div><div id="ftn.idp8592416" class="footnote"><p><a href="#idp8592416" class="para"><sup class="para">[124] </sup></a>
+
+See, for example, James Boyle, <span class="quote">«<span class="quote">A Politics of Intellectual Property:
+Environmentalism for the Net?</span>»</span> <em class="citetitle">Duke Law Journal</em> 47 (1997): 87.
+</p></div><div id="ftn.idp8661792" class="footnote"><p><a href="#idp8661792" class="para"><sup class="para">[125] </sup></a>
+
+William W. Crosskey, <em class="citetitle">Politics and the Constitution in the History of
+the United States</em> (London: Cambridge University Press, 1953), vol. 1,
+485–86: <span class="quote">«<span class="quote">extinguish[ing], by plain implication of `the supreme
+Law of the Land,' <span class="emphasis"><em>the perpetual rights which authors had, or
+were supposed by some to have, under the Common Law</em></span></span>»</span>
+(emphasis added).
+<a class="indexterm" name="idp8664080"></a>
+</p></div><div id="ftn.idp8674160" class="footnote"><p><a href="#idp8674160" class="para"><sup class="para">[126] </sup></a>
+
+Although 13,000 titles were published in the United States from 1790
+to 1799, only 556 copyright registrations were filed; John Tebbel, <em class="citetitle">A
+History of Book Publishing in the United States</em>, vol. 1, <em class="citetitle">The Creation
+of an Industry, 1630–1865</em> (New York: Bowker, 1972), 141. Of the 21,000
+imprints recorded before 1790, only twelve were copyrighted under the
+1790 act; William J. Maher, <em class="citetitle">Copyright Term, Retrospective Extension
+and the Copyright Law of 1790 in Historical Context</em>, 7–10 (2002),
+available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
+#25</a>. Thus, the overwhelming majority of works fell
+immediately into the public domain. Even those works that were
+copyrighted fell into the public domain quickly, because the term of
+copyright was short. The initial term of copyright was fourteen years,
+with the option of renewal for an additional fourteen years. Copyright
+Act of May 31, 1790, §1, 1 stat. 124. </p></div><div id="ftn.idp8682560" class="footnote"><p><a href="#idp8682560" class="para"><sup class="para">[127] </sup></a>
+
+Few copyright holders ever chose to renew their copyrights. For
+instance, of the 25,006 copyrights registered in 1883, only 894 were
+renewed in 1910. For a year-by-year analysis of copyright renewal
+rates, see Barbara A. Ringer, <span class="quote">«<span class="quote">Study No. 31: Renewal of Copyright,</span>»</span>
+<em class="citetitle">Studies on Copyright</em>, vol. 1 (New York: Practicing Law Institute,
+1963), 618. For a more recent and comprehensive analysis, see William
+M. Landes and Richard A. Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span>
+<em class="citetitle">University of Chicago Law Review</em> 70 (2003): 471, 498–501, and
+accompanying figures. </p></div><div id="ftn.idp8689696" class="footnote"><p><a href="#idp8689696" class="para"><sup class="para">[128] </sup></a>
+
+See Ringer, ch. 9, n. 2. </p></div><div id="ftn.idp8716032" class="footnote"><p><a href="#idp8716032" class="para"><sup class="para">[129] </sup></a>
+
+These statistics are understated. Between the years 1910 and 1962 (the
+first year the renewal term was extended), the average term was never
+more than thirty-two years, and averaged thirty years. See Landes and
+Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span> loc. cit.
+</p></div><div id="ftn.idp8755536" class="footnote"><p><a href="#idp8755536" class="para"><sup class="para">[130] </sup></a>
+
+See Thomas Bender and David Sampliner, <span class="quote">«<span class="quote">Poets, Pirates, and the
+Creation of American Literature,</span>»</span> 29 <em class="citetitle">New York University Journal of
+International Law and Politics</em> 255 (1997), and James Gilraeth, ed.,
+Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
+
+</p></div><div id="ftn.idp8773008" class="footnote"><p><a href="#idp8773008" class="para"><sup class="para">[131] </sup></a>
+
+Jonathan Zittrain, <span class="quote">«<span class="quote">The Copyright Cage,</span>»</span> <em class="citetitle">Legal
+Affairs</em>, July/August 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #26</a>.
+<a class="indexterm" name="idp8775504"></a>
+</p></div><div id="ftn.idp8777232" class="footnote"><p><a href="#idp8777232" class="para"><sup class="para">[132] </sup></a>
+
+Professor Rubenfeld has presented a powerful constitutional argument
+about the difference that copyright law should draw (from the
+perspective of the First Amendment) between mere <span class="quote">«<span class="quote">copies</span>»</span> and
+derivative works. See Jed Rubenfeld, <span class="quote">«<span class="quote">The Freedom of Imagination:
+Copyright's Constitutionality,</span>»</span> <em class="citetitle">Yale Law
+Journal</em> 112 (2002): 1–60 (see especially
+pp. 53–59).
+<a class="indexterm" name="idp8779440"></a>
+</p></div><div id="ftn.idp8793600" class="footnote"><p><a href="#idp8793600" class="para"><sup class="para">[133] </sup></a>
+
+This is a simplification of the law, but not much of one. The law
+certainly regulates more than <span class="quote">«<span class="quote">copies</span>»</span>—a public performance of a
+copyrighted song, for example, is regulated even though performance
+per se doesn't make a copy; 17 <em class="citetitle">United States Code</em>, section
+106(4). And it certainly sometimes doesn't regulate a <span class="quote">«<span class="quote">copy</span>»</span>; 17
+<em class="citetitle">United States Code</em>, section 112(a). But the presumption under the
+existing law (which regulates <span class="quote">«<span class="quote">copies;</span>»</span> 17 <em class="citetitle">United States Code</em>, section
+102) is that if there is a copy, there is a right.
+</p></div><div id="ftn.idp8806656" class="footnote"><p><a href="#idp8806656" class="para"><sup class="para">[134] </sup></a>
+
+Thus, my argument is not that in each place that copyright law
+extends, we should repeal it. It is instead that we should have a good
+argument for its extending where it does, and should not determine its
+reach on the basis of arbitrary and automatic changes caused by
+technology.
+</p></div><div id="ftn.idp8858704" class="footnote"><p><a href="#idp8858704" class="para"><sup class="para">[135] </sup></a>
+
+I don't mean <span class="quote">«<span class="quote">nature</span>»</span> in the sense that it couldn't be different, but
+rather that its present instantiation entails a copy. Optical networks
+need not make copies of content they transmit, and a digital network
+could be designed to delete anything it copies so that the same number
+of copies remain.
+</p></div><div id="ftn.idp8953472" class="footnote"><p><a href="#idp8953472" class="para"><sup class="para">[136] </sup></a>
+
+See David Lange, <span class="quote">«<span class="quote">Recognizing the Public Domain,</span>»</span> <em class="citetitle">Law and
+Contemporary Problems</em> 44 (1981): 172–73.
+</p></div><div id="ftn.idp8956064" class="footnote"><p><a href="#idp8956064" class="para"><sup class="para">[137] </sup></a>
+
+<a class="indexterm" name="idp8956768"></a>
+Ibid. See also Vaidhyanathan, <em class="citetitle">Copyrights and
+Copywrongs</em>, 1–3.
+</p></div><div id="ftn.idp8995104" class="footnote"><p><a href="#idp8995104" class="para"><sup class="para">[138] </sup></a>
+
+In principle, a contract might impose a requirement on me. I might,
+for example, buy a book from you that includes a contract that says I
+will read it only three times, or that I promise to read it three
+times. But that obligation (and the limits for creating that
+obligation) would come from the contract, not from copyright law, and
+the obligations of contract would not necessarily pass to anyone who
+subsequently acquired the book.
+</p></div><div id="ftn.idp9047344" class="footnote"><p><a href="#idp9047344" class="para"><sup class="para">[139] </sup></a>
+
+See Pamela Samuelson, <span class="quote">«<span class="quote">Anticircumvention Rules: Threat to Science,</span>»</span>
+<em class="citetitle">Science</em> 293 (2001): 2028; Brendan I. Koerner, <span class="quote">«<span class="quote">Play Dead: Sony Muzzles
+the Techies Who Teach a Robot Dog New Tricks,</span>»</span> <em class="citetitle">American Prospect</em>,
+January 2002; <span class="quote">«<span class="quote">Court Dismisses Computer Scientists' Challenge to
+DMCA,</span>»</span> <em class="citetitle">Intellectual Property Litigation Reporter</em>, 11 December 2001; Bill
+Holland, <span class="quote">«<span class="quote">Copyright Act Raising Free-Speech Concerns,</span>»</span> <em class="citetitle">Billboard</em>,
+May 2001; Janelle Brown, <span class="quote">«<span class="quote">Is the RIAA Running Scared?</span>»</span> Salon.com,
+April 2001; Electronic Frontier Foundation, <span class="quote">«<span class="quote">Frequently Asked
+Questions about <em class="citetitle">Felten and USENIX</em> v. <em class="citetitle">RIAA</em> Legal Case,</span>»</span> available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #27</a>.
+<a class="indexterm" name="idp9054224"></a>
+</p></div><div id="ftn.idp9091408" class="footnote"><p><a href="#idp9091408" class="para"><sup class="para">[140] </sup></a>
+
+<a class="indexterm" name="idp9092144"></a>
+<em class="citetitle">Sony Corporation of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
+455 fn. 27 (1984). Rogers never changed his view about the VCR. See
+James Lardner, <em class="citetitle">Fast Forward: Hollywood, the Japanese, and the Onslaught of
+the VCR</em> (New York: W. W. Norton, 1987), 270–71.
+<a class="indexterm" name="idp8958064"></a>
+</p></div><div id="ftn.idp9116880" class="footnote"><p><a href="#idp9116880" class="para"><sup class="para">[141] </sup></a>
+
+For an early and prescient analysis, see Rebecca Tushnet, <span class="quote">«<span class="quote">Legal Fictions,
+Copyright, Fan Fiction, and a New Common Law,</span>»</span> <em class="citetitle">Loyola of Los Angeles
+Entertainment Law Journal</em> 17 (1997): 651.
+</p></div><div id="ftn.idp9132832" class="footnote"><p><a href="#idp9132832" class="para"><sup class="para">[142] </sup></a>
+
+FCC Oversight: Hearing Before the Senate Commerce, Science and
+Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
+(statement of Senator John McCain). </p></div><div id="ftn.idp9134048" class="footnote"><p><a href="#idp9134048" class="para"><sup class="para">[143] </sup></a>
+
+Lynette Holloway, <span class="quote">«<span class="quote">Despite a Marketing Blitz, CD Sales Continue to
+Slide,</span>»</span> <em class="citetitle">New York Times</em>, 23 December 2002.
+</p></div><div id="ftn.idp9136176" class="footnote"><p><a href="#idp9136176" class="para"><sup class="para">[144] </sup></a>
+
+Molly Ivins, <span class="quote">«<span class="quote">Media Consolidation Must Be Stopped,</span>»</span> <em class="citetitle">Charleston Gazette</em>,
+31 May 2003.
+</p></div><div id="ftn.idp9143568" class="footnote"><p><a href="#idp9143568" class="para"><sup class="para">[145] </sup></a>
+
+James Fallows, <span class="quote">«<span class="quote">The Age of Murdoch,</span>»</span> <em class="citetitle">Atlantic Monthly</em> (September
+2003): 89.
+<a class="indexterm" name="idp9145680"></a>
+</p></div><div id="ftn.idp9156224" class="footnote"><p><a href="#idp9156224" class="para"><sup class="para">[146] </sup></a>
+
+Leonard Hill, <span class="quote">«<span class="quote">The Axis of Access,</span>»</span> remarks before Weidenbaum Center
+Forum, <span class="quote">«<span class="quote">Entertainment Economics: The Movie Industry,</span>»</span> St. Louis,
+Missouri, 3 April 2003 (transcript of prepared remarks available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #28</a>;
+for the Lear story, not included in the prepared remarks, see
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #29</a>).
+</p></div><div id="ftn.idp9162832" class="footnote"><p><a href="#idp9162832" class="para"><sup class="para">[147] </sup></a>
+
+NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
+Ownership Before the Senate Commerce Committee, 108th Cong., 1st
+sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
+and the Consumer Federation of America), available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #30</a>. Kimmelman
+quotes Victoria Riskin, president of Writers Guild of America, West,
+in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
+2003.
+</p></div><div id="ftn.idp9165376" class="footnote"><p><a href="#idp9165376" class="para"><sup class="para">[148] </sup></a>
+
+Ibid.
+</p></div><div id="ftn.idp9171728" class="footnote"><p><a href="#idp9171728" class="para"><sup class="para">[149] </sup></a>
+
+<span class="quote">«<span class="quote">Barry Diller Takes on Media Deregulation,</span>»</span> <em class="citetitle">Now with Bill Moyers</em>, Bill
+Moyers, 25 April 2003, edited transcript available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #31</a>.
+</p></div><div id="ftn.idp9177392" class="footnote"><p><a href="#idp9177392" class="para"><sup class="para">[150] </sup></a>
+
+Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The
+Revolutionary National Bestseller that Changed the Way We Do Business</em>
+(Cambridge: Harvard Business School Press, 1997). Christensen
+acknowledges that the idea was first suggested by Dean Kim Clark. See
+Kim B. Clark, <span class="quote">«<span class="quote">The Interaction of Design Hierarchies and Market
+Concepts in Technological Evolution,</span>»</span> <em class="citetitle">Research Policy</em> 14 (1985):
+235–51. For a more recent study, see Richard Foster and Sarah
+Kaplan, <em class="citetitle">Creative Destruction: Why Companies That Are Built to Last
+Underperform the Market—and How to Successfully Transform Them</em>
+(New York: Currency/Doubleday, 2001). </p></div><div id="ftn.idp9201136" class="footnote"><p><a href="#idp9201136" class="para"><sup class="para">[151] </sup></a>
+
+<a class="indexterm" name="idp9201872"></a>
+<a class="indexterm" name="idp9202624"></a>
+<a class="indexterm" name="idp9203440"></a>
+<a class="indexterm" name="idp9204272"></a>
+<a class="indexterm" name="idp9205104"></a>
+<a class="indexterm" name="idp9205920"></a>
+<a class="indexterm" name="idp9206752"></a>
+The Marijuana Policy Project, in February 2003, sought to place ads
+that directly responded to the Nick and Norm series on stations within
+the Washington, D.C., area. Comcast rejected the ads as <span class="quote">«<span class="quote">against
+[their] policy.</span>»</span> The local NBC affiliate, WRC, rejected the ads
+without reviewing them. The local ABC affiliate, WJOA, originally
+agreed to run the ads and accepted payment to do so, but later decided
+not to run the ads and returned the collected fees. Interview with
+Neal Levine, 15 October 2003. These restrictions are, of course, not
+limited to drug policy. See, for example, Nat Ives, <span class="quote">«<span class="quote">On the
+Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV
+Networks,</span>»</span> <em class="citetitle">New York Times</em>, 13 March
+2003, C4. Outside of election-related air time there is very little
+that the FCC or the courts are willing to do to even the playing
+field. For a general overview, see Rhonda Brown, <span class="quote">«<span class="quote">Ad Hoc Access:
+The Regulation of Editorial Advertising on Television and
+Radio,</span>»</span> <em class="citetitle">Yale Law and Policy Review</em> 6
+(1988): 449–79, and for a more recent summary of the stance of
+the FCC and the courts, see <em class="citetitle">Radio-Television News Directors
+Association</em> v. <em class="citetitle">FCC</em>, 184 F. 3d 872
+(D.C. Cir. 1999). Municipal authorities exercise the same authority as
+the networks. In a recent example from San Francisco, the San
+Francisco transit authority rejected an ad that criticized its Muni
+diesel buses. Phillip Matier and Andrew Ross, <span class="quote">«<span class="quote">Antidiesel Group
+Fuming After Muni Rejects Ad,</span>»</span> SFGate.com, 16 June 2003,
+available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
+#32</a>. The ground was that the criticism was <span class="quote">«<span class="quote">too
+controversial.</span>»</span>
+</p></div><div id="ftn.idp9229344" class="footnote"><p><a href="#idp9229344" class="para"><sup class="para">[152] </sup></a>
+
+<a class="indexterm" name="idp9230416"></a>
+Siva Vaidhyanathan captures a similar point in his <span class="quote">«<span class="quote">four surrenders</span>»</span> of
+copyright law in the digital age. See Vaidhyanathan, 159–60.
+</p></div><div id="ftn.idp9271984" class="footnote"><p><a href="#idp9271984" class="para"><sup class="para">[153] </sup></a>
+
+<a class="indexterm" name="idp9272720"></a>
+It was the single most important contribution of the legal realist
+movement to demonstrate that all property rights are always crafted to
+balance public and private interests. See Thomas C. Grey, <span class="quote">«<span class="quote">The
+Disintegration of Property,</span>»</span> in <em class="citetitle">Nomos XXII: Property</em>, J. Roland
+Pennock and John W. Chapman, eds. (New York: New York University
+Press, 1980).
+</p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-puzzles"></a>Part III. PUZZLES</h1></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="chimera"></a>Chapter 11. CHAPTER ELEVEN: Chimera</h2></div></div></div><a class="indexterm" name="idxchimera"></a><a class="indexterm" name="idxwells"></a><a class="indexterm" name="idxtcotb"></a><p>
+<span class="strong"><strong>In a well-known</strong></span> short story by
+H. G. Wells, a mountain climber named Nunez trips (literally, down an
+ice slope) into an unknown and isolated valley in the Peruvian
+Andes.<a href="#ftn.idp9294288" class="footnote" name="idp9294288"><sup class="footnote">[154]</sup></a>
+The valley is extraordinarily beautiful, with <span class="quote">«<span class="quote">sweet water, pasture,
+an even climate, slopes of rich brown soil with tangles of a shrub
+that bore an excellent fruit.</span>»</span> But the villagers are all blind. Nunez
+takes this as an opportunity. <span class="quote">«<span class="quote">In the Country of the Blind,</span>»</span> he tells
+himself, <span class="quote">«<span class="quote">the One-Eyed Man is King.</span>»</span> So he resolves to live with the
+villagers to explore life as a king.
+</p><p>
+Things don't go quite as he planned. He tries to explain the idea of
+sight to the villagers. They don't understand. He tells them they are
+<span class="quote">«<span class="quote">blind.</span>»</span> They don't have the word <em class="citetitle">blind</em>. They think he's just thick.
+Indeed, as they increasingly notice the things he can't do (hear the
+sound of grass being stepped on, for example), they increasingly try
+to control him. He, in turn, becomes increasingly frustrated. <span class="quote">«<span class="quote">`You
+don't understand,' he cried, in a voice that was meant to be great and
+resolute, and which broke. `You are blind and I can see. Leave me
+alone!'</span>»</span>
+</p><p>
+
+The villagers don't leave him alone. Nor do they see (so to speak) the
+virtue of his special power. Not even the ultimate target of his
+affection, a young woman who to him seems <span class="quote">«<span class="quote">the most beautiful thing in
+the whole of creation,</span>»</span> understands the beauty of sight. Nunez's
+description of what he sees <span class="quote">«<span class="quote">seemed to her the most poetical of
+fancies, and she listened to his description of the stars and the
+mountains and her own sweet white-lit beauty as though it was a guilty
+indulgence.</span>»</span> <span class="quote">«<span class="quote">She did not believe,</span>»</span> Wells tells us, and <span class="quote">«<span class="quote">she could
+only half understand, but she was mysteriously delighted.</span>»</span>
+</p><p>
+When Nunez announces his desire to marry his <span class="quote">«<span class="quote">mysteriously delighted</span>»</span>
+love, the father and the village object. <span class="quote">«<span class="quote">You see, my dear,</span>»</span> her
+father instructs, <span class="quote">«<span class="quote">he's an idiot. He has delusions. He can't do
+anything right.</span>»</span> They take Nunez to the village doctor.
+</p><p>
+After a careful examination, the doctor gives his opinion. <span class="quote">«<span class="quote">His brain
+is affected,</span>»</span> he reports.
+</p><p>
+<span class="quote">«<span class="quote">What affects it?</span>»</span> the father asks. <span class="quote">«<span class="quote">Those queer things that are
+called the eyes … are diseased … in such a way as to affect
+his brain.</span>»</span>
+</p><p>
+The doctor continues: <span class="quote">«<span class="quote">I think I may say with reasonable certainty
+that in order to cure him completely, all that we need to do is a
+simple and easy surgical operation—namely, to remove these
+irritant bodies [the eyes].</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">Thank Heaven for science!</span>»</span> says the father to the doctor. They inform
+Nunez of this condition necessary for him to be allowed his bride.
+(You'll have to read the original to learn what happens in the end. I
+believe in free culture, but never in giving away the end of a story.)
+</p><p>
+<span class="strong"><strong>It sometimes</strong></span> happens that the eggs
+of twins fuse in the mother's womb. That fusion produces a
+<span class="quote">«<span class="quote">chimera.</span>»</span> A chimera is a single creature with two sets
+of DNA. The DNA in the blood, for example, might be different from the
+DNA of the skin. This possibility is an underused
+
+
+plot for murder mysteries. <span class="quote">«<span class="quote">But the DNA shows with 100 percent
+certainty that she was not the person whose blood was at the
+scene. …</span>»</span>
+</p><a class="indexterm" name="idp9312160"></a><a class="indexterm" name="idp9313264"></a><p>
+Before I had read about chimeras, I would have said they were
+impossible. A single person can't have two sets of DNA. The very idea
+of DNA is that it is the code of an individual. Yet in fact, not only
+can two individuals have the same set of DNA (identical twins), but
+one person can have two different sets of DNA (a chimera). Our
+understanding of a <span class="quote">«<span class="quote">person</span>»</span> should reflect this reality.
+</p><p>
+The more I work to understand the current struggle over copyright and
+culture, which I've sometimes called unfairly, and sometimes not
+unfairly enough, <span class="quote">«<span class="quote">the copyright wars,</span>»</span> the more I think we're dealing
+with a chimera. For example, in the battle over the question <span class="quote">«<span class="quote">What is
+p2p file sharing?</span>»</span> both sides have it right, and both sides have it
+wrong. One side says, <span class="quote">«<span class="quote">File sharing is just like two kids taping each
+others' records—the sort of thing we've been doing for the last
+thirty years without any question at all.</span>»</span> That's true, at least in
+part. When I tell my best friend to try out a new CD that I've bought,
+but rather than just send the CD, I point him to my p2p server, that
+is, in all relevant respects, just like what every executive in every
+recording company no doubt did as a kid: sharing music.
+</p><p>
+But the description is also false in part. For when my p2p server is
+on a p2p network through which anyone can get access to my music, then
+sure, my friends can get access, but it stretches the meaning of
+<span class="quote">«<span class="quote">friends</span>»</span> beyond recognition to say <span class="quote">«<span class="quote">my ten thousand best friends</span>»</span> can
+get access. Whether or not sharing my music with my best friend is
+what <span class="quote">«<span class="quote">we have always been allowed to do,</span>»</span> we have not always been
+allowed to share music with <span class="quote">«<span class="quote">our ten thousand best friends.</span>»</span>
+</p><p>
+Likewise, when the other side says, <span class="quote">«<span class="quote">File sharing is just like walking
+into a Tower Records and taking a CD off the shelf and walking out
+with it,</span>»</span> that's true, at least in part. If, after Lyle Lovett
+(finally) releases a new album, rather than buying it, I go to Kazaa
+and find a free copy to take, that is very much like stealing a copy
+from Tower.
+<a class="indexterm" name="idp9321920"></a>
+</p><p>
+
+
+But it is not quite stealing from Tower. After all, when I take a CD
+from Tower Records, Tower has one less CD to sell. And when I take a
+CD from Tower Records, I get a bit of plastic and a cover, and
+something to show on my shelves. (And, while we're at it, we could
+also note that when I take a CD from Tower Records, the maximum fine
+that might be imposed on me, under California law, at least, is
+$1,000. According to the RIAA, by contrast, if I download a ten-song
+CD, I'm liable for $1,500,000 in damages.)
+</p><p>
+The point is not that it is as neither side describes. The point is
+that it is both—both as the RIAA describes it and as Kazaa
+describes it. It is a chimera. And rather than simply denying what the
+other side asserts, we need to begin to think about how we should
+respond to this chimera. What rules should govern it?
+</p><p>
+We could respond by simply pretending that it is not a chimera. We
+could, with the RIAA, decide that every act of file sharing should be
+a felony. We could prosecute families for millions of dollars in
+damages just because file sharing occurred on a family computer. And
+we can get universities to monitor all computer traffic to make sure
+that no computer is used to commit this crime. These responses might
+be extreme, but each of them has either been proposed or actually
+implemented.<a href="#ftn.idp9325712" class="footnote" name="idp9325712"><sup class="footnote">[155]</sup></a>
+
+</p><a class="indexterm" name="idp9337360"></a><p>
+Alternatively, we could respond to file sharing the way many kids act
+as though we've responded. We could totally legalize it. Let there be
+no copyright liability, either civil or criminal, for making
+copyrighted content available on the Net. Make file sharing like
+gossip: regulated, if at all, by social norms but not by law.
+</p><p>
+Either response is possible. I think either would be a mistake.
+Rather than embrace one of these two extremes, we should embrace
+something that recognizes the truth in both. And while I end this book
+with a sketch of a system that does just that, my aim in the next
+chapter is to show just how awful it would be for us to adopt the
+zero-tolerance extreme. I believe <span class="emphasis"><em>either</em></span> extreme
+would be worse than a reasonable alternative. But I believe the
+zero-tolerance solution would be the worse of the two extremes.
+</p><p>
+
+
+Yet zero tolerance is increasingly our government's policy. In the
+middle of the chaos that the Internet has created, an extraordinary
+land grab is occurring. The law and technology are being shifted to
+give content holders a kind of control over our culture that they have
+never had before. And in this extremism, many an opportunity for new
+innovation and new creativity will be lost.
+</p><p>
+I'm not talking about the opportunities for kids to <span class="quote">«<span class="quote">steal</span>»</span> music. My
+focus instead is the commercial and cultural innovation that this war
+will also kill. We have never seen the power to innovate spread so
+broadly among our citizens, and we have just begun to see the
+innovation that this power will unleash. Yet the Internet has already
+seen the passing of one cycle of innovation around technologies to
+distribute content. The law is responsible for this passing. As the
+vice president for global public policy at one of these new
+innovators, eMusic.com, put it when criticizing the DMCA's added
+protection for copyrighted material,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+eMusic opposes music piracy. We are a distributor of copyrighted
+material, and we want to protect those rights.
+</p><p>
+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.
+</p><p>
+This is a critical point. The choices that industry sectors make
+with respect to these systems will in many ways directly shape the
+market for digital media and the manner in which digital media
+are distributed. This in turn will directly influence the options
+that are available to consumers, both in terms of the ease with
+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.<a href="#ftn.idp9345536" class="footnote" name="idp9345536"><sup class="footnote">[156]</sup></a>
+</p></blockquote></div><p>
+In April 2001, eMusic.com was purchased by Vivendi Universal,
+one of <span class="quote">«<span class="quote">the major labels.</span>»</span> Its position on these matters has now
+changed.
+<a class="indexterm" name="idp9348208"></a>
+</p><p>
+Reversing our tradition of tolerance now will not merely quash
+piracy. It will sacrifice values that are important to this culture,
+and will kill opportunities that could be extraordinarily valuable.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9294288" class="footnote"><p><a href="#idp9294288" class="para"><sup class="para">[154] </sup></a>
+
+H. G. Wells, <span class="quote">«<span class="quote">The Country of the Blind</span>»</span> (1904, 1911). See H. G. Wells,
+<em class="citetitle">The Country of the Blind and Other Stories</em>, Michael Sherborne, ed. (New
+York: Oxford University Press, 1996).
+</p></div><div id="ftn.idp9325712" class="footnote"><p><a href="#idp9325712" class="para"><sup class="para">[155] </sup></a>
+
+<a class="indexterm" name="idp9326416"></a>
+For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+<span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> 27 June 2003,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
+#33</a>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized
+on-line copying as a felony offense with punishments ranging as high
+as five years imprisonment; see Jon Healey, <span class="quote">«<span class="quote">House Bill Aims to Up
+Stakes on Piracy,</span>»</span> <em class="citetitle">Los Angeles Times</em>, 17 July 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #34</a>. Civil
+penalties are currently set at $150,000 per copied song. For a recent
+(and unsuccessful) legal challenge to the RIAA's demand that an ISP
+reveal the identity of a user accused of sharing more than 600 songs
+through a family computer, see <em class="citetitle">RIAA</em> v. <em class="citetitle">Verizon Internet Services (In
+re. Verizon Internet Services)</em>, 240 F. Supp. 2d 24
+(D.D.C. 2003). Such a user could face liability ranging as high as $90
+million. Such astronomical figures furnish the RIAA with a powerful
+arsenal in its prosecution of file sharers. Settlements ranging from
+$12,000 to $17,500 for four students accused of heavy file sharing on
+university networks must have seemed a mere pittance next to the $98
+billion the RIAA could seek should the matter proceed to court. See
+Elizabeth Young, <span class="quote">«<span class="quote">Downloading Could Lead to Fines,</span>»</span> redandblack.com,
+August 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #35</a>. For an
+example of the RIAA's targeting of student file sharing, and of the
+subpoenas issued to universities to reveal student file-sharer
+identities, see James Collins, <span class="quote">«<span class="quote">RIAA Steps Up Bid to Force BC, MIT to
+Name Students,</span>»</span> <em class="citetitle">Boston Globe</em>, 8 August 2003, D3, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #36</a>.
+<a class="indexterm" name="idp9335472"></a>
+<a class="indexterm" name="idp9336288"></a>
+</p></div><div id="ftn.idp9345536" class="footnote"><p><a href="#idp9345536" class="para"><sup class="para">[156] </sup></a>
+
+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. </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="harms"></a>Chapter 12. CHAPTER TWELVE: Harms</h2></div></div></div><p>
+<span class="strong"><strong>To fight</strong></span> <span class="quote">«<span class="quote">piracy,</span>»</span> to
+protect <span class="quote">«<span class="quote">property,</span>»</span> the content industry has launched a
+war. Lobbying and lots of campaign contributions have now brought the
+government into this war. As with any war, this one will have both
+direct and collateral damage. As with any war of prohibition, these
+damages will be suffered most by our own people.
+</p><p>
+My aim so far has been to describe the consequences of this war, in
+particular, the consequences for <span class="quote">«<span class="quote">free culture.</span>»</span> But my aim now is to
+extend this description of consequences into an argument. Is this war
+justified?
+</p><p>
+In my view, it is not. There is no good reason why this time, for the
+first time, the law should defend the old against the new, just when the
+power of the property called <span class="quote">«<span class="quote">intellectual property</span>»</span> is at its greatest in
+our history.
+</p><a class="indexterm" name="idp9355904"></a><a class="indexterm" name="idp9356720"></a><p>
+Yet <span class="quote">«<span class="quote">common sense</span>»</span> does not see it this way. Common sense is still on
+the side of the Causbys and the content industry. The extreme claims
+of control in the name of property still resonate; the uncritical
+rejection of <span class="quote">«<span class="quote">piracy</span>»</span> still has play.
+</p><a class="indexterm" name="idp9359040"></a><p>
+
+There will be many consequences of continuing this war. I want to
+describe just three. All three might be said to be unintended. I am quite
+confident the third is unintended. I'm less sure about the first two. The
+first two protect modern RCAs, but there is no Howard Armstrong in
+the wings to fight today's monopolists of culture.
+</p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="constrain"></a>12.1. Constraining Creators</h2></div></div></div><p>
+In the next ten years we will see an explosion of digital
+technologies. These technologies will enable almost anyone to capture
+and share content. Capturing and sharing content, of course, is what
+humans have done since the dawn of man. It is how we learn and
+communicate. But capturing and sharing through digital technology is
+different. The fidelity and power are different. You could send an
+e-mail telling someone about a joke you saw on Comedy Central, or you
+could send the clip. You could write an essay about the
+inconsistencies in the arguments of the politician you most love to
+hate, or you could make a short film that puts statement against
+statement. You could write a poem to express your love, or you could
+weave together a string—a mash-up— of songs from your
+favorite artists in a collage and make it available on the Net.
+</p><p>
+This digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> is in part an extension of the
+capturing and sharing that has always been integral to our culture,
+and in part it is something new. It is continuous with the Kodak, but
+it explodes the boundaries of Kodak-like technologies. The technology
+of digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> promises a world of extraordinarily
+diverse creativity that can be easily and broadly shared. And as that
+creativity is applied to democracy, it will enable a broad range of
+citizens to use technology to express and criticize and contribute to
+the culture all around.
+</p><p>
+Technology has thus given us an opportunity to do something with
+culture that has only ever been possible for individuals in small groups,
+
+
+
+isolated from others. Think about an old man telling a story to a
+collection of neighbors in a small town. Now imagine that same
+storytelling extended across the globe.
+</p><p>
+Yet all this is possible only if the activity is presumptively legal. In
+the current regime of legal regulation, it is not. Forget file sharing for
+a moment. Think about your favorite amazing sites on the Net. Web
+sites that offer plot summaries from forgotten television shows; sites
+that catalog cartoons from the 1960s; sites that mix images and sound
+to criticize politicians or businesses; sites that gather newspaper articles
+on remote topics of science or culture. There is a vast amount of creative
+work spread across the Internet. But as the law is currently crafted, this
+work is presumptively illegal.
+</p><a class="indexterm" name="idp9367184"></a><a class="indexterm" name="idp9367968"></a><a class="indexterm" name="idp9369088"></a><a class="indexterm" name="idp9370208"></a><a class="indexterm" name="idp9371040"></a><p>
+That presumption will increasingly chill creativity, as the
+examples of extreme penalties for vague infringements continue to
+proliferate. It is impossible to get a clear sense of what's allowed
+and what's not, and at the same time, the penalties for crossing the
+line are astonishingly harsh. The four students who were threatened
+by the RIAA (Jesse Jordan of chapter <a class="xref" href="#catalogs" title="Chapter 3. CHAPTER THREE: Catalogs">3</a> was just one) were threatened with a
+$98 billion lawsuit for building search engines that permitted songs
+to be copied. Yet World-Com—which defrauded investors of $11
+billion, resulting in a loss to investors in market capitalization of
+over $200 billion—received a fine of a mere $750
+million.<a href="#ftn.idp9373824" class="footnote" name="idp9373824"><sup class="footnote">[157]</sup></a>
+And under legislation being pushed in Congress right now, a doctor who
+negligently removes the wrong leg in an operation would be liable for
+no more than $250,000 in damages for pain and
+suffering.<a href="#ftn.idp9377712" class="footnote" name="idp9377712"><sup class="footnote">[158]</sup></a>
+Can common sense recognize the absurdity in a world where
+the maximum fine for downloading two songs off the Internet is more
+than the fine for a doctor's negligently butchering a patient?
+</p><a class="indexterm" name="idp9382560"></a><p>
+The consequence of this legal uncertainty, tied to these extremely
+high penalties, is that an extraordinary amount of creativity will
+either never be exercised, or never be exercised in the open. We drive
+this creative process underground by branding the modern-day Walt
+Disneys <span class="quote">«<span class="quote">pirates.</span>»</span> We make it impossible for businesses to rely upon a
+public domain, because the boundaries of the public domain are
+designed to
+
+
+be unclear. It never pays to do anything except pay for the right
+to create, and hence only those who can pay are allowed to create. As
+was the case in the Soviet Union, though for very different reasons,
+we will begin to see a world of underground art—not because the
+message is necessarily political, or because the subject is
+controversial, but because the very act of creating the art is legally
+fraught. Already, exhibits of <span class="quote">«<span class="quote">illegal art</span>»</span> tour the United
+States.<a href="#ftn.idp9385712" class="footnote" name="idp9385712"><sup class="footnote">[159]</sup></a>
+ In what does their <span class="quote">«<span class="quote">illegality</span>»</span> consist?
+In the act of mixing the culture around us with an expression that is
+critical or reflective.
+</p><a class="indexterm" name="idp9389648"></a><p>
+Part of the reason for this fear of illegality has to do with the
+changing law. I described that change in detail in chapter
+<a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>. 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
+courts to order Internet service providers to reveal who has what
+content. It is as if your cassette tape player transmitted a list of
+the songs that you played in the privacy of your own home that anyone
+could tune into for whatever reason they chose.
+</p><a class="indexterm" name="idp9392464"></a><p>
+Never in our history has a painter had to worry about whether
+his painting infringed on someone else's work; but the modern-day
+painter, using the tools of Photoshop, sharing content on the Web,
+must worry all the time. Images are all around, but the only safe images
+to use in the act of creation are those purchased from Corbis or another
+image farm. And in purchasing, censoring happens. There is a free
+market in pencils; we needn't worry about its effect on creativity. But
+there is a highly regulated, monopolized market in cultural icons; the
+right to cultivate and transform them is not similarly free.
+</p><p>
+Lawyers rarely see this because lawyers are rarely empirical. As I
+described in chapter
+<a class="xref" href="#recorders" title="Chapter 7. CHAPTER SEVEN: Recorders">7</a>, 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.
+</p><p>
+
+
+But fair use in America simply means the right to hire a lawyer to
+defend your right to create. And as lawyers love to forget, our system
+for defending rights such as fair use is astonishingly bad—in
+practically every context, but especially here. It costs too much, it
+delivers too slowly, and what it delivers often has little connection
+to the justice underlying the claim. The legal system may be tolerable
+for the very rich. For everyone else, it is an embarrassment to a
+tradition that prides itself on the rule of law.
+</p><p>
+Judges and lawyers can tell themselves that fair use provides adequate
+<span class="quote">«<span class="quote">breathing room</span>»</span> between regulation by the law and the access the law
+should allow. But it is a measure of how out of touch our legal system
+has become that anyone actually believes this. The rules that
+publishers impose upon writers, the rules that film distributors
+impose upon filmmakers, the rules that newspapers impose upon
+journalists— these are the real laws governing creativity. And
+these rules have little relationship to the <span class="quote">«<span class="quote">law</span>»</span> with which judges
+comfort themselves.
+</p><p>
+For in a world that threatens $150,000 for a single willful
+infringement of a copyright, and which demands tens of thousands of
+dollars to even defend against a copyright infringement claim, and
+which would never return to the wrongfully accused defendant anything
+of the costs she suffered to defend her right to speak—in that
+world, the astonishingly broad regulations that pass under the name
+<span class="quote">«<span class="quote">copyright</span>»</span> silence speech and creativity. And in that world, it takes
+a studied blindness for people to continue to believe they live in a
+culture that is free.
+</p><p>
+As Jed Horovitz, the businessman behind Video Pipeline, said to me,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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
+going to get it distributed in the mainstream media unless
+
+you've got a little note from a lawyer saying, <span class="quote">«<span class="quote">This has been
+cleared.</span>»</span> You're not even going to get it on PBS without that kind of
+permission. That's the point at which they control it.
+</p></blockquote></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="innovators"></a>12.2. Constraining Innovators</h2></div></div></div><a class="indexterm" name="idxcopyrightlawinnovationhamperedby"></a><a class="indexterm" name="idxinnovationindustryestablishmentopposedto2"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism2"></a><p>
+The story of the last section was a crunchy-lefty
+story—creativity quashed, artists who can't speak, yada yada
+yada. Maybe that doesn't get you going. Maybe you think there's enough
+weird art out there, and enough expression that is critical of what
+seems to be just about everything. And if you think that, you might
+think there's little in this story to worry you.
+</p><a class="indexterm" name="idxmarketconstraints2"></a><p>
+But there's an aspect of this story that is not lefty in any sense.
+Indeed, it is an aspect that could be written by the most extreme
+promarket ideologue. And if you're one of these sorts (and a special
+one at that, <a class="xref" href="#innovators" title="12.2. Constraining Innovators"></a> pages into a book like this), then you
+can see this other aspect by substituting <span class="quote">«<span class="quote">free market</span>»</span>
+every place I've spoken of <span class="quote">«<span class="quote">free culture.</span>»</span> The point is
+the same, even if the interests affecting culture are more
+fundamental.
+</p><p>
+The charge I've been making about the regulation of culture is the
+same charge free marketers make about regulating markets. Everyone, of
+course, concedes that some regulation of markets is necessary—at
+a minimum, we need rules of property and contract, and courts to
+enforce both. Likewise, in this culture debate, everyone concedes that
+at least some framework of copyright is also required. But both
+perspectives vehemently insist that just because some regulation is
+good, it doesn't follow that more regulation is better. And both
+perspectives are constantly attuned to the ways in which regulation
+simply enables the powerful industries of today to protect themselves
+against the competitors of tomorrow.
+</p><a class="indexterm" name="idp9415008"></a><a class="indexterm" name="idp9417136"></a><a class="indexterm" name="idp9417952"></a><p>
+This is the single most dramatic effect of the shift in regulatory
+
+strategy that I described in chapter <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>. 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
+<span class="quote">«<span class="quote">nuclear pall</span>»</span> that has fallen over the Valley—has been learned.
+</p><a class="indexterm" name="idp9421520"></a><a class="indexterm" name="idp9422160"></a><p>
+Consider one example to make the point, a story whose beginning
+I told in <em class="citetitle">The Future of Ideas</em> and which has progressed in a way that
+even I (pessimist extraordinaire) would never have predicted.
+</p><a class="indexterm" name="idxmpcom"></a><a class="indexterm" name="idxmympcom"></a><a class="indexterm" name="idp9427008"></a><p>
+In 1997, Michael Roberts launched a company called MP3.com. MP3.com
+was keen to remake the music business. Their goal was not just to
+facilitate new ways to get access to content. Their goal was also to
+facilitate new ways to create content. Unlike the major labels,
+MP3.com offered creators a venue to distribute their creativity,
+without demanding an exclusive engagement from the creators.
+</p><a class="indexterm" name="idp9428624"></a><a class="indexterm" name="idxcdsprefdata"></a><p>
+To make this system work, however, MP3.com needed a reliable way to
+recommend music to its users. The idea behind this alternative was to
+leverage the revealed preferences of music listeners to recommend new
+artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
+Raitt. And so on.
+</p><p>
+This idea required a simple way to gather data about user preferences.
+MP3.com came up with an extraordinarily clever way to gather this
+preference data. In January 2000, the company launched a service
+called my.mp3.com. Using software provided by MP3.com, a user would
+sign into an account and then insert into her computer a CD. The
+software would identify the CD, and then give the user access to that
+content. So, for example, if you inserted a CD by Jill Sobule, then
+wherever you were—at work or at home—you could get access
+to that music once you signed into your account. The system was
+therefore a kind of music-lockbox.
+</p><p>
+No doubt some could use this system to illegally copy content. But
+that opportunity existed with or without MP3.com. The aim of the
+
+
+my.mp3.com service was to give users access to their own content, and
+as a by-product, by seeing the content they already owned, to discover
+the kind of content the users liked.
+</p><a class="indexterm" name="idp9434112"></a><p>
+To make this system function, however, MP3.com needed to copy 50,000
+CDs to a server. (In principle, it could have been the user who
+uploaded the music, but that would have taken a great deal of time,
+and would have produced a product of questionable quality.) It
+therefore purchased 50,000 CDs from a store, and started the process
+of making copies of those CDs. Again, it would not serve the content
+from those copies to anyone except those who authenticated that they
+had a copy of the CD they wanted to access. So while this was 50,000
+copies, it was 50,000 copies directed at giving customers something
+they had already bought.
+</p><a class="indexterm" name="idxvivendiuniversal"></a><a class="indexterm" name="idp9438480"></a><a class="indexterm" name="idp9439616"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry3"></a><a class="indexterm" name="idp9442624"></a><a class="indexterm" name="idp9443744"></a><a class="indexterm" name="idp9444848"></a><p>
+Nine days after MP3.com launched its service, the five major labels,
+headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
+with four of the five. Nine months later, a federal judge found
+MP3.com to have been guilty of willful infringement with respect to
+the fifth. Applying the law as it is, the judge imposed a fine against
+MP3.com of $118 million. MP3.com then settled with the remaining
+plaintiff, Vivendi Universal, paying over $54 million. Vivendi
+purchased MP3.com just about a year later.
+</p><p>
+That part of the story I have told before. Now consider its conclusion.
+</p><p>
+After Vivendi purchased MP3.com, Vivendi turned around and filed a
+malpractice lawsuit against the lawyers who had advised it that they
+had a good faith claim that the service they wanted to offer would be
+considered legal under copyright law. This lawsuit alleged that it
+should have been obvious that the courts would find this behavior
+illegal; therefore, this lawsuit sought to punish any lawyer who had
+dared to suggest that the law was less restrictive than the labels
+demanded.
+</p><a class="indexterm" name="idp9448224"></a><p>
+The clear purpose of this lawsuit (which was settled for an
+unspecified amount shortly after the story was no longer covered in
+the press) was to send an unequivocal message to lawyers advising
+clients in this
+
+space: It is not just your clients who might suffer if the content
+industry directs its guns against them. It is also you. So those of
+you who believe the law should be less restrictive should realize that
+such a view of the law will cost you and your firm dearly.
+</p><a class="indexterm" name="idp9450752"></a><a class="indexterm" name="idp9452032"></a><a class="indexterm" name="idp9453344"></a><a class="indexterm" name="idp9454720"></a><a class="indexterm" name="idp9455536"></a><a class="indexterm" name="idxbmw"></a><a class="indexterm" name="idxcarsmpsoundsystemsin"></a><a class="indexterm" name="idp9459728"></a><a class="indexterm" name="idp9460512"></a><a class="indexterm" name="idp9461328"></a><a class="indexterm" name="idp9462144"></a><a class="indexterm" name="idp9462960"></a><a class="indexterm" name="idp9463776"></a><a class="indexterm" name="idxneedlemanrafe"></a><a class="indexterm" name="idp9466400"></a><a class="indexterm" name="idp9467216"></a><p>
+This strategy is not just limited to the lawyers. In April 2003,
+Universal and EMI brought a lawsuit against Hummer Winblad, the
+venture capital firm (VC) that had funded Napster at a certain stage of
+its development, its cofounder (John Hummer), and general partner
+(Hank Barry).<a href="#ftn.idp9468592" class="footnote" name="idp9468592"><sup class="footnote">[160]</sup></a>
+The claim here, as well, was that the VC should have recognized the
+right of the content industry to control how the industry should
+develop. They should be held personally liable for funding a company
+whose business turned out to be beyond the law. Here again, the aim of
+the lawsuit is transparent: Any VC now recognizes that if you fund a
+company whose business is not approved of by the dinosaurs, you are at
+risk not just in the marketplace, but in the courtroom as well. Your
+investment buys you not only a company, it also buys you a lawsuit.
+So extreme has the environment become that even car manufacturers are
+afraid of technologies that touch content. In an article in
+<em class="citetitle">Business 2.0</em>, Rafe Needleman describes a
+discussion with BMW:
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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. … <a href="#ftn.idp9401504" class="footnote" name="idp9401504"><sup class="footnote">[161]</sup></a>
+</p></blockquote></div><a class="indexterm" name="idp9478576"></a><a class="indexterm" name="idp9479888"></a><a class="indexterm" name="idp9481200"></a><p>
+This is the world of the mafia—filled with <span class="quote">«<span class="quote">your money or your
+life</span>»</span> offers, governed in the end not by courts but by the threats
+that the law empowers copyright holders to exercise. It is a system
+that will obviously and necessarily stifle new innovation. It is hard
+enough to start a company. It is impossibly hard if that company is
+constantly threatened by litigation.
+</p><p>
+
+
+The point is not that businesses should have a right to start illegal
+enterprises. The point is the definition of <span class="quote">«<span class="quote">illegal.</span>»</span> The law is a
+mess of uncertainty. We have no good way to know how it should apply
+to new technologies. Yet by reversing our tradition of judicial
+deference, and by embracing the astonishingly high penalties that
+copyright law imposes, that uncertainty now yields a reality which is
+far more conservative than is right. If the law imposed the death
+penalty for parking tickets, we'd not only have fewer parking tickets,
+we'd also have much less driving. The same principle applies to
+innovation. If innovation is constantly checked by this uncertain and
+unlimited liability, we will have much less vibrant innovation and
+much less creativity.
+</p><a class="indexterm" name="idp9485648"></a><p>
+The point is directly parallel to the crunchy-lefty point about fair
+use. Whatever the <span class="quote">«<span class="quote">real</span>»</span> law is, realism about the effect of law in
+both contexts is the same. This wildly punitive system of regulation
+will systematically stifle creativity and innovation. It will protect
+some industries and some creators, but it will harm industry and
+creativity generally. Free market and free culture depend upon vibrant
+competition. Yet the effect of the law today is to stifle just this
+kind of competition. The effect is to produce an overregulated
+culture, just as the effect of too much control in the market is to
+produce an overregulated-regulated market.
+</p><p>
+The building of a permission culture, rather than a free culture, is
+the first important way in which the changes I have described will
+burden innovation. A permission culture means a lawyer's
+culture—a culture in which the ability to create requires a call
+to your lawyer. Again, I am not antilawyer, at least when they're kept
+in their proper place. I am certainly not antilaw. But our profession
+has lost the sense of its limits. And leaders in our profession have
+lost an appreciation of the high costs that our profession imposes
+upon others. The inefficiency of the law is an embarrassment to our
+tradition. And while I believe our profession should therefore do
+everything it can to make the law more efficient, it should at least
+do everything it can to limit the reach of the
+
+law where the law is not doing any good. The transaction costs buried
+within a permission culture are enough to bury a wide range of
+creativity. Someone needs to do a lot of justifying to justify that
+result.
+</p><p>
+<span class="strong"><strong>The uncertainty</strong></span> of the law is one
+burden on innovation. There is a second burden that operates more
+directly. This is the effort by many in the content industry to use
+the law to directly regulate the technology of the Internet so that it
+better protects their content.
+</p><p>
+The motivation for this response is obvious. The Internet enables the
+efficient spread of content. That efficiency is a feature of the
+Internet's design. But from the perspective of the content industry,
+this feature is a <span class="quote">«<span class="quote">bug.</span>»</span> The efficient spread of content means that
+content distributors have a harder time controlling the distribution
+of content. One obvious response to this efficiency is thus to make
+the Internet less efficient. If the Internet enables <span class="quote">«<span class="quote">piracy,</span>»</span> then,
+this response says, we should break the kneecaps of the Internet.
+</p><a class="indexterm" name="idp9492800"></a><p>
+The examples of this form of legislation are many. At the urging of
+the content industry, some in Congress have threatened legislation that
+would require computers to determine whether the content they access
+is protected or not, and to disable the spread of protected content.<a href="#ftn.idp9494160" class="footnote" name="idp9494160"><sup class="footnote">[162]</sup></a>
+Congress has already launched proceedings to explore a mandatory
+<span class="quote">«<span class="quote">broadcast flag</span>»</span> that would be required on any device capable of
+transmitting digital video (i.e., a computer), and that would disable
+the copying of any content that is marked with a broadcast flag. Other
+members of Congress have proposed immunizing content providers from
+liability for technology they might deploy that would hunt down
+copyright violators and disable their machines.<a href="#ftn.idp9497104" class="footnote" name="idp9497104"><sup class="footnote">[163]</sup></a>
+</p><p>
+In one sense, these solutions seem sensible. If the problem is the
+code, why not regulate the code to remove the problem. But any
+regulation of technical infrastructure will always be tuned to the
+particular technology of the day. It will impose significant burdens
+and costs on
+
+the technology, but will likely be eclipsed by advances around exactly
+those requirements.
+</p><a class="indexterm" name="idp9499216"></a><p>
+In March 2002, a broad coalition of technology companies, led by
+Intel, tried to get Congress to see the harm that such legislation
+would impose.<a href="#ftn.idp9500416" class="footnote" name="idp9500416"><sup class="footnote">[164]</sup></a>
+Their argument was obviously not that copyright should not be
+protected. Instead, they argued, any protection should not do more
+harm than good.
+</p><p>
+<span class="strong"><strong>There is one</strong></span> more obvious way in
+which this war has harmed innovation—again, a story that will be
+quite familiar to the free market crowd.
+</p><p>
+Copyright may be property, but like all property, it is also a form
+of regulation. It is a regulation that benefits some and harms others.
+When done right, it benefits creators and harms leeches. When done
+wrong, it is regulation the powerful use to defeat competitors.
+</p><a class="indexterm" name="idp9504064"></a><a class="indexterm" name="idp9505136"></a><a class="indexterm" name="idp9505952"></a><a class="indexterm" name="idp9506768"></a><p>
+As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>, despite this feature of copyright as
+regulation, and subject to important qualifications outlined by
+Jessica Litman in her book <em class="citetitle">Digital
+Copyright</em>,<a href="#ftn.idp9509648" class="footnote" name="idp9509648"><sup class="footnote">[165]</sup></a>
+overall this history of copyright is not bad. As chapter
+<a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a> details,
+when new technologies have come along, Congress has struck a balance
+to assure that the new is protected from the old. Compulsory, or
+statutory, licenses have been one part of that strategy. Free use (as
+in the case of the VCR) has been another.
+</p><p>
+But that pattern of deference to new technologies has now changed
+with the rise of the Internet. Rather than striking a balance between
+the claims of a new technology and the legitimate rights of content
+creators, both the courts and Congress have imposed legal restrictions
+that will have the effect of smothering the new to benefit the old.
+</p><a class="indexterm" name="idxinternetradioon"></a><a class="indexterm" name="idxradiooninternet"></a><p>
+The response by the courts has been fairly universal.<a href="#ftn.idp9518624" class="footnote" name="idp9518624"><sup class="footnote">[166]</sup></a>
+It has been mirrored in the responses threatened and actually
+implemented by Congress. I won't catalog all of those responses
+here.<a href="#ftn.idp9522944" class="footnote" name="idp9522944"><sup class="footnote">[167]</sup></a>
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
+</p><a class="indexterm" name="idp9529696"></a><a class="indexterm" name="idp9530784"></a><p>
+
+
+As I described in chapter <a class="xref" href="#pirates" title="Chapter 4. CHAPTER FOUR: «Pirates»">4</a>, when a radio station plays a song, the recording
+artist doesn't get paid for that <span class="quote">«<span class="quote">radio performance</span>»</span> unless he or she
+is also the composer. So, for example if Marilyn Monroe had recorded a
+version of <span class="quote">«<span class="quote">Happy Birthday</span>»</span>—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 <span class="quote">«<span class="quote">Happy Birthday</span>»</span> would get some money, whereas
+Marilyn Monroe would not.
+</p><p>
+The reasoning behind this balance struck by Congress makes some
+sense. The justification was that radio was a kind of advertising. The
+recording artist thus benefited because by playing her music, the
+radio station was making it more likely that her records would be
+purchased. Thus, the recording artist got something, even if only
+indirectly. Probably this reasoning had less to do with the result
+than with the power of radio stations: Their lobbyists were quite good
+at stopping any efforts to get Congress to require compensation to the
+recording artists.
+</p><p>
+Enter Internet radio. Like regular radio, Internet radio is a
+technology to stream content from a broadcaster to a listener. The
+broadcast travels across the Internet, not across the ether of radio
+spectrum. Thus, I can <span class="quote">«<span class="quote">tune in</span>»</span> to an Internet radio station in
+Berlin while sitting in San Francisco, even though there's no way for
+me to tune in to a regular radio station much beyond the San Francisco
+metropolitan area.
+</p><p>
+This feature of the architecture of Internet radio means that there
+are potentially an unlimited number of radio stations that a user
+could tune in to using her computer, whereas under the existing
+architecture for broadcast radio, there is an obvious limit to the
+number of broadcasters and clear broadcast frequencies. Internet radio
+could therefore be more competitive than regular radio; it could
+provide a wider range of selections. And because the potential
+audience for Internet radio is the whole world, niche stations could
+easily develop and market their content to a relatively large number
+of users worldwide. According to some estimates, more than eighty
+million users worldwide have tuned in to this new form of radio.
+</p><a class="indexterm" name="idp9538448"></a><p>
+
+
+Internet radio is thus to radio what FM was to AM. It is an
+improvement potentially vastly more significant than the FM
+improvement over AM, since not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.<a href="#ftn.idp9474832" class="footnote" name="idp9474832"><sup class="footnote">[168]</sup></a>
+</p></blockquote></div><p>
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of <span class="quote">«<span class="quote">vested interests, habits, customs and
+legislation</span>»</span><a href="#ftn.idp9543504" class="footnote" name="idp9543504"><sup class="footnote">[169]</sup></a>
+to retard the growth of this competing technology.
+</p><p>
+Now the very same claim could be made about Internet radio. For
+again, there is no technical limitation that could restrict the number of
+Internet radio stations. The only restrictions on Internet radio are
+those imposed by the law. Copyright law is one such law. So the first
+question we should ask is, what copyright rules would govern Internet
+radio?
+</p><a class="indexterm" name="idxartistsrecordingindustrypaymentsto3"></a><a class="indexterm" name="idp9547184"></a><a class="indexterm" name="idp9548288"></a><a class="indexterm" name="idp9549392"></a><a class="indexterm" name="idxrecordingindustryartistremunerationin3"></a><a class="indexterm" name="idxrecordingindustryradiobroadcastand2"></a><a class="indexterm" name="idxrecordingindustryinternetradiohamperedby"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaoninternetradiofees"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaalobbyingpowerof"></a><p>
+But here the power of the lobbyists is reversed. Internet radio is a
+new industry. The recording artists, on the other hand, have a very
+
+
+powerful lobby, the RIAA. Thus when Congress considered the phenomenon
+of Internet radio in 1995, the lobbyists had primed Congress to adopt
+a different rule for Internet radio than the rule that applies to
+terrestrial radio. While terrestrial radio does not have to pay our
+hypothetical Marilyn Monroe when it plays her hypothetical recording
+of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> on the air, <span class="emphasis"><em>Internet radio
+does</em></span>. Not only is the law not neutral toward Internet
+radio—the law actually burdens Internet radio more than it
+burdens terrestrial radio.
+</p><p>
+This financial burden is not slight. As Harvard law professor
+William Fisher estimates, if an Internet radio station distributed adfree
+popular music to (on average) ten thousand listeners, twenty-four
+hours a day, the total artist fees that radio station would owe would be
+over $1 million a year.<a href="#ftn.idp9563392" class="footnote" name="idp9563392"><sup class="footnote">[170]</sup></a>
+A regular radio station broadcasting the same content would pay no
+equivalent fee.
+</p><a class="indexterm" name="idp9569056"></a><a class="indexterm" name="idp9570384"></a><a class="indexterm" name="idp9571776"></a><a class="indexterm" name="idp9573104"></a><a class="indexterm" name="idp9574544"></a><p>
+The burden is not financial only. Under the original rules that were
+proposed, an Internet radio station (but not a terrestrial radio
+station) would have to collect the following data from <span class="emphasis"><em>every
+listening transaction</em></span>:
+</p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
+name of the service;
+</p></li><li class="listitem"><p>
+channel of the program (AM/FM stations use station ID);
+</p></li><li class="listitem"><p>
+type of program (archived/looped/live);
+</p></li><li class="listitem"><p>
+date of transmission;
+</p></li><li class="listitem"><p>
+time of transmission;
+</p></li><li class="listitem"><p>
+time zone of origination of transmission;
+</p></li><li class="listitem"><p>
+numeric designation of the place of the sound recording within the program;
+</p></li><li class="listitem"><p>
+duration of transmission (to nearest second);
+</p></li><li class="listitem"><p>
+sound recording title;
+</p></li><li class="listitem"><p>
+ISRC code of the recording;
+</p></li><li class="listitem"><p>
+release year of the album per copyright notice and in the case of compilation albums, the release year of the album and copy- right date of the track;
+</p></li><li class="listitem"><p>
+featured recording artist;
+</p></li><li class="listitem"><p>
+retail album title;
+</p></li><li class="listitem"><p>
+recording label;
+</p></li><li class="listitem"><p>
+UPC code of the retail album;
+</p></li><li class="listitem"><p>
+catalog number;
+</p></li><li class="listitem"><p>
+copyright owner information;
+</p></li><li class="listitem"><p>
+musical genre of the channel or program (station format);
+</p></li><li class="listitem"><p>
+name of the service or entity;
+</p></li><li class="listitem"><p>
+channel or program;
+</p></li><li class="listitem"><p>
+date and time that the user logged in (in the user's time zone);
+</p></li><li class="listitem"><p>
+date and time that the user logged out (in the user's time zone);
+</p></li><li class="listitem"><p>
+time zone where the signal was received (user);
+</p></li><li class="listitem"><p>
+unique user identifier;
+</p></li><li class="listitem"><p>
+the country in which the user received the transmissions.
+</p></li></ol></div><a class="indexterm" name="idp9592704"></a><p>
+The Librarian of Congress eventually suspended these reporting
+requirements, pending further study. And he also changed the original
+rates set by the arbitration panel charged with setting rates. But the
+basic difference between Internet radio and terrestrial radio remains:
+Internet radio has to pay a <span class="emphasis"><em>type of copyright fee</em></span>
+that terrestrial radio does not.
+</p><p>
+Why? What justifies this difference? Was there any study of the
+economic consequences from Internet radio that would justify these
+differences? Was the motive to protect artists against piracy?
+</p><a class="indexterm" name="idp9595280"></a><a class="indexterm" name="idxalbenalex2"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaoninternetradiofees2"></a><a class="indexterm" name="idxartistsrecordingindustrypaymentsto4"></a><a class="indexterm" name="idxrecordingindustryartistremunerationin4"></a><p>
+In a rare bit of candor, one RIAA expert admitted what seemed obvious
+to everyone at the time. As Alex Alben, vice president for Public
+Policy at Real Networks, told me,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+The RIAA, which was representing the record labels, presented
+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, … <span class="quote">«<span class="quote">How do you come up with a
+
+
+rate that's so much higher? Why is it worth more than radio? Because
+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. …</span>»</span>
+</p><a class="indexterm" name="idp9606192"></a><p>
+And the RIAA experts said, <span class="quote">«<span class="quote">Well, we don't really model this as an
+industry with thousands of webcasters, <span class="emphasis"><em>we think it should be
+an industry with, you know, five or seven big players who can pay a
+high rate and it's a stable, predictable market</em></span>.</span>»</span> (Emphasis
+added.)
+</p></blockquote></div><a class="indexterm" name="idp9608896"></a><a class="indexterm" name="idp9610144"></a><a class="indexterm" name="idp9611488"></a><a class="indexterm" name="idp9612816"></a><p>
+Translation: The aim is to use the law to eliminate competition, so
+that this platform of potentially immense competition, which would
+cause the diversity and range of content available to explode, would not
+cause pain to the dinosaurs of old. There is no one, on either the right
+or the left, who should endorse this use of the law. And yet there is
+practically no one, on either the right or the left, who is doing anything
+effective to prevent it.
+</p><a class="indexterm" name="idp9615520"></a><a class="indexterm" name="idp9616848"></a><a class="indexterm" name="idp9618240"></a><a class="indexterm" name="idp9619616"></a><a class="indexterm" name="idp9620864"></a><a class="indexterm" name="idp9622176"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="corruptingcitizens"></a>12.3. Corrupting Citizens</h2></div></div></div><p>
+Overregulation stifles creativity. It smothers innovation. It gives
+ dinosaurs
+a veto over the future. It wastes the extraordinary opportunity
+for a democratic creativity that digital technology enables.
+</p><p>
+In addition to these important harms, there is one more that was
+important to our forebears, but seems forgotten today. Overregulation
+corrupts citizens and weakens the rule of law.
+</p><p>
+The war that is being waged today is a war of prohibition. As with
+every war of prohibition, it is targeted against the behavior of a very
+large number of citizens. According to <em class="citetitle">The New York Times</em>, 43 million
+Americans downloaded music in May 2002.<a href="#ftn.idp9626944" class="footnote" name="idp9626944"><sup class="footnote">[171]</sup></a>
+ According to the RIAA,
+the behavior of those 43 million Americans is a felony. We thus have a
+set of rules that transform 20 percent of America into criminals. As the
+
+
+RIAA launches lawsuits against not only the Napsters and Kazaas of
+the world, but against students building search engines, and
+ increasingly
+against ordinary users downloading content, the technologies for
+sharing will advance to further protect and hide illegal use. It is an arms
+race or a civil war, with the extremes of one side inviting a more
+ extreme
+response by the other.
+</p><p>
+The content industry's tactics exploit the failings of the American
+legal system. When the RIAA brought suit against Jesse Jordan, it
+knew that in Jordan it had found a scapegoat, not a defendant. The
+threat of having to pay either all the money in the world in damages
+($15,000,000) or almost all the money in the world to defend against
+paying all the money in the world in damages ($250,000 in legal fees)
+led Jordan to choose to pay all the money he had in the world
+($12,000) to make the suit go away. The same strategy animates the
+RIAA's suits against individual users. In September 2003, the RIAA
+sued 261 individuals—including a twelve-year-old girl living in public
+housing and a seventy-year-old man who had no idea what file sharing
+was.<a href="#ftn.idp9562496" class="footnote" name="idp9562496"><sup class="footnote">[172]</sup></a>
+As these scapegoats discovered, it will always cost more to defend
+against these suits than it would cost to simply settle. (The twelve
+year old, for example, like Jesse Jordan, paid her life savings of $2,000
+to settle the case.) Our law is an awful system for defending rights. It
+is an embarrassment to our tradition. And the consequence of our law
+as it is, is that those with the power can use the law to quash any rights
+they oppose.
+</p><a class="indexterm" name="idp9633520"></a><p>
+Wars of prohibition are nothing new in America. This one is just
+something more extreme than anything we've seen before. We
+experimented with alcohol prohibition, at a time when the per capita
+consumption of alcohol was 1.5 gallons per capita per year. The war
+against drinking initially reduced that consumption to just 30 percent
+of its preprohibition levels, but by the end of prohibition,
+consumption was up to 70 percent of the preprohibition
+level. Americans were drinking just about as much, but now, a vast
+number were criminals.<a href="#ftn.idp9635152" class="footnote" name="idp9635152"><sup class="footnote">[173]</sup></a>
+We have
+
+launched a war on drugs aimed at reducing the consumption of regulated
+narcotics that 7 percent (or 16 million) Americans now use.<a href="#ftn.idp9637440" class="footnote" name="idp9637440"><sup class="footnote">[174]</sup></a>
+That is a drop from the high (so to speak) in 1979 of 14 percent of
+the population. We regulate automobiles to the point where the vast
+majority of Americans violate the law every day. We run such a complex
+tax system that a majority of cash businesses regularly
+cheat.<a href="#ftn.idp9638768" class="footnote" name="idp9638768"><sup class="footnote">[175]</sup></a>
+We pride ourselves on our <span class="quote">«<span class="quote">free society,</span>»</span> 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.
+</p><a class="indexterm" name="idp9641328"></a><p>
+This state of affairs is not without consequence. It is a particularly
+salient issue for teachers like me, whose job it is to teach law
+students about the importance of <span class="quote">«<span class="quote">ethics.</span>»</span> As my colleague Charlie
+Nesson told a class at Stanford, each year law schools admit thousands
+of students who have illegally downloaded music, illegally consumed
+alcohol and sometimes drugs, illegally worked without paying taxes,
+illegally driven cars. These are kids for whom behaving illegally is
+increasingly the norm. And then we, as law professors, are supposed to
+teach them how to behave ethically—how to say no to bribes, or
+keep client funds separate, or honor a demand to disclose a document
+that will mean that your case is over. Generations of
+Americans—more significantly in some parts of America than in
+others, but still, everywhere in America today—can't live their
+lives both normally and legally, since <span class="quote">«<span class="quote">normally</span>»</span> entails a certain
+degree of illegality.
+</p><p>
+The response to this general illegality is either to enforce the law
+more severely or to change the law. We, as a society, have to learn
+how to make that choice more rationally. Whether a law makes sense
+depends, in part, at least, upon whether the costs of the law, both
+intended and collateral, outweigh the benefits. If the costs, intended
+and collateral, do outweigh the benefits, then the law ought to be
+changed. Alternatively, if the costs of the existing system are much
+greater than the costs of an alternative, then we have a good reason
+to consider the alternative.
+</p><p>
+
+
+My point is not the idiotic one: Just because people violate a law, we
+should therefore repeal it. Obviously, we could reduce murder statistics
+dramatically by legalizing murder on Wednesdays and Fridays. But
+that wouldn't make any sense, since murder is wrong every day of the
+week. A society is right to ban murder always and everywhere.
+</p><p>
+My point is instead one that democracies understood for generations,
+but that we recently have learned to forget. The rule of law depends
+upon people obeying the law. The more often, and more repeatedly, we
+as citizens experience violating the law, the less we respect the
+law. Obviously, in most cases, the important issue is the law, not
+respect for the law. I don't care whether the rapist respects the law
+or not; I want to catch and incarcerate the rapist. But I do care
+whether my students respect the law. And I do care if the rules of law
+sow increasing disrespect because of the extreme of regulation they
+impose. Twenty million Americans have come of age since the Internet
+introduced this different idea of <span class="quote">«<span class="quote">sharing.</span>»</span> We need to be able to
+call these twenty million Americans <span class="quote">«<span class="quote">citizens,</span>»</span> not <span class="quote">«<span class="quote">felons.</span>»</span>
+</p><p>
+When at least forty-three million citizens download content from the
+Internet, and when they use tools to combine that content in ways
+unauthorized by copyright holders, the first question we should be
+asking is not how best to involve the FBI. The first question should
+be whether this particular prohibition is really necessary in order to
+achieve the proper ends that copyright law serves. Is there another
+way to assure that artists get paid without transforming forty-three
+million Americans into felons? Does it make sense if there are other
+ways to assure that artists get paid without transforming America into
+a nation of felons?
+</p><p>
+This abstract point can be made more clear with a particular example.
+</p><p>
+We all own CDs. Many of us still own phonograph records. These pieces
+of plastic encode music that in a certain sense we have bought. The
+law protects our right to buy and sell that plastic: It is not a
+copyright infringement for me to sell all my classical records at a
+used
+
+
+record store and buy jazz records to replace them. That <span class="quote">«<span class="quote">use</span>»</span> of the
+recordings is free.
+</p><p>
+But as the MP3 craze has demonstrated, there is another use of
+phonograph records that is effectively free. Because these recordings
+were made without copy-protection technologies, I am <span class="quote">«<span class="quote">free</span>»</span> to copy,
+or <span class="quote">«<span class="quote">rip,</span>»</span> music from my records onto a computer hard disk. Indeed,
+Apple Corporation went so far as to suggest that <span class="quote">«<span class="quote">freedom</span>»</span> was a
+right: In a series of commercials, Apple endorsed the <span class="quote">«<span class="quote">Rip, Mix, Burn</span>»</span>
+capacities of digital technologies.
+</p><a class="indexterm" name="idp9654400"></a><a class="indexterm" name="idxcdsmix"></a><p>
+This <span class="quote">«<span class="quote">use</span>»</span> of my records is certainly valuable. I have begun a large
+process at home of ripping all of my and my wife's CDs, and storing
+them in one archive. Then, using Apple's iTunes, or a wonderful
+program called Andromeda, we can build different play lists of our
+music: Bach, Baroque, Love Songs, Love Songs of Significant
+Others—the potential is endless. And by reducing the costs of
+mixing play lists, these technologies help build a creativity with
+play lists that is itself independently valuable. Compilations of
+songs are creative and meaningful in their own right.
+</p><p>
+This use is enabled by unprotected media—either CDs or records.
+But unprotected media also enable file sharing. File sharing threatens
+(or so the content industry believes) the ability of creators to earn
+a fair return from their creativity. And thus, many are beginning to
+experiment with technologies to eliminate unprotected media. These
+technologies, for example, would enable CDs that could not be
+ripped. Or they might enable spy programs to identify ripped content
+on people's machines.
+</p><p>
+If these technologies took off, then the building of large archives of
+your own music would become quite difficult. You might hang in hacker
+circles, and get technology to disable the technologies that protect
+the content. Trading in those technologies is illegal, but maybe that
+doesn't bother you much. In any case, for the vast majority of people,
+these protection technologies would effectively destroy the archiving
+
+
+use of CDs. The technology, in other words, would force us all back to
+the world where we either listened to music by manipulating pieces of
+plastic or were part of a massively complex <span class="quote">«<span class="quote">digital rights
+management</span>»</span> system.
+</p><a class="indexterm" name="idp9661552"></a><p>
+If the only way to assure that artists get paid were the elimination
+of the ability to freely move content, then these technologies to
+interfere with the freedom to move content would be justifiable. But
+what if there were another way to assure that artists are paid,
+without locking down any content? What if, in other words, a different
+system could assure compensation to artists while also preserving the
+freedom to move content easily?
+</p><p>
+My point just now is not to prove that there is such a system. I offer
+a version of such a system in the last chapter of this book. For now,
+the only point is the relatively uncontroversial one: If a different
+system achieved the same legitimate objectives that the existing
+copyright system achieved, but left consumers and creators much more
+free, then we'd have a very good reason to pursue this
+alternative—namely, freedom. The choice, in other words, would
+not be between property and piracy; the choice would be between
+different property systems and the freedoms each allowed.
+</p><p>
+I believe there is a way to assure that artists are paid without
+turning forty-three million Americans into felons. But the salient
+feature of this alternative is that it would lead to a very different
+market for producing and distributing creativity. The dominant few,
+who today control the vast majority of the distribution of content in
+the world, would no longer exercise this extreme of control. Rather,
+they would go the way of the horse-drawn buggy.
+</p><p>
+Except that this generation's buggy manufacturers have already saddled
+Congress, and are riding the law to protect themselves against this
+new form of competition. For them the choice is between fortythree
+million Americans as criminals and their own survival.
+</p><p>
+It is understandable why they choose as they do. It is not
+understandable why we as a democracy continue to choose as we do. Jack
+
+
+
+Valenti is charming; but not so charming as to justify giving up a
+tradition as deep and important as our tradition of free culture.
+</p><a class="indexterm" name="idp9667232"></a><a class="indexterm" name="idxisps"></a><p>
+<span class="strong"><strong>There's one more</strong></span> aspect to this
+corruption that is particularly important to civil liberties, and
+follows directly from any war of prohibition. As Electronic Frontier
+Foundation attorney Fred von Lohmann describes, this is the
+<span class="quote">«<span class="quote">collateral damage</span>»</span> that <span class="quote">«<span class="quote">arises whenever you turn
+a very large percentage of the population into criminals.</span>»</span> This
+is the collateral damage to civil liberties generally.
+</p><a class="indexterm" name="idp9671760"></a><p>
+<span class="quote">«<span class="quote">If you can treat someone as a putative lawbreaker,</span>»</span> von Lohmann
+explains,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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, <span class="quote">«<span class="quote">Oh, well,
+but that person's a criminal, a lawbreaker.</span>»</span> Well, what this campaign
+against file sharing has done is turn a remarkable percentage of the
+American Internet-using population into <span class="quote">«<span class="quote">lawbreakers.</span>»</span>
+</p></blockquote></div><p>
+And the consequence of this transformation of the American public
+into criminals is that it becomes trivial, as a matter of due process, to
+effectively erase much of the privacy most would presume.
+</p><p>
+Users of the Internet began to see this generally in 2003 as the RIAA
+launched its campaign to force Internet service providers to turn over
+the names of customers who the RIAA believed were violating copyright
+law. Verizon fought that demand and lost. With a simple request to a
+judge, and without any notice to the customer at all, the identity of
+an Internet user is revealed.
+</p><p>
+
+The RIAA then expanded this campaign, by announcing a general strategy
+to sue individual users of the Internet who are alleged to have
+downloaded copyrighted music from file-sharing systems. But as we've
+seen, the potential damages from these suits are astronomical: If a
+family's computer is used to download a single CD's worth of music,
+the family could be liable for $2 million in damages. That didn't stop
+the RIAA from suing a number of these families, just as they had sued
+Jesse Jordan.<a href="#ftn.idp9678224" class="footnote" name="idp9678224"><sup class="footnote">[176]</sup></a>
+
+</p><p>
+Even this understates the espionage that is being waged by the
+RIAA. A report from CNN late last summer described a strategy the
+RIAA had adopted to track Napster users.<a href="#ftn.idp9684368" class="footnote" name="idp9684368"><sup class="footnote">[177]</sup></a>
+Using a sophisticated hashing algorithm, the RIAA took what is in
+effect a fingerprint of every song in the Napster catalog. Any copy of
+one of those MP3s will have the same <span class="quote">«<span class="quote">fingerprint.</span>»</span>
+</p><p>
+So imagine the following not-implausible scenario: Imagine a
+friend gives a CD to your daughter—a collection of songs just
+like the cassettes you used to make as a kid. You don't know, and
+neither does your daughter, where these songs came from. But she
+copies these songs onto her computer. She then takes her computer to
+college and connects it to a college network, and if the college
+network is <span class="quote">«<span class="quote">cooperating</span>»</span> with the RIAA's espionage, and she hasn't
+properly protected her content from the network (do you know how to do
+that yourself ?), then the RIAA will be able to identify your daughter
+as a <span class="quote">«<span class="quote">criminal.</span>»</span> And under the rules that universities are beginning
+to deploy,<a href="#ftn.idp9688976" class="footnote" name="idp9688976"><sup class="footnote">[178]</sup></a>
+your daughter can lose the right to use the university's computer
+network. She can, in some cases, be expelled.
+</p><a class="indexterm" name="idp9697312"></a><a class="indexterm" name="idp9698624"></a><p>
+Now, of course, she'll have the right to defend herself. You can hire
+a lawyer for her (at $300 per hour, if you're lucky), and she can
+plead that she didn't know anything about the source of the songs or
+that they came from Napster. And it may well be that the university
+believes her. But the university might not believe her. It might treat
+this <span class="quote">«<span class="quote">contraband</span>»</span> as presumptive of guilt. And as any number of
+college students
+
+
+have already learned, our presumptions about innocence disappear in
+the middle of wars of prohibition. This war is no different.
+Says von Lohmann,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.
+</p></blockquote></div><p>
+When forty to sixty million Americans are considered <span class="quote">«<span class="quote">criminals</span>»</span> under
+the law, and when the law could achieve the same objective—
+securing rights to authors—without these millions being
+considered <span class="quote">«<span class="quote">criminals,</span>»</span> who is the villain? Americans or the law?
+Which is American, a constant war on our own people or a concerted
+effort through our democracy to change our law?
+</p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9373824" class="footnote"><p><a href="#idp9373824" class="para"><sup class="para">[157] </sup></a>
+
+See Lynne W. Jeter, <em class="citetitle">Disconnected: Deceit and Betrayal at WorldCom</em>
+(Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; for details of
+the settlement, see MCI press release, <span class="quote">«<span class="quote">MCI Wins U.S. District Court
+Approval for SEC Settlement</span>»</span> (7 July 2003), available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #37</a>.
+<a class="indexterm" name="idp9376560"></a>
+</p></div><div id="ftn.idp9377712" class="footnote"><p><a href="#idp9377712" class="para"><sup class="para">[158] </sup></a>
+ The bill, modeled after California's tort reform model, was passed in the
+House of Representatives but defeated in a Senate vote in July 2003. For
+an overview, see Tanya Albert, <span class="quote">«<span class="quote">Measure Stalls in Senate: `We'll Be Back,'
+Say Tort Reformers,</span>»</span> amednews.com, 28 July 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #38</a>,
+and <span class="quote">«<span class="quote">Senate Turns Back Malpractice Caps,</span>»</span> CBSNews.com, 9 July 2003,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #39</a>. President Bush has continued to urge tort reform in
+recent months.
+<a class="indexterm" name="idp9381280"></a>
+</p></div><div id="ftn.idp9385712" class="footnote"><p><a href="#idp9385712" class="para"><sup class="para">[159] </sup></a>
+
+
+See Danit Lidor, <span class="quote">«<span class="quote">Artists Just Wanna Be Free,</span>»</span> <em class="citetitle">Wired</em>, 7 July
+2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #40</a>. For an overview of the exhibition, see
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #41</a>.
+</p></div><div id="ftn.idp9468592" class="footnote"><p><a href="#idp9468592" class="para"><sup class="para">[160] </sup></a>
+
+See Joseph Menn, <span class="quote">«<span class="quote">Universal, EMI Sue Napster Investor,</span>»</span> <em class="citetitle">Los Angeles
+Times</em>, 23 April 2003. For a parallel argument about the effects on
+innovation in the distribution of music, see Janelle Brown, <span class="quote">«<span class="quote">The Music
+Revolution Will Not Be Digitized,</span>»</span> Salon.com, 1 June 2001, available
+at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #42</a>.
+See also Jon Healey, <span class="quote">«<span class="quote">Online Music Services Besieged,</span>»</span> <em class="citetitle">Los Angeles
+Times</em>, 28 May 2001.
+</p></div><div id="ftn.idp9401504" class="footnote"><p><a href="#idp9401504" class="para"><sup class="para">[161] </sup></a>
+
+Rafe Needleman, <span class="quote">«<span class="quote">Driving in Cars with MP3s,</span>»</span> <em class="citetitle">Business 2.0</em>, 16 June
+2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #43</a>. I am grateful
+to Dr. Mohammad Al-Ubaydli for this example.
+<a class="indexterm" name="idp9477376"></a>
+</p></div><div id="ftn.idp9494160" class="footnote"><p><a href="#idp9494160" class="para"><sup class="para">[162] </sup></a>
+ <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> GartnerG2 and
+the Berkman Center for Internet and Society at Harvard Law School
+(2003), 33–35, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
+</p></div><div id="ftn.idp9497104" class="footnote"><p><a href="#idp9497104" class="para"><sup class="para">[163] </sup></a>
+
+GartnerG2, 26–27.
+</p></div><div id="ftn.idp9500416" class="footnote"><p><a href="#idp9500416" class="para"><sup class="para">[164] </sup></a>
+
+See David McGuire, <span class="quote">«<span class="quote">Tech Execs Square Off Over Piracy,</span>»</span> Newsbytes,
+February 2002 (Entertainment).
+</p></div><div id="ftn.idp9509648" class="footnote"><p><a href="#idp9509648" class="para"><sup class="para">[165] </sup></a>
+
+Jessica Litman, <em class="citetitle">Digital Copyright</em> (Amherst,
+N.Y.: Prometheus Books, 2001).
+<a class="indexterm" name="idp9510864"></a>
+<a class="indexterm" name="idp9511696"></a>
+</p></div><div id="ftn.idp9518624" class="footnote"><p><a href="#idp9518624" class="para"><sup class="para">[166] </sup></a>
+
+<a class="indexterm" name="idp9519360"></a>
+The only circuit court exception is found in <em class="citetitle">Recording Industry
+Association of America (RIAA)</em> v. <em class="citetitle">Diamond Multimedia Systems</em>, 180 F. 3d
+1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
+reasoned that makers of a portable MP3 player were not liable for
+contributory copyright infringement for a device that is unable to
+record or redistribute music (a device whose only copying function is
+to render portable a music file already stored on a user's hard
+drive). At the district court level, the only exception is found in
+<em class="citetitle">Metro-Goldwyn-Mayer Studios, Inc</em>. v. <em class="citetitle">Grokster, Ltd</em>., 259 F. Supp. 2d
+1029 (C.D. Cal., 2003), where the court found the link between the
+distributor and any given user's conduct too attenuated to make the
+distributor liable for contributory or vicarious infringement
+liability.
+</p></div><div id="ftn.idp9522944" class="footnote"><p><a href="#idp9522944" class="para"><sup class="para">[167] </sup></a>
+
+<a class="indexterm" name="idp9523680"></a>
+<a class="indexterm" name="idp9524464"></a>
+<a class="indexterm" name="idp9525280"></a>
+<a class="indexterm" name="idp9526096"></a>
+For example, in July 2002, Representative Howard Berman introduced the
+Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
+copyright holders from liability for damage done to computers when the
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a <span class="quote">«<span class="quote">broadcast flag</span>»</span> that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, which mandated copyright protection
+technology in all digital media devices. See GartnerG2, <span class="quote">«<span class="quote">Copyright and
+Digital Media in a Post-Napster World,</span>»</span> 27 June 2003, 33–34,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
+</p></div><div id="ftn.idp9474832" class="footnote"><p><a href="#idp9474832" class="para"><sup class="para">[168] </sup></a>
+
+Lessing, 239.
+</p></div><div id="ftn.idp9543504" class="footnote"><p><a href="#idp9543504" class="para"><sup class="para">[169] </sup></a>
+
+Ibid., 229.
+</p></div><div id="ftn.idp9563392" class="footnote"><p><a href="#idp9563392" class="para"><sup class="para">[170] </sup></a>
+
+This example was derived from fees set by the original Copyright
+Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
+example offered by Professor William Fisher. Conference Proceedings,
+iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
+and Zittrain submitted testimony in the CARP proceeding that was
+ultimately rejected. See Jonathan Zittrain, Digital Performance Right
+in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
+DTRA 1 and 2, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #45</a>.
+For an excellent analysis making a similar point, see Randal
+C. Picker, <span class="quote">«<span class="quote">Copyright as Entry Policy: The Case of Digital
+Distribution,</span>»</span> <em class="citetitle">Antitrust Bulletin</em> (Summer/Fall 2002): 461: <span class="quote">«<span class="quote">This was
+not confusion, these are just old-fashioned entry barriers. Analog
+radio stations are protected from digital entrants, reducing entry in
+radio and diversity. Yes, this is done in the name of getting
+royalties to copyright holders, but, absent the play of powerful
+interests, that could have been done in a media-neutral way.</span>»</span>
+<a class="indexterm" name="idp9567104"></a>
+<a class="indexterm" name="idp9567888"></a>
+</p></div><div id="ftn.idp9626944" class="footnote"><p><a href="#idp9626944" class="para"><sup class="para">[171] </sup></a>
+ Mike Graziano and Lee Rainie, <span class="quote">«<span class="quote">The Music Downloading Deluge,</span>»</span> Pew
+Internet and American Life Project (24 April 2001), available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #46</a>.
+The Pew Internet and American Life Project reported that 37 million
+Americans had downloaded music files from the Internet by early 2001.
+</p></div><div id="ftn.idp9562496" class="footnote"><p><a href="#idp9562496" class="para"><sup class="para">[172] </sup></a>
+
+Alex Pham, <span class="quote">«<span class="quote">The Labels Strike Back: N.Y. Girl Settles RIAA Case,</span>»</span> <em class="citetitle">Los
+Angeles Times</em>, 10 September 2003, Business.
+</p></div><div id="ftn.idp9635152" class="footnote"><p><a href="#idp9635152" class="para"><sup class="para">[173] </sup></a>
+
+Jeffrey A. Miron and Jeffrey Zwiebel, <span class="quote">«<span class="quote">Alcohol Consumption During
+Prohibition,</span>»</span> <em class="citetitle">American Economic Review</em> 81, no. 2 (1991): 242.
+</p></div><div id="ftn.idp9637440" class="footnote"><p><a href="#idp9637440" class="para"><sup class="para">[174] </sup></a>
+
+National Drug Control Policy: Hearing Before the House Government
+Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
+John P. Walters, director of National Drug Control Policy).
+</p></div><div id="ftn.idp9638768" class="footnote"><p><a href="#idp9638768" class="para"><sup class="para">[175] </sup></a>
+
+See James Andreoni, Brian Erard, and Jonathon Feinstein, <span class="quote">«<span class="quote">Tax
+Compliance,</span>»</span> <em class="citetitle">Journal of Economic Literature</em> 36 (1998): 818 (survey of
+compliance literature).
+</p></div><div id="ftn.idp9678224" class="footnote"><p><a href="#idp9678224" class="para"><sup class="para">[176] </sup></a>
+
+See Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</span>»</span>
+<em class="citetitle">Washington Post</em>, 10 September 2003, E1; Chris Cobbs, <span class="quote">«<span class="quote">Worried Parents
+Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
+File Swapping, Parents are Yanking Software from Home PCs to Avoid
+Being Sued,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 30 August 2003, C1; Jefferson
+Graham, <span class="quote">«<span class="quote">Recording Industry Sues Parents,</span>»</span> <em class="citetitle">USA Today</em>, 15 September
+2003, 4D; John Schwartz, <span class="quote">«<span class="quote">She Says She's No Music Pirate. No Snoop
+Fan, Either,</span>»</span> <em class="citetitle">New York Times</em>, 25 September 2003, C1; Margo Varadi, <span class="quote">«<span class="quote">Is
+Brianna a Criminal?</span>»</span> <em class="citetitle">Toronto Star</em>, 18 September 2003, P7.
+</p></div><div id="ftn.idp9684368" class="footnote"><p><a href="#idp9684368" class="para"><sup class="para">[177] </sup></a>
+
+See <span class="quote">«<span class="quote">Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used,</span>»</span> CNN.com, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #47</a>.
+</p></div><div id="ftn.idp9688976" class="footnote"><p><a href="#idp9688976" class="para"><sup class="para">[178] </sup></a>
+
+See Jeff Adler, <span class="quote">«<span class="quote">Cambridge: On Campus, Pirates Are Not Penitent,</span>»</span>
+<em class="citetitle">Boston Globe</em>, 18 May 2003, City Weekly, 1; Frank Ahrens, <span class="quote">«<span class="quote">Four
+Students Sued over Music Sites; Industry Group Targets File Sharing at
+Colleges,</span>»</span> <em class="citetitle">Washington Post</em>, 4 April 2003, E1; Elizabeth Armstrong,
+<span class="quote">«<span class="quote">Students `Rip, Mix, Burn' at Their Own Risk,</span>»</span> <em class="citetitle">Christian Science
+Monitor</em>, 2 September 2003, 20; Robert Becker and Angela Rozas, <span class="quote">«<span class="quote">Music
+Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
+Lawsuit Possible,</span>»</span> <em class="citetitle">Chicago Tribune</em>, 16 July 2003, 1C; Beth Cox, <span class="quote">«<span class="quote">RIAA
+Trains Antipiracy Guns on Universities,</span>»</span> <em class="citetitle">Internet News</em>, 30 January
+2003, available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
+#48</a>; Benny Evangelista, <span class="quote">«<span class="quote">Download Warning 101: Freshman
+Orientation This Fall to Include Record Industry Warnings Against File
+Sharing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 11 August 2003, E11; <span class="quote">«<span class="quote">Raid, Letters
+Are Weapons at Universities,</span>»</span> <em class="citetitle">USA Today</em>, 26 September 2000, 3D.
+</p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-balances"></a>Part IV. BALANCES</h1></div></div></div><div class="partintro"><div></div><p>
+<span class="strong"><strong>So here's</strong></span> the picture: You're
+standing at the side of the road. Your car is on fire. You are angry
+and upset because in part you helped start the fire. Now you don't
+know how to put it out. Next to you is a bucket, filled with
+gasoline. Obviously, gasoline won't put the fire out.
+</p><p>
+As you ponder the mess, someone else comes along. In a panic, she
+grabs the bucket. Before you have a chance to tell her to
+stop—or before she understands just why she should
+stop—the bucket is in the air. The gasoline is about to hit the
+blazing car. And the fire that gasoline will ignite is about to ignite
+everything around.
+</p><p>
+<span class="strong"><strong>A war</strong></span> about copyright rages all
+around—and we're all focusing on the wrong thing. No doubt,
+current technologies threaten existing businesses. No doubt they may
+threaten artists. But technologies change. The industry and
+technologists have plenty of ways to use technology to protect
+themselves against the current threats of the Internet. This is a fire
+that if let alone would burn itself out.
+</p><p>
+
+Yet policy makers are not willing to leave this fire to itself. Primed
+with plenty of lobbyists' money, they are keen to intervene to
+eliminate the problem they perceive. But the problem they perceive is
+not the real threat this culture faces. For while we watch this small
+fire in the corner, there is a massive change in the way culture is
+made that is happening all around.
+</p><p>
+Somehow we have to find a way to turn attention to this more important
+and fundamental issue. Somehow we have to find a way to avoid pouring
+gasoline onto this fire.
+</p><p>
+We have not found that way yet. Instead, we seem trapped in a simpler,
+binary view. However much many people push to frame this debate more
+broadly, it is the simple, binary view that remains. We rubberneck to
+look at the fire when we should be keeping our eyes on the road.
+</p><p>
+This challenge has been my life these last few years. It has also been
+my failure. In the two chapters that follow, I describe one small
+brace of efforts, so far failed, to find a way to refocus this
+debate. We must understand these failures if we're to understand what
+success will require.
+</p></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred"></a>Chapter 13. CHAPTER THIRTEEN: Eldred</h2></div></div></div><a class="indexterm" name="idxeldrederic"></a><a class="indexterm" name="idxhawthornenathaniel"></a><p>
+<span class="strong"><strong>In 1995</strong></span>, a father was frustrated
+that his daughters didn't seem to like Hawthorne. No doubt there was
+more than one such father, but at least one did something about
+it. Eric Eldred, a retired computer programmer living in New
+Hampshire, decided to put Hawthorne on the Web. An electronic version,
+Eldred thought, with links to pictures and explanatory text, would
+make this nineteenth-century author's work come alive.
+</p><a class="indexterm" name="idxlibrariesofpublicdomainliterature"></a><a class="indexterm" name="idxpublicdomainlibraryofworksderivedfrom"></a><p>
+It didn't work—at least for his daughters. They didn't find
+Hawthorne any more interesting than before. But Eldred's experiment
+gave birth to a hobby, and his hobby begat a cause: Eldred would build
+a library of public domain works by scanning these works and making
+them available for free.
+</p><a class="indexterm" name="idxdisneywalt5"></a><a class="indexterm" name="idp9726256"></a><p>
+Eldred's library was not simply a copy of certain public domain
+works, though even a copy would have been of great value to people
+across the world who can't get access to printed versions of these
+works. Instead, Eldred was producing derivative works from these
+public domain works. Just as Disney turned Grimm into stories more
+
+accessible to the twentieth century, Eldred transformed Hawthorne, and
+many others, into a form more accessible—technically
+accessible—today.
+</p><a class="indexterm" name="idp9724400"></a><p>
+Eldred's freedom to do this with Hawthorne's work grew from the same
+source as Disney's. Hawthorne's <em class="citetitle">Scarlet Letter</em> had passed into the
+public domain in 1907. It was free for anyone to take without the
+permission of the Hawthorne estate or anyone else. Some, such as Dover
+Press and Penguin Classics, take works from the public domain and
+produce printed editions, which they sell in bookstores across the
+country. Others, such as Disney, take these stories and turn them into
+animated cartoons, sometimes successfully (<em class="citetitle">Cinderella</em>), sometimes not
+(<em class="citetitle">The Hunchback of Notre Dame</em>, <em class="citetitle">Treasure Planet</em>). These are all
+commercial publications of public domain works.
+</p><a class="indexterm" name="idp9731712"></a><a class="indexterm" name="idp9732960"></a><p>
+The Internet created the possibility of noncommercial publications of
+public domain works. Eldred's is just one example. There are literally
+thousands of others. Hundreds of thousands from across the world have
+discovered this platform of expression and now use it to share works
+that are, by law, free for the taking. This has produced what we might
+call the <span class="quote">«<span class="quote">noncommercial publishing industry,</span>»</span> which before the
+Internet was limited to people with large egos or with political or
+social causes. But with the Internet, it includes a wide range of
+individuals and groups dedicated to spreading culture
+generally.<a href="#ftn.idp9735520" class="footnote" name="idp9735520"><sup class="footnote">[179]</sup></a>
+</p><a class="indexterm" name="idxcongressuscopyrighttermsextendedby2"></a><a class="indexterm" name="idxcopyrightdurationof6"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin2"></a><a class="indexterm" name="idp9743824"></a><a class="indexterm" name="idp9744640"></a><a class="indexterm" name="idp9745456"></a><a class="indexterm" name="idxpatentsfuturepatentsvsfuturecopyrightsin"></a><p>
+As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
+collection of poems <em class="citetitle">New Hampshire</em> 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 <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>, 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.
+</p><a class="indexterm" name="idp9751504"></a><a class="indexterm" name="idp9752688"></a><a class="indexterm" name="idp9754080"></a><a class="indexterm" name="idp9754896"></a><a class="indexterm" name="idxcopyrightinperpetuity4"></a><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea2"></a><p>
+
+
+This was the Sonny Bono Copyright Term Extension Act
+(CTEA), enacted in memory of the congressman and former musician
+Sonny Bono, who, his widow, Mary Bono, says, believed that
+<span class="quote">«<span class="quote">copyrights should be forever.</span>»</span><a href="#ftn.idp9760256" class="footnote" name="idp9760256"><sup class="footnote">[180]</sup></a>
+</p><a class="indexterm" name="idp9763712"></a><a class="indexterm" name="idp9765088"></a><a class="indexterm" name="idp9766208"></a><a class="indexterm" name="idp9767040"></a><a class="indexterm" name="idp9767872"></a><p>
+Eldred decided to fight this law. He first resolved to fight it through
+civil disobedience. In a series of interviews, Eldred announced that he
+would publish as planned, CTEA notwithstanding. But because of a
+second law passed in 1998, the NET (No Electronic Theft) Act, his act
+of publishing would make Eldred a felon—whether or not anyone
+complained. This was a dangerous strategy for a disabled programmer
+to undertake.
+</p><a class="indexterm" name="idp9769248"></a><a class="indexterm" name="idxcongressusconstitutionalpowersof"></a><a class="indexterm" name="idxconstitutionusprogressclauseof2"></a><a class="indexterm" name="idxprogressclause2"></a><a class="indexterm" name="idxlessiglawrenceeldredcaseinvolvementof"></a><p>
+It was here that I became involved in Eldred's battle. I was a
+ constitutional
+scholar whose first passion was constitutional
+ interpretation.
+And though constitutional law courses never focus upon the
+Progress Clause of the Constitution, it had always struck me as
+ importantly
+different. As you know, the Constitution says,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+Congress has the power to promote the Progress of Science …
+by securing for limited Times to Authors … exclusive Right to
+their … Writings. …
+</p></blockquote></div><a class="indexterm" name="idp9780160"></a><p>
+As I've described, this clause is unique within the power-granting
+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 <span class="quote">«<span class="quote">commerce among the several
+states</span>»</span> or <span class="quote">«<span class="quote">declare War.</span>»</span> But here, the <span class="quote">«<span class="quote">something</span>»</span> is something quite
+specific—to <span class="quote">«<span class="quote">promote … Progress</span>»</span>—through means that
+are also specific— by <span class="quote">«<span class="quote">securing</span>»</span> <span class="quote">«<span class="quote">exclusive Rights</span>»</span> (i.e.,
+copyrights) <span class="quote">«<span class="quote">for limited Times.</span>»</span>
+</p><a class="indexterm" name="idp9785200"></a><a class="indexterm" name="idp9786480"></a><a class="indexterm" name="idp9787744"></a><a class="indexterm" name="idp9789184"></a><p>
+In the past forty years, Congress has gotten into the practice of
+extending existing terms of copyright protection. What puzzled me
+about this was, if Congress has the power to extend existing terms,
+then the Constitution's requirement that terms be <span class="quote">«<span class="quote">limited</span>»</span> will have
+
+no practical effect. If every time a copyright is about to expire,
+Congress has the power to extend its term, then Congress can achieve
+what the Constitution plainly forbids—perpetual terms <span class="quote">«<span class="quote">on the
+installment plan,</span>»</span> as Professor Peter Jaszi so nicely put it.
+</p><a class="indexterm" name="idp9792080"></a><a class="indexterm" name="idp9793440"></a><a class="indexterm" name="idp9794784"></a><p>
+As an academic, my first response was to hit the books. I remember
+sitting late at the office, scouring on-line databases for any serious
+consideration of the question. No one had ever challenged Congress's
+practice of extending existing terms. That failure may in part be why
+Congress seemed so untroubled in its habit. That, and the fact that
+the practice had become so lucrative for Congress. Congress knows that
+copyright owners will be willing to pay a great deal of money to see
+their copyright terms extended. And so Congress is quite happy to keep
+this gravy train going.
+</p><p>
+For this is the core of the corruption in our present system of
+government. <span class="quote">«<span class="quote">Corruption</span>»</span> not in the sense that representatives are
+bribed. Rather, <span class="quote">«<span class="quote">corruption</span>»</span> in the sense that the system induces the
+beneficiaries of Congress's acts to raise and give money to Congress
+to induce it to act. There's only so much time; there's only so much
+Congress can do. Why not limit its actions to those things it must
+do—and those things that pay? Extending copyright terms pays.
+</p><p>
+If that's not obvious to you, consider the following: Say you're one
+of the very few lucky copyright owners whose copyright continues to
+make money one hundred years after it was created. The Estate of
+Robert Frost is a good example. Frost died in 1963. His poetry
+continues to be extraordinarily valuable. Thus the Robert Frost estate
+benefits greatly from any extension of copyright, since no publisher
+would pay the estate any money if the poems Frost wrote could be
+published by anyone for free.
+</p><p>
+So imagine the Robert Frost estate is earning $100,000 a year from
+three of Frost's poems. And imagine the copyright for those poems
+is about to expire. You sit on the board of the Robert Frost estate.
+Your financial adviser comes to your board meeting with a very grim
+report:
+</p><p>
+<span class="quote">«<span class="quote">Next year,</span>»</span> the adviser announces, <span class="quote">«<span class="quote">our copyrights in works A, B,
+
+
+and C will expire. That means that after next year, we will no longer be
+receiving the annual royalty check of $100,000 from the publishers of
+those works.</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">There's a proposal in Congress, however,</span>»</span> she continues, <span class="quote">«<span class="quote">that
+could change this. A few congressmen are floating a bill to extend the
+terms of copyright by twenty years. That bill would be extraordinarily
+valuable to us. So we should hope this bill passes.</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">Hope?</span>»</span> a fellow board member says. <span class="quote">«<span class="quote">Can't we be doing something
+about it?</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">Well, obviously, yes,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">We could contribute
+to the campaigns of a number of representatives to try to assure that
+they support the bill.</span>»</span>
+</p><p>
+You hate politics. You hate contributing to campaigns. So you want
+to know whether this disgusting practice is worth it. <span class="quote">«<span class="quote">How much
+would we get if this extension were passed?</span>»</span> you ask the adviser. <span class="quote">«<span class="quote">How
+much is it worth?</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">Well,</span>»</span> the adviser says, <span class="quote">«<span class="quote">if you're confident that you will continue
+to get at least $100,000 a year from these copyrights, and you use the
+`discount rate' that we use to evaluate estate investments (6 percent),
+then this law would be worth $1,146,000 to the estate.</span>»</span>
+</p><p>
+You're a bit shocked by the number, but you quickly come to the
+correct conclusion:
+</p><p>
+<span class="quote">«<span class="quote">So you're saying it would be worth it for us to pay more than
+$1,000,000 in campaign contributions if we were confident those
+ contributions
+would assure that the bill was passed?</span>»</span>
+</p><p>
+<span class="quote">«<span class="quote">Absolutely,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">It is worth it to you to
+ contribute
+up to the `present value' of the income you expect from these
+copyrights. Which for us means over $1,000,000.</span>»</span>
+</p><p>
+You quickly get the point—you as the member of the board and, I
+trust, you the reader. Each time copyrights are about to expire, every
+beneficiary in the position of the Robert Frost estate faces the same
+choice: If they can contribute to get a law passed to extend copyrights,
+
+they will benefit greatly from that extension. And so each time
+ copyrights
+are about to expire, there is a massive amount of lobbying to get
+the copyright term extended.
+</p><p>
+Thus a congressional perpetual motion machine: So long as legislation
+can be bought (albeit indirectly), there will be all the incentive in
+the world to buy further extensions of copyright.
+</p><p>
+In the lobbying that led to the passage of the Sonny Bono
+ Copyright
+Term Extension Act, this <span class="quote">«<span class="quote">theory</span>»</span> about incentives was proved
+real. Ten of the thirteen original sponsors of the act in the House
+received the maximum contribution from Disney's political action
+committee; in the Senate, eight of the twelve sponsors received
+ contributions.<a href="#ftn.idp9814432" class="footnote" name="idp9814432"><sup class="footnote">[181]</sup></a>
+ The RIAA and the MPAA are estimated to have spent over
+$1.5 million lobbying in the 1998 election cycle. They paid out more
+than $200,000 in campaign contributions.<a href="#ftn.idp9816432" class="footnote" name="idp9816432"><sup class="footnote">[182]</sup></a>
+ Disney is estimated to have
+contributed more than $800,000 to reelection campaigns in the
+cycle.<a href="#ftn.idp9818544" class="footnote" name="idp9818544"><sup class="footnote">[183]</sup></a>
+
+</p><p>
+<span class="strong"><strong>Constitutional law</strong></span> is not oblivious
+to the obvious. Or at least, it need not be. So when I was considering
+Eldred's complaint, this reality about the never-ending incentives to
+increase the copyright term was central to my thinking. In my view, a
+pragmatic court committed to interpreting and applying the
+Constitution of our framers would see that if Congress has the power
+to extend existing terms, then there would be no effective
+constitutional requirement that terms be <span class="quote">«<span class="quote">limited.</span>»</span> If
+they could extend it once, they would extend it again and again and
+again.
+</p><a class="indexterm" name="idp9823680"></a><a class="indexterm" name="idp9825072"></a><a class="indexterm" name="idp9826336"></a><p>
+It was also my judgment that <span class="emphasis"><em>this</em></span> Supreme Court
+would not allow Congress to extend existing terms. As anyone close to
+the Supreme Court's work knows, this Court has increasingly restricted
+the power of Congress when it has viewed Congress's actions as
+exceeding the power granted to it by the Constitution. Among
+constitutional scholars, the most famous example of this trend was the
+Supreme Court's
+
+
+decision in 1995 to strike down a law that banned the possession of
+guns near schools.
+</p><p>
+Since 1937, the Supreme Court had interpreted Congress's granted
+powers very broadly; so, while the Constitution grants Congress the
+power to regulate only <span class="quote">«<span class="quote">commerce among the several states</span>»</span> (aka
+ <span class="quote">«<span class="quote">interstate
+commerce</span>»</span>), the Supreme Court had interpreted that power to
+include the power to regulate any activity that merely affected
+ interstate
+commerce.
+</p><p>
+As the economy grew, this standard increasingly meant that there was
+no limit to Congress's power to regulate, since just about every
+activity, when considered on a national scale, affects interstate
+commerce. A Constitution designed to limit Congress's power was
+instead interpreted to impose no limit.
+</p><a class="indexterm" name="idp9831616"></a><p>
+The Supreme Court, under Chief Justice Rehnquist's command, changed
+that in <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>. The government had
+argued that possessing guns near schools affected interstate
+commerce. Guns near schools increase crime, crime lowers property
+values, and so on. In the oral argument, the Chief Justice asked the
+government whether there was any activity that would not affect
+interstate commerce under the reasoning the government advanced. The
+government said there was not; if Congress says an activity affects
+interstate commerce, then that activity affects interstate
+commerce. The Supreme Court, the government said, was not in the
+position to second-guess Congress.
+</p><p>
+<span class="quote">«<span class="quote">We pause to consider the implications of the government's arguments,</span>»</span>
+the Chief Justice wrote.<a href="#ftn.idp9835136" class="footnote" name="idp9835136"><sup class="footnote">[184]</sup></a>
+If anything Congress says is interstate commerce must therefore be
+considered interstate commerce, then there would be no limit to
+Congress's power. The decision in <em class="citetitle">Lopez</em> was reaffirmed five years
+later in <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>.<a href="#ftn.idp9838384" class="footnote" name="idp9838384"><sup class="footnote">[185]</sup></a>
+</p><p>
+If a principle were at work here, then it should apply to the Progress
+Clause as much as the Commerce Clause.<a href="#ftn.idp9840624" class="footnote" name="idp9840624"><sup class="footnote">[186]</sup></a>
+And if it is applied to the Progress Clause, the principle should
+yield the conclusion that Congress
+
+can't extend an existing term. If Congress could extend an existing
+term, then there would be no <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power over
+terms, though the Constitution expressly states that there is such a
+limit. Thus, the same principle applied to the power to grant
+copyrights should entail that Congress is not allowed to extend the
+term of existing copyrights.
+</p><p>
+<span class="emphasis"><em>If</em></span>, that is, the principle announced in <em class="citetitle">Lopez</em>
+stood for a principle. Many believed the decision in <em class="citetitle">Lopez</em> stood for
+politics—a conservative Supreme Court, which believed in states'
+rights, using its power over Congress to advance its own personal
+political preferences. But I rejected that view of the Supreme Court's
+decision. Indeed, shortly after the decision, I wrote an article
+demonstrating the <span class="quote">«<span class="quote">fidelity</span>»</span> in such an interpretation of the
+Constitution. The idea that the Supreme Court decides cases based upon
+its politics struck me as extraordinarily boring. I was not going to
+devote my life to teaching constitutional law if these nine Justices
+were going to be petty politicians.
+</p><a class="indexterm" name="idp9846576"></a><a class="indexterm" name="idp9847664"></a><a class="indexterm" name="idp9848784"></a><a class="indexterm" name="idp9849888"></a><p>
+<span class="strong"><strong>Now let's pause</strong></span> for a moment to
+make sure we understand what the argument in
+<em class="citetitle">Eldred</em> was not about. By insisting on the
+Constitution's limits to copyright, obviously Eldred was not endorsing
+piracy. Indeed, in an obvious sense, he was fighting a kind of
+piracy—piracy of the public domain. When Robert Frost wrote his
+work and when Walt Disney created Mickey Mouse, the maximum copyright
+term was just fifty-six years. Because of interim changes, Frost and
+Disney had already enjoyed a seventy-five-year monopoly for their
+work. They had gotten the benefit of the bargain that the Constitution
+envisions: In exchange for a monopoly protected for fifty-six years,
+they created new work. But now these entities were using their
+power—expressed through the power of lobbyists' money—to
+get another twenty-year dollop of monopoly. That twenty-year dollop
+would be taken from the public domain. Eric Eldred was fighting a
+piracy that affects us all.
+</p><a class="indexterm" name="idp9852144"></a><p>
+Some people view the public domain with contempt. In their brief
+
+
+before the Supreme Court, the Nashville Songwriters Association
+wrote that the public domain is nothing more than <span class="quote">«<span class="quote">legal piracy.</span>»</span><a href="#ftn.idp9855040" class="footnote" name="idp9855040"><sup class="footnote">[187]</sup></a>
+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.
+</p><p>
+As we've seen, our constitutional system requires limits on
+ copyright
+as a way to assure that copyright holders do not too heavily
+ influence
+the development and distribution of our culture. Yet, as Eric
+Eldred discovered, we have set up a system that assures that copyright
+terms will be repeatedly extended, and extended, and extended. We
+have created the perfect storm for the public domain. Copyrights have
+not expired, and will not expire, so long as Congress is free to be
+bought to extend them again.
+</p><p>
+<span class="strong"><strong>It is valuable</strong></span> copyrights that are
+responsible for terms being extended. Mickey Mouse and
+<span class="quote">«<span class="quote">Rhapsody in Blue.</span>»</span> These works are too valuable for
+copyright owners to ignore. But the real harm to our society from
+copyright extensions is not that Mickey Mouse remains Disney's.
+Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
+the 1920s and 1930s that have continuing commercial value. The real
+harm of term extension comes not from these famous works. The real
+harm is to the works that are not famous, not commercially exploited,
+and no longer available as a result.
+</p><p>
+If you look at the work created in the first twenty years (1923 to
+1942) affected by the Sonny Bono Copyright Term Extension Act,
+2 percent of that work has any continuing commercial value. It was the
+copyright holders for that 2 percent who pushed the CTEA through.
+But the law and its effect were not limited to that 2 percent. The law
+extended the terms of copyright generally.<a href="#ftn.idp9861584" class="footnote" name="idp9861584"><sup class="footnote">[188]</sup></a>
+
+</p><p>
+Think practically about the consequence of this
+ extension—practically,
+as a businessperson, and not as a lawyer eager for more legal
+
+
+work. In 1930, 10,047 books were published. In 2000, 174 of those
+books were still in print. Let's say you were Brewster Kahle, and you
+wanted to make available to the world in your iArchive project the
+ remaining
+9,873. What would you have to do?
+</p><a class="indexterm" name="idp9865552"></a><p>
+Well, first, you'd have to determine which of the 9,873 books were
+still under copyright. That requires going to a library (these data are
+not on-line) and paging through tomes of books, cross-checking the
+titles and authors of the 9,873 books with the copyright registration
+and renewal records for works published in 1930. That will produce a
+list of books still under copyright.
+</p><p>
+Then for the books still under copyright, you would need to locate
+the current copyright owners. How would you do that?
+</p><p>
+Most people think that there must be a list of these copyright
+ owners
+somewhere. Practical people think this way. How could there be
+thousands and thousands of government monopolies without there
+being at least a list?
+</p><p>
+But there is no list. There may be a name from 1930, and then in
+1959, of the person who registered the copyright. But just think
+ practically
+about how impossibly difficult it would be to track down
+ thousands
+of such records—especially since the person who registered is
+not necessarily the current owner. And we're just talking about 1930!
+</p><p>
+<span class="quote">«<span class="quote">But there isn't a list of who owns property generally,</span>»</span> the
+apologists for the system respond. <span class="quote">«<span class="quote">Why should there be a list of
+copyright owners?</span>»</span>
+</p><p>
+Well, actually, if you think about it, there <span class="emphasis"><em>are</em></span>
+plenty of lists of who owns what property. Think about deeds on
+houses, or titles to cars. And where there isn't a list, the code of
+real space is pretty good at suggesting who the owner of a bit of
+property is. (A swing set in your backyard is probably yours.) So
+formally or informally, we have a pretty good way to know who owns
+what tangible property.
+</p><p>
+So: You walk down a street and see a house. You can know who
+owns the house by looking it up in the courthouse registry. If you see
+a car, there is ordinarily a license plate that will link the owner to the
+
+
+car. If you see a bunch of children's toys sitting on the front lawn of a
+house, it's fairly easy to determine who owns the toys. And if you
+ happen
+to see a baseball lying in a gutter on the side of the road, look
+around for a second for some kids playing ball. If you don't see any
+kids, then okay: Here's a bit of property whose owner we can't easily
+determine. It is the exception that proves the rule: that we ordinarily
+know quite well who owns what property.
+</p><p>
+Compare this story to intangible property. You go into a library.
+The library owns the books. But who owns the copyrights? As I've
+ already
+described, there's no list of copyright owners. There are authors'
+names, of course, but their copyrights could have been assigned, or
+passed down in an estate like Grandma's old jewelry. To know who
+owns what, you would have to hire a private detective. The bottom
+line: The owner cannot easily be located. And in a regime like ours, in
+which it is a felony to use such property without the property owner's
+permission, the property isn't going to be used.
+</p><p>
+The consequence with respect to old books is that they won't be
+digitized, and hence will simply rot away on shelves. But the
+ consequence
+for other creative works is much more dire.
+</p><a class="indexterm" name="idxageemichael"></a><a class="indexterm" name="idp9876160"></a><a class="indexterm" name="idp9876976"></a><a class="indexterm" name="idp9877792"></a><p>
+Consider the story of Michael Agee, chairman of Hal Roach Studios,
+which owns the copyrights for the Laurel and Hardy films. Agee is a
+direct beneficiary of the Bono Act. The Laurel and Hardy films were
+made between 1921 and 1951. Only one of these films, <em class="citetitle">The Lucky Dog</em>, is
+currently out of copyright. But for the CTEA, films made after 1923
+would have begun entering the public domain. Because Agee controls the
+exclusive rights for these popular films, he makes a great deal of
+money. According to one estimate, <span class="quote">«<span class="quote">Roach has sold about 60,000
+videocassettes and 50,000 DVDs of the duo's silent
+films.</span>»</span><a href="#ftn.idp9880160" class="footnote" name="idp9880160"><sup class="footnote">[189]</sup></a>
+</p><p>
+Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
+this culture: selflessness. He argued in a brief before the Supreme
+Court that the Sonny Bono Copyright Term Extension Act will, if left
+standing, destroy a whole generation of American film.
+</p><p>
+His argument is straightforward. A tiny fraction of this work has
+
+
+any continuing commercial value. The rest—to the extent it
+survives at all—sits in vaults gathering dust. It may be that
+some of this work not now commercially valuable will be deemed to be
+valuable by the owners of the vaults. For this to occur, however, the
+commercial benefit from the work must exceed the costs of making the
+work available for distribution.
+</p><p>
+We can't know the benefits, but we do know a lot about the costs.
+For most of the history of film, the costs of restoring film were very
+high; digital technology has lowered these costs substantially. While
+it cost more than $10,000 to restore a ninety-minute black-and-white
+film in 1993, it can now cost as little as $100 to digitize one hour of
+8 mm film.<a href="#ftn.idp9885472" class="footnote" name="idp9885472"><sup class="footnote">[190]</sup></a>
+
+</p><p>
+Restoration technology is not the only cost, nor the most
+ important.
+Lawyers, too, are a cost, and increasingly, a very important one. In
+addition to preserving the film, a distributor needs to secure the rights.
+And to secure the rights for a film that is under copyright, you need to
+locate the copyright owner.
+</p><p>
+Or more accurately, <span class="emphasis"><em>owners</em></span>. As we've seen, there
+isn't only a single copyright associated with a film; there are
+many. There isn't a single person whom you can contact about those
+copyrights; there are as many as can hold the rights, which turns out
+to be an extremely large number. Thus the costs of clearing the rights
+to these films is exceptionally high.
+</p><p>
+<span class="quote">«<span class="quote">But can't you just restore the film, distribute it, and then pay the
+copyright owner when she shows up?</span>»</span> Sure, if you want to commit a
+felony. And even if you're not worried about committing a felony, when
+she does show up, she'll have the right to sue you for all the profits you
+have made. So, if you're successful, you can be fairly confident you'll be
+getting a call from someone's lawyer. And if you're not successful, you
+won't make enough to cover the costs of your own lawyer. Either way,
+you have to talk to a lawyer. And as is too often the case, saying you have
+to talk to a lawyer is the same as saying you won't make any money.
+</p><p>
+For some films, the benefit of releasing the film may well exceed
+
+
+these costs. But for the vast majority of them, there is no way the
+ benefit
+would outweigh the legal costs. Thus, for the vast majority of old
+films, Agee argued, the film will not be restored and distributed until
+the copyright expires.
+</p><a class="indexterm" name="idp9893504"></a><p>
+But by the time the copyright for these films expires, the film will
+have expired. These films were produced on nitrate-based stock, and
+nitrate stock dissolves over time. They will be gone, and the metal
+ canisters
+in which they are now stored will be filled with nothing more
+than dust.
+</p><p>
+<span class="strong"><strong>Of all the</strong></span> creative work produced
+by humans anywhere, a tiny fraction has continuing commercial
+value. For that tiny fraction, the copyright is a crucially important
+legal device. For that tiny fraction, the copyright creates incentives
+to produce and distribute the creative work. For that tiny fraction,
+the copyright acts as an <span class="quote">«<span class="quote">engine of free expression.</span>»</span>
+</p><p>
+But even for that tiny fraction, the actual time during which the
+creative work has a commercial life is extremely short. As I've
+ indicated,
+most books go out of print within one year. The same is true of
+music and film. Commercial culture is sharklike. It must keep moving.
+And when a creative work falls out of favor with the commercial
+ distributors,
+the commercial life ends.
+</p><p>
+Yet that doesn't mean the life of the creative work ends. We don't
+keep libraries of books in order to compete with Barnes & Noble, and
+we don't have archives of films because we expect people to choose
+ between
+spending Friday night watching new movies and spending
+ Friday
+night watching a 1930 news documentary. The noncommercial life
+of culture is important and valuable—for entertainment but also, and
+more importantly, for knowledge. To understand who we are, and
+where we came from, and how we have made the mistakes that we
+have, we need to have access to this history.
+</p><p>
+Copyrights in this context do not drive an engine of free expression.
+
+
+In this context, there is no need for an exclusive right. Copyrights in
+this context do no good.
+</p><p>
+Yet, for most of our history, they also did little harm. For most of
+our history, when a work ended its commercial life, there was no
+<span class="emphasis"><em>copyright-related use</em></span> that would be inhibited by
+an exclusive right. When a book went out of print, you could not buy
+it from a publisher. But you could still buy it from a used book
+store, and when a used book store sells it, in America, at least,
+there is no need to pay the copyright owner anything. Thus, the
+ordinary use of a book after its commercial life ended was a use that
+was independent of copyright law.
+</p><p>
+The same was effectively true of film. Because the costs of restoring
+a film—the real economic costs, not the lawyer costs—were
+so high, it was never at all feasible to preserve or restore
+film. Like the remains of a great dinner, when it's over, it's
+over. Once a film passed out of its commercial life, it may have been
+archived for a bit, but that was the end of its life so long as the
+market didn't have more to offer.
+</p><p>
+In other words, though copyright has been relatively short for most
+of our history, long copyrights wouldn't have mattered for the works
+that lost their commercial value. Long copyrights for these works
+would not have interfered with anything.
+</p><p>
+But this situation has now changed.
+</p><a class="indexterm" name="idxarchivesdigital2"></a><p>
+One crucially important consequence of the emergence of digital
+technologies is to enable the archive that Brewster Kahle dreams of.
+Digital technologies now make it possible to preserve and give access
+to all sorts of knowledge. Once a book goes out of print, we can now
+imagine digitizing it and making it available to everyone,
+forever. Once a film goes out of distribution, we could digitize it
+and make it available to everyone, forever. Digital technologies give
+new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to
+this knowledge and culture, whereas before it was not.
+</p><p>
+
+And now copyright law does get in the way. Every step of producing
+this digital archive of our culture infringes on the exclusive right
+of copyright. To digitize a book is to copy it. To do that requires
+permission of the copyright owner. The same with music, film, or any
+other aspect of our culture protected by copyright. The effort to make
+these things available to history, or to researchers, or to those who
+just want to explore, is now inhibited by a set of rules that were
+written for a radically different context.
+</p><p>
+Here is the core of the harm that comes from extending terms: Now that
+technology enables us to rebuild the library of Alexandria, the law
+gets in the way. And it doesn't get in the way for any useful
+<span class="emphasis"><em>copyright</em></span> purpose, for the purpose of copyright
+is to enable the commercial market that spreads culture. No, we are
+talking about culture after it has lived its commercial life. In this
+context, copyright is serving no purpose <span class="emphasis"><em>at all</em></span>
+related to the spread of knowledge. In this context, copyright is not
+an engine of free expression. Copyright is a brake.
+</p><p>
+You may well ask, <span class="quote">«<span class="quote">But if digital technologies lower the costs for
+Brewster Kahle, then they will lower the costs for Random House, too.
+So won't Random House do as well as Brewster Kahle in spreading
+culture widely?</span>»</span>
+</p><p>
+Maybe. Someday. But there is absolutely no evidence to suggest that
+publishers would be as complete as libraries. If Barnes & Noble
+offered to lend books from its stores for a low price, would that
+eliminate the need for libraries? Only if you think that the only role
+of a library is to serve what <span class="quote">«<span class="quote">the market</span>»</span> would demand. But if you
+think the role of a library is bigger than this—if you think its
+role is to archive culture, whether there's a demand for any
+particular bit of that culture or not—then we can't count on the
+commercial market to do our library work for us.
+</p><a class="indexterm" name="idp9911968"></a><p>
+I would be the first to agree that it should do as much as it can: We
+should rely upon the market as much as possible to spread and enable
+culture. My message is absolutely not antimarket. But where we see the
+market is not doing the job, then we should allow nonmarket forces the
+
+
+freedom to fill the gaps. As one researcher calculated for American
+culture, 94 percent of the films, books, and music produced between
+1923 and 1946 is not commercially available. However much you love the
+commercial market, if access is a value, then 6 percent is a failure
+to provide that value.<a href="#ftn.idp9914448" class="footnote" name="idp9914448"><sup class="footnote">[191]</sup></a>
+
+</p><p>
+<span class="strong"><strong>In January 1999</strong></span>, we filed a lawsuit
+on Eric Eldred's behalf in federal district court in Washington, D.C.,
+asking the court to declare the Sonny Bono Copyright Term Extension
+Act unconstitutional. The two central claims that we made were (1)
+that extending existing terms violated the Constitution's
+<span class="quote">«<span class="quote">limited Times</span>»</span> requirement, and (2) that extending terms
+by another twenty years violated the First Amendment.
+</p><p>
+The district court dismissed our claims without even hearing an
+argument. A panel of the Court of Appeals for the D.C. Circuit also
+dismissed our claims, though after hearing an extensive argument. But
+that decision at least had a dissent, by one of the most conservative
+judges on that court. That dissent gave our claims life.
+</p><p>
+Judge David Sentelle said the CTEA violated the requirement that
+copyrights be for <span class="quote">«<span class="quote">limited Times</span>»</span> only. His argument was as elegant as
+it was simple: If Congress can extend existing terms, then there is no
+<span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power under the Copyright Clause. The
+power to extend existing terms means Congress is not required to grant
+terms that are <span class="quote">«<span class="quote">limited.</span>»</span> Thus, Judge Sentelle argued, the court had
+to interpret the term <span class="quote">«<span class="quote">limited Times</span>»</span> to give it meaning. And the best
+interpretation, Judge Sentelle argued, would be to deny Congress the
+power to extend existing terms.
+</p><p>
+We asked the Court of Appeals for the D.C. Circuit as a whole to
+hear the case. Cases are ordinarily heard in panels of three, except for
+important cases or cases that raise issues specific to the circuit as a
+whole, where the court will sit <span class="quote">«<span class="quote">en banc</span>»</span> to hear the case.
+</p><a class="indexterm" name="idp9922896"></a><p>
+The Court of Appeals rejected our request to hear the case en banc.
+This time, Judge Sentelle was joined by the most liberal member of the
+
+
+D.C. Circuit, Judge David Tatel. Both the most conservative and the
+most liberal judges in the D.C. Circuit believed Congress had
+overstepped its bounds.
+</p><p>
+It was here that most expected Eldred v. Ashcroft would die, for the
+Supreme Court rarely reviews any decision by a court of appeals. (It
+hears about one hundred cases a year, out of more than five thousand
+appeals.) And it practically never reviews a decision that upholds a
+statute when no other court has yet reviewed the statute.
+</p><p>
+But in February 2002, the Supreme Court surprised the world by
+granting our petition to review the D.C. Circuit opinion. Argument
+was set for October of 2002. The summer would be spent writing
+briefs and preparing for argument.
+</p><p>
+<span class="strong"><strong>It is over</strong></span> a year later as I write
+these words. It is still astonishingly hard. If you know anything at
+all about this story, you know that we lost the appeal. And if you
+know something more than just the minimum, you probably think there
+was no way this case could have been won. After our defeat, I received
+literally thousands of missives by well-wishers and supporters,
+thanking me for my work on behalf of this noble but doomed cause. And
+none from this pile was more significant to me than the e-mail from my
+client, Eric Eldred.
+</p><p>
+But my client and these friends were wrong. This case could have
+been won. It should have been won. And no matter how hard I try to
+retell this story to myself, I can never escape believing that my own
+mistake lost it.
+</p><a class="indexterm" name="idp9928848"></a><p>
+<span class="strong"><strong>The mistake</strong></span> was made early, though
+it became obvious only at the very end. Our case had been supported
+from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
+and by the law firm he had moved to, Jones, Day, Reavis and
+Pogue. Jones Day took a great deal of heat
+
+from its copyright-protectionist clients for supporting us. They
+ignored this pressure (something that few law firms today would ever
+do), and throughout the case, they gave it everything they could.
+</p><a class="indexterm" name="idp9931568"></a><a class="indexterm" name="idp9932352"></a><a class="indexterm" name="idp9933168"></a><p>
+There were three key lawyers on the case from Jones Day. Geoff
+Stewart was the first, but then Dan Bromberg and Don Ayer became
+quite involved. Bromberg and Ayer in particular had a common view
+about how this case would be won: We would only win, they repeatedly
+told me, if we could make the issue seem <span class="quote">«<span class="quote">important</span>»</span> to the Supreme
+Court. It had to seem as if dramatic harm were being done to free
+speech and free culture; otherwise, they would never vote against <span class="quote">«<span class="quote">the
+most powerful media companies in the world.</span>»</span>
+</p><p>
+I hate this view of the law. Of course I thought the Sonny Bono Act
+was a dramatic harm to free speech and free culture. Of course I still
+think it is. But the idea that the Supreme Court decides the law based
+on how important they believe the issues are is just wrong. It might be
+<span class="quote">«<span class="quote">right</span>»</span> as in <span class="quote">«<span class="quote">true,</span>»</span> I thought, but it is <span class="quote">«<span class="quote">wrong</span>»</span> as in <span class="quote">«<span class="quote">it just shouldn't be
+that way.</span>»</span> As I believed that any faithful interpretation of what the
+framers of our Constitution did would yield the conclusion that the
+CTEA was unconstitutional, and as I believed that any faithful
+ interpretation
+of what the First Amendment means would yield the
+conclusion that the power to extend existing copyright terms is
+ unconstitutional,
+I was not persuaded that we had to sell our case like soap.
+Just as a law that bans the swastika is unconstitutional not because the
+Court likes Nazis but because such a law would violate the
+ Constitution,
+so too, in my view, would the Court decide whether Congress's
+law was constitutional based on the Constitution, not based on whether
+they liked the values that the framers put in the Constitution.
+</p><p>
+In any case, I thought, the Court must already see the danger and
+the harm caused by this sort of law. Why else would they grant review?
+There was no reason to hear the case in the Supreme Court if they
+weren't convinced that this regulation was harmful. So in my view, we
+didn't need to persuade them that this law was bad, we needed to show
+why it was unconstitutional.
+</p><p>
+There was one way, however, in which I felt politics would matter
+
+
+and in which I thought a response was appropriate. I was convinced
+that the Court would not hear our arguments if it thought these were
+just the arguments of a group of lefty loons. This Supreme Court was
+not about to launch into a new field of judicial review if it seemed
+that this field of review was simply the preference of a small
+political minority. Although my focus in the case was not to
+demonstrate how bad the Sonny Bono Act was but to demonstrate that it
+was unconstitutional, my hope was to make this argument against a
+background of briefs that covered the full range of political
+views. To show that this claim against the CTEA was grounded in
+<span class="emphasis"><em>law</em></span> and not politics, then, we tried to gather
+the widest range of credible critics—credible not because they
+were rich and famous, but because they, in the aggregate, demonstrated
+that this law was unconstitutional regardless of one's politics.
+</p><a class="indexterm" name="idp9942576"></a><a class="indexterm" name="idp9943360"></a><p>
+The first step happened all by itself. Phyllis Schlafly's
+organization, Eagle Forum, had been an opponent of the CTEA from the
+very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
+Congress. In November 1998, she wrote a stinging editorial attacking
+the Republican Congress for allowing the law to pass. As she wrote,
+<span class="quote">«<span class="quote">Do you sometimes wonder why bills that create a financial windfall to
+narrow special interests slide easily through the intricate
+legislative process, while bills that benefit the general public seem
+to get bogged down?</span>»</span> The answer, as the editorial documented, was the
+power of money. Schlafly enumerated Disney's contributions to the key
+players on the committees. It was money, not justice, that gave Mickey
+Mouse twenty more years in Disney's control, Schlafly argued.
+</p><p>
+In the Court of Appeals, Eagle Forum was eager to file a brief
+supporting our position. Their brief made the argument that became the
+core claim in the Supreme Court: If Congress can extend the term of
+existing copyrights, there is no limit to Congress's power to set
+terms. That strong conservative argument persuaded a strong
+conservative judge, Judge Sentelle.
+</p><a class="indexterm" name="idp9946576"></a><a class="indexterm" name="idp9947408"></a><a class="indexterm" name="idp9948224"></a><a class="indexterm" name="idp9949040"></a><p>
+In the Supreme Court, the briefs on our side were about as diverse as
+it gets. They included an extraordinary historical brief by the Free
+
+
+Software Foundation (home of the GNU project that made GNU/Linux
+possible). They included a powerful brief about the costs of
+uncertainty by Intel. There were two law professors' briefs, one by
+copyright scholars and one by First Amendment scholars. There was an
+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.
+</p><a class="indexterm" name="idp9951200"></a><a class="indexterm" name="idp9952000"></a><p>
+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.
+</p><a class="indexterm" name="idp9953472"></a><p>
+But two briefs captured the policy argument best. One made the
+argument I've already described: A brief by Hal Roach Studios argued
+that unless the law was struck, a whole generation of American film
+would disappear. The other made the economic argument absolutely
+clear.
+</p><a class="indexterm" name="idp9954960"></a><a class="indexterm" name="idp9955776"></a><a class="indexterm" name="idp9956592"></a><a class="indexterm" name="idp9957408"></a><a class="indexterm" name="idp9958224"></a><p>
+This economists' brief was signed by seventeen economists, including
+five Nobel Prize winners, including Ronald Coase, James Buchanan,
+Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
+the list of Nobel winners demonstrates, spanned the political
+spectrum. Their conclusions were powerful: There was no plausible
+claim that extending the terms of existing copyrights would do
+anything to increase incentives to create. Such extensions were
+nothing more than <span class="quote">«<span class="quote">rent-seeking</span>»</span>—the fancy term economists use
+to describe special-interest legislation gone wild.
+</p><a class="indexterm" name="idp9960848"></a><a class="indexterm" name="idp9961632"></a><a class="indexterm" name="idp9962448"></a><a class="indexterm" name="idp9963264"></a><p>
+The same effort at balance was reflected in the legal team we gathered
+to write our briefs in the case. The Jones Day lawyers had been with
+us from the start. But when the case got to the Supreme Court, we
+added three lawyers to help us frame this argument to this Court: Alan
+Morrison, a lawyer from Public Citizen, a Washington group that had
+made constitutional history with a series of seminal victories in the
+Supreme Court defending individual rights; my colleague and dean,
+Kathleen Sullivan, who had argued many cases in the Court, and
+
+
+who had advised us early on about a First Amendment strategy; and
+finally, former solicitor general Charles Fried.
+</p><a class="indexterm" name="idp9965472"></a><a class="indexterm" name="idp9966256"></a><a class="indexterm" name="idp9967376"></a><p>
+Fried was a special victory for our side. Every other former solicitor
+general was hired by the other side to defend Congress's power to give
+media companies the special favor of extended copyright terms. Fried
+was the only one who turned down that lucrative assignment to stand up
+for something he believed in. He had been Ronald Reagan's chief lawyer
+in the Supreme Court. He had helped craft the line of cases that
+limited Congress's power in the context of the Commerce Clause. And
+while he had argued many positions in the Supreme Court that I
+personally disagreed with, his joining the cause was a vote of
+confidence in our argument.
+</p><p>
+The government, in defending the statute, had its collection of
+friends, as well. Significantly, however, none of these <span class="quote">«<span class="quote">friends</span>»</span> included
+historians or economists. The briefs on the other side of the case were
+written exclusively by major media companies, congressmen, and
+copyright holders.
+</p><p>
+The media companies were not surprising. They had the most to gain
+from the law. The congressmen were not surprising either—they
+were defending their power and, indirectly, the gravy train of
+contributions such power induced. And of course it was not surprising
+that the copyright holders would defend the idea that they should
+continue to have the right to control who did what with content they
+wanted to control.
+</p><a class="indexterm" name="idp9970896"></a><a class="indexterm" name="idp9972288"></a><a class="indexterm" name="idp9973104"></a><p>
+Dr. Seuss's representatives, for example, argued that it was
+better for the Dr. Seuss estate to control what happened to
+Dr. Seuss's work— better than allowing it to fall into the
+public domain—because if this creativity were in the public
+domain, then people could use it to <span class="quote">«<span class="quote">glorify drugs or to create
+pornography.</span>»</span><a href="#ftn.idp9974848" class="footnote" name="idp9974848"><sup class="footnote">[192]</sup></a>
+That was also the motive of the Gershwin estate, which defended its
+<span class="quote">«<span class="quote">protection</span>»</span> of the work of George Gershwin. They refuse, for example,
+to license <em class="citetitle">Porgy and Bess</em> to anyone who refuses to use African
+Americans in the cast.<a href="#ftn.idp9977664" class="footnote" name="idp9977664"><sup class="footnote">[193]</sup></a>
+That's
+
+their view of how this part of American culture should be controlled,
+and they wanted this law to help them effect that control.
+</p><p>
+This argument made clear a theme that is rarely noticed in this
+debate. When Congress decides to extend the term of existing
+copyrights, Congress is making a choice about which speakers it will
+favor. Famous and beloved copyright owners, such as the Gershwin
+estate and Dr. Seuss, come to Congress and say, <span class="quote">«<span class="quote">Give us twenty years
+to control the speech about these icons of American culture. We'll do
+better with them than anyone else.</span>»</span> Congress of course likes to reward
+the popular and famous by giving them what they want. But when
+Congress gives people an exclusive right to speak in a certain way,
+that's just what the First Amendment is traditionally meant to block.
+</p><p>
+We argued as much in a final brief. Not only would upholding the CTEA
+mean that there was no limit to the power of Congress to extend
+copyrights—extensions that would further concentrate the market;
+it would also mean that there was no limit to Congress's power to play
+favorites, through copyright, with who has the right to speak.
+</p><p>
+<span class="strong"><strong>Between February</strong></span> and October, there
+was little I did beyond preparing for this case. Early on, as I said,
+I set the strategy.
+</p><a class="indexterm" name="idp9983456"></a><a class="indexterm" name="idp9984272"></a><p>
+The Supreme Court was divided into two important camps. One camp we
+called <span class="quote">«<span class="quote">the Conservatives.</span>»</span> The other we called <span class="quote">«<span class="quote">the Rest.</span>»</span> The
+Conservatives included Chief Justice Rehnquist, Justice O'Connor,
+Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
+been the most consistent in limiting Congress's power. They were the
+five who had supported the <em class="citetitle">Lopez/Morrison</em> line
+of cases that said that an enumerated power had to be interpreted to
+assure that Congress's powers had limits.
+</p><a class="indexterm" name="idp9987232"></a><a class="indexterm" name="idxginsburg"></a><p>
+The Rest were the four Justices who had strongly opposed limits on
+Congress's power. These four—Justice Stevens, Justice Souter,
+Justice Ginsburg, and Justice Breyer—had repeatedly argued that
+the Constitution
+
+gives Congress broad discretion to decide how best to implement its
+powers. In case after case, these justices had argued that the Court's
+role should be one of deference. Though the votes of these four
+justices were the votes that I personally had most consistently agreed
+with, they were also the votes that we were least likely to get.
+</p><p>
+In particular, the least likely was Justice Ginsburg's. In addition to
+her general view about deference to Congress (except where issues of
+gender are involved), she had been particularly deferential in the
+context of intellectual property protections. She and her daughter (an
+excellent and well-known intellectual property scholar) were cut from
+the same intellectual property cloth. We expected she would agree with
+the writings of her daughter: that Congress had the power in this
+context to do as it wished, even if what Congress wished made little
+sense.
+</p><a class="indexterm" name="idp9991856"></a><p>
+Close behind Justice Ginsburg were two justices whom we also viewed as
+unlikely allies, though possible surprises. Justice Souter strongly
+favored deference to Congress, as did Justice Breyer. But both were
+also very sensitive to free speech concerns. And as we strongly
+believed, there was a very important free speech argument against
+these retrospective extensions.
+</p><a class="indexterm" name="idp9993296"></a><p>
+The only vote we could be confident about was that of Justice
+Stevens. History will record Justice Stevens as one of the greatest
+judges on this Court. His votes are consistently eclectic, which just
+means that no simple ideology explains where he will stand. But he
+had consistently argued for limits in the context of intellectual property
+generally. We were fairly confident he would recognize limits here.
+</p><p>
+This analysis of <span class="quote">«<span class="quote">the Rest</span>»</span> showed most clearly where our focus had to
+be: on the Conservatives. To win this case, we had to crack open these
+five and get at least a majority to go our way. Thus, the single
+overriding argument that animated our claim rested on the
+Conservatives' most important jurisprudential innovation—the
+argument that Judge Sentelle had relied upon in the Court of Appeals,
+that Congress's power must be interpreted so that its enumerated
+powers have limits.
+</p><p>
+This then was the core of our strategy—a strategy for which I am
+responsible. We would get the Court to see that just as with the
+<em class="citetitle">Lopez</em>
+
+case, under the government's argument here, Congress would always have
+unlimited power to extend existing terms. If anything was plain about
+Congress's power under the Progress Clause, it was that this power was
+supposed to be <span class="quote">«<span class="quote">limited.</span>»</span> Our aim would be to get the Court to
+reconcile <em class="citetitle">Eldred</em> with
+<em class="citetitle">Lopez</em>: If Congress's power to regulate commerce
+was limited, then so, too, must Congress's power to regulate copyright
+be limited.
+</p><p>
+<span class="strong"><strong>The argument</strong></span> on the government's
+side came down to this: Congress has done it before. It should be
+allowed to do it again. The government claimed that from the very
+beginning, Congress has been extending the term of existing
+copyrights. So, the government argued, the Court should not now say
+that practice is unconstitutional.
+</p><p>
+There was some truth to the government's claim, but not much. We
+certainly agreed that Congress had extended existing terms in 1831
+and in 1909. And of course, in 1962, Congress began extending
+ existing
+terms regularly—eleven times in forty years.
+</p><p>
+But this <span class="quote">«<span class="quote">consistency</span>»</span> should be kept in perspective. Congress
+ extended
+existing terms once in the first hundred years of the Republic.
+It then extended existing terms once again in the next fifty. Those rare
+extensions are in contrast to the now regular practice of extending
+ existing
+terms. Whatever restraint Congress had had in the past, that
+ restraint
+was now gone. Congress was now in a cycle of extensions; there
+was no reason to expect that cycle would end. This Court had not
+ hesitated
+to intervene where Congress was in a similar cycle of extension.
+There was no reason it couldn't intervene here.
+</p><p>
+<span class="strong"><strong>Oral argument</strong></span> was scheduled for the
+first week in October. I arrived in D.C. two weeks before the
+argument. During those two weeks, I was repeatedly
+<span class="quote">«<span class="quote">mooted</span>»</span> by lawyers who had volunteered to
+
+
+help in the case. Such <span class="quote">«<span class="quote">moots</span>»</span> are basically practice rounds, where
+wannabe justices fire questions at wannabe winners.
+</p><p>
+I was convinced that to win, I had to keep the Court focused on a
+single point: that if this extension is permitted, then there is no limit to
+the power to set terms. Going with the government would mean that
+terms would be effectively unlimited; going with us would give
+ Congress
+a clear line to follow: Don't extend existing terms. The moots
+were an effective practice; I found ways to take every question back to
+this central idea.
+</p><a class="indexterm" name="idp10006640"></a><a class="indexterm" name="idp10007456"></a><a class="indexterm" name="idp10008272"></a><p>
+One moot was before the lawyers at Jones Day. Don Ayer was the
+skeptic. He had served in the Reagan Justice Department with Solicitor
+General Charles Fried. He had argued many cases before the Supreme
+Court. And in his review of the moot, he let his concern speak:
+</p><p>
+<span class="quote">«<span class="quote">I'm just afraid that unless they really see the harm, they won't be
+willing to upset this practice that the government says has been a
+consistent practice for two hundred years. You have to make them see
+the harm—passionately get them to see the harm. For if they
+don't see that, then we haven't any chance of winning.</span>»</span>
+</p><a class="indexterm" name="idp10010992"></a><p>
+He may have argued many cases before this Court, I thought, but
+he didn't understand its soul. As a clerk, I had seen the Justices do the
+right thing—not because of politics but because it was right. As a law
+professor, I had spent my life teaching my students that this Court
+does the right thing—not because of politics but because it is right. As
+I listened to Ayer's plea for passion in pressing politics, I understood
+his point, and I rejected it. Our argument was right. That was enough.
+Let the politicians learn to see that it was also good.
+</p><p>
+<span class="strong"><strong>The night before</strong></span> the argument, a
+line of people began to form in front of the Supreme Court. The case
+had become a focus of the press and of the movement to free
+culture. Hundreds stood in line
+
+
+for the chance to see the proceedings. Scores spent the night on the
+Supreme Court steps so that they would be assured a seat.
+</p><p>
+Not everyone has to wait in line. People who know the Justices can
+ask for seats they control. (I asked Justice Scalia's chambers for seats for
+my parents, for example.) Members of the Supreme Court bar can get
+a seat in a special section reserved for them. And senators and
+ congressmen
+have a special place where they get to sit, too. And finally, of
+course, the press has a gallery, as do clerks working for the Justices on
+the Court. As we entered that morning, there was no place that was
+not taken. This was an argument about intellectual property law, yet
+the halls were filled. As I walked in to take my seat at the front of the
+Court, I saw my parents sitting on the left. As I sat down at the table,
+I saw Jack Valenti sitting in the special section ordinarily reserved for
+family of the Justices.
+</p><p>
+When the Chief Justice called me to begin my argument, I began
+where I intended to stay: on the question of the limits on Congress's
+power. This was a case about enumerated powers, I said, and whether
+those enumerated powers had any limit.
+</p><a class="indexterm" name="idp10016224"></a><p>
+Justice O'Connor stopped me within one minute of my opening.
+The history was bothering her.
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+justice o'connor: Congress has extended the term so often
+through the years, and if you are right, don't we run the risk of
+upsetting previous extensions of time? I mean, this seems to be a
+practice that began with the very first act.
+</p></blockquote></div><p>
+She was quite willing to concede <span class="quote">«<span class="quote">that this flies directly in the face
+of what the framers had in mind.</span>»</span> But my response again and again
+was to emphasize limits on Congress's power.
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+mr. lessig: Well, if it flies in the face of what the framers had in
+mind, then the question is, is there a way of interpreting their
+
+words that gives effect to what they had in mind, and the answer
+is yes.
+</p></blockquote></div><p>
+There were two points in this argument when I should have seen
+where the Court was going. The first was a question by Justice
+Kennedy, who observed,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+justice kennedy: Well, I suppose implicit in the argument that
+the '76 act, too, should have been declared void, and that we
+might leave it alone because of the disruption, is that for all these
+years the act has impeded progress in science and the useful arts.
+I just don't see any empirical evidence for that.
+</p></blockquote></div><p>
+Here follows my clear mistake. Like a professor correcting a
+ student,
+I answered,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+mr. lessig: Justice, we are not making an empirical claim at all.
+Nothing in our Copyright Clause claim hangs upon the empirical
+assertion about impeding progress. Our only argument is this is a
+structural limit necessary to assure that what would be an effectively
+perpetual term not be permitted under the copyright laws.
+</p></blockquote></div><a class="indexterm" name="idp10024080"></a><p>
+That was a correct answer, but it wasn't the right answer. The right
+answer was instead that there was an obvious and profound harm. Any
+number of briefs had been written about it. He wanted to hear it. And
+here was the place Don Ayer's advice should have mattered. This was a
+softball; my answer was a swing and a miss.
+</p><p>
+The second came from the Chief, for whom the whole case had been
+crafted. For the Chief Justice had crafted the <em class="citetitle">Lopez</em> ruling,
+and we hoped that he would see this case as its second cousin.
+</p><p>
+It was clear a second into his question that he wasn't at all
+sympathetic. To him, we were a bunch of anarchists. As he asked:
+
+
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+chief justice: Well, but you want more than that. You want the
+right to copy verbatim other people's books, don't you?
+</p><p>
+mr. lessig: We want the right to copy verbatim works that
+should be in the public domain and would be in the public
+ domain
+but for a statute that cannot be justified under ordinary First
+Amendment analysis or under a proper reading of the limits built
+into the Copyright Clause.
+</p></blockquote></div><a class="indexterm" name="idp10029056"></a><p>
+Things went better for us when the government gave its argument;
+for now the Court picked up on the core of our claim. As Justice Scalia
+asked Solicitor General Olson,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.
+</p></blockquote></div><p>
+When Olson was finished, it was my turn to give a closing rebuttal.
+Olson's flailing had revived my anger. But my anger still was directed
+to the academic, not the practical. The government was arguing as if
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+Copyright and Patent Clause. All true. But it wasn't going to move the
+Court to my side.
+</p><p>
+<span class="strong"><strong>As I left</strong></span> the court that day, I
+knew there were a hundred points I wished I could remake. There were a
+hundred questions I wished I had
+
+
+answered differently. But one way of thinking about this case left me
+optimistic.
+</p><p>
+The government had been asked over and over again, what is the limit?
+Over and over again, it had answered there is no limit. This was
+precisely the answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+the Conservatives—would feel itself constrained by the rule of
+law that it had established elsewhere.
+</p><p>
+<span class="strong"><strong>The morning</strong></span> of January 15, 2003, I
+was five minutes late to the office and missed the 7:00 A.M. call from
+the Supreme Court clerk. Listening to the message, I could tell in an
+instant that she had bad news to report.The Supreme Court had affirmed
+the decision of the Court of Appeals. Seven justices had voted in the
+majority. There were two dissents.
+</p><p>
+A few seconds later, the opinions arrived by e-mail. I took the
+phone off the hook, posted an announcement to our blog, and sat
+down to see where I had been wrong in my reasoning.
+</p><p>
+My <span class="emphasis"><em>reasoning</em></span>. Here was a case that pitted all the
+money in the world against <span class="emphasis"><em>reasoning</em></span>. And here
+was the last naïve law professor, scouring the pages, looking for
+reasoning.
+</p><p>
+I first scoured the opinion, looking for how the Court would
+distinguish the principle in this case from the principle in
+<em class="citetitle">Lopez</em>. The argument was nowhere to be found. The case was not even
+cited. The argument that was the core argument of our case did not
+even appear in the Court's opinion.
+</p><a class="indexterm" name="idp10040064"></a><p>
+
+
+Justice Ginsburg simply ignored the enumerated powers argument.
+Consistent with her view that Congress's power was not limited
+generally, she had found Congress's power not limited here.
+</p><p>
+Her opinion was perfectly reasonable—for her, and for Justice
+Souter. Neither believes in <em class="citetitle">Lopez</em>. It would be too much to expect them
+to write an opinion that recognized, much less explained, the doctrine
+they had worked so hard to defeat.
+</p><p>
+But as I realized what had happened, I couldn't quite believe what I
+was reading. I had said there was no way this Court could reconcile
+limited powers with the Commerce Clause and unlimited powers with the
+Progress Clause. It had never even occurred to me that they could
+reconcile the two simply <span class="emphasis"><em>by not addressing the
+argument</em></span>. There was no inconsistency because they would not
+talk about the two together. There was therefore no principle that
+followed from the <em class="citetitle">Lopez</em> case: In that context, Congress's power would
+be limited, but in this context it would not.
+</p><p>
+Yet by what right did they get to choose which of the framers' values
+they would respect? By what right did they—the silent
+five—get to select the part of the Constitution they would
+enforce based on the values they thought important? We were right back
+to the argument that I said I hated at the start: I had failed to
+convince them that the issue here was important, and I had failed to
+recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is
+the system we have.
+</p><a class="indexterm" name="idp10042128"></a><p>
+Justices Breyer and Stevens wrote very strong dissents. Stevens's
+opinion was crafted internal to the law: He argued that the tradition
+of intellectual property law should not support this unjustified
+extension of terms. He based his argument on a parallel analysis that
+had governed in the context of patents (so had we). But the rest of
+the Court discounted the parallel—without explaining how the
+very same words in the Progress Clause could come to mean totally
+different things depending upon whether the words were about patents
+or copyrights. The Court let Justice Stevens's charge go unanswered.
+</p><a class="indexterm" name="idp10046720"></a><p>
+
+Justice Breyer's opinion, perhaps the best opinion he has ever
+written, was external to the Constitution. He argued that the term of
+copyrights has become so long as to be effectively unlimited. We had
+said that under the current term, a copyright gave an author 99.8
+percent of the value of a perpetual term. Breyer said we were wrong,
+that the actual number was 99.9997 percent of a perpetual term. Either
+way, the point was clear: If the Constitution said a term had to be
+<span class="quote">«<span class="quote">limited,</span>»</span> and the existing term was so long as to be effectively
+unlimited, then it was unconstitutional.
+</p><p>
+These two justices understood all the arguments we had made. But
+because neither believed in the <em class="citetitle">Lopez</em> case, neither was willing to push
+it as a reason to reject this extension. The case was decided without
+anyone having addressed the argument that we had carried from Judge
+Sentelle. It was <em class="citetitle">Hamlet</em> without the Prince.
+</p><p>
+<span class="strong"><strong>Defeat brings depression</strong></span>. They say
+it is a sign of health when depression gives way to anger. My anger
+came quickly, but it didn't cure the depression. This anger was of two
+sorts.
+</p><a class="indexterm" name="idp10052864"></a><p>
+It was first anger with the five <span class="quote">«<span class="quote">Conservatives.</span>»</span> It would have been
+one thing for them to have explained why the principle of <em class="citetitle">Lopez</em> didn't
+apply in this case. That wouldn't have been a very convincing
+argument, I don't believe, having read it made by others, and having
+tried to make it myself. But it at least would have been an act of
+integrity. These justices in particular have repeatedly said that the
+proper mode of interpreting the Constitution is <span class="quote">«<span class="quote">originalism</span>»</span>—to
+first understand the framers' text, interpreted in their context, in
+light of the structure of the Constitution. That method had produced
+<em class="citetitle">Lopez</em> and many other <span class="quote">«<span class="quote">originalist</span>»</span> rulings. Where was their
+<span class="quote">«<span class="quote">originalism</span>»</span> now?
+</p><p>
+Here, they had joined an opinion that never once tried to explain
+what the framers had meant by crafting the Progress Clause as they
+did; they joined an opinion that never once tried to explain how the
+structure of that clause would affect the interpretation of Congress's
+
+
+power. And they joined an opinion that didn't even try to explain why
+this grant of power could be unlimited, whereas the Commerce Clause
+would be limited. In short, they had joined an opinion that did not
+apply to, and was inconsistent with, their own method for interpreting
+the Constitution. This opinion may well have yielded a result that
+they liked. It did not produce a reason that was consistent with their
+own principles.
+</p><p>
+My anger with the Conservatives quickly yielded to anger with
+ myself.
+For I had let a view of the law that I liked interfere with a view of
+the law as it is.
+</p><a class="indexterm" name="idp10059312"></a><p>
+Most lawyers, and most law professors, have little patience for
+idealism about courts in general and this Supreme Court in particular.
+Most have a much more pragmatic view. When Don Ayer said that this
+case would be won based on whether I could convince the Justices that
+the framers' values were important, I fought the idea, because I
+didn't want to believe that that is how this Court decides. I insisted
+on arguing this case as if it were a simple application of a set of
+principles. I had an argument that followed in logic. I didn't need
+to waste my time showing it should also follow in popularity.
+</p><p>
+As I read back over the transcript from that argument in October, I
+can see a hundred places where the answers could have taken the
+conversation in different directions, where the truth about the harm
+that this unchecked power will cause could have been made clear to
+this Court. Justice Kennedy in good faith wanted to be shown. I,
+idiotically, corrected his question. Justice Souter in good faith
+wanted to be shown the First Amendment harms. I, like a math teacher,
+reframed the question to make the logical point. I had shown them how
+they could strike this law of Congress if they wanted to. There were a
+hundred places where I could have helped them want to, yet my
+stubbornness, my refusal to give in, stopped me. I have stood before
+hundreds of audiences trying to persuade; I have used passion in that
+effort to persuade; but I
+
+refused to stand before this audience and try to persuade with the
+passion I had used elsewhere. It was not the basis on which a court
+should decide the issue.
+</p><a class="indexterm" name="idp10063680"></a><a class="indexterm" name="idp10064464"></a><p>
+Would it have been different if I had argued it differently? Would it
+have been different if Don Ayer had argued it? Or Charles Fried? Or
+Kathleen Sullivan?
+</p><p>
+My friends huddled around me to insist it would not. The Court
+was not ready, my friends insisted. This was a loss that was destined. It
+would take a great deal more to show our society why our framers were
+right. And when we do that, we will be able to show that Court.
+</p><p>
+Maybe, but I doubt it. These Justices have no financial interest in
+doing anything except the right thing. They are not lobbied. They have
+little reason to resist doing right. I can't help but think that if I had
+stepped down from this pretty picture of dispassionate justice, I could
+have persuaded.
+</p><a class="indexterm" name="idp10067216"></a><p>
+And even if I couldn't, then that doesn't excuse what happened in
+January. For at the start of this case, one of America's leading
+intellectual property professors stated publicly that my bringing this
+case was a mistake. <span class="quote">«<span class="quote">The Court is not ready,</span>»</span> Peter Jaszi said; this
+issue should not be raised until it is.
+</p><p>
+After the argument and after the decision, Peter said to me, and
+publicly, that he was wrong. But if indeed that Court could not have
+been persuaded, then that is all the evidence that's needed to know that
+here again Peter was right. Either I was not ready to argue this case in
+a way that would do some good or they were not ready to hear this case
+in a way that would do some good. Either way, the decision to bring
+this case—a decision I had made four years before—was wrong.
+</p><p>
+<span class="strong"><strong>While the reaction</strong></span> to the Sonny
+Bono Act itself was almost unanimously negative, the reaction to the
+Court's decision was mixed. No one, at least in the press, tried to
+say that extending the term of copyright was a good idea. We had won
+that battle over ideas. Where
+
+
+the decision was praised, it was praised by papers that had been
+skeptical of the Court's activism in other cases. Deference was a good
+thing, even if it left standing a silly law. But where the decision
+was attacked, it was attacked because it left standing a silly and
+harmful law. <em class="citetitle">The New York Times</em> wrote in its editorial,
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+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.
+</p></blockquote></div><p>
+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
+(<a class="xref" href="#fig-18" title="Figure 13.1. Tom the Dancing Bug cartoon">Figure 13.1, “Tom the Dancing Bug cartoon”</a>). The <span class="quote">«<span class="quote">powerful and wealthy</span>»</span> line is a bit
+unfair. But the punch in the face felt exactly like that.
+<a class="indexterm" name="idp10075440"></a>
+</p><div class="figure"><a name="fig-18"></a><p class="title"><b>Figure 13.1. Tom the Dancing Bug cartoon</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="95%"><tr><td align="center"><img src="images/18.png" align="middle" width="100%" alt="Tom the Dancing Bug cartoon"></td></tr></table></div><a class="indexterm" name="idp10078928"></a></div></div><br class="figure-break"><p>
+The image that will always stick in my head is that evoked by the
+quote from <em class="citetitle">The New York Times</em>. That <span class="quote">«<span class="quote">grand experiment</span>»</span> we call the
+<span class="quote">«<span class="quote">public domain</span>»</span> is over? When I can make light of it, I think, <span class="quote">«<span class="quote">Honey,
+I shrunk the Constitution.</span>»</span> But I can rarely make light of it. We had
+in our Constitution a commitment to free culture. In the case that I
+fathered, the Supreme Court effectively renounced that commitment. A
+better lawyer would have made them see differently.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9735520" class="footnote"><p><a href="#idp9735520" class="para"><sup class="para">[179] </sup></a>
+
+<a class="indexterm" name="idp9736256"></a>
+There's a parallel here with pornography that is a bit hard to
+describe, but it's a strong one. One phenomenon that the Internet
+created was a world of noncommercial pornographers—people who
+were distributing porn but were not making money directly or
+indirectly from that distribution. Such a class didn't exist before
+the Internet came into being because the costs of distributing porn
+were so high. Yet this new class of distributors got special attention
+in the Supreme Court, when the Court struck down the Communications
+Decency Act of 1996. It was partly because of the burden on
+noncommercial speakers that the statute was found to exceed Congress's
+power. The same point could have been made about noncommercial
+publishers after the advent of the Internet. The Eric Eldreds of the
+world before the Internet were extremely few. Yet one would think it
+at least as important to protect the Eldreds of the world as to
+protect noncommercial pornographers.</p></div><div id="ftn.idp9760256" class="footnote"><p><a href="#idp9760256" class="para"><sup class="para">[180] </sup></a>
+
+<a class="indexterm" name="idp9760960"></a>
+<a class="indexterm" name="idp9761744"></a>
+The full text is: <span class="quote">«<span class="quote">Sonny [Bono] wanted the term of copyright
+protection to last forever. I am informed by staff that such a change
+would violate the Constitution. I invite all of you to work with me to
+strengthen our copyright laws in all of the ways available to us. As
+you know, there is also Jack Valenti's proposal for a term to last
+forever less one day. Perhaps the Committee may look at that next
+Congress,</span>»</span> 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
+</p></div><div id="ftn.idp9814432" class="footnote"><p><a href="#idp9814432" class="para"><sup class="para">[181] </sup></a>
+ Associated Press, <span class="quote">«<span class="quote">Disney Lobbying for Copyright Extension No Mickey
+Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</span>»</span>
+<em class="citetitle">Chicago Tribune</em>, 17 October 1998, 22.
+</p></div><div id="ftn.idp9816432" class="footnote"><p><a href="#idp9816432" class="para"><sup class="para">[182] </sup></a>
+ See Nick Brown, <span class="quote">«<span class="quote">Fair Use No More?: Copyright in the Information
+Age,</span>»</span> available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #49</a>.
+</p></div><div id="ftn.idp9818544" class="footnote"><p><a href="#idp9818544" class="para"><sup class="para">[183] </sup></a>
+
+Alan K. Ota, <span class="quote">«<span class="quote">Disney in Washington: The Mouse That Roars,</span>»</span>
+<em class="citetitle">Congressional Quarterly This Week</em>, 8 August 1990, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #50</a>.
+</p></div><div id="ftn.idp9835136" class="footnote"><p><a href="#idp9835136" class="para"><sup class="para">[184] </sup></a>
+ <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>, 514 U.S. 549, 564 (1995).
+</p></div><div id="ftn.idp9838384" class="footnote"><p><a href="#idp9838384" class="para"><sup class="para">[185] </sup></a>
+
+<em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>, 529 U.S. 598 (2000).
+</p></div><div id="ftn.idp9840624" class="footnote"><p><a href="#idp9840624" class="para"><sup class="para">[186] </sup></a>
+
+If it is a principle about enumerated powers, then the principle
+carries from one enumerated power to another. The animating point in
+the context of the Commerce Clause was that the interpretation offered
+by the government would allow the government unending power to
+regulate commerce—the limitation to interstate commerce
+notwithstanding. The same point is true in the context of the
+Copyright Clause. Here, too, the government's interpretation would
+allow the government unending power to regulate copyrights—the
+limitation to <span class="quote">«<span class="quote">limited times</span>»</span> notwithstanding.
+</p></div><div id="ftn.idp9855040" class="footnote"><p><a href="#idp9855040" class="para"><sup class="para">[187] </sup></a>
+
+Brief of the Nashville Songwriters Association, <em class="citetitle">Eldred</em>
+v. <em class="citetitle">Ashcroft</em>, 537 U.S. 186 (2003) (No. 01-618), n.10, available
+at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #51</a>.
+</p></div><div id="ftn.idp9861584" class="footnote"><p><a href="#idp9861584" class="para"><sup class="para">[188] </sup></a>
+ The figure of 2 percent is an extrapolation from the study by the
+ Congressional
+Research Service, in light of the estimated renewal ranges. See Brief
+of Petitioners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 7, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #52</a>.
+</p></div><div id="ftn.idp9880160" class="footnote"><p><a href="#idp9880160" class="para"><sup class="para">[189] </sup></a>
+
+See David G. Savage, <span class="quote">«<span class="quote">High Court Scene of Showdown on Copyright Law,</span>»</span>
+<em class="citetitle">Los Angeles Times</em>, 6 October 2002; David Streitfeld, <span class="quote">«<span class="quote">Classic Movies,
+Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
+Down Copyright Extension,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 9 October 2002.
+</p></div><div id="ftn.idp9885472" class="footnote"><p><a href="#idp9885472" class="para"><sup class="para">[190] </sup></a>
+
+Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
+Supporting the Petitoners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
+U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
+filed on behalf of Petitioners by the Internet Archive, <em class="citetitle">Eldred</em>
+v. <em class="citetitle">Ashcroft</em>, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #53</a>.
+</p></div><div id="ftn.idp9914448" class="footnote"><p><a href="#idp9914448" class="para"><sup class="para">[191] </sup></a>
+
+Jason Schultz, <span class="quote">«<span class="quote">The Myth of the 1976 Copyright `Chaos' Theory,</span>»</span> 20
+December 2002, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #54</a>.
+</p></div><div id="ftn.idp9974848" class="footnote"><p><a href="#idp9974848" class="para"><sup class="para">[192] </sup></a>
+
+Brief of Amici Dr. Seuss Enterprise et al., <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
+U.S. (2003) (No. 01-618), 19.
+</p></div><div id="ftn.idp9977664" class="footnote"><p><a href="#idp9977664" class="para"><sup class="para">[193] </sup></a>
+
+Dinitia Smith, <span class="quote">«<span class="quote">Immortal Words, Immortal Royalties? Even Mickey
+Mouse Joins the Fray,</span>»</span> <em class="citetitle">New York Times</em>, 28 March 1998, B7.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred-ii"></a>Chapter 14. CHAPTER FOURTEEN: Eldred II</h2></div></div></div><p>
+<span class="strong"><strong>The day</strong></span>
+<em class="citetitle">Eldred</em> was decided, fate would have it that I
+was to travel to Washington, D.C. (The day the rehearing petition in
+<em class="citetitle">Eldred</em> was denied—meaning the case was
+really finally over—fate would have it that I was giving a
+speech to technologists at Disney World.) This was a particularly
+long flight to my least favorite city. The drive into the city from
+Dulles was delayed because of traffic, so I opened up my computer and
+wrote an op-ed piece.
+</p><a class="indexterm" name="idp10086752"></a><p>
+It was an act of contrition. During the whole of the flight from San
+Francisco to Washington, I had heard over and over again in my head
+the same advice from Don Ayer: You need to make them see why it is
+important. And alternating with that command was the question of
+Justice Kennedy: <span class="quote">«<span class="quote">For all these years the act has impeded progress in
+science and the useful arts. I just don't see any empirical evidence for
+that.</span>»</span> And so, having failed in the argument of constitutional principle,
+finally, I turned to an argument of politics.
+</p><p>
+<em class="citetitle">The New York Times</em> published the piece. In it, I proposed a simple
+fix: Fifty years after a work has been published, the copyright owner
+
+would be required to register the work and pay a small fee. If he paid
+the fee, he got the benefit of the full term of copyright. If he did not,
+the work passed into the public domain.
+</p><p>
+We called this the Eldred Act, but that was just to give it a name.
+Eric Eldred was kind enough to let his name be used once again, but as
+he said early on, it won't get passed unless it has another name.
+</p><p>
+Or another two names. For depending upon your perspective, this
+is either the <span class="quote">«<span class="quote">Public Domain Enhancement Act</span>»</span> or the <span class="quote">«<span class="quote">Copyright
+Term Deregulation Act.</span>»</span> Either way, the essence of the idea is clear
+and obvious: Remove copyright where it is doing nothing except
+blocking access and the spread of knowledge. Leave it for as long as
+Congress allows for those works where its worth is at least $1. But for
+everything else, let the content go.
+</p><a class="indexterm" name="idp10092560"></a><p>
+The reaction to this idea was amazingly strong. Steve Forbes endorsed
+it in an editorial. I received an avalanche of e-mail and letters
+expressing support. When you focus the issue on lost creativity,
+people can see the copyright system makes no sense. As a good
+Republican might say, here government regulation is simply getting in
+the way of innovation and creativity. And as a good Democrat might
+say, here the government is blocking access and the spread of
+knowledge for no good reason. Indeed, there is no real difference
+between Democrats and Republicans on this issue. Anyone can recognize
+the stupid harm of the present system.
+</p><p>
+Indeed, many recognized the obvious benefit of the registration
+requirement. For one of the hardest things about the current system
+for people who want to license content is that there is no obvious
+place to look for the current copyright owners. Since registration is
+not required, since marking content is not required, since no
+formality at all is required, it is often impossibly hard to locate
+copyright owners to ask permission to use or license their work. This
+system would lower these costs, by establishing at least one registry
+where copyright owners could be identified.
+</p><a class="indexterm" name="idp10095408"></a><a class="indexterm" name="idp10096224"></a><p>
+
+As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>, formalities in copyright law were
+removed in 1976, when Congress followed the Europeans by abandoning
+any formal requirement before a copyright is granted.<a href="#ftn.idp10098784" class="footnote" name="idp10098784"><sup class="footnote">[194]</sup></a>
+The Europeans are said to view copyright as a <span class="quote">«<span class="quote">natural right.</span>»</span> Natural
+rights don't need forms to exist. Traditions, like the Anglo-American
+tradition that required copyright owners to follow form if their
+rights were to be protected, did not, the Europeans thought, properly
+respect the dignity of the author. My right as a creator turns on my
+creativity, not upon the special favor of the government.
+</p><p>
+That's great rhetoric. It sounds wonderfully romantic. But it is
+absurd copyright policy. It is absurd especially for authors, because
+a world without formalities harms the creator. The ability to spread
+<span class="quote">«<span class="quote">Walt Disney creativity</span>»</span> is destroyed when there is no simple way to
+know what's protected and what's not.
+</p><a class="indexterm" name="idp10104832"></a><p>
+The fight against formalities achieved its first real victory in
+Berlin in 1908. International copyright lawyers amended the Berne
+Convention in 1908, to require copyright terms of life plus fifty
+years, as well as the abolition of copyright formalities. The
+formalities were hated because the stories of inadvertent loss were
+increasingly common. It was as if a Charles Dickens character ran all
+copyright offices, and the failure to dot an <em class="citetitle">i</em> or cross a
+<em class="citetitle">t</em> resulted in the loss of widows' only income.
+</p><p>
+These complaints were real and sensible. And the strictness of the
+formalities, especially in the United States, was absurd. The law
+should always have ways of forgiving innocent mistakes. There is no
+reason copyright law couldn't, as well. Rather than abandoning
+formalities totally, the response in Berlin should have been to
+embrace a more equitable system of registration.
+</p><p>
+Even that would have been resisted, however, because registration
+in the nineteenth and twentieth centuries was still expensive. It was
+also a hassle. The abolishment of formalities promised not only to save
+the starving widows, but also to lighten an unnecessary regulatory
+ burden
+imposed upon creators.
+</p><p>
+In addition to the practical complaint of authors in 1908, there was
+a moral claim as well. There was no reason that creative property
+
+
+should be a second-class form of property. If a carpenter builds a
+table, his rights over the table don't depend upon filing a form with
+the government. He has a property right over the table <span class="quote">«<span class="quote">naturally,</span>»</span>
+and he can assert that right against anyone who would steal the table,
+whether or not he has informed the government of his ownership of the
+table.
+</p><p>
+This argument is correct, but its implications are misleading. For the
+argument in favor of formalities does not depend upon creative
+property being second-class property. The argument in favor of
+formalities turns upon the special problems that creative property
+presents. The law of formalities responds to the special physics of
+creative property, to assure that it can be efficiently and fairly
+spread.
+</p><p>
+No one thinks, for example, that land is second-class property just
+because you have to register a deed with a court if your sale of land
+is to be effective. And few would think a car is second-class property
+just because you must register the car with the state and tag it with
+a license. In both of those cases, everyone sees that there is an
+important reason to secure registration—both because it makes
+the markets more efficient and because it better secures the rights of
+the owner. Without a registration system for land, landowners would
+perpetually have to guard their property. With registration, they can
+simply point the police to a deed. Without a registration system for
+cars, auto theft would be much easier. With a registration system, the
+thief has a high burden to sell a stolen car. A slight burden is
+placed on the property owner, but those burdens produce a much better
+system of protection for property generally.
+</p><p>
+It is similarly special physics that makes formalities important in
+copyright law. Unlike a carpenter's table, there's nothing in nature that
+makes it relatively obvious who might own a particular bit of creative
+property. A recording of Lyle Lovett's latest album can exist in a billion
+places without anything necessarily linking it back to a particular
+owner. And like a car, there's no way to buy and sell creative property
+with confidence unless there is some simple way to authenticate who is
+the author and what rights he has. Simple transactions are destroyed in
+
+
+a world without formalities. Complex, expensive,
+<span class="emphasis"><em>lawyer</em></span> transactions take their place.
+<a class="indexterm" name="idp10114400"></a>
+</p><p>
+This was the understanding of the problem with the Sonny Bono
+Act that we tried to demonstrate to the Court. This was the part it
+didn't <span class="quote">«<span class="quote">get.</span>»</span> Because we live in a system without formalities, there is no
+way easily to build upon or use culture from our past. If copyright
+terms were, as Justice Story said they would be, <span class="quote">«<span class="quote">short,</span>»</span> then this
+wouldn't matter much. For fourteen years, under the framers' system, a
+work would be presumptively controlled. After fourteen years, it would
+be presumptively uncontrolled.
+</p><p>
+But now that copyrights can be just about a century long, the
+inability to know what is protected and what is not protected becomes
+a huge and obvious burden on the creative process. If the only way a
+library can offer an Internet exhibit about the New Deal is to hire a
+lawyer to clear the rights to every image and sound, then the
+copyright system is burdening creativity in a way that has never been
+seen before <span class="emphasis"><em>because there are no formalities</em></span>.
+</p><p>
+The Eldred Act was designed to respond to exactly this problem. If
+it is worth $1 to you, then register your work and you can get the
+longer term. Others will know how to contact you and, therefore, how
+to get your permission if they want to use your work. And you will get
+the benefit of an extended copyright term.
+</p><p>
+If it isn't worth it to you to register to get the benefit of an extended
+term, then it shouldn't be worth it for the government to defend your
+monopoly over that work either. The work should pass into the public
+domain where anyone can copy it, or build archives with it, or create a
+movie based on it. It should become free if it is not worth $1 to you.
+</p><p>
+Some worry about the burden on authors. Won't the burden of
+registering the work mean that the $1 is really misleading? Isn't the
+hassle worth more than $1? Isn't that the real problem with
+registration?
+</p><p>
+It is. The hassle is terrible. The system that exists now is awful. I
+completely agree that the Copyright Office has done a terrible job (no
+doubt because they are terribly funded) in enabling simple and cheap
+
+
+registrations. Any real solution to the problem of formalities must
+address the real problem of <span class="emphasis"><em>governments</em></span> standing
+at the core of any system of formalities. In this book, I offer such a
+solution. That solution essentially remakes the Copyright Office. For
+now, assume it was Amazon that ran the registration system. Assume it
+was one-click registration. The Eldred Act would propose a simple,
+one-click registration fifty years after a work was published. Based
+upon historical data, that system would move up to 98 percent of
+commercial work, commercial work that no longer had a commercial life,
+into the public domain within fifty years. What do you think?
+</p><a class="indexterm" name="idp10122448"></a><p>
+<span class="strong"><strong>When Steve Forbes</strong></span> endorsed the
+idea, some in Washington began to pay attention. Many people contacted
+me pointing to representatives who might be willing to introduce the
+Eldred Act. And I had a few who directly suggested that they might be
+willing to take the first step.
+</p><a class="indexterm" name="idp10124608"></a><p>
+One representative, Zoe Lofgren of California, went so far as to get
+the bill drafted. The draft solved any problem with international
+law. It imposed the simplest requirement upon copyright owners
+possible. In May 2003, it looked as if the bill would be
+introduced. On May 16, I posted on the Eldred Act blog, <span class="quote">«<span class="quote">we are
+close.</span>»</span> There was a general reaction in the blog community that
+something good might happen here.
+</p><p>
+But at this stage, the lobbyists began to intervene. Jack Valenti and
+the MPAA general counsel came to the congresswoman's office to give
+the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
+informed the congresswoman that the MPAA would oppose the Eldred
+Act. The reasons are embarrassingly thin. More importantly, their
+thinness shows something clear about what this debate is really about.
+</p><p>
+The MPAA argued first that Congress had <span class="quote">«<span class="quote">firmly rejected the central
+concept in the proposed bill</span>»</span>—that copyrights be renewed. That
+was true, but irrelevant, as Congress's <span class="quote">«<span class="quote">firm rejection</span>»</span> had occurred
+
+long before the Internet made subsequent uses much more likely.
+Second, they argued that the proposal would harm poor copyright
+owners—apparently those who could not afford the $1 fee. Third,
+they argued that Congress had determined that extending a copyright
+term would encourage restoration work. Maybe in the case of the small
+percentage of work covered by copyright law that is still commercially
+valuable, but again this was irrelevant, as the proposal would not cut
+off the extended term unless the $1 fee was not paid. Fourth, the MPAA
+argued that the bill would impose <span class="quote">«<span class="quote">enormous</span>»</span> costs, since a
+registration system is not free. True enough, but those costs are
+certainly less than the costs of clearing the rights for a copyright
+whose owner is not known. Fifth, they worried about the risks if the
+copyright to a story underlying a film were to pass into the public
+domain. But what risk is that? If it is in the public domain, then the
+film is a valid derivative use.
+</p><p>
+Finally, the MPAA argued that existing law enabled copyright owners to
+do this if they wanted. But the whole point is that there are
+thousands of copyright owners who don't even know they have a
+copyright to give. Whether they are free to give away their copyright
+or not—a controversial claim in any case—unless they know
+about a copyright, they're not likely to.
+</p><p>
+<span class="strong"><strong>At the beginning</strong></span> of this book, I
+told two stories about the law reacting to changes in technology. In
+the one, common sense prevailed. In the other, common sense was
+delayed. The difference between the two stories was the power of the
+opposition—the power of the side that fought to defend the
+status quo. In both cases, a new technology threatened old
+interests. But in only one case did those interest's have the power to
+protect themselves against this new competitive threat.
+</p><p>
+I used these two cases as a way to frame the war that this book has
+been about. For here, too, a new technology is forcing the law to react.
+And here, too, we should ask, is the law following or resisting common
+sense? If common sense supports the law, what explains this common
+sense?
+</p><p>
+
+
+When the issue is piracy, it is right for the law to back the
+copyright owners. The commercial piracy that I described is wrong and
+harmful, and the law should work to eliminate it. When the issue is
+p2p sharing, it is easy to understand why the law backs the owners
+still: Much of this sharing is wrong, even if much is harmless. When
+the issue is copyright terms for the Mickey Mouses of the world, it is
+possible still to understand why the law favors Hollywood: Most people
+don't recognize the reasons for limiting copyright terms; it is thus
+still possible to see good faith within the resistance.
+</p><a class="indexterm" name="idp10135072"></a><p>
+But when the copyright owners oppose a proposal such as the Eldred
+Act, then, finally, there is an example that lays bare the naked
+selfinterest driving this war. This act would free an extraordinary
+range of content that is otherwise unused. It wouldn't interfere with
+any copyright owner's desire to exercise continued control over his
+content. It would simply liberate what Kevin Kelly calls the <span class="quote">«<span class="quote">Dark
+Content</span>»</span> that fills archives around the world. So when the warriors
+oppose a change like this, we should ask one simple question:
+</p><p>
+What does this industry really want?
+</p><p>
+With very little effort, the warriors could protect their content. So
+the effort to block something like the Eldred Act is not really about
+protecting <span class="emphasis"><em>their</em></span> content. The effort to block the
+Eldred Act is an effort to assure that nothing more passes into the
+public domain. It is another step to assure that the public domain
+will never compete, that there will be no use of content that is not
+commercially controlled, and that there will be no commercial use of
+content that doesn't require <span class="emphasis"><em>their</em></span> permission
+first.
+</p><p>
+The opposition to the Eldred Act reveals how extreme the other side
+is. The most powerful and sexy and well loved of lobbies really has as
+its aim not the protection of <span class="quote">«<span class="quote">property</span>»</span> but the rejection of a
+tradition. Their aim is not simply to protect what is
+theirs. <span class="emphasis"><em>Their aim is to assure that all there is is what is
+theirs</em></span>.
+</p><p>
+It is not hard to understand why the warriors take this view. It is not
+hard to see why it would benefit them if the competition of the public
+
+
+domain tied to the Internet could somehow be quashed. Just as RCA
+feared the competition of FM, they fear the competition of a public
+domain connected to a public that now has the means to create with it
+and to share its own creation.
+</p><a class="indexterm" name="idp10142064"></a><a class="indexterm" name="idp10142848"></a><p>
+What is hard to understand is why the public takes this view. It is
+as if the law made airplanes trespassers. The MPAA stands with the
+Causbys and demands that their remote and useless property rights be
+respected, so that these remote and forgotten copyright holders might
+block the progress of others.
+</p><p>
+All this seems to follow easily from this untroubled acceptance of the
+<span class="quote">«<span class="quote">property</span>»</span> in intellectual property. Common sense supports it, and so
+long as it does, the assaults will rain down upon the technologies of
+the Internet. The consequence will be an increasing <span class="quote">«<span class="quote">permission
+society.</span>»</span> The past can be cultivated only if you can identify the
+owner and gain permission to build upon his work. The future will be
+controlled by this dead (and often unfindable) hand of the past.
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10098784" class="footnote"><p><a href="#idp10098784" class="para"><sup class="para">[194] </sup></a>
+
+<a class="indexterm" name="idp10099488"></a>
+Until the 1908 Berlin Act of the Berne Convention, national copyright
+legislation sometimes made protection depend upon compliance with
+formalities such as registration, deposit, and affixation of notice of
+the author's claim of copyright. However, starting with the 1908 act,
+every text of the Convention has provided that <span class="quote">«<span class="quote">the enjoyment and the
+exercise</span>»</span> of rights guaranteed by the Convention <span class="quote">«<span class="quote">shall not be subject
+to any formality.</span>»</span> The prohibition against formalities is presently
+embodied in Article 5(2) of the Paris Text of the Berne
+Convention. Many countries continue to impose some form of deposit or
+registration requirement, albeit not as a condition of
+copyright. French law, for example, requires the deposit of copies of
+works in national repositories, principally the National Museum.
+Copies of books published in the United Kingdom must be deposited in
+the British Library. The German Copyright Act provides for a Registrar
+of Authors where the author's true name can be filed in the case of
+anonymous or pseudonymous works. Paul Goldstein, <em class="citetitle">International
+Intellectual Property Law, Cases and Materials</em> (New York: Foundation
+Press, 2001), 153–54. </p></div></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-conclusion"></a>Chapter 15. CONCLUSION</h1></div></div></div><a class="indexterm" name="idxafricamedicationsforhivpatientsin"></a><a class="indexterm" name="idxaidsmedications"></a><a class="indexterm" name="idxantiretroviraldrugs"></a><a class="indexterm" name="idxdevelopingcountriesforeignpatentcostsin2"></a><a class="indexterm" name="idxdrugspharmaceutical"></a><a class="indexterm" name="idxhivaidstherapies"></a><p>
+<span class="strong"><strong>There are more</strong></span> than 35 million
+people with the AIDS virus worldwide. Twenty-five million of them live
+in sub-Saharan Africa. Seventeen million have already died. Seventeen
+million Africans is proportional percentage-wise to seven million
+Americans. More importantly, it is seventeen million Africans.
+</p><p>
+There is no cure for AIDS, but there are drugs to slow its
+progression. These antiretroviral therapies are still experimental,
+but they have already had a dramatic effect. In the United States,
+AIDS patients who regularly take a cocktail of these drugs increase
+their life expectancy by ten to twenty years. For some, the drugs make
+the disease almost invisible.
+</p><p>
+These drugs are expensive. When they were first introduced in the
+United States, they cost between $10,000 and $15,000 per person per
+year. Today, some cost $25,000 per year. At these prices, of course, no
+African nation can afford the drugs for the vast majority of its
+ population:
+$15,000 is thirty times the per capita gross national product of
+Zimbabwe. At these prices, the drugs are totally unavailable.<a href="#ftn.idp10160672" class="footnote" name="idp10160672"><sup class="footnote">[195]</sup></a>
+</p><a class="indexterm" name="idxpatentsonpharmaceuticals"></a><a class="indexterm" name="idxpharmaceuticalpatents"></a><p>
+
+These prices are not high because the ingredients of the drugs are
+expensive. These prices are high because the drugs are protected by
+patents. The drug companies that produced these life-saving mixes
+enjoy at least a twenty-year monopoly for their inventions. They use
+that monopoly power to extract the most they can from the market. That
+power is in turn used to keep the prices high.
+</p><p>
+There are many who are skeptical of patents, especially drug
+patents. I am not. Indeed, of all the areas of research that might be
+supported by patents, drug research is, in my view, the clearest case
+where patents are needed. The patent gives the drug company some
+assurance that if it is successful in inventing a new drug to treat a
+disease, it will be able to earn back its investment and more. This is
+socially an extremely valuable incentive. I am the last person who
+would argue that the law should abolish it, at least without other
+changes.
+</p><p>
+But it is one thing to support patents, even drug patents. It is
+another thing to determine how best to deal with a crisis. And as
+African leaders began to recognize the devastation that AIDS was
+bringing, they started looking for ways to import HIV treatments at
+costs significantly below the market price.
+</p><a class="indexterm" name="idxinternationallaw2"></a><a class="indexterm" name="idxparallelimportation"></a><a class="indexterm" name="idxsouthafricarepublicofpharmaceuticalimportsby"></a><p>
+In 1997, South Africa tried one tack. It passed a law to allow the
+importation of patented medicines that had been produced or sold in
+another nation's market with the consent of the patent owner. For
+example, if the drug was sold in India, it could be imported into
+Africa from India. This is called <span class="quote">«<span class="quote">parallel importation,</span>»</span> and it is
+generally permitted under international trade law and is specifically
+permitted within the European Union.<a href="#ftn.idp10175072" class="footnote" name="idp10175072"><sup class="footnote">[196]</sup></a>
+</p><a class="indexterm" name="idp10178352"></a><p>
+However, the United States government opposed the bill. Indeed, more
+than opposed. As the International Intellectual Property Association
+characterized it, <span class="quote">«<span class="quote">The U.S. government pressured South Africa …
+not to permit compulsory licensing or parallel
+imports.</span>»</span><a href="#ftn.idp9783552" class="footnote" name="idp9783552"><sup class="footnote">[197]</sup></a>
+Through the Office of the United States Trade Representative, the
+government asked South Africa to change the law—and to add
+pressure to that request, in 1998, the USTR listed South Africa for
+possible trade sanctions.
+
+That same year, more than forty pharmaceutical companies began
+proceedings in the South African courts to challenge the government's
+actions. The United States was then joined by other governments from
+the EU. Their claim, and the claim of the pharmaceutical companies,
+was that South Africa was violating its obligations under
+international law by discriminating against a particular kind of
+patent— pharmaceutical patents. The demand of these governments,
+with the United States in the lead, was that South Africa respect
+these patents as it respects any other patent, regardless of any
+effect on the treatment of AIDS within South Africa.<a href="#ftn.idp10182208" class="footnote" name="idp10182208"><sup class="footnote">[198]</sup></a>
+</p><a class="indexterm" name="idp10185328"></a><p>
+We should place the intervention by the United States in context. No
+doubt patents are not the most important reason that Africans don't
+have access to drugs. Poverty and the total absence of an effective
+health care infrastructure matter more. But whether patents are the
+most important reason or not, the price of drugs has an effect on
+their demand, and patents affect price. And so, whether massive or
+marginal, there was an effect from our government's intervention to
+stop the flow of medications into Africa.
+</p><p>
+By stopping the flow of HIV treatment into Africa, the United
+States government was not saving drugs for United States citizens.
+This is not like wheat (if they eat it, we can't); instead, the flow that the
+United States intervened to stop was, in effect, a flow of knowledge:
+information about how to take chemicals that exist within Africa, and
+turn those chemicals into drugs that would save 15 to 30 million lives.
+</p><p>
+Nor was the intervention by the United States going to protect the
+profits of United States drug companies—at least, not substantially. It
+was not as if these countries were in the position to buy the drugs for
+the prices the drug companies were charging. Again, the Africans are
+wildly too poor to afford these drugs at the offered prices. Stopping the
+parallel import of these drugs would not substantially increase the sales
+by U.S. companies.
+</p><p>
+Instead, the argument in favor of restricting this flow of
+information, which was needed to save the lives of millions, was an
+argument
+
+about the sanctity of property.<a href="#ftn.idp10189968" class="footnote" name="idp10189968"><sup class="footnote">[199]</sup></a>
+It was because <span class="quote">«<span class="quote">intellectual property</span>»</span> would be violated that these
+drugs should not flow into Africa. It was a principle about the
+importance of <span class="quote">«<span class="quote">intellectual property</span>»</span> that led these government actors
+to intervene against the South African response to AIDS.
+</p><a class="indexterm" name="idp10197280"></a><p>
+Now just step back for a moment. There will be a time thirty years
+from now when our children look back at us and ask, how could we have
+let this happen? How could we allow a policy to be pursued whose
+direct cost would be to speed the death of 15 to 30 million Africans,
+and whose only real benefit would be to uphold the <span class="quote">«<span class="quote">sanctity</span>»</span> of an
+idea? What possible justification could there ever be for a policy
+that results in so many deaths? What exactly is the insanity that
+would allow so many to die for such an abstraction?
+</p><a class="indexterm" name="idxcorporationsinpharmaceuticalindustry"></a><p>
+Some blame the drug companies. I don't. They are corporations.
+Their managers are ordered by law to make money for the corporation.
+They push a certain patent policy not because of ideals, but because it is
+the policy that makes them the most money. And it only makes them the
+most money because of a certain corruption within our political system—
+a corruption the drug companies are certainly not responsible for.
+</p><p>
+The corruption is our own politicians' failure of integrity. For the
+drug companies would love—they say, and I believe them—to
+sell their drugs as cheaply as they can to countries in Africa and
+elsewhere. There are issues they'd have to resolve to make sure the
+drugs didn't get back into the United States, but those are mere
+problems of technology. They could be overcome.
+</p><a class="indexterm" name="idxintellectualpropertyrightsofdrugpatents"></a><p>
+A different problem, however, could not be overcome. This is the
+fear of the grandstanding politician who would call the presidents of
+the drug companies before a Senate or House hearing, and ask, <span class="quote">«<span class="quote">How
+is it you can sell this HIV drug in Africa for only $1 a pill, but the same
+drug would cost an American $1,500?</span>»</span> Because there is no <span class="quote">«<span class="quote">sound
+bite</span>»</span> answer to that question, its effect would be to induce regulation
+of prices in America. The drug companies thus avoid this spiral by
+avoiding the first step. They reinforce the idea that property should be
+
+sacred. They adopt a rational strategy in an irrational context, with the
+unintended consequence that perhaps millions die. And that rational
+strategy thus becomes framed in terms of this ideal—the sanctity of an
+idea called <span class="quote">«<span class="quote">intellectual property.</span>»</span>
+</p><a class="indexterm" name="idp10208192"></a><a class="indexterm" name="idp10209440"></a><a class="indexterm" name="idp10210640"></a><a class="indexterm" name="idp10211952"></a><a class="indexterm" name="idp10213392"></a><a class="indexterm" name="idp10214640"></a><a class="indexterm" name="idp10215888"></a><p>
+So when the common sense of your child confronts you, what will
+you say? When the common sense of a generation finally revolts
+against what we have done, how will we justify what we have done?
+What is the argument?
+</p><p>
+A sensible patent policy could endorse and strongly support the patent
+system without having to reach everyone everywhere in exactly the same
+way. Just as a sensible copyright policy could endorse and strongly
+support a copyright system without having to regulate the spread of
+culture perfectly and forever, a sensible patent policy could endorse
+and strongly support a patent system without having to block the
+spread of drugs to a country not rich enough to afford market prices
+in any case. A sensible policy, in other words, could be a balanced
+policy. For most of our history, both copyright and patent policies
+were balanced in just this sense.
+</p><a class="indexterm" name="idp10218896"></a><a class="indexterm" name="idp10220240"></a><a class="indexterm" name="idp10221520"></a><p>
+But we as a culture have lost this sense of balance. We have lost the
+critical eye that helps us see the difference between truth and
+extremism. A certain property fundamentalism, having no connection to
+our tradition, now reigns in this culture—bizarrely, and with
+consequences more grave to the spread of ideas and culture than almost
+any other single policy decision that we as a democracy will make.
+</p><a class="indexterm" name="idp10222976"></a><p>
+<span class="strong"><strong>A simple idea</strong></span> blinds us, and under
+the cover of darkness, much happens that most of us would reject if
+any of us looked. So uncritically do we accept the idea of property in
+ideas that we don't even notice how monstrous it is to deny ideas to a
+people who are dying without them. So uncritically do we accept the
+idea of property in culture that we don't even question when the
+control of that property removes our
+
+ability, as a people, to develop our culture democratically. Blindness
+becomes our common sense. And the challenge for anyone who would
+reclaim the right to cultivate our culture is to find a way to make
+this common sense open its eyes.
+</p><p>
+So far, common sense sleeps. There is no revolt. Common sense
+does not yet see what there could be to revolt about. The extremism
+that now dominates this debate fits with ideas that seem natural, and
+that fit is reinforced by the RCAs of our day. They wage a frantic war
+to fight <span class="quote">«<span class="quote">piracy,</span>»</span> and devastate a culture for creativity. They defend
+the idea of <span class="quote">«<span class="quote">creative property,</span>»</span> while transforming real creators into
+modern-day sharecroppers. They are insulted by the idea that rights
+should be balanced, even though each of the major players in this
+content war was itself a beneficiary of a more balanced ideal. The
+hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
+noticed. Powerful lobbies, complex issues, and MTV attention spans
+produce the <span class="quote">«<span class="quote">perfect storm</span>»</span> for free culture.
+</p><a class="indexterm" name="idp10229472"></a><a class="indexterm" name="idp10230288"></a><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof"></a><a class="indexterm" name="idp10233056"></a><a class="indexterm" name="idp10234160"></a><a class="indexterm" name="idp10234992"></a><a class="indexterm" name="idp10235824"></a><a class="indexterm" name="idp10236656"></a><a class="indexterm" name="idp10237760"></a><a class="indexterm" name="idp10238592"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo"></a><a class="indexterm" name="idp10241008"></a><a class="indexterm" name="idp10241824"></a><a class="indexterm" name="idp10242656"></a><a class="indexterm" name="idxbiomedicalresearch"></a><p>
+<span class="strong"><strong>In August 2003</strong></span>, a fight broke out
+in the United States about a decision by the World Intellectual
+Property Organization to cancel a meeting.<a href="#ftn.idp10246080" class="footnote" name="idp10246080"><sup class="footnote">[200]</sup></a>
+At the request of a wide range of interests, WIPO had decided to hold
+a meeting to discuss <span class="quote">«<span class="quote">open and collaborative projects to create public
+goods.</span>»</span> These are projects that have been successful in producing
+public goods without relying exclusively upon a proprietary use of
+intellectual property. Examples include the Internet and the World
+Wide Web, both of which were developed on the basis of protocols in
+the public domain. It included an emerging trend to support open
+academic journals, including the Public Library of Science project
+that I describe in chapter
+<a class="xref" href="#c-afterword" title="Chapter 16. AFTERWORD">16</a>. It
+included a project to develop single nucleotide polymorphisms (SNPs),
+which are thought to have great significance in biomedical
+research. (That nonprofit project comprised a consortium of the
+Wellcome Trust and pharmaceutical and technological companies,
+including Amersham Biosciences, AstraZeneca,
+
+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 <span class="quote">«<span class="quote">open source and free software.</span>»</span>
+</p><a class="indexterm" name="idp10255280"></a><p>
+The aim of the meeting was to consider this wide range of projects
+from one common perspective: that none of these projects relied upon
+intellectual property extremism. Instead, in all of them, intellectual
+property was balanced by agreements to keep access open or to impose
+limitations on the way in which proprietary claims might be used.
+</p><a class="indexterm" name="idxlessiglawrenceininternationaldebateonintellectualproperty"></a><p>
+From the perspective of this book, then, the conference was ideal.<a href="#ftn.idp10259568" class="footnote" name="idp10259568"><sup class="footnote">[201]</sup></a>
+The projects within its scope included both commercial and
+noncommercial work. They primarily involved science, but from many
+perspectives. And WIPO was an ideal venue for this discussion, since
+WIPO is the preeminent international body dealing with intellectual
+property issues.
+</p><a class="indexterm" name="idxworldsummitontheinformationsocietywsis"></a><p>
+Indeed, I was once publicly scolded for not recognizing this fact
+about WIPO. In February 2003, I delivered a keynote address to a
+preparatory conference for the World Summit on the Information Society
+(WSIS). At a press conference before the address, I was asked what I
+would say. I responded that I would be talking a little about the
+importance of balance in intellectual property for the development of
+an information society. The moderator for the event then promptly
+interrupted to inform me and the assembled reporters that no question
+about intellectual property would be discussed by WSIS, since those
+questions were the exclusive domain of WIPO. In the talk that I had
+prepared, I had actually made the issue of intellectual property
+relatively minor. But after this astonishing statement, I made
+intellectual property the sole focus of my talk. There was no way to
+talk about an <span class="quote">«<span class="quote">Information Society</span>»</span> unless one also talked about the
+range of information and culture that would be free. My talk did not
+make my immoderate moderator very happy. And she was no doubt correct
+that the scope of intellectual property protections was ordinarily the
+stuff of
+
+WIPO. But in my view, there couldn't be too much of a conversation
+about how much intellectual property is needed, since in my view, the
+very idea of balance in intellectual property had been lost.
+</p><p>
+So whether or not WSIS can discuss balance in intellectual property, I
+had thought it was taken for granted that WIPO could and should. And
+thus the meeting about <span class="quote">«<span class="quote">open and collaborative projects to create
+public goods</span>»</span> seemed perfectly appropriate within the WIPO agenda.
+</p><a class="indexterm" name="idp10266176"></a><a class="indexterm" name="idp10267568"></a><a class="indexterm" name="idp10269008"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss"></a><a class="indexterm" name="idp10271888"></a><a class="indexterm" name="idxmicrosoftonfreesoftware"></a><p>
+But there is one project within that list that is highly
+controversial, at least among lobbyists. That project is <span class="quote">«<span class="quote">open source
+and free software.</span>»</span> Microsoft in particular is wary of discussion of
+the subject. From its perspective, a conference to discuss open source
+and free software would be like a conference to discuss Apple's
+operating system. Both open source and free software compete with
+Microsoft's software. And internationally, many governments have begun
+to explore requirements that they use open source or free software,
+rather than <span class="quote">«<span class="quote">proprietary software,</span>»</span> for their own internal uses.
+</p><a class="indexterm" name="idp10276304"></a><a class="indexterm" name="idp10277408"></a><a class="indexterm" name="idp10278240"></a><a class="indexterm" name="idp10279056"></a><p>
+I don't mean to enter that debate here. It is important only to
+make clear that the distinction is not between commercial and
+noncommercial software. There are many important companies that depend
+fundamentally upon open source and free software, IBM being the most
+prominent. IBM is increasingly shifting its focus to the GNU/Linux
+operating system, the most famous bit of <span class="quote">«<span class="quote">free software</span>»</span>—and IBM
+is emphatically a commercial entity. Thus, to support <span class="quote">«<span class="quote">open source and
+free software</span>»</span> is not to oppose commercial entities. It is, instead,
+to support a mode of software development that is different from
+Microsoft's.<a href="#ftn.idp10281504" class="footnote" name="idp10281504"><sup class="footnote">[202]</sup></a>
+</p><a class="indexterm" name="idp10287232"></a><a class="indexterm" name="idp10288720"></a><a class="indexterm" name="idp10289552"></a><p>
+More important for our purposes, to support <span class="quote">«<span class="quote">open source and free
+software</span>»</span> is not to oppose copyright. <span class="quote">«<span class="quote">Open source and free software</span>»</span>
+is not software in the public domain. Instead, like Microsoft's
+software, the copyright owners of free and open source software insist
+quite strongly that the terms of their software license be respected
+by
+
+adopters of free and open source software. The terms of that license
+are no doubt different from the terms of a proprietary software
+license. Free software licensed under the General Public License
+(GPL), for example, requires that the source code for the software be
+made available by anyone who modifies and redistributes the
+software. But that requirement is effective only if copyright governs
+software. If copyright did not govern software, then free software
+could not impose the same kind of requirements on its adopters. It
+thus depends upon copyright law just as Microsoft does.
+</p><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof2"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo2"></a><a class="indexterm" name="idxkrimjonathan"></a><a class="indexterm" name="idp10298080"></a><p>
+It is therefore understandable that as a proprietary software
+developer, Microsoft would oppose this WIPO meeting, and
+understandable that it would use its lobbyists to get the United
+States government to oppose it, as well. And indeed, that is just what
+was reported to have happened. According to Jonathan Krim of the
+<em class="citetitle">Washington Post</em>, Microsoft's lobbyists succeeded in getting the United
+States government to veto the meeting.<a href="#ftn.idp10300304" class="footnote" name="idp10300304"><sup class="footnote">[203]</sup></a>
+And without U.S. backing, the meeting was canceled.
+</p><p>
+I don't blame Microsoft for doing what it can to advance its own
+interests, consistent with the law. And lobbying governments is
+plainly consistent with the law. There was nothing surprising about
+its lobbying here, and nothing terribly surprising about the most
+powerful software producer in the United States having succeeded in
+its lobbying efforts.
+</p><a class="indexterm" name="idp10303280"></a><a class="indexterm" name="idp10304608"></a><p>
+What was surprising was the United States government's reason for
+opposing the meeting. Again, as reported by Krim, Lois Boland, acting
+director of international relations for the U.S. Patent and Trademark
+Office, explained that <span class="quote">«<span class="quote">open-source software runs counter to the
+mission of WIPO, which is to promote intellectual-property rights.</span>»</span>
+She is quoted as saying, <span class="quote">«<span class="quote">To hold a meeting which has as its purpose
+to disclaim or waive such rights seems to us to be contrary to the
+goals of WIPO.</span>»</span>
+</p><a class="indexterm" name="idp10307088"></a><p>
+These statements are astonishing on a number of levels.
+</p><a class="indexterm" name="idp10308784"></a><p>
+First, they are just flat wrong. As I described, most open source and
+free software relies fundamentally upon the intellectual property
+right called <span class="quote">«<span class="quote">copyright</span>»</span>. Without it, restrictions imposed by those
+licenses wouldn't work. Thus, to say it <span class="quote">«<span class="quote">runs counter</span>»</span> to the mission
+of promoting intellectual property rights reveals an extraordinary gap
+in understanding—the sort of mistake that is excusable in a
+first-year law student, but an embarrassment from a high government
+official dealing with intellectual property issues.
+</p><a class="indexterm" name="idp10312336"></a><a class="indexterm" name="idp10313040"></a><a class="indexterm" name="idp10314144"></a><a class="indexterm" name="idp10314960"></a><p>
+Second, who ever said that WIPO's exclusive aim was to <span class="quote">«<span class="quote">promote</span>»</span>
+intellectual property maximally? As I had been scolded at the
+preparatory conference of WSIS, WIPO is to consider not only how best
+to protect intellectual property, but also what the best balance of
+intellectual property is. As every economist and lawyer knows, the
+hard question in intellectual property law is to find that
+balance. But that there should be limits is, I had thought,
+uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
+based on drugs whose patent has expired) contrary to the WIPO mission?
+Does the public domain weaken intellectual property? Would it have
+been better if the protocols of the Internet had been patented?
+</p><a class="indexterm" name="idp10317616"></a><p>
+Third, even if one believed that the purpose of WIPO was to maximize
+intellectual property rights, in our tradition, intellectual property
+rights are held by individuals and corporations. They get to decide
+what to do with those rights because, again, they are
+<span class="emphasis"><em>their</em></span> rights. If they want to <span class="quote">«<span class="quote">waive</span>»</span> or
+<span class="quote">«<span class="quote">disclaim</span>»</span> their rights, that is, within our tradition, totally
+appropriate. When Bill Gates gives away more than $20 billion to do
+good in the world, that is not inconsistent with the objectives of the
+property system. That is, on the contrary, just what a property system
+is supposed to be about: giving individuals the right to decide what
+to do with <span class="emphasis"><em>their</em></span> property.
+</p><a class="indexterm" name="idxboland"></a><p>
+When Ms. Boland says that there is something wrong with a meeting
+<span class="quote">«<span class="quote">which has as its purpose to disclaim or waive such rights,</span>»</span> she's
+saying that WIPO has an interest in interfering with the choices of
+
+the individuals who own intellectual property rights. That somehow,
+WIPO's objective should be to stop an individual from <span class="quote">«<span class="quote">waiving</span>»</span> or
+<span class="quote">«<span class="quote">disclaiming</span>»</span> an intellectual property right. That the interest of
+WIPO is not just that intellectual property rights be maximized, but
+that they also should be exercised in the most extreme and restrictive
+way possible.
+</p><a class="indexterm" name="idxfeudalsystem"></a><a class="indexterm" name="idxpropertyrightsfeudalsystemof"></a><p>
+There is a history of just such a property system that is well known
+in the Anglo-American tradition. It is called <span class="quote">«<span class="quote">feudalism.</span>»</span> Under
+feudalism, not only was property held by a relatively small number of
+individuals and entities. And not only were the rights that ran with
+that property powerful and extensive. But the feudal system had a
+strong interest in assuring that property holders within that system
+not weaken feudalism by liberating people or property within their
+control to the free market. Feudalism depended upon maximum control
+and concentration. It fought any freedom that might interfere with
+that control.
+</p><a class="indexterm" name="idp10330240"></a><a class="indexterm" name="idp10331056"></a><p>
+As Peter Drahos and John Braithwaite relate, this is precisely the
+choice we are now making about intellectual property.<a href="#ftn.idp10332272" class="footnote" name="idp10332272"><sup class="footnote">[204]</sup></a>
+We will have an information society. That much is certain. Our only
+choice now is whether that information society will be
+<span class="emphasis"><em>free</em></span> or <span class="emphasis"><em>feudal</em></span>. The trend is
+toward the feudal.
+</p><a class="indexterm" name="idp10335552"></a><a class="indexterm" name="idp10336864"></a><p>
+When this battle broke, I blogged it. A spirited debate within the
+comment section ensued. Ms. Boland had a number of supporters who
+tried to show why her comments made sense. But there was one comment
+that was particularly depressing for me. An anonymous poster wrote,
+</p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp10339184"></a><a class="indexterm" name="idp10340624"></a><p>
+George, you misunderstand Lessig: He's only talking about the world as
+it should be (<span class="quote">«<span class="quote">the goal of WIPO, and the goal of any government,
+should be to promote the right balance of intellectual property rights,
+not simply to promote intellectual property rights</span>»</span>), not as it is. If
+we were talking about the world as it is, then of course Boland didn't
+say anything wrong. But in the world
+
+as Lessig would have it, then of course she did. Always pay attention
+to the distinction between Lessig's world and ours.
+</p></blockquote></div><p>
+I missed the irony the first time I read it. I read it quickly and
+thought the poster was supporting the idea that seeking balance was
+what our government should be doing. (Of course, my criticism of Ms.
+Boland was not about whether she was seeking balance or not; my
+criticism was that her comments betrayed a first-year law student's
+mistake. I have no illusion about the extremism of our government,
+whether Republican or Democrat. My only illusion apparently is about
+whether our government should speak the truth or not.)
+</p><a class="indexterm" name="idp10344784"></a><p>
+Obviously, however, the poster was not supporting that idea. Instead,
+the poster was ridiculing the very idea that in the real world, the
+<span class="quote">«<span class="quote">goal</span>»</span> of a government should be <span class="quote">«<span class="quote">to promote the right balance</span>»</span> of
+intellectual property. That was obviously silly to him. And it
+obviously betrayed, he believed, my own silly utopianism. <span class="quote">«<span class="quote">Typical for
+an academic,</span>»</span> the poster might well have continued.
+</p><p>
+I understand criticism of academic utopianism. I think utopianism is
+silly, too, and I'd be the first to poke fun at the absurdly
+unrealistic ideals of academics throughout history (and not just in
+our own country's history).
+</p><p>
+But when it has become silly to suppose that the role of our
+government should be to <span class="quote">«<span class="quote">seek balance,</span>»</span> then count me with the silly,
+for that means that this has become quite serious indeed. If it should
+be obvious to everyone that the government does not seek balance, that
+the government is simply the tool of the most powerful lobbyists, that
+the idea of holding the government to a different standard is absurd,
+that the idea of demanding of the government that it speak truth and
+not lies is just naïve, then who have we, the most powerful
+democracy in the world, become?
+</p><p>
+It might be crazy to expect a high government official to speak
+the truth. It might be crazy to believe that government policy will be
+something more than the handmaiden of the most powerful interests.
+
+It might be crazy to argue that we should preserve a tradition that has
+been part of our tradition for most of our history—free culture.
+</p><p>
+If this is crazy, then let there be more crazies. Soon.
+</p><a class="indexterm" name="idp10351872"></a><a class="indexterm" name="idp10352544"></a><a class="indexterm" name="idp10353248"></a><p>
+<span class="strong"><strong>There are moments</strong></span> of hope in this
+struggle. And moments that surprise. When the FCC was considering
+relaxing ownership rules, which would thereby further increase the
+concentration in media ownership, an extraordinary bipartisan
+coalition formed to fight this change. For perhaps the first time in
+history, interests as diverse as the NRA, the ACLU, Moveon.org,
+William Safire, Ted Turner, and CodePink Women for Peace organized to
+oppose this change in FCC policy. An astonishing 700,000 letters were
+sent to the FCC, demanding more hearings and a different result.
+</p><p>
+This activism did not stop the FCC, but soon after, a broad coalition
+in the Senate voted to reverse the FCC decision. The hostile hearings
+leading up to that vote revealed just how powerful this movement had
+become. There was no substantial support for the FCC's decision, and
+there was broad and sustained support for fighting further
+concentration in the media.
+</p><p>
+But even this movement misses an important piece of the puzzle.
+Largeness as such is not bad. Freedom is not threatened just because
+some become very rich, or because there are only a handful of big
+players. The poor quality of Big Macs or Quarter Pounders does not
+mean that you can't get a good hamburger from somewhere else.
+</p><p>
+The danger in media concentration comes not from the concentration,
+but instead from the feudalism that this concentration, tied to the
+change in copyright, produces. It is not just that there are a few
+powerful companies that control an ever expanding slice of the
+media. It is that this concentration can call upon an equally bloated
+range of rights—property rights of a historically extreme
+form—that makes their bigness bad.
+</p><p>
+It is therefore significant that so many would rally to demand
+competition and increased diversity. Still, if the rally is understood
+as being about bigness alone, it is not terribly surprising. We
+Americans have a long history of fighting <span class="quote">«<span class="quote">big,</span>»</span> wisely or not. That
+we could be motivated to fight <span class="quote">«<span class="quote">big</span>»</span> again is not something new.
+</p><p>
+It would be something new, and something very important, if an equal
+number could be rallied to fight the increasing extremism built within
+the idea of <span class="quote">«<span class="quote">intellectual property.</span>»</span> Not because balance is alien to
+our tradition; indeed, as I've argued, balance is our tradition. But
+because the muscle to think critically about the scope of anything
+called <span class="quote">«<span class="quote">property</span>»</span> is not well exercised within this tradition anymore.
+</p><p>
+If we were Achilles, this would be our heel. This would be the place
+of our tragedy.
+</p><a class="indexterm" name="idp10362256"></a><p>
+<span class="strong"><strong>As I write</strong></span> these final words, the
+news is filled with stories about the RIAA lawsuits against almost
+three hundred individuals.<a href="#ftn.idp10364160" class="footnote" name="idp10364160"><sup class="footnote">[205]</sup></a>
+Eminem has just been sued for <span class="quote">«<span class="quote">sampling</span>»</span> someone else's
+music.<a href="#ftn.idp10371472" class="footnote" name="idp10371472"><sup class="footnote">[206]</sup></a>
+The story about Bob Dylan <span class="quote">«<span class="quote">stealing</span>»</span> from a Japanese author has just
+finished making the rounds.<a href="#ftn.idp10374096" class="footnote" name="idp10374096"><sup class="footnote">[207]</sup></a>
+An insider from Hollywood—who insists he must remain
+anonymous—reports <span class="quote">«<span class="quote">an amazing conversation with these studio
+guys. They've got extraordinary [old] content that they'd love to use
+but can't because they can't begin to clear the rights. They've got
+scores of kids who could do amazing things with the content, but it
+would take scores of lawyers to clean it first.</span>»</span> Congressmen are
+talking about deputizing computer viruses to bring down computers
+thought to violate the law. Universities are threatening expulsion for
+kids who use a computer to share content.
+</p><a class="indexterm" name="idp10377712"></a><a class="indexterm" name="idp10378496"></a><a class="indexterm" name="idp10379312"></a><a class="indexterm" name="idp10380096"></a><a class="indexterm" name="idp10380912"></a><a class="indexterm" name="idp10381728"></a><a class="indexterm" name="idp10382544"></a><p>
+Yet on the other side of the Atlantic, the BBC has just announced
+that it will build a <span class="quote">«<span class="quote">Creative Archive,</span>»</span> from which British citizens can
+download BBC content, and rip, mix, and burn it.<a href="#ftn.idp10384400" class="footnote" name="idp10384400"><sup class="footnote">[208]</sup></a>
+And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
+of Brazilian music, has joined with Creative Commons to release
+content and free licenses in that Latin American
+country.<a href="#ftn.idp10386656" class="footnote" name="idp10386656"><sup class="footnote">[209]</sup></a>
+
+I've told a dark story. The truth is more mixed. A technology has
+given us a new freedom. Slowly, some begin to understand that this
+freedom need not mean anarchy. We can carry a free culture into the
+twenty-first century, without artists losing and without the potential of
+digital technology being destroyed. It will take some thought, and
+more importantly, it will take some will to transform the RCAs of our
+day into the Causbys.
+</p><p>
+Common sense must revolt. It must act to free culture. Soon, if this
+potential is ever to be realized.
+
+
+
+</p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10160672" class="footnote"><p><a href="#idp10160672" class="para"><sup class="para">[195] </sup></a>
+ Commission on Intellectual Property Rights, <span class="quote">«<span class="quote">Final Report: Integrating
+Intellectual Property Rights and Development Policy</span>»</span> (London, 2002),
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #55</a>. According to a World Health Organization press
+ release
+issued 9 July 2002, only 230,000 of the 6 million who need drugs in
+the developing world receive them—and half of them are in Brazil.
+</p></div><div id="ftn.idp10175072" class="footnote"><p><a href="#idp10175072" class="para"><sup class="para">[196] </sup></a>
+
+See Peter Drahos with John Braithwaite, <em class="citetitle">Information Feudalism: Who
+Owns the Knowledge Economy?</em> (New York: The New Press, 2003), 37.
+<a class="indexterm" name="idp10176496"></a>
+<a class="indexterm" name="idp10177280"></a>
+</p></div><div id="ftn.idp9783552" class="footnote"><p><a href="#idp9783552" class="para"><sup class="para">[197] </sup></a>
+
+International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization</em> (Washington, D.C., 2000), 14, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #56</a>. For a
+firsthand account of the struggle over South Africa, see Hearing
+Before the Subcommittee on Criminal Justice, Drug Policy, and Human
+Resources, House Committee on Government Reform, H. Rep., 1st sess.,
+Ser. No. 106-126 (22 July 1999), 150–57 (statement of James
+Love).
+</p></div><div id="ftn.idp10182208" class="footnote"><p><a href="#idp10182208" class="para"><sup class="para">[198] </sup></a>
+
+International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization</em> (Washington, D.C., 2000), 15. </p></div><div id="ftn.idp10189968" class="footnote"><p><a href="#idp10189968" class="para"><sup class="para">[199] </sup></a>
+
+See Sabin Russell, <span class="quote">«<span class="quote">New Crusade to Lower AIDS Drug Costs: Africa's
+Needs at Odds with Firms' Profit Motive,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 24
+May 1999, A1, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #57</a>
+(<span class="quote">«<span class="quote">compulsory licenses and gray markets pose a threat to the entire
+system of intellectual property protection</span>»</span>); Robert Weissman, <span class="quote">«<span class="quote">AIDS
+and Developing Countries: Democratizing Access to Essential
+Medicines,</span>»</span> <em class="citetitle">Foreign Policy in Focus</em> 4:23 (August 1999), available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #58</a>
+(describing U.S. policy); John A. Harrelson, <span class="quote">«<span class="quote">TRIPS, Pharmaceutical
+Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
+Intellectual Property Rights and Compassion, a Synopsis,</span>»</span> <em class="citetitle">Widener Law
+Symposium Journal</em> (Spring 2001): 175.
+
+</p></div><div id="ftn.idp10246080" class="footnote"><p><a href="#idp10246080" class="para"><sup class="para">[200] </sup></a>
+ Jonathan Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> <em class="citetitle">Washington Post</em>,
+August 2003, E1, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #59</a>; William New, <span class="quote">«<span class="quote">Global Group's
+Shift on `Open Source' Meeting Spurs Stir,</span>»</span> <em class="citetitle">National Journal's Technology
+Daily</em>, 19 August 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #60</a>; William New, <span class="quote">«<span class="quote">U.S. Official
+Opposes `Open Source' Talks at WIPO,</span>»</span> <em class="citetitle">National Journal's Technology
+Daily</em>, 19 August 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #61</a>.
+</p></div><div id="ftn.idp10259568" class="footnote"><p><a href="#idp10259568" class="para"><sup class="para">[201] </sup></a>
+ I should disclose that I was one of the people who asked WIPO for the
+meeting.
+</p></div><div id="ftn.idp10281504" class="footnote"><p><a href="#idp10281504" class="para"><sup class="para">[202] </sup></a>
+
+Microsoft's position about free and open source software is more
+sophisticated. As it has repeatedly asserted, it has no problem with
+<span class="quote">«<span class="quote">open source</span>»</span> software or software in the public domain. Microsoft's
+principal opposition is to <span class="quote">«<span class="quote">free software</span>»</span> licensed under a <span class="quote">«<span class="quote">copyleft</span>»</span>
+license, meaning a license that requires the licensee to adopt the
+same terms on any derivative work. See Bradford L. Smith, <span class="quote">«<span class="quote">The Future
+of Software: Enabling the Marketplace to Decide,</span>»</span> <em class="citetitle">Government Policy
+Toward Open Source Software</em> (Washington, D.C.: AEI-Brookings Joint
+Center for Regulatory Studies, American Enterprise Institute for
+Public Policy Research, 2002), 69, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #62</a>. See also
+Craig Mundie, Microsoft senior vice president, <em class="citetitle">The Commercial Software
+Model</em>, discussion at New York University Stern School of Business (3
+May 2001), available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #63</a>.
+</p></div><div id="ftn.idp10300304" class="footnote"><p><a href="#idp10300304" class="para"><sup class="para">[203] </sup></a>
+
+Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #64</a>.
+</p></div><div id="ftn.idp10332272" class="footnote"><p><a href="#idp10332272" class="para"><sup class="para">[204] </sup></a>
+
+See Drahos with Braithwaite, <em class="citetitle">Information Feudalism</em>, 210–20.
+<a class="indexterm" name="idp10182336"></a>
+</p></div><div id="ftn.idp10364160" class="footnote"><p><a href="#idp10364160" class="para"><sup class="para">[205] </sup></a>
+
+John Borland, <span class="quote">«<span class="quote">RIAA Sues 261 File Swappers,</span>»</span> CNET News.com, September
+2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #65</a>; Paul
+R. La Monica, <span class="quote">«<span class="quote">Music Industry Sues Swappers,</span>»</span> CNN/Money, 8 September
+2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #66</a>; Soni
+Sangha and Phyllis Furman with Robert Gearty, <span class="quote">«<span class="quote">Sued for a Song,
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</span>»</span> <em class="citetitle">New York Daily News</em>, 9
+September 2003, 3; Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised
+Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
+Defendants,</span>»</span> <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Katie Dean,
+<span class="quote">«<span class="quote">Schoolgirl Settles with RIAA,</span>»</span> <em class="citetitle">Wired News</em>, 10 September 2003,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #67</a>.
+</p></div><div id="ftn.idp10371472" class="footnote"><p><a href="#idp10371472" class="para"><sup class="para">[206] </sup></a>
+
+Jon Wiederhorn, <span class="quote">«<span class="quote">Eminem Gets Sued … by a Little Old Lady,</span>»</span>
+mtv.com, 17 September 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #68</a>.
+</p></div><div id="ftn.idp10374096" class="footnote"><p><a href="#idp10374096" class="para"><sup class="para">[207] </sup></a>
+
+Kenji Hall, Associated Press, <span class="quote">«<span class="quote">Japanese Book May Be Inspiration for
+Dylan Songs,</span>»</span> Kansascity.com, 9 July 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #69</a>.
+
+</p></div><div id="ftn.idp10384400" class="footnote"><p><a href="#idp10384400" class="para"><sup class="para">[208] </sup></a>
+ <span class="quote">«<span class="quote">BBC Plans to Open Up Its Archive to the Public,</span>»</span> BBC press release,
+24 August 2003, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #70</a>.
+</p></div><div id="ftn.idp10386656" class="footnote"><p><a href="#idp10386656" class="para"><sup class="para">[209] </sup></a>
+
+<span class="quote">«<span class="quote">Creative Commons and Brazil,</span>»</span> Creative Commons Weblog, 6 August 2003,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #71</a>.
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-afterword"></a>Chapter 16. AFTERWORD</h1></div></div></div><p>
+
+
+<span class="strong"><strong>At least some</strong></span> who have read this
+far will agree with me that something must be done to change where we
+are heading. The balance of this book maps what might be done.
+</p><p>
+I divide this map into two parts: that which anyone can do now,
+and that which requires the help of lawmakers. If there is one lesson
+that we can draw from the history of remaking common sense, it is that
+it requires remaking how many people think about the very same issue.
+</p><p>
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators,
+authors, musicians, filmmakers, scientists—all to tell this
+story in their own words, and to tell their neighbors why this battle
+is so important.
+</p><p>
+Once this movement has its effect in the streets, it has some hope of
+having an effect in Washington. We are still a democracy. What people
+think matters. Not as much as it should, at least when an RCA stands
+opposed, but still, it matters. And thus, in the second part below, I
+sketch changes that Congress could make to better secure a free culture.
+</p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="usnow"></a>16.1. US, NOW</h2></div></div></div><p>
+<span class="strong"><strong>Common sense</strong></span> is with the copyright
+warriors because the debate so far has been framed at the
+extremes—as a grand either/or: either property or anarchy,
+either total control or artists won't be paid. If that really is the
+choice, then the warriors should win.
+</p><p>
+The mistake here is the error of the excluded middle. There are
+extremes in this debate, but the extremes are not all that there
+is. There are those who believe in maximal copyright—<span class="quote">«<span class="quote">All Rights
+Reserved</span>»</span>— and those who reject copyright—<span class="quote">«<span class="quote">No Rights
+Reserved.</span>»</span> The <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts believe that you should ask
+permission before you <span class="quote">«<span class="quote">use</span>»</span> a copyrighted work in any way. The <span class="quote">«<span class="quote">No
+Rights Reserved</span>»</span> sorts believe you should be able to do with content
+as you wish, regardless of whether you have permission or not.
+</p><a class="indexterm" name="idxinternetdevelopmentof2"></a><a class="indexterm" name="idxinternetinitialfreecharacterof"></a><p>
+When the Internet was first born, its initial architecture effectively
+tilted in the <span class="quote">«<span class="quote">no rights reserved</span>»</span> direction. Content could be copied
+perfectly and cheaply; rights could not easily be controlled. Thus,
+regardless of anyone's desire, the effective regime of copyright under
+the
+
+
+original design of the Internet was <span class="quote">«<span class="quote">no rights reserved.</span>»</span> Content was
+<span class="quote">«<span class="quote">taken</span>»</span> regardless of the rights. Any rights were effectively
+unprotected.
+</p><p>
+This initial character produced a reaction (opposite, but not quite
+equal) by copyright owners. That reaction has been the topic of this
+book. Through legislation, litigation, and changes to the network's
+design, copyright holders have been able to change the essential
+character of the environment of the original Internet. If the original
+architecture made the effective default <span class="quote">«<span class="quote">no rights reserved,</span>»</span> the
+future architecture will make the effective default <span class="quote">«<span class="quote">all rights
+reserved.</span>»</span> The architecture and law that surround the Internet's
+design will increasingly produce an environment where all use of
+content requires permission. The <span class="quote">«<span class="quote">cut and paste</span>»</span> world that defines
+the Internet today will become a <span class="quote">«<span class="quote">get permission to cut and paste</span>»</span>
+world that is a creator's nightmare.
+</p><a class="indexterm" name="idp10410144"></a><a class="indexterm" name="idp10411536"></a><p>
+What's needed is a way to say something in the middle—neither
+<span class="quote">«<span class="quote">all rights reserved</span>»</span> nor <span class="quote">«<span class="quote">no rights reserved</span>»</span> but <span class="quote">«<span class="quote">some rights
+reserved</span>»</span>— and thus a way to respect copyrights but enable
+creators to free content as they see fit. In other words, we need a
+way to restore a set of freedoms that we could just take for granted
+before.
+</p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="examples"></a>16.1.1. Rebuilding Freedoms Previously Presumed: Examples</h3></div></div></div><a class="indexterm" name="idxfreeculturerestorationeffortsonpreviousaspectsof"></a><a class="indexterm" name="idxbrowsing"></a><a class="indexterm" name="idxprivacyrights2"></a><p>
+If you step back from the battle I've been describing here, you will
+recognize this problem from other contexts. Think about
+privacy. Before the Internet, most of us didn't have to worry much
+about data about our lives that we broadcast to the world. If you
+walked into a bookstore and browsed through some of the works of Karl
+Marx, you didn't need to worry about explaining your browsing habits
+to your neighbors or boss. The <span class="quote">«<span class="quote">privacy</span>»</span> of your browsing habits was
+assured.
+</p><p>
+What made it assured?
+</p><p>
+Well, if we think in terms of the modalities I described in chapter
+<a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>, your
+privacy was assured because of an inefficient architecture for
+gathering data and hence a market constraint (cost) on anyone who
+wanted to gather that data. If you were a suspected spy for North
+Korea, working for the CIA, no doubt your privacy would not be
+assured. But that's because the CIA would (we hope) find it valuable
+enough to spend the thousands required to track you. But for most of
+us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount
+of privacy. That privacy is guaranteed to us by friction. Not by law
+(there is no law protecting <span class="quote">«<span class="quote">privacy</span>»</span> in public places), and in many
+places, not by norms (snooping and gossip are just fun), but instead,
+by the costs that friction imposes on anyone who would want to spy.
+</p><a class="indexterm" name="idxamazon"></a><a class="indexterm" name="idp10427184"></a><a class="indexterm" name="idxinternetprivacyprotectionon"></a><p>
+Enter the Internet, where the cost of tracking browsing in particular
+has become quite tiny. If you're a customer at Amazon, then as you
+browse the pages, Amazon collects the data about what you've looked
+at. You know this because at the side of the page, there's a list of
+<span class="quote">«<span class="quote">recently viewed</span>»</span> pages. Now, because of the architecture of the Net
+and the function of cookies on the Net, it is easier to collect the
+data than not. The friction has disappeared, and hence any <span class="quote">«<span class="quote">privacy</span>»</span>
+protected by the friction disappears, too.
+</p><a class="indexterm" name="idp10431696"></a><p>
+Amazon, of course, is not the problem. But we might begin to worry
+about libraries. If you're one of those crazy lefties who thinks that
+people should have the <span class="quote">«<span class="quote">right</span>»</span> to browse in a library without the
+government knowing which books you look at (I'm one of those lefties,
+too), then this change in the technology of monitoring might concern
+you. If it becomes simple to gather and sort who does what in
+electronic spaces, then the friction-induced privacy of yesterday
+disappears.
+</p><a class="indexterm" name="idp10434080"></a><a class="indexterm" name="idp10435392"></a><p>
+It is this reality that explains the push of many to define <span class="quote">«<span class="quote">privacy</span>»</span>
+on the Internet. It is the recognition that technology can remove what
+friction before gave us that leads many to push for laws to do what
+friction did.<a href="#ftn.idp10437568" class="footnote" name="idp10437568"><sup class="footnote">[210]</sup></a>
+And whether you're in favor of those laws or not, it is the pattern
+that is important here. We must take affirmative steps to secure a
+
+
+kind of freedom that was passively provided before. A change in
+technology now forces those who believe in privacy to affirmatively
+act where, before, privacy was given by default.
+</p><a class="indexterm" name="idp10441584"></a><a class="indexterm" name="idp10442864"></a><a class="indexterm" name="idp10444192"></a><a class="indexterm" name="idp10445008"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss2"></a><p>
+A similar story could be told about the birth of the free software
+movement. When computers with software were first made available
+commercially, the software—both the source code and the
+binaries— was free. You couldn't run a program written for a
+Data General machine on an IBM machine, so Data General and IBM didn't
+care much about controlling their software.
+</p><a class="indexterm" name="idxstallmanrichard"></a><p>
+That was the world Richard Stallman was born into, and while he was a
+researcher at MIT, he grew to love the community that developed when
+one was free to explore and tinker with the software that ran on
+machines. Being a smart sort himself, and a talented programmer,
+Stallman grew to depend upon the freedom to add to or modify other
+people's work.
+</p><p>
+In an academic setting, at least, that's not a terribly radical
+idea. In a math department, anyone would be free to tinker with a
+proof that someone offered. If you thought you had a better way to
+prove a theorem, you could take what someone else did and change
+it. In a classics department, if you believed a colleague's
+translation of a recently discovered text was flawed, you were free to
+improve it. Thus, to Stallman, it seemed obvious that you should be
+free to tinker with and improve the code that ran a machine. This,
+too, was knowledge. Why shouldn't it be open for criticism like
+anything else?
+</p><a class="indexterm" name="idxproprietarycode"></a><p>
+No one answered that question. Instead, the architecture of revenue
+for computing changed. As it became possible to import programs from
+one system to another, it became economically attractive (at least in
+the view of some) to hide the code of your program. So, too, as
+companies started selling peripherals for mainframe systems. If I
+could just take your printer driver and copy it, then that would make
+it easier for me to sell a printer to the market than it was for you.
+</p><p>
+Thus, the practice of proprietary code began to spread, and by the
+early 1980s, Stallman found himself surrounded by proprietary code.
+
+The world of free software had been erased by a change in the
+economics of computing. And as he believed, if he did nothing about
+it, then the freedom to change and share software would be
+fundamentally weakened.
+</p><a class="indexterm" name="idp10454944"></a><a class="indexterm" name="idp10456176"></a><p>
+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 <span class="quote">«<span class="quote">Linux</span>»</span>
+kernel was added to produce the GNU/Linux operating system.
+<a class="indexterm" name="idp10457968"></a>
+<a class="indexterm" name="idp10458800"></a>
+</p><p>
+Stallman's technique was to use copyright law to build a world of
+software that must be kept free. Software licensed under the Free
+Software Foundation's GPL cannot be modified and distributed unless
+the source code for that software is made available as well. Thus,
+anyone building upon GPL'd software would have to make their buildings
+free as well. This would assure, Stallman believed, that an ecology of
+code would develop that remained free for others to build upon. His
+fundamental goal was freedom; innovative creative code was a
+byproduct.
+</p><p>
+Stallman was thus doing for software what privacy advocates now
+do for privacy. He was seeking a way to rebuild a kind of freedom that
+was taken for granted before. Through the affirmative use of licenses
+that bind copyrighted code, Stallman was affirmatively reclaiming a
+space where free software would survive. He was actively protecting
+what before had been passively guaranteed.
+</p><a class="indexterm" name="idp10461472"></a><a class="indexterm" name="idp10462864"></a><a class="indexterm" name="idxacademicjournals"></a><a class="indexterm" name="idxscientificjournals"></a><p>
+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.
+</p><a class="indexterm" name="idxlexisandwestlaw"></a><a class="indexterm" name="idxlawdatabasesofcasereportsin"></a><a class="indexterm" name="idp10471184"></a><a class="indexterm" name="idp10472288"></a><p>
+As digital technologies develop, it is becoming obvious to many that
+printing thousands of copies of journals every month and sending them
+to libraries is perhaps not the most efficient way to distribute
+knowledge. Instead, journals are increasingly becoming electronic, and
+libraries and their users are given access to these electronic
+journals through password-protected sites. Something similar to this
+has been happening in law for almost thirty years: Lexis and Westlaw
+have had electronic versions of case reports available to subscribers
+to their service. Although a Supreme Court opinion is not
+copyrighted, and anyone is free to go to a library and read it, Lexis
+and Westlaw are also free
+
+to charge users for the privilege of gaining access to that Supreme
+Court opinion through their respective services.
+</p><a class="indexterm" name="idp10474944"></a><a class="indexterm" name="idxpublicdomainlicensesystemforrebuildingof"></a><p>
+There's nothing wrong in general with this, and indeed, the ability to
+charge for access to even public domain materials is a good incentive
+for people to develop new and innovative ways to spread knowledge.
+The law has agreed, which is why Lexis and Westlaw have been allowed
+to flourish. And if there's nothing wrong with selling the public
+domain, then there could be nothing wrong, in principle, with selling
+access to material that is not in the public domain.
+</p><a class="indexterm" name="idp10478896"></a><a class="indexterm" name="idp10480144"></a><p>
+But what if the only way to get access to social and scientific data
+was through proprietary services? What if no one had the ability to
+browse this data except by paying for a subscription?
+</p><a class="indexterm" name="idxlibrariesjournalsin"></a><p>
+As many are beginning to notice, this is increasingly the reality with
+scientific journals. When these journals were distributed in paper
+form, libraries could make the journals available to anyone who had
+access to the library. Thus, patients with cancer could become cancer
+experts because the library gave them access. Or patients trying to
+understand the risks of a certain treatment could research those risks
+by reading all available articles about that treatment. This freedom
+was therefore a function of the institution of libraries (norms) and
+the technology of paper journals (architecture)—namely, that it
+was very hard to control access to a paper journal.
+</p><p>
+As journals become electronic, however, the publishers are demanding
+that libraries not give the general public access to the
+journals. This means that the freedoms provided by print journals in
+public libraries begin to disappear. Thus, as with privacy and with
+software, a changing technology and market shrink a freedom taken for
+granted before.
+</p><a class="indexterm" name="idp10485728"></a><a class="indexterm" name="idp10486480"></a><p>
+This shrinking freedom has led many to take affirmative steps to
+restore the freedom that has been lost. The Public Library of Science
+(PLoS), for example, is a nonprofit corporation dedicated to making
+scientific research available to anyone with a Web connection. Authors
+
+of scientific work submit that work to the Public Library of Science.
+That work is then subject to peer review. If accepted, the work is
+then deposited in a public, electronic archive and made permanently
+available for free. PLoS also sells a print version of its work, but
+the copyright for the print journal does not inhibit the right of
+anyone to redistribute the work for free.
+</p><a class="indexterm" name="idp10488704"></a><p>
+This is one of many such efforts to restore a freedom taken for
+granted before, but now threatened by changing technology and markets.
+There's no doubt that this alternative competes with the traditional
+publishers and their efforts to make money from the exclusive
+distribution of content. But competition in our tradition is
+presumptively a good—especially when it helps spread knowledge
+and science.
+</p><a class="indexterm" name="idp10490240"></a><a class="indexterm" name="idp10492224"></a><a class="indexterm" name="idp10493472"></a></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="oneidea"></a>16.1.2. Rebuilding Free Culture: One Idea</h3></div></div></div><a class="indexterm" name="idxcreativecommons"></a><p>
+The same strategy could be applied to culture, as a response to the
+increasing control effected through law and technology.
+</p><a class="indexterm" name="idp10498112"></a><p>
+Enter the Creative Commons. The Creative Commons is a nonprofit
+corporation established in Massachusetts, but with its home at
+Stanford University. Its aim is to build a layer of
+<span class="emphasis"><em>reasonable</em></span> copyright on top of the extremes that
+now reign. It does this by making it easy for people to build upon
+other people's work, by making it simple for creators to express the
+freedom for others to take and build upon their work. Simple tags,
+tied to human-readable descriptions, tied to bulletproof licenses,
+make this possible.
+</p><p>
+<span class="emphasis"><em>Simple</em></span>—which means without a middleman, or
+without a lawyer. By developing a free set of licenses that people
+can attach to their content, Creative Commons aims to mark a range of
+content that can easily, and reliably, be built upon. These tags are
+then linked to machine-readable versions of the license that enable
+computers automatically to identify content that can easily be
+shared. These three expressions together—a legal license, a
+human-readable description, and
+
+machine-readable tags—constitute a Creative Commons license. A
+Creative Commons license constitutes a grant of freedom to anyone who
+accesses the license, and more importantly, an expression of the ideal
+that the person associated with the license believes in something
+different than the <span class="quote">«<span class="quote">All</span>»</span> or <span class="quote">«<span class="quote">No</span>»</span> extremes. Content is marked with the
+CC mark, which does not mean that copyright is waived, but that
+certain freedoms are given.
+</p><p>
+These freedoms are beyond the freedoms promised by fair use. Their
+precise contours depend upon the choices the creator makes. The
+creator can choose a license that permits any use, so long as
+attribution is given. She can choose a license that permits only
+noncommercial use. She can choose a license that permits any use so
+long as the same freedoms are given to other uses (<span class="quote">«<span class="quote">share and share
+alike</span>»</span>). Or any use so long as no derivative use is made. Or any use
+at all within developing nations. Or any sampling use, so long as full
+copies are not made. Or lastly, any educational use.
+</p><p>
+These choices thus establish a range of freedoms beyond the default of
+copyright law. They also enable freedoms that go beyond traditional
+fair use. And most importantly, they express these freedoms in a way
+that subsequent users can use and rely upon without the need to hire a
+lawyer. Creative Commons thus aims to build a layer of content,
+governed by a layer of reasonable copyright law, that others can build
+upon. Voluntary choice of individuals and creators will make this
+content available. And that content will in turn enable us to rebuild
+a public domain.
+</p><a class="indexterm" name="idp10505520"></a><p>
+This is just one project among many within the Creative Commons. And
+of course, Creative Commons is not the only organization pursuing such
+freedoms. But the point that distinguishes the Creative Commons from
+many is that we are not interested only in talking about a public
+domain or in getting legislators to help build a public domain. Our
+aim is to build a movement of consumers and producers
+
+of content (<span class="quote">«<span class="quote">content conducers,</span>»</span> as attorney Mia Garlick calls them)
+who help build the public domain and, by their work, demonstrate the
+importance of the public domain to other creativity.
+</p><a class="indexterm" name="idp10508048"></a><p>
+The aim is not to fight the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts. The aim is to
+complement them. The problems that the law creates for us as a culture
+are produced by insane and unintended consequences of laws written
+centuries ago, applied to a technology that only Jefferson could have
+imagined. The rules may well have made sense against a background of
+technologies from centuries ago, but they do not make sense against
+the background of digital technologies. New rules—with different
+freedoms, expressed in ways so that humans without lawyers can use
+them—are needed. Creative Commons gives people a way effectively
+to begin to build those rules.
+</p><a class="indexterm" name="idxbooksfreeonline2"></a><p>
+Why would creators participate in giving up total control? Some
+participate to better spread their content. Cory Doctorow, for
+example, is a science fiction author. His first novel, <em class="citetitle">Down and Out in
+the Magic Kingdom</em>, was released on-line and for free, under a Creative
+Commons license, on the same day that it went on sale in bookstores.
+</p><p>
+Why would a publisher ever agree to this? I suspect his publisher
+reasoned like this: There are two groups of people out there: (1)
+those who will buy Cory's book whether or not it's on the Internet,
+and (2) those who may never hear of Cory's book, if it isn't made
+available for free on the Internet. Some part of (1) will download
+Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
+will download Cory's book, like it, and then decide to buy it. Call
+them (2)-goods. If there are more (2)-goods than bad-(1)s, the
+strategy of releasing Cory's book free on-line will probably
+<span class="emphasis"><em>increase</em></span> sales of Cory's book.
+</p><p>
+Indeed, the experience of his publisher clearly supports that
+conclusion. The book's first printing was exhausted months before the
+publisher had expected. This first novel of a science fiction author
+was a total success.
+</p><a class="indexterm" name="idp10516016"></a><a class="indexterm" name="idp10516832"></a><p>
+The idea that free content might increase the value of nonfree content
+was confirmed by the experience of another author. Peter Wayner,
+
+who wrote a book about the free software movement titled <em class="citetitle">Free for All</em>,
+made an electronic version of his book free on-line under a Creative
+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.
+</p><a class="indexterm" name="idp10519280"></a><a class="indexterm" name="idp10520592"></a><a class="indexterm" name="idp10521408"></a><a class="indexterm" name="idp10522224"></a><p>
+These are examples of using the Commons to better spread proprietary
+content. I believe that is a wonderful and common use of the
+Commons. There are others who use Creative Commons licenses for other
+reasons. Many who use the <span class="quote">«<span class="quote">sampling license</span>»</span> do so because anything
+else would be hypocritical. The sampling license says that others are
+free, for commercial or noncommercial purposes, to sample content from
+the licensed work; they are just not free to make full copies of the
+licensed work available to others. This is consistent with their own
+art—they, too, sample from others. Because the
+<span class="emphasis"><em>legal</em></span> costs of sampling are so high (Walter
+Leaphart, manager of the rap group Public Enemy, which was born
+sampling the music of others, has stated that he does not <span class="quote">«<span class="quote">allow</span>»</span>
+Public Enemy to sample anymore, because the legal costs are so
+high<a href="#ftn.idp10525440" class="footnote" name="idp10525440"><sup class="footnote">[211]</sup></a>),
+these artists release into the creative environment content
+that others can build upon, so that their form of creativity might grow.
+</p><p>
+Finally, there are many who mark their content with a Creative Commons
+license just because they want to express to others the importance of
+balance in this debate. If you just go along with the system as it is,
+you are effectively saying you believe in the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span>
+model. Good for you, but many do not. Many believe that however
+appropriate that rule is for Hollywood and freaks, it is not an
+appropriate description of how most creators view the rights
+associated with their content. The Creative Commons license expresses
+this notion of <span class="quote">«<span class="quote">Some Rights Reserved,</span>»</span> and gives many the chance to
+say it to others.
+</p><p>
+In the first six months of the Creative Commons experiment, over
+1 million objects were licensed with these free-culture licenses. The next
+step is partnerships with middleware content providers to help them
+build into their technologies simple ways for users to mark their content
+
+
+with Creative Commons freedoms. Then the next step is to watch and
+celebrate creators who build content based upon content set free.
+</p><p>
+These are first steps to rebuilding a public domain. They are not
+mere arguments; they are action. Building a public domain is the first
+step to showing people how important that domain is to creativity and
+innovation. Creative Commons relies upon voluntary steps to achieve
+this rebuilding. They will lead to a world in which more than voluntary
+steps are possible.
+</p><p>
+Creative Commons is just one example of voluntary efforts by
+individuals and creators to change the mix of rights that now govern
+the creative field. The project does not compete with copyright; it
+complements it. Its aim is not to defeat the rights of authors, but to
+make it easier for authors and creators to exercise their rights more
+flexibly and cheaply. That difference, we believe, will enable
+creativity to spread more easily.
+</p><a class="indexterm" name="idp10532416"></a><a class="indexterm" name="idp10533760"></a></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="themsoon"></a>16.2. THEM, SOON</h2></div></div></div><p>
+<span class="strong"><strong>We will</strong></span> not reclaim a free culture
+by individual action alone. It will also take important reforms of
+laws. We have a long way to go before the politicians will listen to
+these ideas and implement these reforms. But that also means that we
+have time to build awareness around the changes that we need.
+</p><p>
+In this chapter, I outline five kinds of changes: four that are general,
+and one that's specific to the most heated battle of the day, music. Each
+is a step, not an end. But any of these steps would carry us a long way
+to our end.
+</p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="formalities"></a>16.2.1. 1. More Formalities</h3></div></div></div><p>
+If you buy a house, you have to record the sale in a deed. If you buy land
+upon which to build a house, you have to record the purchase in a deed.
+If you buy a car, you get a bill of sale and register the car. If you buy an
+airplane ticket, it has your name on it.
+</p><p>
+
+These are all formalities associated with property. They are
+requirements that we all must bear if we want our property to be
+protected.
+</p><p>
+In contrast, under current copyright law, you automatically get a
+copyright, regardless of whether you comply with any formality. You
+don't have to register. You don't even have to mark your content. The
+default is control, and <span class="quote">«<span class="quote">formalities</span>»</span> are banished.
+</p><p>
+Why?
+</p><p>
+As I suggested in chapter <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>, 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
+formalities were getting in the way.
+</p><p>
+But the Internet changes all this. Formalities today need not be a
+burden. Rather, the world without formalities is the world that
+burdens creativity. Today, there is no simple way to know who owns
+what, or with whom one must deal in order to use or build upon the
+creative work of others. There are no records, there is no system to
+trace— there is no simple way to know how to get permission. Yet
+given the massive increase in the scope of copyright's rule, getting
+permission is a necessary step for any work that builds upon our
+past. And thus, the <span class="emphasis"><em>lack</em></span> of formalities forces
+many into silence where they otherwise could speak.
+</p><p>
+The law should therefore change this requirement<a href="#ftn.idp10546448" class="footnote" name="idp10546448"><sup class="footnote">[212]</sup></a>—but it
+should not change it by going back to the old, broken system. We
+should require formalities, but we should establish a system that will
+create the incentives to minimize the burden of these formalities.
+</p><p>
+The important formalities are three: marking copyrighted work,
+registering copyrights, and renewing the claim to
+copyright. Traditionally, the first of these three was something the
+copyright owner did; the second two were something the government
+did. But a revised system of formalities would banish the government
+from the process, except for the sole purpose of approving standards
+developed by others.
+</p><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="registration"></a>16.2.1.1. REGISTRATION AND RENEWAL</h4></div></div></div><p>
+Under the old system, a copyright owner had to file a registration
+with the Copyright Office to register or renew a copyright. When
+filing that registration, the copyright owner paid a fee. As with most
+government agencies, the Copyright Office had little incentive to
+minimize the burden of registration; it also had little incentive to
+minimize the fee. And as the Copyright Office is not a main target of
+government policymaking, the office has historically been terribly
+underfunded. Thus, when people who know something about the process
+hear this idea about formalities, their first reaction is
+panic—nothing could be worse than forcing people to deal with
+the mess that is the Copyright Office.
+</p><p>
+Yet it is always astonishing to me that we, who come from a tradition
+of extraordinary innovation in governmental design, can no longer
+think innovatively about how governmental functions can be designed.
+Just because there is a public purpose to a government role, it
+doesn't follow that the government must actually administer the
+role. Instead, we should be creating incentives for private parties to
+serve the public, subject to standards that the government sets.
+</p><p>
+In the context of registration, one obvious model is the Internet.
+There are at least 32 million Web sites registered around the world.
+Domain name owners for these Web sites have to pay a fee to keep their
+registration alive. In the main top-level domains (.com, .org, .net),
+there is a central registry. The actual registrations are, however,
+performed by many competing registrars. That competition drives the
+cost of registering down, and more importantly, it drives the ease
+with which registration occurs up.
+</p><p>
+We should adopt a similar model for the registration and renewal of
+copyrights. The Copyright Office may well serve as the central
+registry, but it should not be in the registrar business. Instead, it
+should establish a database, and a set of standards for registrars. It
+should approve registrars that meet its standards. Those registrars
+would then compete with one another to deliver the cheapest and
+simplest systems for registering and renewing copyrights. That
+competition would substantially lower the burden of this
+formality—while producing a database
+
+of registrations that would facilitate the licensing of content.
+</p></div><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="marking"></a>16.2.1.2. MARKING</h4></div></div></div><p>
+It used to be that the failure to include a copyright notice on a
+creative work meant that the copyright was forfeited. That was a harsh
+punishment for failing to comply with a regulatory rule—akin to
+imposing the death penalty for a parking ticket in the world of
+creative rights. Here again, there is no reason that a marking
+requirement needs to be enforced in this way. And more importantly,
+there is no reason a marking requirement needs to be enforced
+uniformly across all media.
+</p><p>
+The aim of marking is to signal to the public that this work is
+copyrighted and that the author wants to enforce his rights. The mark
+also makes it easy to locate a copyright owner to secure permission to
+use the work.
+</p><p>
+One of the problems the copyright system confronted early on was
+that different copyrighted works had to be differently marked. It wasn't
+clear how or where a statue was to be marked, or a record, or a film. A
+new marking requirement could solve these problems by recognizing
+the differences in media, and by allowing the system of marking to
+evolve as technologies enable it to. The system could enable a special
+signal from the failure to mark—not the loss of the copyright, but the
+loss of the right to punish someone for failing to get permission first.
+</p><p>
+Let's start with the last point. If a copyright owner allows his work
+to be published without a copyright notice, the consequence of that
+failure need not be that the copyright is lost. The consequence could
+instead be that anyone has the right to use this work, until the
+copyright owner complains and demonstrates that it is his work and he
+doesn't give permission.<a href="#ftn.idp10557648" class="footnote" name="idp10557648"><sup class="footnote">[213]</sup></a>
+The meaning of an unmarked work would therefore be <span class="quote">«<span class="quote">use unless someone
+complains.</span>»</span> If someone does complain, then the obligation would be to
+stop using the work in any new
+
+work from then on though no penalty would attach for existing uses.
+This would create a strong incentive for copyright owners to mark
+their work.
+</p><p>
+That in turn raises the question about how work should best be
+marked. Here again, the system needs to adjust as the technologies
+evolve. The best way to ensure that the system evolves is to limit the
+Copyright Office's role to that of approving standards for marking
+content that have been crafted elsewhere.
+</p><a class="indexterm" name="idp10561632"></a><p>
+For example, if a recording industry association devises a method for
+marking CDs, it would propose that to the Copyright Office. The
+Copyright Office would hold a hearing, at which other proposals could
+be made. The Copyright Office would then select the proposal that it
+judged preferable, and it would base that choice
+<span class="emphasis"><em>solely</em></span> upon the consideration of which method
+could best be integrated into the registration and renewal system. We
+would not count on the government to innovate; but we would count on
+the government to keep the product of innovation in line with its
+other important functions.
+</p><p>
+Finally, marking content clearly would simplify registration
+requirements. If photographs were marked by author and year, there
+would be little reason not to allow a photographer to reregister, for
+example, all photographs taken in a particular year in one quick
+step. The aim of the formality is not to burden the creator; the
+system itself should be kept as simple as possible.
+</p><p>
+The objective of formalities is to make things clear. The existing
+system does nothing to make things clear. Indeed, it seems designed to
+make things unclear.
+</p><p>
+If formalities such as registration were reinstated, one of the most
+difficult aspects of relying upon the public domain would be removed.
+It would be simple to identify what content is presumptively free; it
+would be simple to identify who controls the rights for a particular
+kind of content; it would be simple to assert those rights, and to renew
+that assertion at the appropriate time.
+</p></div></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="shortterms"></a>16.2.2. 2. Shorter Terms</h3></div></div></div><p>
+The term of copyright has gone from fourteen years to ninety-five
+years for corporate authors, and life of the author plus seventy years for
+natural authors.
+</p><p>
+In <em class="citetitle">The Future of Ideas</em>, I proposed a seventy-five-year term,
+granted in five-year increments with a requirement of renewal every
+five years. That seemed radical enough at the time. But after we lost
+<em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, the proposals became even more
+radical. <em class="citetitle">The Economist</em> endorsed a proposal for a fourteen-year
+copyright term.<a href="#ftn.idp10570848" class="footnote" name="idp10570848"><sup class="footnote">[214]</sup></a>
+Others have proposed tying the term to the term for patents.
+</p><p>
+I agree with those who believe that we need a radical change in
+copyright's term. But whether fourteen years or seventy-five, there
+are four principles that are important to keep in mind about copyright
+terms.
+</p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
+
+<span class="emphasis"><em>Keep it short:</em></span> The term should be as long as
+necessary to give incentives to create, but no longer. If it were tied
+to very strong protections for authors (so authors were able to
+reclaim rights from publishers), rights to the same work (not
+derivative works) might be extended further. The key is not to tie the
+work up with legal regulations when it no longer benefits an author.
+</p></li><li class="listitem"><p>
+
+<span class="emphasis"><em>Keep it simple:</em></span> The line between the public
+domain and protected content must be kept clear. Lawyers like the
+fuzziness of <span class="quote">«<span class="quote">fair use,</span>»</span> and the distinction between <span class="quote">«<span class="quote">ideas</span>»</span> and
+<span class="quote">«<span class="quote">expression.</span>»</span> That kind of law gives them lots of work. But our
+framers had a simpler idea in mind: protected versus unprotected. The
+value of short terms is that there is little need to build exceptions
+into copyright when the term itself is kept short. A clear and active
+<span class="quote">«<span class="quote">lawyer-free zone</span>»</span> makes the complexities of <span class="quote">«<span class="quote">fair use</span>»</span> and
+<span class="quote">«<span class="quote">idea/expression</span>»</span> less necessary to navigate.
+
+</p></li><li class="listitem"><a class="indexterm" name="idp10581728"></a><p>
+
+<span class="emphasis"><em>Keep it alive:</em></span> Copyright should have to be
+renewed. Especially if the maximum term is long, the copyright owner
+should be required to signal periodically that he wants the protection
+continued. This need not be an onerous burden, but there is no reason
+this monopoly protection has to be granted for free. On average, it
+takes ninety minutes for a veteran to apply for a
+pension.<a href="#ftn.idp10583888" class="footnote" name="idp10583888"><sup class="footnote">[215]</sup></a>
+If we make veterans suffer that burden, I don't see why we couldn't
+require authors to spend ten minutes every fifty years to file a
+single form.
+</p></li><li class="listitem"><p>
+
+<span class="emphasis"><em>Keep it prospective:</em></span> Whatever the term of
+copyright should be, the clearest lesson that economists teach is that
+a term once given should not be extended. It might have been a mistake
+in 1923 for the law to offer authors only a fifty-six-year term. I
+don't think so, but it's possible. If it was a mistake, then the
+consequence was that we got fewer authors to create in 1923 than we
+otherwise would have. But we can't correct that mistake today by
+increasing the term. No matter what we do today, we will not increase
+the number of authors who wrote in 1923. Of course, we can increase
+the reward that those who write now get (or alternatively, increase
+the copyright burden that smothers many works that are today
+invisible). But increasing their reward will not increase their
+creativity in 1923. What's not done is not done, and there's nothing
+we can do about that now. </p></li></ol></div><p>
+These changes together should produce an <span class="emphasis"><em>average</em></span>
+copyright term that is much shorter than the current term. Until 1976,
+the average term was just 32.2 years. We should be aiming for the
+same.
+</p><p>
+No doubt the extremists will call these ideas <span class="quote">«<span class="quote">radical.</span>»</span> (After all, I
+call them <span class="quote">«<span class="quote">extremists.</span>»</span>) But again, the term I recommended was longer
+than the term under Richard Nixon. How <span class="quote">«<span class="quote">radical</span>»</span> can it be to ask for
+a more generous copyright law than Richard Nixon presided over?
+</p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="freefairuse"></a>16.2.3. 3. Free Use Vs. Fair Use</h3></div></div></div><a class="indexterm" name="idp10592736"></a><a class="indexterm" name="idp10593536"></a><p>
+As I observed at the beginning of this book, property law originally
+granted property owners the right to control their property from the
+ground to the heavens. The airplane came along. The scope of property
+rights quickly changed. There was no fuss, no constitutional
+challenge. It made no sense anymore to grant that much control, given
+the emergence of that new technology.
+</p><p>
+Our Constitution gives Congress the power to give authors <span class="quote">«<span class="quote">exclusive
+right</span>»</span> to <span class="quote">«<span class="quote">their writings.</span>»</span> Congress has given authors an exclusive
+right to <span class="quote">«<span class="quote">their writings</span>»</span> plus any derivative writings (made by
+others) that are sufficiently close to the author's original
+work. Thus, if I write a book, and you base a movie on that book, I
+have the power to deny you the right to release that movie, even
+though that movie is not <span class="quote">«<span class="quote">my writing.</span>»</span>
+</p><a class="indexterm" name="idp10597920"></a><p>
+Congress granted the beginnings of this right in 1870, when it
+expanded the exclusive right of copyright to include a right to
+control translations and dramatizations of a work.<a href="#ftn.idp10599184" class="footnote" name="idp10599184"><sup class="footnote">[216]</sup></a>
+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.
+</p><div class="blockquote"><blockquote class="blockquote"><p>
+So inured have we become to the extension of the monopoly to a
+large range of so-called derivative works, that we no longer sense
+the oddity of accepting such an enlargement of copyright while
+yet intoning the abracadabra of idea and expression.<a href="#ftn.idp10601632" class="footnote" name="idp10601632"><sup class="footnote">[217]</sup></a>
+</p></blockquote></div><p>
+I think it's time to recognize that there are airplanes in this field and
+the expansiveness of these rights of derivative use no longer make
+sense. More precisely, they don't make sense for the period of time that
+a copyright runs. And they don't make sense as an amorphous grant.
+Consider each limitation in turn.
+</p><p>
+<span class="emphasis"><em>Term:</em></span> 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
+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.
+<a class="indexterm" name="idp10604944"></a>
+</p><p>
+<span class="emphasis"><em>Scope:</em></span> 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 <span class="quote">«<span class="quote">reuse</span>»</span> 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.
+</p><a class="indexterm" name="idp10608192"></a><p>
+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.
+</p><p>
+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.<a href="#ftn.idp10610320" class="footnote" name="idp10610320"><sup class="footnote">[218]</sup></a>
+His view is that the law should be written so that
+expanded protections follow expanded uses.
+</p><p>
+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.
+</p><p>
+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.
+</p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="liberatemusic"></a>16.2.4. 4. Liberate the Music—Again</h3></div></div></div><p>
+The battle that got this whole war going was about music, so it
+wouldn't be fair to end this book without addressing the issue that
+is, to most people, most pressing—music. There is no other
+policy issue that better teaches the lessons of this book than the
+battles around the sharing of music.
+</p><p>
+The appeal of file-sharing music was the crack cocaine of the
+Internet's growth. It drove demand for access to the Internet more
+powerfully than any other single application. It was the Internet's
+killer app—possibly in two senses of that word. It no doubt was
+the application that drove demand for bandwidth. It may well be the
+application that drives demand for regulations that in the end kill
+innovation on the network.
+</p><p>
+The aim of copyright, with respect to content in general and music in
+particular, is to create the incentives for music to be composed,
+performed, and, most importantly, spread. The law does this by giving
+an exclusive right to a composer to control public performances of his
+work, and to a performing artist to control copies of her performance.
+</p><p>
+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
+<a class="xref" href="#piracy" title="Chapter 5. CHAPTER FIVE: «Piracy»">5</a>, they enable
+four different kinds of sharing:
+</p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><p>
+
+There are some who are using sharing networks as substitutes
+for purchasing CDs.
+</p></li><li class="listitem"><p>
+
+There are also some who are using sharing networks to sample,
+on the way to purchasing CDs.
+</p></li><li class="listitem"><p>
+
+
+There are many who are using file-sharing networks to get access to
+content that is no longer sold but is still under copyright or that
+would have been too cumbersome to buy off the Net.
+</p></li><li class="listitem"><p>
+
+There are many who are using file-sharing networks to get access to
+content that is not copyrighted or to get access that the copyright
+owner plainly endorses.
+</p></li></ol></div><a class="indexterm" name="idp10625328"></a><a class="indexterm" name="idp10626400"></a><p>
+Any reform of the law needs to keep these different uses in focus. It
+must avoid burdening type D even if it aims to eliminate type A. The
+eagerness with which the law aims to eliminate type A, moreover,
+should depend upon the magnitude of type B. As with VCRs, if the net
+effect of sharing is actually not very harmful, the need for regulation is
+significantly weakened.
+</p><p>
+As I said in chapter <a class="xref" href="#piracy" title="Chapter 5. CHAPTER FIVE: «Piracy»">5</a>, the actual harm caused by sharing is
+controversial. For the purposes of this chapter, however, I assume
+the harm is real. I assume, in other words, that type A sharing is
+significantly greater than type B, and is the dominant use of sharing
+networks.
+</p><p>
+Nonetheless, there is a crucial fact about the current technological
+context that we must keep in mind if we are to understand how the law
+should respond.
+</p><p>
+Today, file sharing is addictive. In ten years, it won't be. It is
+addictive today because it is the easiest way to gain access to a
+broad range of content. It won't be the easiest way to get access to
+a broad range of content in ten years. Today, access to the Internet
+is cumbersome and slow—we in the United States are lucky to have
+broadband service at 1.5 MBs, and very rarely do we get service at
+that speed both up and down. Although wireless access is growing, most
+of us still get access across wires. Most only gain access through a
+machine with a keyboard. The idea of the always on, always connected
+Internet is mainly just an idea.
+</p><p>
+But it will become a reality, and that means the way we get access to
+the Internet today is a technology in transition. Policy makers should
+not make policy on the basis of technology in transition. They should
+
+make policy on the basis of where the technology is going. The
+question should not be, how should the law regulate sharing in this
+world? The question should be, what law will we require when the
+network becomes the network it is clearly becoming? That network is
+one in which every machine with electricity is essentially on the Net;
+where everywhere you are—except maybe the desert or the
+Rockies—you can instantaneously be connected to the
+Internet. Imagine the Internet as ubiquitous as the best cell-phone
+service, where with the flip of a device, you are connected.
+</p><a class="indexterm" name="idp10631968"></a><p>
+In that world, it will be extremely easy to connect to services that
+give you access to content on the fly—such as Internet radio,
+content that is streamed to the user when the user demands. Here,
+then, is the critical point: When it is <span class="emphasis"><em>extremely</em></span>
+easy to connect to services that give access to content, it will be
+<span class="emphasis"><em>easier</em></span> to connect to services that give you
+access to content than it will be to download and store content
+<span class="emphasis"><em>on the many devices you will have for playing
+content</em></span>. It will be easier, in other words, to subscribe
+than it will be to be a database manager, as everyone in the
+download-sharing world of Napster-like technologies essentially
+is. Content services will compete with content sharing, even if the
+services charge money for the content they give access to. Already
+cell-phone services in Japan offer music (for a fee) streamed over
+cell phones (enhanced with plugs for headphones). The Japanese are
+paying for this content even though <span class="quote">«<span class="quote">free</span>»</span> content is available in the
+form of MP3s across the Web.<a href="#ftn.idp10636480" class="footnote" name="idp10636480"><sup class="footnote">[219]</sup></a>
+
+</p><p>
+This point about the future is meant to suggest a perspective on the
+present: It is emphatically temporary. The <span class="quote">«<span class="quote">problem</span>»</span> with file
+sharing—to the extent there is a real problem—is a problem
+that will increasingly disappear as it becomes easier to connect to
+the Internet. And thus it is an extraordinary mistake for policy
+makers today to be <span class="quote">«<span class="quote">solving</span>»</span> this problem in light of a technology
+that will be gone tomorrow. The question should not be how to
+regulate the Internet to eliminate file sharing (the Net will evolve
+that problem away). The question instead should be how to assure that
+artists get paid, during
+
+
+this transition between twentieth-century models for doing business
+and twenty-first-century technologies.
+</p><p>
+The answer begins with recognizing that there are different <span class="quote">«<span class="quote">problems</span>»</span>
+here to solve. Let's start with type D content—uncopyrighted
+content or copyrighted content that the artist wants shared. The
+<span class="quote">«<span class="quote">problem</span>»</span> with this content is to make sure that the technology that
+would enable this kind of sharing is not rendered illegal. You can
+think of it this way: Pay phones are used to deliver ransom demands,
+no doubt. But there are many who need to use pay phones who have
+nothing to do with ransoms. It would be wrong to ban pay phones in
+order to eliminate kidnapping.
+</p><p>
+Type C content raises a different <span class="quote">«<span class="quote">problem.</span>»</span> This is content that was,
+at one time, published and is no longer available. It may be
+unavailable because the artist is no longer valuable enough for the
+record label he signed with to carry his work. Or it may be
+unavailable because the work is forgotten. Either way, the aim of the
+law should be to facilitate the access to this content, ideally in a
+way that returns something to the artist.
+</p><a class="indexterm" name="idp10644096"></a><a class="indexterm" name="idp10645200"></a><p>
+Again, the model here is the used book store. Once a book goes out of
+print, it may still be available in libraries and used book
+stores. But libraries and used book stores don't pay the copyright
+owner when someone reads or buys an out-of-print book. That makes
+total sense, of course, since any other system would be so burdensome
+as to eliminate the possibility of used book stores' existing. But
+from the author's perspective, this <span class="quote">«<span class="quote">sharing</span>»</span> of his content without
+his being compensated is less than ideal.
+</p><p>
+The model of used book stores suggests that the law could simply deem
+out-of-print music fair game. If the publisher does not make copies of
+the music available for sale, then commercial and noncommercial
+providers would be free, under this rule, to <span class="quote">«<span class="quote">share</span>»</span> that content,
+even though the sharing involved making a copy. The copy here would be
+incidental to the trade; in a context where commercial publishing has
+ended, trading music should be as free as trading books.
+</p><p>
+
+
+Alternatively, the law could create a statutory license that would
+ensure that artists get something from the trade of their work. For
+example, if the law set a low statutory rate for the commercial
+sharing of content that was not offered for sale by a commercial
+publisher, and if that rate were automatically transferred to a trust
+for the benefit of the artist, then businesses could develop around
+the idea of trading this content, and artists would benefit from this
+trade.
+</p><p>
+This system would also create an incentive for publishers to keep
+works available commercially. Works that are available commercially
+would not be subject to this license. Thus, publishers could protect
+the right to charge whatever they want for content if they kept the
+work commercially available. But if they don't keep it available, and
+instead, the computer hard disks of fans around the world keep it
+alive, then any royalty owed for such copying should be much less than
+the amount owed a commercial publisher.
+</p><p>
+The hard case is content of types A and B, and again, this case is
+hard only because the extent of the problem will change over time, as
+the technologies for gaining access to content change. The law's
+solution should be as flexible as the problem is, understanding that
+we are in the middle of a radical transformation in the technology for
+delivering and accessing content.
+</p><p>
+So here's a solution that will at first seem very strange to both sides
+in this war, but which upon reflection, I suggest, should make some sense.
+</p><p>
+Stripped of the rhetoric about the sanctity of property, the basic
+claim of the content industry is this: A new technology (the Internet)
+has harmed a set of rights that secure copyright. If those rights are to
+be protected, then the content industry should be compensated for that
+harm. Just as the technology of tobacco harmed the health of millions
+of Americans, or the technology of asbestos caused grave illness to
+thousands of miners, so, too, has the technology of digital networks
+harmed the interests of the content industry.
+</p><p>
+
+I love the Internet, and so I don't like likening it to tobacco or
+asbestos. But the analogy is a fair one from the perspective of the
+law. And it suggests a fair response: Rather than seeking to destroy
+the Internet, or the p2p technologies that are currently harming
+content providers on the Internet, we should find a relatively simple
+way to compensate those who are harmed.
+</p><a class="indexterm" name="idxpromisestokeepfisher"></a><p>
+The idea would be a modification of a proposal that has been
+floated by Harvard law professor William Fisher.<a href="#ftn.idp10656784" class="footnote" name="idp10656784"><sup class="footnote">[220]</sup></a>
+Fisher suggests a very clever way around the current impasse of the
+Internet. Under his plan, all content capable of digital transmission
+would (1) be marked with a digital watermark (don't worry about how
+easy it is to evade these marks; as you'll see, there's no incentive
+to evade them). Once the content is marked, then entrepreneurs would
+develop (2) systems to monitor how many items of each content were
+distributed. On the basis of those numbers, then (3) artists would be
+compensated. The compensation would be paid for by (4) an appropriate
+tax.
+</p><p>
+Fisher's proposal is careful and comprehensive. It raises a million
+questions, most of which he answers well in his upcoming book,
+<em class="citetitle">Promises to Keep</em>. The modification that I would make is relatively
+simple: Fisher imagines his proposal replacing the existing copyright
+system. I imagine it complementing the existing system. The aim of
+the proposal would be to facilitate compensation to the extent that
+harm could be shown. This compensation would be temporary, aimed at
+facilitating a transition between regimes. And it would require
+renewal after a period of years. If it continues to make sense to
+facilitate free exchange of content, supported through a taxation
+system, then it can be continued. If this form of protection is no
+longer necessary, then the system could lapse into the old system of
+controlling access.
+</p><a class="indexterm" name="idp10677840"></a><a class="indexterm" name="idp10679088"></a><p>
+Fisher would balk at the idea of allowing the system to lapse. His aim
+is not just to ensure that artists are paid, but also to ensure that
+the system supports the widest range of <span class="quote">«<span class="quote">semiotic democracy</span>»</span>
+possible. But the aims of semiotic democracy would be satisfied if the
+other changes I described were accomplished—in particular, the
+limits on derivative
+
+
+uses. A system that simply charges for access would not greatly burden
+semiotic democracy if there were few limitations on what one was
+allowed to do with the content itself.
+</p><a class="indexterm" name="idp10681888"></a><a class="indexterm" name="idp10682672"></a><a class="indexterm" name="idp10683488"></a><a class="indexterm" name="idp10684304"></a><p>
+No doubt it would be difficult to calculate the proper measure of
+<span class="quote">«<span class="quote">harm</span>»</span> to an industry. But the difficulty of making that calculation
+would be outweighed by the benefit of facilitating innovation. This
+background system to compensate would also not need to interfere with
+innovative proposals such as Apple's MusicStore. As experts predicted
+when Apple launched the MusicStore, it could beat <span class="quote">«<span class="quote">free</span>»</span> by being
+easier than free is. This has proven correct: Apple has sold millions
+of songs at even the very high price of 99 cents a song. (At 99 cents,
+the cost is the equivalent of a per-song CD price, though the labels
+have none of the costs of a CD to pay.) Apple's move was countered by
+Real Networks, offering music at just 79 cents a song. And no doubt
+there will be a great deal of competition to offer and sell music
+on-line.
+</p><a class="indexterm" name="idp10687456"></a><a class="indexterm" name="idp10688272"></a><a class="indexterm" name="idp10689376"></a><a class="indexterm" name="idp10690208"></a><a class="indexterm" name="idp10691312"></a><p>
+This competition has already occurred against the background of <span class="quote">«<span class="quote">free</span>»</span>
+music from p2p systems. As the sellers of cable television have known
+for thirty years, and the sellers of bottled water for much more than
+that, there is nothing impossible at all about <span class="quote">«<span class="quote">competing with free.</span>»</span>
+Indeed, if anything, the competition spurs the competitors to offer
+new and better products. This is precisely what the competitive market
+was to be about. Thus in Singapore, though piracy is rampant, movie
+theaters are often luxurious—with <span class="quote">«<span class="quote">first class</span>»</span> seats, and meals
+served while you watch a movie—as they struggle and succeed in
+finding ways to compete with <span class="quote">«<span class="quote">free.</span>»</span>
+</p><p>
+This regime of competition, with a backstop to assure that artists
+don't lose, would facilitate a great deal of innovation in the
+delivery of content. That competition would continue to shrink type A
+sharing. It would inspire an extraordinary range of new
+innovators—ones who would have a right to the content, and would
+no longer fear the uncertain and barbarically severe punishments of
+the law.
+</p><p>
+In summary, then, my proposal is this:
+</p><p>
+
+
+The Internet is in transition. We should not be regulating a
+technology in transition. We should instead be regulating to minimize
+the harm to interests affected by this technological change, while
+enabling, and encouraging, the most efficient technology we can
+create.
+</p><p>
+We can minimize that harm while maximizing the benefit to innovation
+by
+</p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
+
+guaranteeing the right to engage in type D sharing;
+</p></li><li class="listitem"><p>
+
+permitting noncommercial type C sharing without liability,
+and commercial type C sharing at a low and fixed rate set by
+statute;
+</p></li><li class="listitem"><p>
+
+while in this transition, taxing and compensating for type A
+sharing, to the extent actual harm is demonstrated.
+</p></li></ol></div><p>
+But what if <span class="quote">«<span class="quote">piracy</span>»</span> doesn't disappear? What if there is a competitive
+market providing content at a low cost, but a significant number of
+consumers continue to <span class="quote">«<span class="quote">take</span>»</span> content for nothing? Should the law do
+something then?
+</p><p>
+Yes, it should. But, again, what it should do depends upon how the
+facts develop. These changes may not eliminate type A sharing. But the
+real issue is not whether it eliminates sharing in the abstract. The
+real issue is its effect on the market. Is it better (a) to have a
+technology that is 95 percent secure and produces a market of size <em class="citetitle">x</em>,
+or (b) to have a technology that is 50 percent secure but produces a
+market of five times <em class="citetitle">x</em>? Less secure might produce more unauthorized
+sharing, but it is likely to also produce a much bigger market in
+authorized sharing. The most important thing is to assure artists'
+compensation without breaking the Internet. Once that's assured, then
+it may well be appropriate to find ways to track down the petty
+pirates.
+</p><p>
+But we're a long way away from whittling the problem down to this
+subset of type A sharers. And our focus until we're there should not
+be on finding ways to break the Internet. Our focus until we're there
+
+
+should be on how to make sure the artists are paid, while protecting
+the space for innovation and creativity that the Internet is.
+</p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="firelawyers"></a>16.2.5. 5. Fire Lots of Lawyers</h3></div></div></div><p>
+I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
+in the law of copyright. Indeed, I have devoted my life to working in
+law, not because there are big bucks at the end but because there are
+ideals at the end that I would love to live.
+</p><p>
+Yet much of this book has been a criticism of lawyers, or the role
+lawyers have played in this debate. The law speaks to ideals, but it
+is my view that our profession has become too attuned to the
+client. And in a world where the rich clients have one strong view,
+the unwillingness of the profession to question or counter that one
+strong view queers the law.
+</p><a class="indexterm" name="idp10709088"></a><a class="indexterm" name="idp10709904"></a><p>
+The evidence of this bending is compelling. I'm attacked as a
+<span class="quote">«<span class="quote">radical</span>»</span> by many within the profession, yet the positions that I am
+advocating are precisely the positions of some of the most moderate
+and significant figures in the history of this branch of the
+law. Many, for example, thought crazy the challenge that we brought to
+the Copyright Term Extension Act. Yet just thirty years ago, the
+dominant scholar and practitioner in the field of copyright, Melville
+Nimmer, thought it obvious.<a href="#ftn.idp10712240" class="footnote" name="idp10712240"><sup class="footnote">[221]</sup></a>
+
+</p><p>
+However, my criticism of the role that lawyers have played in this
+debate is not just about a professional bias. It is more importantly
+about our failure to actually reckon the costs of the law.
+</p><p>
+Economists are supposed to be good at reckoning costs and benefits.
+But more often than not, economists, with no clue about how the legal
+system actually functions, simply assume that the transaction costs of
+the legal system are slight.<a href="#ftn.idp10715360" class="footnote" name="idp10715360"><sup class="footnote">[222]</sup></a>
+They see a system that has been around for hundreds of years, and they
+assume it works the way their elementary school civics class taught
+them it works.
+</p><p>
+
+But the legal system doesn't work. Or more accurately, it doesn't work
+for anyone except those with the most resources. Not because the
+system is corrupt. I don't think our legal system (at the federal
+level, at least) is at all corrupt. I mean simply because the costs of
+our legal system are so astonishingly high that justice can
+practically never be done.
+</p><p>
+These costs distort free culture in many ways. A lawyer's time is
+billed at the largest firms at more than $400 per hour. How much time
+should such a lawyer spend reading cases carefully, or researching
+obscure strands of authority? The answer is the increasing reality:
+very little. The law depended upon the careful articulation and
+development of doctrine, but the careful articulation and development
+of legal doctrine depends upon careful work. Yet that careful work
+costs too much, except in the most high-profile and costly cases.
+</p><p>
+The costliness and clumsiness and randomness of this system mock
+our tradition. And lawyers, as well as academics, should consider it
+their duty to change the way the law works—or better, to change the
+law so that it works. It is wrong that the system works well only for the
+top 1 percent of the clients. It could be made radically more efficient,
+and inexpensive, and hence radically more just.
+</p><p>
+But until that reform is complete, we as a society should keep the law
+away from areas that we know it will only harm. And that is precisely
+what the law will too often do if too much of our culture is left to
+its review.
+</p><a class="indexterm" name="idp10723712"></a><p>
+Think about the amazing things your kid could do or make with digital
+technology—the film, the music, the Web page, the blog. Or think
+about the amazing things your community could facilitate with digital
+technology—a wiki, a barn raising, activism to change something.
+Think about all those creative things, and then imagine cold molasses
+poured onto the machines. This is what any regime that requires
+permission produces. Again, this is the reality of Brezhnev's Russia.
+</p><p>
+The law should regulate in certain areas of culture—but it should
+regulate culture only where that regulation does good. Yet lawyers
+
+
+rarely test their power, or the power they promote, against this
+simple pragmatic question: <span class="quote">«<span class="quote">Will it do good?</span>»</span> When challenged about
+the expanding reach of the law, the lawyer answers, <span class="quote">«<span class="quote">Why not?</span>»</span>
+</p><p>
+We should ask, <span class="quote">«<span class="quote">Why?</span>»</span> Show me why your regulation of culture is
+needed. Show me how it does good. And until you can show me both,
+keep your lawyers away.
+</p></div></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10437568" class="footnote"><p><a href="#idp10437568" class="para"><sup class="para">[210] </sup></a>
+
+
+See, for example, Marc Rotenberg, <span class="quote">«<span class="quote">Fair Information Practices and the
+Architecture of Privacy (What Larry Doesn't Get),</span>»</span> <em class="citetitle">Stanford Technology
+Law Review</em> 1 (2001): par. 6–18, available at
+
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>
+(describing examples in which technology defines privacy policy). See
+also Jeffrey Rosen, <em class="citetitle">The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age</em> (New York: Random House, 2004) (mapping tradeoffs
+between technology and privacy).</p></div><div id="ftn.idp10525440" class="footnote"><p><a href="#idp10525440" class="para"><sup class="para">[211] </sup></a>
+
+<em class="citetitle">Willful Infringement: A Report from the Front Lines of the Real
+Culture Wars</em> (2003), produced by Jed Horovitz, directed by Greg
+Hittelman, a Fiat Lucre production, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>.
+</p></div><div id="ftn.idp10546448" class="footnote"><p><a href="#idp10546448" class="para"><sup class="para">[212] </sup></a>
+
+The proposal I am advancing here would apply to American works only.
+Obviously, I believe it would be beneficial for the same idea to be
+adopted by other countries as well.</p></div><div id="ftn.idp10557648" class="footnote"><p><a href="#idp10557648" class="para"><sup class="para">[213] </sup></a>
+
+There would be a complication with derivative works that I have not
+solved here. In my view, the law of derivatives creates a more complicated
+system than is justified by the marginal incentive it creates.
+</p></div><div id="ftn.idp10570848" class="footnote"><p><a href="#idp10570848" class="para"><sup class="para">[214] </sup></a>
+
+
+<span class="quote">«<span class="quote">A Radical Rethink,</span>»</span> <em class="citetitle">Economist</em>, 366:8308 (25 January 2003): 15,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #74</a>.
+</p></div><div id="ftn.idp10583888" class="footnote"><p><a href="#idp10583888" class="para"><sup class="para">[215] </sup></a>
+
+Department of Veterans Affairs, Veteran's Application for Compensation
+and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #75</a>.
+</p></div><div id="ftn.idp10599184" class="footnote"><p><a href="#idp10599184" class="para"><sup class="para">[216] </sup></a>
+
+Benjamin Kaplan, <em class="citetitle">An Unhurried View of Copyright</em> (New York: Columbia
+University Press, 1967), 32.
+</p></div><div id="ftn.idp10601632" class="footnote"><p><a href="#idp10601632" class="para"><sup class="para">[217] </sup></a>
+ Ibid., 56.
+</p></div><div id="ftn.idp10610320" class="footnote"><p><a href="#idp10610320" class="para"><sup class="para">[218] </sup></a>
+
+Paul Goldstein, <em class="citetitle">Copyright's Highway: From Gutenberg to the Celestial
+Jukebox</em> (Stanford: Stanford University Press, 2003), 187–216.
+<a class="indexterm" name="idp10439264"></a>
+</p></div><div id="ftn.idp10636480" class="footnote"><p><a href="#idp10636480" class="para"><sup class="para">[219] </sup></a>
+
+See, for example, <span class="quote">«<span class="quote">Music Media Watch,</span>»</span> The J@pan Inc. Newsletter, 3
+April 2002, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #76</a>.
+</p></div><div id="ftn.idp10656784" class="footnote"><p><a href="#idp10656784" class="para"><sup class="para">[220] </sup></a>
+
+<a class="indexterm" name="idxartistspayments3"></a>
+William Fisher, <em class="citetitle">Digital Music: Problems and Possibilities</em> (last
+revised: 10 October 2000), available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #77</a>; William
+Fisher, <em class="citetitle">Promises to Keep: Technology, Law, and the Future of
+Entertainment</em> (forthcoming) (Stanford: Stanford University Press,
+2004), ch. 6, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #78</a>. Professor
+Netanel has proposed a related idea that would exempt noncommercial
+sharing from the reach of copyright and would establish compensation
+to artists to balance any loss. See Neil Weinstock Netanel, <span class="quote">«<span class="quote">Impose a
+Noncommercial Use Levy to Allow Free P2P File Sharing,</span>»</span> available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #79</a>. For other proposals, see Lawrence Lessig, <span class="quote">«<span class="quote">Who's Holding Back
+Broadband?</span>»</span> <em class="citetitle">Washington Post</em>, 8 January 2002, A17; Philip S. Corwin on
+behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
+Chairman of the Senate Foreign Relations Committee, 26 February 2002,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #80</a>; Serguei Osokine, <em class="citetitle">A Quick Case for Intellectual Property
+Use Fee (IPUF)</em>, 3 March 2002, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #81</a>; Jefferson Graham,
+<span class="quote">«<span class="quote">Kazaa, Verizon Propose to Pay Artists Directly,</span>»</span> <em class="citetitle">USA Today</em>, 13 May
+2002, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #82</a>; Steven M. Cherry, <span class="quote">«<span class="quote">Getting Copyright Right,</span>»</span>
+IEEE Spectrum Online, 1 July 2002, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #83</a>; Declan
+McCullagh, <span class="quote">«<span class="quote">Verizon's Copyright Campaign,</span>»</span> CNET News.com, 27 August
+2002, available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #84</a>.
+Fisher's proposal is very similar to Richard Stallman's proposal for
+DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
+proportionally, though more popular artists would get more than the less
+popular. As is typical with Stallman, his proposal predates the current
+debate by about a decade. See
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #85</a>.
+<a class="indexterm" name="idp10671600"></a>
+<a class="indexterm" name="idp10672416"></a>
+<a class="indexterm" name="idp10673232"></a>
+<a class="indexterm" name="idp10674064"></a>
+</p></div><div id="ftn.idp10712240" class="footnote"><p><a href="#idp10712240" class="para"><sup class="para">[221] </sup></a>
+
+Lawrence Lessig, <span class="quote">«<span class="quote">Copyright's First Amendment</span>»</span> (Melville B. Nimmer
+Memorial Lecture), <em class="citetitle">UCLA Law Review</em> 48 (2001): 1057, 1069–70.
+</p></div><div id="ftn.idp10715360" class="footnote"><p><a href="#idp10715360" class="para"><sup class="para">[222] </sup></a>
+
+A good example is the work of Professor Stan Liebowitz. Liebowitz is
+to be commended for his careful review of data about infringement,
+leading him to question his own publicly stated
+position—twice. He initially predicted that downloading would
+substantially harm the industry. He then revised his view in light of
+the data, and he has since revised his view again. Compare Stan
+J. Liebowitz, <em class="citetitle">Rethinking the Network Economy: The True Forces That
+Drive the Digital Marketplace</em> (New York: Amacom, 2002), (reviewing his
+original view but expressing skepticism) with Stan J. Liebowitz,
+<span class="quote">«<span class="quote">Will MP3s Annihilate the Record Industry?</span>»</span> working paper, June 2003,
+available at
+<a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #86</a>.
+Liebowitz's careful analysis is extremely valuable in estimating the
+effect of file-sharing technology. In my view, however, he
+underestimates the costs of the legal system. See, for example,
+<em class="citetitle">Rethinking</em>, 174–76.
+<a class="indexterm" name="idp10713920"></a>
+</p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-notes"></a>Chapter 17. NOTES</h1></div></div></div><p>
+Throughout this text, there are references to links on the World Wide
+Web. As anyone who has tried to use the Web knows, these links can be
+highly unstable. I have tried to remedy the instability by redirecting
+readers to the original source through the Web site associated with
+this book. For each link below, you can go to
+http://free-culture.cc/notes and locate the original source by
+clicking on the number after the # sign. If the original link remains
+alive, you will be redirected to that link. If the original link has
+disappeared, you will be redirected to an appropriate reference for
+the material.
+</p></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-acknowledgments"></a>Chapter 18. ACKNOWLEDGMENTS</h1></div></div></div><p>
+This book is the product of a long and as yet unsuccessful struggle that
+began when I read of Eric Eldred's war to keep books free. Eldred's
+work helped launch a movement, the free culture movement, and it is
+to him that this book is dedicated.
+</p><a class="indexterm" name="idp10734336"></a><p>
+I received guidance in various places from friends and academics,
+including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
+Mark Rose, and Kathleen Sullivan. And I received correction and
+guidance from many amazing students at Stanford Law School and
+Stanford University. They included Andrew B. Coan, John Eden, James
+P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
+Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
+Erica Platt. I am particularly grateful to Catherine Crump and Harry
+Surden, who helped direct their research, and to Laura Lynch, who
+brilliantly managed the army that they assembled, and provided her own
+critical eye on much of this.
+</p><p>
+Yuko Noguchi helped me to understand the laws of Japan as well as
+its culture. I am thankful to her, and to the many in Japan who helped
+me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
+Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
+
+Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
+and the Tokyo University Business Law Center, for giving me the
+chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
+Yamagami for their generous help while I was there.
+</p><p>
+These are the traditional sorts of help that academics regularly draw
+upon. But in addition to them, the Internet has made it possible to
+receive advice and correction from many whom I have never even
+met. Among those who have responded with extremely helpful advice to
+requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
+Gerstein, and Peter DiMauro, as well as a long list of those who had
+specific ideas about ways to develop my argument. They included
+Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
+Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
+Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
+K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
+McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
+Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
+Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
+Wasserman, Miljenko Williams, <span class="quote">«<span class="quote">Wink,</span>»</span> Roger Wood, <span class="quote">«<span class="quote">Ximmbo da Jazz,</span>»</span>
+and Richard Yanco. (I apologize if I have missed anyone; with
+computers come glitches, and a crash of my e-mail system meant I lost
+a bunch of great replies.)
+</p><p>
+Richard Stallman and Michael Carroll each read the whole book in
+draft, and each provided extremely helpful correction and advice.
+Michael helped me to see more clearly the significance of the
+regulation of derivitive works. And Richard corrected an
+embarrassingly large number of errors. While my work is in part
+inspired by Stallman's, he does not agree with me in important places
+throughout this book.
+</p><p>
+Finally, and forever, I am thankful to Bettina, who has always
+insisted that there would be unending happiness away from these
+battles, and who has always been right. This slow learner is, as ever,
+grateful for her perpetual patience and love.
+</p></div><div class="index"><div class="titlepage"><div><div><h1 class="title"><a name="idp10742528"></a>Index</h1></div></div></div><div class="index"><div class="indexdiv"><h3>Symbols</h3><dl><dt>60 Minutes, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></div><div class="indexdiv"><h3>A</h3><dl><dt>ABC, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>academic journals, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Adobe eBook Reader, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>advertising, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Africa, medications for HIV patients in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Agee, Michael, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>agricultural patents, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Aibo robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>AIDS medications, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>air traffic, land ownership vs., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Akerlof, George, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Alben, Alex, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a>-<a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>alcohol prohibition, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Alice's Adventures in Wonderland (Carroll), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>All in the Family, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Allen, Paul, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>Amazon, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>American Association of Law Libraries, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>American Graphophone Company, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Americans with Disabilities Act (1990), <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Andromeda, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Anello, Douglas, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>animated cartoons, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>antiretroviral drugs, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Apple Corporation, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>architecture, constraint effected through, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>archive.org, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dd><dl><dt>(see also Internet Archive)</dt></dl></dd><dt>archives, digital, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>-<a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#together">Together</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Aristotle, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Armstrong, Edwin Howard, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#harms">CHAPTER TWELVE: Harms</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Arrow, Kenneth, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>art, underground, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>artists</dt><dd><dl><dt>publicity rights on images of, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>recording industry payments to, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>retrospective compilations on, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a>-<a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt></dl></dd><dt>ASCAP, <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>Asia, commercial piracy in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>AT&T, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Ayer, Don, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt></dl></div><div class="indexdiv"><h3>B</h3><dl><dt>Bacon, Francis, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Barish, Stephanie, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Barlow, Joel, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Barnes & Noble, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Barry, Hank, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>BBC, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Beatles, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Beckett, Thomas, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Bell, Alexander Graham, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Berlin Act (1908), <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Berman, Howard L., <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Berne Convention (1908), <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Bernstein, Leonard, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Betamax, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>biomedical research, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Black, Jane, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>blogs (Web-logs), <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>BMG, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>BMW, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Boies, David, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>Boland, Lois, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Bolling, Ruben, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Bono, Mary, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Bono, Sonny, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>books</dt><dd><dl><dt>English copyright law developed for, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>free on-line releases of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>on Internet, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>out of print, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>resales of, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>three types of uses of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>total number of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></dd><dt>booksellers, English, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Boswell, James, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>bots, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Boyle, James, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Braithwaite, John, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Branagh, Kenneth, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Brandeis, Louis D., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Brazil, free culture in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Breyer, Stephen, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Brezhnev, Leonid, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>British Parliament, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>broadcast flag, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Bromberg, Dan, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Brown, John Seely, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>browsing, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Buchanan, James, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Bunyan, John, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Burdick, Quentin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Bush, George W., <a class="indexterm" href="#constrain">Constraining Creators</a></dt></dl></div><div class="indexdiv"><h3>C</h3><dl><dt>cable television, <a class="indexterm" href="#cabletv">Cable TV</a>-<a class="indexterm" href="#cabletv">Cable TV</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>camera technology, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Camp Chaos, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>CARP (Copyright Arbitration Royalty Panel), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>cars, MP3 sound systems in, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Carson, Rachel, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>cartoon films, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Casablanca, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>cassette recording, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>VCRs, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt></dl></dd><dt>Causby, Thomas Lee, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#harms">CHAPTER TWELVE: Harms</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Causby, Tinie, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#harms">CHAPTER TWELVE: Harms</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>CBS, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>CD-ROMs, film clips used in, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a>-<a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>CDs</dt><dd><dl><dt>copyright marking of, <a class="indexterm" href="#marking">MARKING</a></dt><dt>foreign piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a>-<a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>mix technology and, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>preference data on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>prices of, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>sales levels of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>cell phones, music streamed over, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>chimeras, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>-<a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>Christensen, Clayton M., <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Clark, Kim B., <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>CNN, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Coase, Ronald, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>CodePink Women in Peace, <a class="indexterm" href="#preface">PREFACE</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Coe, Brian, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Comcast, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>comics, Japanese, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Commerce, U.S. Department of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>commercials, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>common law, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Commons, John R., <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>composer's rights vs. producers' rights in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>composers, copyright protections of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>compulsory license, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>computer games, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Conger, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Congress, U.S.</dt><dd><dl><dt>constitutional powers of, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>copyright terms extended by, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>in constitutional Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>on copyright laws, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on radio, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on recording industry, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on VCR technology, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>Conrad, Paul, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Constitution, U.S.</dt><dd><dl><dt>Commerce Clause of, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>copyright purpose established in, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>First Amendment to, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>on creative property, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Progress Clause of, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>structural checks and balances of, <a class="indexterm" href="#beginnings">Beginnings</a></dt></dl></dd><dt>Conyers, John, Jr., <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>cookies, Internet, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>copyleft licenses, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>copyright</dt><dd><dl><dt>as narrow monopoly right, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>constitutional purpose of, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>duration of, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>four regulatory modalities on, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>in perpetuity, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>marking of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>of natural authors vs. corporations, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>renewability of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>scope of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>usage restrictions attached to, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Copyright Act (1790), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>copyright infringement lawsuits</dt><dd><dl><dt>against student file sharing, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>commercial creativity as primary purpose of, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>distribution technology targeted in, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>exaggerated claims of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>in recording industry, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>individual defendants intimidated by, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>statutory damages of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>willful infringement findings in, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>copyright law</dt><dd><dl><dt>as ex post regulation modality, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>as protection of creators, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>copies as core issue of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>creativity impeded by, <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>development of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>English, <a class="indexterm" href="#idp6994048">«PIRACY»</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>European, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>fair use and, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>felony punishment for infringement of, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>history of American, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>innovation hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>innovative freedom balanced with fair compensation in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Japanese, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>on music recordings, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on republishing vs. transformation of original work, <a class="indexterm" href="#idp6994048">«PIRACY»</a>-<a class="indexterm" href="#idp6994048">«PIRACY»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>registration requirement of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>scope of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>statutory licenses in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>technology as automatic enforcer of, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>term extensions in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt></dl></dd><dt>corporations</dt><dd><dl><dt>copyright terms for, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>in pharmaceutical industry, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Country of the Blind, The (Wells), <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>-<a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>Court of Appeals</dt><dd><dl><dt>Ninth Circuit, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt></dl></dd><dt>cover songs, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Creative Commons, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>creative property</dt><dd><dl><dt>common law protections of, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>constitutional tradition on, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>if value, then right theory of, <a class="indexterm" href="#idp6994048">«PIRACY»</a>-<a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>other property rights vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>creativity</dt><dd><dl><dt>by transforming previous works, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>legal restrictions on, <a class="indexterm" href="#idp6994048">«PIRACY»</a>-<a class="indexterm" href="#idp6994048">«PIRACY»</a></dt></dl></dd><dt>Crichton, Michael, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Crosskey, William W., <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>culture</dt><dd><dl><dt>commercial vs. noncommercial, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>D</h3><dl><dt>Daguerre, Louis, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Daley, Elizabeth, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Data General, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Day After Trinity, The, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>DDT, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Dean, Howard, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>democracy</dt><dd><dl><dt>in technologies of expression, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>public discourse in, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd><dt>derivative works</dt><dd><dl><dt>fair use vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>historical shift in copyright coverage of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>piracy vs., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>technological developments and, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>developing countries, foreign patent costs in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>digital cameras, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Digital Copyright (Litman), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Diller, Barry, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Disney, Inc., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Disney, Walt, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Doctorow, Cory, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>doctors malpractice claims against, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>documentary film, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Donaldson v. Beckett, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Donaldson, Alexander, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Douglas, William O., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>doujinshi comics, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Down and Out in the Magic Kingdom (Doctorow), <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Drahos, Peter, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Dreyfuss, Rochelle, <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>driving speed, constraints on, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Drucker, Peter, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>drugs</dt><dd><dl><dt>pharmaceutical, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Dryden, John, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Duck and Cover film, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Dylan, Bob, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></div><div class="indexdiv"><h3>E</h3><dl><dt>e-books, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>e-mail, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Eagle Forum, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Eastman, George, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Edison, Thomas, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>education</dt><dd><dl><dt>in media literacy, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>tinkering as means of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></dd><dt>Eldred, Eric, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>elections, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>electoral college, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Electronic Frontier Foundation, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Else, Jon, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>EMI, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>England, copyright laws developed in, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Enlightenment, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>environmentalism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>ephemeral films, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Errors and Omissions insurance, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Erskine, Andrew, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>expression, technologies of</dt><dd><dl><dt>democratic, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>media literacy and, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>F</h3><dl><dt>fair use, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dd><dl><dt>in documentary film, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Internet burdens on, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>legal intimidation tactics against, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Fallows, James, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Fanning, Shawn, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Faraday, Michael, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>farming, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>FCC</dt><dd><dl><dt>on FM radio, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></dd><dt>feudal system, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>film industry</dt><dd><dl><dt>luxury theatres vs. video piracy in, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>trailer advertisements of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>films</dt><dd><dl><dt>animated, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>archive of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>fair use of copyrighted material in, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>multiple copyrights associated with, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt></dl></dd><dt>First Amendment, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>first-sale doctrine, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Fisher, William, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>Florida, Richard, <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>FM radio, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Forbes, Steve, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>formalities, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Fourneaux, Henri, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Fox (film company), <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Fox, William, <a class="indexterm" href="#film">Film</a></dt><dt>free culture</dt><dd><dl><dt>derivative works based on, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>four modalities of constraint on, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt> permission culture vs., <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>restoration efforts on previous aspects of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Free for All (Wayner), <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>free market, technological changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>free software/open-source software (FS/OSS), <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Fried, Charles, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Friedman, Milton, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Frost, Robert, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Future of Ideas, The (Lessig), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>G</h3><dl><dt>Garlick, Mia, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Gates, Bill, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>General Film Company, <a class="indexterm" href="#film">Film</a></dt><dt>General Public License (GPL), <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>generic drugs, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>German copyright law, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Gershwin, George, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Gil, Gilberto, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Ginsburg, Ruth Bader, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Girl Scouts, <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>Global Positioning System, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>GNU/Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Goldstein, Paul, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Google, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>GPL (General Public License), <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Gracie Films, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Grimm fairy tales, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Grisham, John, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Groening, Matt, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Grokster, Ltd., <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>H</h3><dl><dt>hacks, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hal Roach Studios, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Hand, Learned, <a class="indexterm" href="#radio">Radio</a></dt><dt>handguns, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hawthorne, Nathaniel, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Henry V, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Henry VIII, King of England, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Herrera, Rebecca, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Heston, Charlton, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>history, records of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>HIV/AIDS therapies, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Hollings, Fritz, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>House of Lords, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Hummer Winblad, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hummer, John, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hyde, Rosel H., <a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></div><div class="indexdiv"><h3>I</h3><dl><dt>IBM, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>if value, then right theory, <a class="indexterm" href="#idp6994048">«PIRACY»</a>-<a class="indexterm" href="#idp6994048">«PIRACY»</a>, <a class="indexterm" href="#pirates">CHAPTER FOUR: «Pirates»</a></dt><dt>images, ownership of, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>innovation, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>industry establishment opposed to, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>insecticide, environmental consequences of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Intel, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>intellectual property rights, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dd><dl><dt>international organization on issues of, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>of drug patents, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>international law, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Internet</dt><dd><dl><dt>blogs on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>books on, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>copyright applicability altered by technology of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>copyright regulatory balance lost with, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>development of, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#usnow">US, NOW</a>-<a class="indexterm" href="#usnow">US, NOW</a></dt><dt> efficient content distribution on, <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>initial free character of, <a class="indexterm" href="#usnow">US, NOW</a>-<a class="indexterm" href="#usnow">US, NOW</a></dt><dt>news events on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>peer-generated rankings on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>privacy protection on, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>public discourse conducted on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>radio on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>search engines used on, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></dd><dt>Internet Archive, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Internet Explorer, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Iraq war, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>ISPs (Internet service providers), user identities revealed by, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Iwerks, Ub, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt></dl></div><div class="indexdiv"><h3>J</h3><dl><dt>Japanese comics, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Jaszi, Peter, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Jefferson, Thomas, <a class="indexterm" href="#idp7940704">«PROPERTY»</a>, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Johnson, Lyndon, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Johnson, Samuel, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Jonson, Ben, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Jordan, Jesse, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>journalism, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>jury system, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Just Think!, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>K</h3><dl><dt>Kaplan, Benjamin, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Kazaa, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Keaton, Buster, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Kelly, Kevin, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Kennedy, John F., <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Kittredge, Alfred, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>knowledge, freedom of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Kodak cameras, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Kodak Primer, The (Eastman), <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Kozinski, Alex, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Krim, Jonathan, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></div><div class="indexdiv"><h3>L</h3><dl><dt>land ownership, air traffic and, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Laurel and Hardy Films, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>law</dt><dd><dl><dt>as constraint modality, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>common vs. positive, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>databases of case reports in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>federal vs. state, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt></dl></dd><dt>law schools, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Leaphart, Walter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Lear, Norman, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>legal realist movement, <a class="indexterm" href="#together">Together</a></dt><dt>legal system, attorney costs in, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>Lessig, Lawrence, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dd><dl><dt>Eldred case involvement of, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>in international debate on intellectual property, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Lessing, Lawrence, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Lexis and Westlaw, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>libraries</dt><dd><dl><dt>archival function of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>journals in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>of public-domain literature, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>privacy rights in use of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Library of Congress, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Licensing Act (1662), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Liebowitz, Stan, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Litman, Jessica, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Lofgren, Zoe, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Lott, Trent, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Lovett, Lyle, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Lucas, George, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Lucky Dog, The, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt></dl></div><div class="indexdiv"><h3>M</h3><dl><dt>Madonna, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>manga, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Mansfield, William Murray, Lord, <a class="indexterm" href="#idp6994048">«PIRACY»</a>-<a class="indexterm" href="#idp6994048">«PIRACY»</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Marijuana Policy Project, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>market competition, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>market constraints, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Marx Brothers, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>McCain, John, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>media</dt><dd><dl><dt>blog pressure on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>commercial imperatives of, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>ownership concentration in, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd><dt>media literacy, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Mehra, Salil, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>MGM, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Michigan Technical University, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>Mickey Mouse, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Microsoft, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dd><dl><dt>competitive strategies of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>government case against, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>international software piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>network file system of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>on free software, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Windows operating system of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>WIPO meeting opposed by, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Millar v. Taylor, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Milton, John, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>monopoly, copyright as, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Morrison, Alan, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Movie Archive, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Moyers, Bill, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>MP3 players, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3s, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>MTV, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Müller, Paul Hermann, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music publishing, <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>MusicStore, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>my.mp3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>N</h3><dl><dt>Napster, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dd><dl><dt>number of registrations on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>replacement of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>venture capital for, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Nashville Songwriters Association, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>National Writers Union, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>NBC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Needleman, Rafe, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>NET (No Electronic Theft) Act (1998), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Netanel, Neil Weinstock, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>Netscape, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>New Hampshire (Frost), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>news coverage, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>-<a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>newspapers</dt><dd><dl><dt>archives of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></dd><dt>Nick and Norm anti-drug campaign, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Nimmer, David, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>Nimmer, Melville, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Ninth Circuit Court of Appeals, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>No Electronic Theft (NET) Act (1998), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>norms, regulatory influence of, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></div><div class="indexdiv"><h3>O</h3><dl><dt>O'Connor, Sandra Day, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Olafson, Steve, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Olson, Theodore B., <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Oppenheimer, Matt, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>originalism, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Orwell, George, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>-<a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></div><div class="indexdiv"><h3>P</h3><dl><dt>parallel importation, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Paramount Pictures, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>patents</dt><dd><dl><dt>future patents vs. future copyrights in, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>in public domain, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>on pharmaceuticals, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Patterson, Raymond, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>peer-to-peer (p2p) file sharing</dt><dd><dl><dt>efficiency of, <a class="indexterm" href="#idp6994048">«PIRACY»</a>-<a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>felony punishments for, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>regulatory balance lost in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>permission culture</dt><dd><dl><dt> free culture vs., <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></dd><dt>permissions</dt><dd><dl><dt>photography exempted from, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd><dt>pharmaceutical patents, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>photography, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Picker, Randal C., <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>piracy</dt><dd><dl><dt>derivative work vs., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>in Asia, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>in development of content industry, <a class="indexterm" href="#pirates">CHAPTER FOUR: «Pirates»</a>-<a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></dd><dt>player pianos, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>PLoS (Public Library of Science), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Pogue, David, <a class="indexterm" href="#preface">PREFACE</a>-<a class="indexterm" href="#preface">PREFACE</a></dt><dt>political discourse, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Politics, (Aristotle), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Porgy and Bess, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>pornography, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>positive law, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>power, concentration of, <a class="indexterm" href="#preface">PREFACE</a>-<a class="indexterm" href="#preface">PREFACE</a>, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Prelinger, Rick, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Princeton University, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>privacy rights, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Promises to Keep (Fisher), <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>property rights</dt><dd><dl><dt>air traffic vs., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>feudal system of, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>intangibility of, <a class="indexterm" href="#idp7940704">«PROPERTY»</a></dt></dl></dd><dt>proprietary code, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>protection of artists vs. business interests, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Public Citizen, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>public domain</dt><dd><dl><dt>access fees for material in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>balance of U.S. content in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>defined, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>e-book restrictions on, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>future patents vs. future copyrights in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>library of works derived from, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>license system for rebuilding of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>public projects in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>traditional term for conversion to, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt></dl></dd><dt>Public Enemy, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Public Library of Science (PLoS), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></div><div class="indexdiv"><h3>Q</h3><dl><dt>Quayle, Dan, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></div><div class="indexdiv"><h3>R</h3><dl><dt>radio</dt><dd><dl><dt>FM spectrum of, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music recordings played on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on Internet, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>railroad industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>rap music, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>RCA, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Reagan, Ronald, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Real Networks, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>recording industry</dt><dd><dl><dt>artist remuneration in, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright infringement lawsuits of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright protections in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Internet radio hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>radio broadcast and, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>statutory license system in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></dd><dt>Recording Industry Association of America (RIAA)</dt><dd><dl><dt>copyright infringement lawsuits filed by, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>intimidation tactics of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>lobbying power of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on Internet radio fees, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>regulation</dt><dd><dl><dt>as establishment protectionism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>four modalities of, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>outsize penalties of, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Rehnquist, William H., <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>remote channel changers, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Rensselaer Polytechnic Institute (RPI), <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dd><dl><dt>computer network search engine of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></dd><dt>Rise of the Creative Class, The (Florida), <a class="indexterm" href="#idp6994048">«PIRACY»</a></dt><dt>Roberts, Michael, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Rogers, Fred, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Romeo and Juliet (Shakespeare), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Rose, Mark, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#c-acknowledgments">ACKNOWLEDGMENTS</a></dt><dt>RPI (see Rensselaer Polytechnic Institute (RPI))</dt><dt>Rubenfeld, Jeb, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Russel, Phil, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></div><div class="indexdiv"><h3>S</h3><dl><dt>Safire, William, <a class="indexterm" href="#preface">PREFACE</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>San Francisco Opera, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Sarnoff, David, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Scarlet Letter, The (Hawthorne), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Schlafly, Phyllis, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>scientific journals, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Scottish publishers, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>search engines, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>Seasons, The (Thomson), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Senate, U.S., <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>September 11, 2001, terrorist attacks of, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Shakespeare, William, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>sheet music, <a class="indexterm" href="#idp6994048">«PIRACY»</a>, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Silent Spring (Carson), <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Simpsons, The, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>single nucleotied polymorphisms (SNPs), <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Sonny Bono Copyright Term Extension Act (CTEA) (1998), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dd><dl><dt>Supreme Court challenge of, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt></dl></dd><dt>Sony</dt><dd><dl><dt>Aibo robotic dog produced by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt></dl></dd><dt>Sony Pictures Entertainment, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Sousa, John Philip, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>South Africa, Republic of, pharmaceutical imports by, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>speech, freedom of</dt><dd><dl><dt>constitutional guarantee of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>speeding, constraints on, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Stallman, Richard, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Stanford University, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Star Wars, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Statute of Anne (1710), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>Statute of Monopolies (1656), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>statutory damages, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>statutory licenses, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Steamboat Bill, Jr., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Steamboat Willie, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>steel industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Stevens, Ted, <a class="indexterm" href="#preface">PREFACE</a></dt><dt>Steward, Geoffrey, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Superman comics, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Supreme Court, U.S.</dt><dd><dl><dt>access to opinions of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>House of Lords vs., <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>on airspace vs. land rights, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>on balance of interests in copyright law, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on television advertising bans, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Sutherland, Donald, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt></dl></div><div class="indexdiv"><h3>T</h3><dl><dt>Talbot, William, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Tatel, David, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Tauzin, Billy, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Taylor, Robert, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>technology</dt><dd><dl><dt>copyright enforcement controlled by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>copyright intent altered by, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>established industries threatened by changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>television</dt><dd><dl><dt>advertising on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>cable vs. broadcast, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>controversy avoided by, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Television Archive, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Thomson, James, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Thurmond, Strom, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Tocqueville, Alexis de, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Tonson, Jacob, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Torvalds, Linus, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Turner, Ted, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Twentieth Century Fox, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt></dl></div><div class="indexdiv"><h3>U</h3><dl><dt>United Kingdom</dt><dd><dl><dt>history of copyright law in, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>public creative archive in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>United States Trade Representative (USTR), <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Universal Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Universal Pictures, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>university computer networks, p2p sharing on, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></div><div class="indexdiv"><h3>V</h3><dl><dt>Vaidhyanathan, Siva, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#together">Together</a></dt><dt>Valenti, Jack</dt><dd><dl><dt> on creative property rights, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Vanderbilt University, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>VCRs, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music—Again</a></dt><dt>venture capitalists, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>veterans' pensions, <a class="indexterm" href="#shortterms">2. Shorter Terms</a></dt><dt>Video Pipeline, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Vivendi Universal, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>von Lohmann, Fred, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt></dl></div><div class="indexdiv"><h3>W</h3><dl><dt>Wagner, Richard, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Warner Brothers, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Warner Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Warren, Samuel D., <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Way Back Machine, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Wayner, Peter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Web-logs (blogs), <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Webster, Noah, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Wellcome Trust, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Wells, H. G., <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>-<a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>White House press releases, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>willful infringement, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Windows, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Winer, Dave, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Winick, Judd, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>WJOA, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>World Intellectual Property Organization (WIPO), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>World Summit on the Information Society (WSIS), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>World Trade Center, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>World Wide Web, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Worldcom, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>WRC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Wright brothers, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></div><div class="indexdiv"><h3>Y</h3><dl><dt>Yanofsky, Dave, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>Z</h3><dl><dt>Zimmerman, Edwin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Zittrain, Jonathan, <a class="indexterm" href="#idp6994048">«PIRACY»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div><div class="colophon"><h1 class="title"><a name="idp10742784"></a>Colophon</h1><p>
+This digital book was published by Petter Reinholdtsen in 2014.
+</p><p>
+The original hardcover paper book was published in 2004 by The Penguin
+Press, a member of Penguin Group (USA) Inc. 375 Hudson Street New
+York, New York.
+</p><p>
+Copyright © Lawrence Lessig. Some rights reserved.
+</p><p>
+This version of <em class="citetitle">Free Culture</em> 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
+<a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
+</p><p>
+Excerpt from an editorial titled <span class="quote">«<span class="quote">The Coming of Copyright
+Perpetuity,</span>»</span> <em class="citetitle">The New York Times</em>, January
+16, 2003. Copyright © 2003 by The New York Times Co. Reprinted
+with permission.
+</p><p>
+Cartoon in <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. VCR/handgun cartoon.">Figure 10.18, “VCR/handgun cartoon.”</a> by Paul
+Conrad, copyright Tribune Media Services, Inc. All rights
+reserved. Reprinted with permission.
+</p><p>
+Diagram in <a class="xref" href="#fig-1761-pattern-modern-media-ownership" title="Figure 10.19. Pattern of modern media ownership.">Figure 10.19, “Pattern of modern media ownership.”</a>
+courtesy of the office of FCC Commissioner, Michael J. Copps.
+</p><p>
+Library of Congress Cataloging-in-Publication Data
+</p><p>
+Lessig, Lawrence.
+Free culture : how big media uses technology and the law to lock down
+culture and control creativity / Lawrence Lessig.
+</p><p>
+p. cm.
+</p><p>
+Includes index.
+</p><p>
+</p><div class="informaltable"><a name="isbn"></a><table border="1"><colgroup><col><col></colgroup><thead><tr><th align="left">ISBN</th><th align="left">Format / MIME-type</th></tr></thead><tbody><tr><td align="left">978-82-92812-XX-Y</td><td align="left">text/plain</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/pdf</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">text/html</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/epub+zip</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/docbook+xml</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/x-mobipocket-ebook</td></tr></tbody></table></div><p>
+</p><p>
+1. Intellectual property—United States.
+</p><p>
+2. Mass media—United States.
+</p><p>
+3. Technological innovations—United States.
+</p><p>
+4. Art—United States. I. Title.
+</p><p>
+KF2979.L47 2004
+</p><p>
+343.7309'9—dc22 2003063276
+</p><p>
+The source of this version of the text is written using DocBook
+notation and the other formats are derived from the DocBook source.
+The DocBook source is based on a DocBook XML version created by Hans
+Schou, and extended with formatting and index references by Petter
+Reinholdtsen. The source files of this book is available as
+<a class="ulink" href="https://github.com/petterreinholdtsen/free-culture-lessig" target="_top">a
+github project</a>.
+</p><p>
+
+</p></div></div></body></html>
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