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.<footnote><para>
+marketplace.<footnote>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<para>
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
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.<footnote><para>
+chemicals.<footnote>
+<indexterm><primary>Coe, Brian</primary></indexterm>
+<para>
<!-- f2 -->
Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
Based on a chart in Jenkins, p. 178.
</para></footnote>
</para>
+<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<!-- PAGE BREAK 46 -->
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
</para>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<para>
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.<footnote><para>
+the rule should be different for images from private spaces.<footnote>
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<indexterm><primary>Warren, Samuel D.</primary></indexterm>
+<para>
<!-- f7 -->
-Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
- Harvard
-Law Review 4 (1890): 193.
-</para></footnote>) It may be
-that this means that the photographer gets something for nothing. Just
-as Disney could take inspiration from Steamboat Bill, Jr. or the
- Brothers
-Grimm, the photographer should be free to capture an image
- without
-compensating the source.
+Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
+Harvard Law Review 4 (1890): 193.
+</para></footnote>) It may be that this means that the photographer
+gets something for nothing. Just as Disney could take inspiration from
+Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be
+free to capture an image without compensating the source.
</para>
<para>
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.<footnote><para>
+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.<footnote><para>
<!-- f8 -->
See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
-Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
- Review
-48 (1960) 398–407; White v. Samsung Electronics America, Inc., 971 F.
-2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
+Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
+Review 48 (1960) 398–407; White v. Samsung Electronics America,
+Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
+(1993).
</para></footnote>)
</para>
<para>
but punishment nonetheless. Independent, critical, different views are
quashed. This is not the environment for a democracy.
</para>
+<indexterm><primary>Clark, Kim B.</primary></indexterm>
<para>
Economics itself offers a parallel that explains why this integration
affects creativity. Clay Christensen has written about the "Innovator's
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
collection of poems New Hampshire was slated to pass into the public
-domain. Eldred wanted to post that collection in his free public library.
-But Congress got in the way. As I described in chapter 10, in 1998, for
-the eleventh time in forty years, Congress extended the terms of
- existing
-copyrights—this time by twenty years. Eldred would not be free to
-add any works more recent than 1923 to his collection until 2019.
- Indeed,
-no copyrighted work would pass into the public domain until
-that year (and not even then, if Congress extends the term again). By
-contrast, in the same period, more than 1 million patents will pass into
-the public domain.
+domain. Eldred wanted to post that collection in his free public
+library. But Congress got in the way. As I described in chapter 10,
+in 1998, for the eleventh time in forty years, Congress extended the
+terms of existing copyrights—this time by twenty years. Eldred
+would not be free to add any works more recent than 1923 to his
+collection until 2019. Indeed, no copyrighted work would pass into
+the public domain until that year (and not even then, if Congress
+extends the term again). By contrast, in the same period, more than 1
+million patents will pass into the public domain.
</para>
<para>
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
- "copyrights
-should be forever."<footnote><para>
-<!-- f2. --> The full text is: "Sonny [Bono] wanted the term of copyright protection to
-last forever. I am informed by staff that such a change would violate the
-Constitution. I invite all of you to work with me to 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," 144 Cong. Rec. H9946, 9951-2
-(October 7, 1998).
+"copyrights should be forever."<footnote><para>
+<!-- f2. -->
+The full text is: "Sonny [Bono] wanted the term of copyright
+protection to last forever. I am informed by staff that such a change
+would violate the Constitution. I invite all of you to work with me to
+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," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
</para></footnote>
</para>
judge, Judge Sentelle.
</para>
<para>
-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
+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
<!-- PAGE BREAK 239 -->
-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.
+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.
</para>
<para>
Those briefs framed a legal argument. Then to support the legal
Law Libraries, and the National Writers Union.
</para>
<para>
-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.
+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.
</para>
<indexterm><primary>Akerlof, George</primary></indexterm>
<indexterm><primary>Arrow, Kenneth</primary></indexterm>
+<indexterm><primary>Buchanan, James</primary></indexterm>
+<indexterm><primary>Coase, Ronald</primary></indexterm>
+<indexterm><primary>Friedman, Milton</primary></indexterm>
<para>
This economists' brief was signed by seventeen economists, including
five Nobel Prize winners, including Ronald Coase, James Buchanan,
to describe special-interest legislation gone wild.
</para>
<para>
-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
+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
<!-- PAGE BREAK 240 -->
-who had advised us early on about a First Amendment strategy; and
- finally,
-former solicitor general Charles Fried.
+who had advised us early on about a First Amendment strategy; and
+finally, former solicitor general Charles Fried.
</para>
<para>
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
+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.
+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.
</para>
<para>
The government, in defending the statute, had its collection of
copyright holders.
</para>
<para>
-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.
+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.
</para>
<para>
Dr. Seuss's representatives, for example, argued that it was
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
Mouse Joins the Fray," New York Times, 28 March 1998, B7.
</para></footnote>
- That's
+That's
<!-- PAGE BREAK 241 -->
their view of how this part of American culture should be controlled,
and they wanted this law to help them effect that control.
</para>
<para>
-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, "Give us twenty years to
- control
-the speech about these icons of American culture. We'll do better
-with them than anyone else." 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.
+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, "Give us twenty years
+to control the speech about these icons of American culture. We'll do
+better with them than anyone else." 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.
</para>
<para>
-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.
-Between February and October, there was little I did beyond
-preparing for this case. Early on, as I said, I set the strategy.
+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.
+Between February and October, there was little I did beyond preparing
+for this case. Early on, as I said, I set the strategy.
</para>
<para>
The Supreme Court was divided into two important camps. One
example, if the drug was sold in India, it could be imported into
Africa from India. This is called "parallel importation," and it is
generally permitted under international trade law and is specifically
-permitted within the European Union.<footnote><para>
-<!-- f2. --> See Peter Drahos with John Braithwaite, Information Feudalism: Who
+permitted within the European Union.<footnote>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
+<para>
+<!-- f2. -->
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
</para></footnote>
</para>
and concentration. It fought any freedom that might interfere with
that control.
</para>
+<indexterm><primary>Drahos, Peter</primary></indexterm>
+<indexterm><primary>Braithwaite, John</primary></indexterm>
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
-<!-- f10. --> See Drahos with Braithwaite, Information Feudalism, 210–20.
+<!-- f10. -->
+See Drahos with Braithwaite, Information Feudalism, 210–20.
</para></footnote>
We will have an information society. That much is certain. Our only
choice now is whether that information society will be free or
projects / text-free-culture-lessig.git / commitdiff