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+<!DOCTYPE book PUBLIC "-//OASIS//DTD DocBook XML V4.2//EN" []>
+<!--
+-->
+
+<book id="index" lang="en">
+<bookinfo>
+ <title>Free Culture</title>
+
+ <abbrev>"freeculture"</abbrev>
+
+ <subtitle>Version 2004-02-10</subtitle>
+
+ <authorgroup>
+ <author>
+ <firstname>Lawrence</firstname>
+ <surname>Lessig</surname>
+ </author>
+ </authorgroup>
+
+<copyright>
+ <year>2004</year>
+<holder>
+ Lawrence Lessig.
+This version of Free Culture is licensed
+under a Creative Commons license. This license permits
+non-commercial use of this work,
+so long as attribution is given.
+For more information about the license,
+click the icon above, or visit
+<ulink url="http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/1.0/</ulink>
+</holder>
+</copyright>
+
+ <abstract>
+<title>ABOUT THE AUTHOR</title>
+ <para>
+LAWRENCE LESSIG
+(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
+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
+(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
+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.
+ </para>
+ </abstract>
+</bookinfo>
+
+<chapter id="c-info">
+<title>Info</title>
+<!-- PAGE BREAK 1 -->
+
+<para>
+You can buy a copy of this book
+by clicking on one of the links below:
+</para>
+<itemizedlist mark="number" spacing="compact">
+<listitem><para><ulink url="http://www.amazon.com/">Amazon</ulink></para></listitem>
+<listitem><para><ulink url="http://www.barnesandnoble.com/">B&N</ulink></para></listitem>
+<listitem><para><ulink url="http://www.penguin.com/">Penguin</ulink></para></listitem>
+<!-- <ulink url="">Local Bookstore</ulink> -->
+</itemizedlist>
+<!-- PAGE BREAK 2 -->
+
+<!-- PAGE BREAK 3 -->
+<para>
+ALSO BY LAWRENCE LESSIG
+The Future of Ideas: The Fate of the Commons
+in a Connected World
+Code: And Other Laws of Cyberspace
+</para>
+
+<!-- PAGE BREAK 4 -->
+<para>
+THE PENGUIN PRESS
+NEW YORK
+</para>
+
+<!-- PAGE BREAK 5 -->
+<para>
+FREE CULTURE
+HOW BIG MEDIA USES TECHNOLOGY AND THE
+HOW BIG MEDIA USES TECHNOLOGY AND
+LAW TO LOCK DOWN CULTURE AND CONTROL
+THE LAW TO LOCK DOWN CULTURE
+CREATIVITY
+AND CONTROL CREATIVITY
+LAWRENCE LESSIG
+</para>
+
+<!-- PAGE BREAK 6 -->
+<para>
+THE PENGUIN PRESS
+a member of
+Penguin Group (USA) Inc.
+375 Hudson Street
+New York, New York
+Copyright © Lawrence Lessig,
+All rights reserved
+Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
+The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co.
+Reprinted with permission.
+Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
+All rights reserved. Reprinted with permission.
+Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
+Library of Congress Cataloging-in-Publication Data
+Lessig, Lawrence.
+Free culture : how big media uses technology and the law to lock down
+culture and control creativity / Lawrence Lessig.
+p. cm.
+Includes index.
+ISBN 1-59420-006-8 (hardcover)
+1. Intellectual property--United States. 2. Mass media--United States.
+3. Technological innovations--United States. 4. Art--United States. I. Title.
+KF2979.L47
+343.7309'9--dc22
+This book is printed on acid-free paper.
+Printed in the United States of America
+1 3 5 7 9 10 8 6 4
+Designed by Marysarah Quinn
+Without limiting the rights under copyright reserved above, no part of this publication may
+be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or
+by any means (electronic, mechanical, photocopying, recording or otherwise), without the
+prior written permission of both the copyright owner and the above publisher of this book.
+The scanning, uploading, and distribution of this book via the Internet or via any other
+means without the permission of the publisher is illegal and punishable by law. Please
+ purchase
+only authorized electronic editions and do not participate in or encourage electronic
+piracy of copyrighted materials. Your support of the author's rights is appreciated.
+</para>
+<!-- PAGE BREAK 7 -->
+
+<para>
+To Eric Eldred--whose work first drew me
+to this cause, and for whom
+it continues still.
+</para>
+
+<figure id="CreativeCommons">
+<title>Creative Commons, Some rights reserved</title>
+<graphic fileref="webcc.gif"></graphic>
+</figure>
+
+<toc id="toc"></toc>
+
+<lot>
+ <title>List of figures</title>
+</lot>
+
+<!--
+c PREFACE xiii
+c INTRODUCTION
+c "PIRACY"
+1 CHAPTER ONE: Creators
+1 CHAPTER TWO: "Mere Copyists"
+1 CHAPTER THREE: Catalogs
+1 CHAPTER FOUR: "Pirates"
+2 Film
+2 Recorded Music
+2 Radio
+2 Cable TV
+1 CHAPTER FIVE: "Piracy"
+2 Piracy I
+2 Piracy II
+c "PROPERTY"
+1 CHAPTER SIX: Founders
+1 CHAPTER SEVEN: Recorders
+1 CHAPTER EIGHT: Transformers
+1 CHAPTER NINE: Collectors
+1 CHAPTER TEN: "Property"
+2 Why Hollywood Is Right
+2 Beginnings
+2 Law: Duration
+2 Law: Scope
+2 Law and Architecture: Reach
+2 Architecture and Law: Force
+2 Market: Concentration
+2 Together
+c PUZZLES
+1 CHAPTER ELEVEN: Chimera
+1 CHAPTER TWELVE: Harms
+2 Constraining Creators
+2 Constraining Innovators
+2 Corrupting Citizens
+c BALANCES
+1 CHAPTER THIRTEEN: Eldred
+1 CHAPTER FOURTEEN: Eldred II
+c CONCLUSION
+c AFTERWORD
+1 Us, Now
+2 Rebuilding Freedoms Previously Presumed: Examples
+2 Rebuilding Free Culture: One Idea
+1 Them, Soon
+2 1. More Formalities
+3 Registration and Renewal
+3 Marking
+2 2. Shorter Terms
+2 3. Free Use Vs. Fair Use
+2 4. Liberate the Music- -Again
+2 5. Fire Lots of Lawyers 304
+c NOTES
+c ACKNOWLEDGMENTS
+c INDEX
+-->
+
+<!-- PAGE BREAK 11 -->
+
+</chapter>
+<chapter id="c-preface">
+<title>PREFACE</title>
+<para>
+At the end of his review of my first book, Code: And Other Laws of
+Cyberspace, David Pogue, a brilliant writer and author of countless
+technical and computer-related texts, wrote this:
+</para>
+<blockquote>
+<para>
+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.<footnote id="preface01"><para>
+David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+Pogue was skeptical of the core argument of the book--that
+ software,
+or "code," functioned as a kind of law--and his review suggested
+the happy thought that if life in cyberspace got bad, we could always
+"drizzle, drazzle, druzzle, drome"-like simply flip a switch and be back
+home. Turn off the modem, unplug the computer, and any troubles
+that exist in that space wouldn't "affect" us anymore.
+</para>
+<para>
+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: Free Culture
+is about the troubles the Internet causes even after the modem is turned
+<!-- PAGE BREAK 12 -->
+off. It is an argument about how the battles that now rage regarding life
+on-line have fundamentally affected "people who aren't online." There
+is no switch that will insulate us from the Internet's effect.
+</para>
+<para>
+But unlike Code, 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.
+</para>
+<para>
+That tradition is the way our culture gets made. As I explain in the
+pages that follow, we come from a tradition of "free culture"--not
+"free" as in "free beer" (to borrow a phrase from the founder of the
+ freesoftware
+movement<footnote><para>
+Richard M. Stallman, Free Software, Free Societies 57 ( Joshua Gay, ed. 2002).
+</para></footnote>), but "free" as in "free speech," "free markets," "free
+trade," "free enterprise," "free will," and "free elections." 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 as free as possible 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
+"permission culture"--a culture in which creators get to create only
+with the permission of the powerful, or of creators from the past.
+</para>
+<para>
+If we understood this change, I believe we would resist it. Not "we"
+on the Left or "you" 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.
+</para>
+<para>
+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 "uncomfortably alongside
+CodePink Women for Peace and the National Rifle Association,
+ between
+ liberal Olympia Snowe and conservative Ted Stevens," he
+ formulated
+perhaps most simply just what was at stake: the concentration
+of power. And as he asked,
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+William Safire, "The Great Media Gulp," New York Times, 22 May 2003.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+This idea is an element of the argument of Free Culture, 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.
+The inspiration 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 Free Software, Free Society, 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 "merely" derivative.
+</para>
+<para>
+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.
+xv
+<!-- PAGE BREAK 14 -->
+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.
+</para>
+<para>
+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.
+</para>
+
+</chapter>
+<!-- PAGE BREAK 15 -->
+
+<!-- PAGE BREAK 16 -->
+<chapter id="c-introduction">
+<title>INTRODUCTION</title>
+<para>
+On December 17, 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.
+</para>
+<para>
+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 "an indefinite extent, upwards."<footnote><para>
+St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
+Rothman Reprints, 1969), 18.
+</para></footnote>
+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?
+</para>
+<para>
+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?
+</para>
+<para>
+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 "an indefinite
+extent, upwards," then the government was trespassing on their
+property, and the Causbys wanted it to stop.
+</para>
+<para>
+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
+"taking" of property without compensation. The Court acknowledged
+that "it is ancient doctrine that common law ownership of
+the land extended to the periphery of the universe." 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,
+</para>
+<blockquote>
+<para>
+[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.<footnote><para>
+United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that
+there could be a "taking" 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, "(Intellectual) Property and Sovereignty:
+Notes Toward a Cultural Geography of Authorship," Stanford Law
+ Review
+48 (1996): 1293, 1333. See also Paul Goldstein, Real Property
+ (Mineola,
+N.Y.: Foundation Press, 1984), 111213.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+"Common sense revolts at the idea."
+</para>
+<para>
+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
+<!-- PAGE BREAK 18 -->
+conclusion that Douglas holds in a single line: "Common sense revolts
+at the idea." 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.
+</para>
+<para>
+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 "what
+seemed reasonable" 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 "obvious" to everyone else--the power of
+"common sense"--would prevail. Their "private interest" would not be
+allowed to defeat an obvious public gain.
+</para>
+<para>
+Edwin Howard Armstrong 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.
+<!-- PAGE BREAK 19 -->
+</para>
+<para>
+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.
+</para>
+<para>
+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: "This is amateur
+station W2AG at Yonkers, New York, operating on frequency
+ modulation
+at two and a half meters."
+</para>
+<para>
+The audience was hearing something no one had thought possible:
+</para>
+<blockquote>
+<para>
+A glass of water was poured before the microphone in Yonkers; it
+sounded like a glass of water being poured. . . . A paper was
+crumpled and torn; it sounded like paper and not like a crackling
+forest fire. . . . Sousa marches were played from records and a
+ piano
+solo and guitar number were performed. . . . The music was
+projected with a live-ness rarely if ever heard before from a radio
+"music box."<footnote><para>
+Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+(Philadelphia: J. B. Lipincott Company, 1956), 209.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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.
+<!-- PAGE BREAK 20 -->
+</para>
+<para>
+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 "radio." But when Armstrong demonstrated
+his invention, Sarnoff was not pleased.
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+See "Saints: The Heroes and Geniuses of the Electronic Era," First
+ Electronic
+Church of America, at www.webstationone.com/fecha, available at
+
+<ulink url="http://free-culture.cc/notes/">link #1</ulink>.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+Lessing, 226.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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,
+</para>
+<!-- PAGE BREAK 21 -->
+<blockquote>
+<para>
+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.<footnote><para>
+Lessing, 256.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 22 -->
+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.
+</para>
+<para>
+There's no single inventor of the Internet. Nor is there any good
+date upon which to mark its birth. Yet in a very short time, the
+ Internet
+has become part of ordinary American life. According to the Pew
+Internet and American Life Project, 58 percent of Americans had
+ access
+to the Internet in 2002, up from 49 percent two years before.<footnote><para>
+Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look
+at Internet Access and the Digital Divide," Pew Internet and American
+Life Project, 15 April 2003: 6, available at
+<ulink url="http://free-culture.cc/notes/">link #2</ulink>.
+</para></footnote>
+That number could well exceed two thirds of the nation by the end
+of 2004.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+We can glimpse a sense of this change by distinguishing between
+commercial and noncommercial culture, and by mapping the law's
+ regulation
+of each. By "commercial culture" I mean that part of our culture
+that is produced and sold or produced to be sold. By "noncommercial
+culture" I mean all the rest. When old men sat around parks or on
+<!-- PAGE BREAK 23 -->
+street corners telling stories that kids and others consumed, that was
+noncommercial culture. When Noah Webster published his "Reader,"
+or Joel Barlow his poetry, that was commercial culture.
+</para>
+<para>
+At the beginning of our history, and for just about the whole of our
+tradition, noncommercial culture was essentially unregulated. Of
+course, if your stories were lewd, or if your song disturbed the peace,
+then the law might intervene. But the law was never directly concerned
+with the creation or spread of this form of culture, and it left this
+ culture
+"free." The ordinary ways in which ordinary individuals shared and
+transformed their culture--telling stories, reenacting scenes from plays
+or TV, participating in fan clubs, sharing music, making tapes--were
+left alone by the law.
+</para>
+<para>
+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.<footnote><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
+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, "The Right to Privacy," Harvard Law Review 4 (1890): 193,
+198200.
+</para></footnote>
+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.
+</para>
+<para>
+This rough divide between the free and the controlled has now
+been erased.<footnote><para>
+See Jessica Litman, Digital Copyright (New York: Prometheus Books,
+2001), ch. 13.
+</para></footnote>
+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.
+</para>
+<!-- PAGE BREAK 24 -->
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+It doesn't seem this way to many. The battles over copyright and the
+<!-- PAGE BREAK 25 -->
+Internet seem remote to most. To the few who follow them, they seem
+mainly about a much simpler brace of questions--whether "piracy" will
+be permitted, and whether "property" will be protected. The "war" that
+has been waged against the technologies of the Internet--what
+ Motion
+Picture Association of America (MPAA) president Jack Valenti
+calls his "own terrorist war"<footnote><para>
+Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates
+Use New Tools to Turn the Net into an Illicit Video Club," New York
+Times, 17 January 2002.
+</para></footnote>--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.
+</para>
+<para>
+If those really were the choices, then I would be with Jack Valenti
+and the content industry. I, too, am a believer in property, and
+ especially
+in the importance of what Mr. Valenti nicely calls "creative
+ property."
+I believe that "piracy" is wrong, and that the law, properly tuned,
+should punish "piracy," whether on or off the Internet.
+</para>
+<para>
+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 "pirates" will also rid our
+culture of values that have been integral to our tradition from the start.
+</para>
+<para>
+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,<footnote><para>
+Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
+Journal 106 (1996): 283.
+</para></footnote>
+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.
+</para>
+<para>
+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 Twistlike, 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.
+</para>
+<!-- PAGE BREAK 26 -->
+<para>
+The story that follows is about this war. Is it not about the
+ "centrality
+of technology" to ordinary life. I don't believe in gods, digital or
+otherwise. Nor is it an effort to demonize any individual or group, for
+neither do I believe in a devil, corporate or otherwise. It is not a
+ morality
+tale. Nor is it a call to jihad against an industry.
+</para>
+<para>
+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.
+</para>
+<para>
+Like the Causbys' battle, this war is, in part, about "property."
+The property of this war is not as tangible as the Causbys', and no
+innocent chicken has yet to lose its life. Yet the ideas surrounding this
+"property" are as obvious to most as the Causbys' claim about the
+ sacredness
+of their farm was to them. We are the Causbys. Most of us
+take for granted the extraordinarily powerful claims that the owners of
+"intellectual property" now assert. Most of us, like the Causbys, treat
+these claims as obvious. And hence we, like the Causbys, object when
+a new technology interferes with this property. It is as plain to us as it
+was to them that the new technologies of the Internet are "trespassing"
+upon legitimate claims of "property." It is as plain to us as it was to
+them that the law should intervene to stop this trespass.
+</para>
+<para>
+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
+<!-- PAGE BREAK 27 -->
+the lucky Wright brothers, the Internet has not inspired a revolution
+on its side.
+</para>
+<para>
+My hope is to push this common sense along. I have become
+ increasingly
+amazed by the power of this idea of intellectual property
+and, more importantly, its power to disable critical thought by policy
+makers and citizens. There has never been a time in our history when
+more of our "culture" was as "owned" as it is now. And yet there has
+never been a time when the concentration of power to control the uses
+of culture has been as unquestioningly accepted as it is now.
+</para>
+<para>
+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?
+</para>
+<para>
+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?
+</para>
+<para>
+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?
+</para>
+<para>
+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?
+</para>
+<para>
+I don't mean to be mysterious. My own views are resolved. I believe
+it was right for common sense to revolt against the extremism of the
+Causbys. I believe it would be right for common sense to revolt against
+the extreme claims made today on behalf of "intellectual property."
+What the law demands today is increasingly as silly as a sheriff
+ arresting
+an airplane for trespass. But the consequences of this silliness will
+be much more profound.
+<!-- PAGE BREAK 28 -->
+</para>
+<para>
+The struggle that rages just now centers on two ideas: "piracy" and
+"property." My aim in this book's next two parts is to explore these two
+ideas.
+</para>
+<para>
+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.
+</para>
+<para>
+The two sections set up the core claim of this book: that while the
+Internet has indeed produced something fantastic and new, our
+ government,
+pushed by big media to respond to this "something new," is
+destroying something very old. Rather than understanding the changes
+the Internet might permit, and rather than taking time to let "common
+sense" resolve how best to respond, we are allowing those most
+ threatened
+by the changes to use their power to change the law--and more
+importantly, to use their power to change something fundamental about
+who we have always been.
+</para>
+<para>
+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.
+</para>
+</chapter>
+<!-- PAGE BREAK 29 -->
+<chapter id="c-piracy">
+<title>"PIRACY"</title>
+
+<!-- PAGE BREAK 30 -->
+<para>
+Since the inception of the law regulating creative property, there
+has been a war against "piracy." The precise contours of this concept,
+"piracy," 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,
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f1 -->
+Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+Today we are in the middle of another "war" against "piracy." 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.
+<!-- PAGE BREAK 31 -->
+</para>
+<para>
+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 "rob the author of the profit."
+</para>
+<para>
+The warriors have turned to the courts, to the legislatures, and
+ increasingly
+to technology to defend their "property" against this "piracy."
+A generation of Americans, the warriors warn, is being raised to
+ believe
+that "property" should be "free." Forget tattoos, never mind body
+piercing--our kids are becoming thieves!
+</para>
+<para>
+There's no doubt that "piracy" is wrong, and that pirates should be
+punished. But before we summon the executioners, we should put this
+notion of "piracy" in some context. For as the concept is increasingly
+used, at its core is an extraordinary idea that is almost certainly wrong.
+</para>
+<para>
+The idea goes something like this:
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+This view runs deep within the current debates. It is what NYU law
+professor Rochelle Dreyfuss criticizes as the "if value, then right"
+ theory
+of creative property<footnote><para>
+<!-- f2 -->
+See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
+in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
+</para></footnote>
+--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.<footnote><para>
+<!-- f3 -->
+Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
+Up," Wall Street Journal, 21 August 1996, available at
+<ulink url="http://free-culture.cc/notes/">link #3</ulink>; Jonathan
+Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
+Speech, No One Wins," Boston Globe, 24 November 2002.
+</para></footnote>
+There was "value"
+(the songs) so there must have been a "right"--even against the Girl
+Scouts.
+</para>
+<para>
+This idea is certainly a possible understanding of how creative
+property should work. It might well be a possible design for a system
+<!-- PAGE BREAK 32 -->
+of law protecting creative property. But the "if value, then right" theory
+of creative property has never been America's theory of creative
+ property.
+It has never taken hold within our law.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+ "copying,"
+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
+<!-- PAGE BREAK 33 -->
+be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote><para>
+<!-- f4 -->
+In The Rise of the Creative Class (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.
+</para></footnote>
+Unfortunately, we are also seeing an extraordinary rise of regulation of
+this creative class.
+</para>
+<para>
+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 "piracy."
+</para>
+
+<!-- PAGE BREAK 34 -->
+<sect1 id="creators">
+<title>CHAPTER ONE: Creators</title>
+<para>
+In 1928, a cartoon character was born. An early Mickey Mouse
+made his debut in May of that year, in a silent flop called Plane Crazy.
+In November, in New York City's Colony Theater, in the first widely
+distributed cartoon synchronized with sound, Steamboat Willie brought
+to life the character that would become Mickey Mouse.
+</para>
+<para>
+Synchronized sound had been introduced to film a year earlier in
+the movie The Jazz Singer. 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,
+</para>
+<blockquote>
+<para>
+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.
+<!-- PAGE BREAK 35 -->
+</para>
+<para>
+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.
+</para>
+<para>
+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!<footnote><para>
+<!-- f1 -->
+Leonard Maltin, Of Mice and Magic: A History of American Animated
+ Cartoons
+(New York: Penguin Books, 1987), 3435.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+Disney's then partner, and one of animation's most extraordinary
+talents, Ub Iwerks, put it more strongly: "I have never been so thrilled
+in my life. Nothing since has ever equaled it."
+</para>
+<para>
+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.
+</para>
+<para>
+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 Steamboat Bill, Jr.
+</para>
+<para>
+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. Steamboat Bill, Jr. 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.
+</para>
+<para>
+Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
+<!-- PAGE BREAK 36 -->
+The coincidence of titles is not coincidental. Steamboat Willie is a
+ direct
+cartoon parody of Steamboat Bill,<footnote><para>
+<!-- f2 -->
+I am grateful to David Gerstein and his careful history, described at
+<ulink url="http://free-culture.cc/notes/">link #4</ulink>.
+According to Dave Smith of the Disney Archives, Disney paid royalties to
+use the music for five songs in Steamboat Willie: "Steamboat Bill," "The
+Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1"
+(Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the
+Straw," was already in the public domain. Letter from David Smith to
+Harry Surden, 10 July 2003, on file with author.
+</para></footnote>
+and both are built upon a
+ common
+song as a source. It is not just from the invention of synchronized
+sound in The Jazz Singer that we get Steamboat Willie. It is also from
+Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the
+song "Steamboat Bill," that we get Steamboat Willie, and then from
+Steamboat Willie, Mickey Mouse.
+</para>
+<para>
+This "borrowing" was nothing unique, either for Disney or for the
+industry. Disney was always parroting the feature-length mainstream
+films of his day.<footnote><para>
+<!-- f3 -->
+He was also a fan of the public domain. See Chris Sprigman, "The Mouse
+that Ate the Public Domain," Findlaw, 5 March 2002, at
+<ulink url="http://free-culture.cc/notes/">link #5</ulink>.
+</para></footnote>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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: Snow White
+(1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi
+(1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland
+(1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp
+<!-- PAGE BREAK 37 -->
+(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
+The Sword in the Stone (1963), and The Jungle Book (1967)--not to
+mention a recent example that we should perhaps quickly forget,
+ Treasure
+Planet (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.
+</para>
+<para>
+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 "Disney creativity," though that would
+be a bit misleading. It is, more precisely, "Walt Disney creativity"--a
+form of expression and genius that builds upon the culture around us
+and makes it something different.
+</para>
+<para>
+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.<footnote><para>
+<!-- f4 -->
+Until 1976, copyright law granted an author the possibility of two terms: an
+initial term and a renewal term. I have calculated the "average" 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
+<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
+</para></footnote>
+That means that for thirty years, on average, the authors or
+copyright holders of a creative work had an "exclusive right" to control
+certain uses of the work. To use this copyrighted work in limited ways
+required the permission of the copyright owner.
+</para>
+<para>
+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 "lawyer-free
+zone." 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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 38 -->
+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.
+</para>
+<para>
+Of course, Walt Disney had no monopoly on "Walt Disney
+ creativity."
+Nor does America. The norm of free culture has, until recently,
+and except within totalitarian nations, been broadly exploited and quite
+universal.
+</para>
+<para>
+Consider, for example, a form of creativity that seems strange to
+many Americans but that is inescapable within Japanese culture:
+manga, 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.
+</para>
+<para>
+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 "graphic novels" tell. For the Japanese, manga cover
+every aspect of social life. For us, comics are "men in tights." 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.
+</para>
+<para>
+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.
+</para>
+<para>
+This is the phenomenon of doujinshi. 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 just a copy; the artist must make a
+contribution to the art he copies, by transforming it either subtly or
+<!-- PAGE BREAK 39 -->
+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 "different." 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.
+</para>
+<para>
+These copycat comics are not a tiny part of the manga market. They
+are huge. More than 33,000 "circles" 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.
+</para>
+<para>
+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 "derivative works." 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 Steamboat Bill, Jr. Under both Japanese and American
+law, that "taking" 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.
+</para>
+<para>
+Yet this illegal market exists and indeed flourishes in Japan, and in
+the view of many, it is precisely because it exists that Japanese manga
+flourish. As American graphic novelist Judd Winick said to me, "The
+early days of comics in America are very much like what's going on
+in Japan now. . . . American comics were born out of copying each
+
+<!-- PAGE BREAK 40 -->
+other. . . . That's how [the artists] learn to draw--by going into comic
+books and not tracing them, but looking at them and copying them"
+and building from them.<footnote><para>
+<!-- f5 -->
+For an excellent history, see Scott McCloud, Reinventing Comics (New
+York: Perennial, 2000).
+</para></footnote>
+</para>
+<para>
+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, "there are these rules
+and you have to stick to them." There are things Superman "cannot"
+do. "As a creator, it's frustrating having to stick to some parameters
+which are fifty years old."
+</para>
+<para>
+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.<footnote><para>
+<!-- f6 -->
+See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
+Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
+Review 55 (2002): 155, 182. "[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."
+</para></footnote>
+</para>
+<para>
+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 "free taking" by the doujinshi culture?
+</para>
+<para>
+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. "We don't have enough
+lawyers," he told me one afternoon. There "just aren't enough resources
+to prosecute cases like this."
+</para>
+<para>
+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
+<!-- PAGE BREAK 41 -->
+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?
+Let's pause for a moment.
+</para>
+<para>
+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.
+</para>
+<para>
+We live in a world that celebrates "property." 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
+ "intellectual
+property."<footnote><para>
+<!-- f7 -->
+The term intellectual property is of relatively recent origin. See Siva
+ Vaidhyanathan,
+Copyrights and Copywrongs, 11 (New York: New York
+ University
+Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York:
+Random House, 2001), 293 n. 26. The term accurately describes a set of
+"property" rights--copyright, patents, trademark, and trade-secret--but the
+nature of those rights is very different.
+</para></footnote>
+A large, diverse society cannot survive without
+ property;
+a large, diverse, and modern society cannot flourish without
+intellectual property.
+</para>
+<para>
+But it takes just a second's reflection to realize that there is plenty of
+value out there that "property" doesn't capture. I don't mean "money
+can't buy you love," 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
+"fair." There was nothing wrong with the taking from the Grimms
+ because
+the Grimms' work was in the public domain.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 42 -->
+things remain free for the taking within a free culture, and that
+ freedom
+is good.
+</para>
+<para>
+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.
+</para>
+<para>
+Yet there is an obvious reluctance, even among Japanese lawyers, to
+say that the copycat comic artists are "stealing." This form of Walt
+ Disney
+creativity is seen as fair and right, even if lawyers in particular find
+it hard to say why.
+</para>
+<para>
+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. ("Excuse me, Professor
+ Einstein,
+but may I have permission to use your theory of relativity to show
+that you were wrong about quantum physics?") Acting companies
+ perform
+adaptations of the works of Shakespeare without securing
+ permission
+from anyone. (Does anyone 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.
+</para>
+<para>
+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.
+<!-- PAGE BREAK 43 -->
+</para>
+<para>
+The hard question is therefore not whether a culture is free. All
+ cultures
+are free to some degree. The hard question instead is "How free is
+this culture?" 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?
+</para>
+<para>
+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.
+</para>
+
+<!-- PAGE BREAK 44 -->
+</sect1>
+<sect1 id="mere-copyists">
+<title>CHAPTER TWO: "Mere Copyists"</title>
+<para>
+
+In 1839, Louis Daguerre invented the first practical technology for
+producing what we would call "photographs." Appropriately enough,
+they were called "daguerreotypes." 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.)
+</para>
+<para>
+Yet despite high prices, the demand for daguerreotypes was strong.
+This pushed inventors to find simpler and cheaper ways to make
+ "automatic
+pictures." William Talbot soon discovered a process for
+ making
+"negatives." 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.
+</para>
+<para>
+The technological change that made mass photography possible
+didn't happen until 1888, and was the creation of a single man. George
+<!-- PAGE BREAK 45 -->
+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.
+</para>
+<para>
+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. "You press the button and we do the
+rest."<footnote><para>
+<!-- f1 -->
+Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
+</para></footnote> As he described in The Kodak Primer:
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f2 -->
+Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
+1977), 53.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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
+percent.<footnote><para>
+<!-- f3 -->
+Jenkins, 177.
+</para></footnote> Eastman Kodak's sales during the same period experienced
+an average annual increase of over 17 percent.<footnote><para>
+<!-- f4 -->
+Based on a chart in Jenkins, p. 178.
+</para></footnote>
+</para>
+<para>
+
+<!-- PAGE BREAK 46 -->
+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, "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."<footnote><para>
+<!-- f5 -->
+Coe, 58.
+</para></footnote>
+</para>
+<para>
+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 "quality"; 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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f6 -->
+For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E.
+</para></footnote>
+</para>
+<para>
+The arguments in favor of requiring permission will sound
+ surprisingly
+familiar. The photographer was "taking" 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
+<!-- PAGE BREAK 47 -->
+Mickey, so, too, should these photographers not be free to take images
+that they thought valuable.
+</para>
+<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>
+<!-- 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.
+</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>
+<!-- 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) 398407; White v. Samsung Electronics America, Inc., 971 F.
+2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
+</para></footnote>)
+</para>
+<para>
+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 "theft" committed by
+the photographer. Just as Napster benefited from the copyright
+ infringements
+committed by Napster users, Kodak would be benefiting
+from the "image-right" 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.
+</para>
+<para>
+
+<!-- PAGE BREAK 48 -->
+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.
+If you drive through San Francisco's Presidio, you might see two
+gaudy yellow school buses painted over with colorful and striking
+ images,
+and the logo "Just Think!" in place of the name of a school. But
+there's little that's "just" 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 "film" 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.
+</para>
+<para>
+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, "Five years ago, a good real-time
+digital video editing system cost $25,000. Today you can get
+ professional
+quality for $595."<footnote><para>
+<!-- f9 -->
+H. Edward Goldberg, "Essential Presentation Tools: Hardware and
+ Software
+You Need to Create Digital Multimedia Presentations," cadalyst,
+February 2002, available at
+<ulink url="http://free-culture.cc/notes/">link #7</ulink>.
+</para></footnote>
+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 "media literacy."
+</para>
+<para>
+<!-- PAGE BREAK 49 -->
+"Media literacy," as Dave Yanofsky, the executive director of Just
+Think!, puts it, "is the ability . . . to understand, analyze, and
+ deconstruct
+media images. Its aim is to make [kids] literate about the way
+media works, the way it's constructed, the way it's delivered, and the
+way people access it."
+</para>
+<para>
+This may seem like an odd way to think about "literacy." For most
+people, literacy is about reading and writing. Faulkner and Hemingway
+and noticing split infinitives are the things that "literate" people know
+about.
+</para>
+<para>
+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,<footnote><para>
+<!-- f10 -->
+Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
+Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
+Study," Denver Post, 25 May 1997, B6.
+</para></footnote>
+it is increasingly important to understand the
+"grammar" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 50 -->
+USC School of Cinema-Television, explained to me, the grammar was
+about "the placement of objects, color, . . . rhythm, pacing, and
+ texture."<footnote><para>
+<!-- f11 -->
+Interview with Elizabeth Daley and Stephanie Barish, 13 December
+2002.
+</para></footnote>
+But as computers open up an interactive space where a story is
+"played" 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.<footnote><para>
+<!-- f12 -->
+See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
+ November
+2000, available at
+<ulink url="http://free-culture.cc/notes/">link #8</ulink>; "Timeline," 22 November 2000,
+ available
+at
+<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
+</para></footnote>
+</para>
+<para>
+This skill is precisely the craft a filmmaker learns. As Daley
+ describes,
+"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." If you know you were led through a film, the film has failed.
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+"Read-only." Passive recipients of culture produced elsewhere.
+Couch potatoes. Consumers. This is the world of media from the
+twentieth century.
+</para>
+<para>
+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,
+<!-- PAGE BREAK 51 -->
+and this literacy in particular, is to "empower people to choose the
+ appropriate
+language for what they need to create or express."<footnote><para>
+<!-- f13 -->
+Interview with Daley and Barish.
+</para></footnote> It is to enable
+students "to communicate in the language of the twenty-first century."<footnote><para>
+<!-- f14 -->
+Ibid.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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 "kids were showing up at 6 A.M. and leaving at 5 at night,"
+said Barish. They were working harder than in any other class to do
+what education should be about--learning how to express themselves.
+</para>
+<para>
+Using whatever "free web stuff they could find," and relatively
+ simple
+tools to enable the kids to mix "image, sound, and text," 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 "gave them a tool and
+empowered them to be able to both understand it and talk about it,"
+Barish explained. That tool succeeded in creating expression--far more
+successfully and powerfully than could have been created using only
+text. "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," 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 these ideas can be expressed well. The power of
+this message depended upon its connection to this form of expression.
+</para>
+<para>
+
+<!-- PAGE BREAK 52 -->
+"But isn't education about teaching kids to write?" 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 "constructing
+ meaning."
+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,
+</para>
+<blockquote>
+<para>
+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, "Johnny, you're illiterate. Nothing you can do
+ matters."
+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, "Well, with all these things
+that you can do, let's talk about this issue. Play for me music that
+you think reflects that, or show me images that you think reflect
+that, or draw for me something that reflects that." Not by giving
+a kid a video camera and . . . saying, "Let's go have fun with the
+video camera and make a little movie." But instead, really help
+you take these elements that you understand, that are your
+ language,
+and construct meaning about the topic. . . .
+</para>
+<para>
+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, "I need to explain this and I really need
+to write something." And as one of the teachers told Stephanie,
+they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
+</para>
+<para>
+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
+<!-- PAGE BREAK 53 -->
+didn't speak very well. But they had come to understand that they
+had a lot of power with this language."
+</para>
+</blockquote>
+<para>
+When two planes 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.
+</para>
+<para>
+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 "balance," and
+seriousness. This was news choreographed in the way we have
+ increasingly
+come to expect it, "news as entertainment," even if the
+ entertainment
+is tragedy.
+</para>
+<para>
+But in addition to this produced news about the "tragedy of
+ September
+11," those of us tied to the Internet came to see a very different
+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 Cyber Rights, around a news event that had
+ captured
+the attention of the world. There was ABC and CBS, but there
+was also the Internet.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 54 -->
+by a student on the "Just Think!" bus, the visual images could be mixed
+with sound or text.
+</para>
+<para>
+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.
+</para>
+<para>
+September 11 was not an aberration. It was a beginning. Around
+the same time, a form of communication that has grown dramatically
+was just beginning to come into public consciousness: the Web-log, or
+blog. The blog is a kind of public diary, and within some cultures, such
+as in Japan, it functions very much like a diary. In those cultures, it
+records private facts in a public way--it's a kind of electronic Jerry
+Springer, available anywhere in the world.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 55 -->
+in those elections. The cycle of these elections has become totally
+ professionalized
+and routinized. Most of us think this is democracy.
+</para>
+<para>
+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 "Democracy in America." 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 "right" result; they tried to persuade each other of the
+"right" result, and in criminal cases at least, they had to agree upon a
+unanimous result for the process to come to an end.<footnote><para>
+<!-- f15 -->
+See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans.
+Henry Reeve (New York: Bantam Books, 2000), ch. 16.
+</para></footnote>
+</para>
+<para>
+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.<footnote><para>
+<!-- f16 -->
+Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
+ Political
+Philosophy 10 (2) (2002): 129.
+</para></footnote>
+And in some towns in
+New England, something close to deliberation remains. But for most
+of us for most of the time, there is no time or place for "democratic
+ deliberation"
+to occur.
+</para>
+<para>
+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.<footnote><para>
+<!-- f17 -->
+Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
+6580, 175, 182, 183, 192.
+</para></footnote> We say what our
+friends want to hear, and hear very little beyond what our friends say.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 56 -->
+discourse without the public ever needing to gather in a single public
+place.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+"misspoke" 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 "misspeaking" emerged. Finally, the story broke
+back into the mainstream press. In the end, Lott was forced to resign
+as senate majority leader.<footnote><para>
+<!-- f18 -->
+Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
+York Times, 16 January 2003, G5.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+There's a second way, as well, in which blogs have a different cycle
+<!-- PAGE BREAK 57 -->
+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 "conflict of interest." "I think you
+have to take the conflict of interest" out of journalism, Winer told me.
+"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."
+</para>
+<para>
+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.<footnote><para>
+<!-- f19 -->
+Telephone interview with David Winer, 16 April 2003.
+</para></footnote>
+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 they were writing "the story.")
+</para>
+<para>
+Blog space gives amateurs a way to enter the debate--"amateur" 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.<footnote><para>
+<!-- f20 -->
+John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
+ Information
+Online," New York Times, 2 February 2003, A28; Staci D. Kramer,
+"Shuttle Disaster Coverage Mixed, but Strong Overall," Online
+ Journalism
+Review, 2 February 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #10</ulink>.
+</para></footnote>
+And it drives
+readers to read across the range of accounts and "triangulate," as Winer
+puts it, the truth. Blogs, Winer says, are "communicating directly with
+our constituency, and the middle man is out of it"--with all the
+ benefits,
+and costs, that might entail.
+</para>
+<para>
+Winer is optimistic about the future of journalism infected with
+blogs. "It's going to become an essential skill," Winer predicts, for
+ public
+figures and increasingly for private figures as well. It's not clear that
+"journalism" is happy about this--some journalists have been told to
+curtail their blogging.<footnote><para>
+<!-- f21 -->
+See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
+York Times, 29 September 2003, C4. ("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 Houston Chronicle 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.")
+</para></footnote>
+But it is clear that we are still in transition. "A
+
+<!-- PAGE BREAK 58 -->
+lot of what we are doing now is warm-up exercises," 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, "we will
+be the last thing that gets shut down."
+</para>
+<para>
+This speech affects democracy. Winer thinks that happens because
+"you don't have to work for somebody who controls, [for] a
+ gatekeeper."
+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.
+</para>
+<para>
+John Seely Brown is the chief scientist of the Xerox Corporation.
+His work, as his Web site describes it, is "human learning and . . . the
+creation of knowledge ecologies for creating . . . innovation."
+</para>
+<para>
+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.
+</para>
+<para>
+As Brown believes, we learn by tinkering. When "a lot of us grew
+up," he explains, that tinkering was done "on motorcycle engines,
+ lawnmower
+engines, automobiles, radios, and so on." 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
+<!-- PAGE BREAK 59 -->
+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
+"free collage," as Brown calls it. Many get to add to or transform the
+tinkering of many others.
+</para>
+<para>
+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.
+</para>
+<para>
+This opportunity creates a "completely new kind of learning
+ platform,"
+as Brown describes. "As soon as you start doing that, you . . .
+unleash a free collage on the community, so that other people can start
+looking at your code, tinkering with it, trying it out, seeing if they can
+improve it." Each effort is a kind of apprenticeship. "Open source
+ becomes
+a major apprenticeship platform."
+</para>
+<para>
+In this process, "the concrete things you tinker with are abstract.
+They are code." Kids are "shifting to the ability to tinker in the
+ abstract,
+and this tinkering is no longer an isolated activity that you're
+ doing
+in your garage. You are tinkering with a community platform. . . .
+You are tinkering with other people's stuff. The more you tinker the
+more you improve." The more you improve, the more you learn.
+</para>
+<para>
+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, "the Web [is] the first medium that truly honors
+ multiple
+forms of intelligence." Earlier technologies, such as the typewriter
+or word processors, helped amplify text. But the Web amplifies much
+more than text. "The Web . . . says if you are musical, if you are
+ artistic,
+if you are visual, if you are interested in film . . . [then] there is a lot
+you can start to do on this medium. [It] can now amplify and honor
+these multiple forms of intelligence."
+</para>
+<para>
+Brown is talking about what Elizabeth Daley, Stephanie Barish,
+and Just Think! teach: that this tinkering with culture teaches as well
+
+<!-- PAGE BREAK 60 -->
+as creates. It develops talents differently, and it builds a different kind
+of recognition.
+</para>
+<para>
+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.
+</para>
+<para>
+These restrictions have become the focus of researchers and
+ scholars.
+Professor Ed Felten of Princeton (whom we'll see more of in
+ chapter
+10) has developed a powerful argument in favor of the "right to
+tinker" as it applies to computer science and to knowledge in general.<footnote><para>
+<!-- f22 -->
+See, for example, Edward Felten and Andrew Appel, "Technological
+ Access
+Control Interferes with Noninfringing Scholarship," Communications
+of the Association for Computer Machinery 43 (2000): 9.
+</para></footnote>
+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.
+</para>
+<para>
+"This is where education in the twenty-first century is going,"
+Brown explains. We need to "understand how kids who grow up
+ digital
+think and want to learn."
+</para>
+<para>
+"Yet," as Brown continued, and as the balance of this book will
+evince, "we are building a legal system that completely suppresses the
+natural tendencies of today's digital kids. . . . We're building an
+ architecture
+that unleashes 60 percent of the brain [and] a legal system that
+closes down that part of the brain."
+</para>
+<para>
+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.
+</para>
+<para>
+"No way to run a culture," as Brewster Kahle, whom we'll meet in
+chapter 9, quipped to me in a rare moment of despondence.
+</para>
+<!-- PAGE BREAK 61 -->
+</sect1>
+<sect1 id="catalogs">
+<title>CHAPTER THREE: Catalogs</title>
+<para>
+In the fall 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Search engines are a measure of a network's intimacy. Google
+<!-- PAGE BREAK 62 -->
+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 "intranet" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 63 -->
+users of the RPI network made available in a public folder of their
+computer.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+"It was absurd," he told me. "I don't think I did anything wrong. . . .
+I don't think there's anything wrong with the search engine that I ran
+or . . . what I had done to it. I mean, I hadn't modified it in any way
+that promoted or enhanced the work of pirates. I just modified the
+search engine in a way that would make it easier to use"--again, a
+search engine, 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.
+</para>
+<para>
+But the RIAA branded Jesse a pirate. They claimed he operated a
+network and had therefore "willfully" violated copyright laws. They
+<!-- PAGE BREAK 64 -->
+ demanded
+that he pay them the damages for his wrong. For cases of
+"willful infringement," the Copyright Act specifies something lawyers
+call "statutory damages." 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.
+</para>
+<para>
+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 "damages" 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 billion--six
+times the total profit of the film industry in 2001.<footnote><para>
+<!-- f1 -->
+Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
+Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
+(2003): 5, available at 2003 WL 55179443.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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, "You don't want to pay another visit to a dentist like me.") And
+throughout, the RIAA insisted it would not settle the case until it took
+every penny Jesse had saved.
+</para>
+<para>
+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
+<!-- PAGE BREAK 65 -->
+won, he would have a piece of paper saying he had won, and a piece of
+paper saying he and his family were bankrupt.
+</para>
+<para>
+So Jesse faced a mafia-like choice: $250,000 and a chance at
+ winning,
+or $12,000 and a settlement.
+</para>
+<para>
+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.<footnote><para>
+<!-- f2 -->
+Occupational Employment Survey, U.S. Dept. of Labor (2001)
+(272042--Musicians and Singers). See also National Endowment for
+the Arts, More Than One in a Blue Moon (2000).
+</para></footnote>
+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?<footnote><para>
+<!-- f3 -->
+Douglas Lichtman makes a related point in "KaZaA and Punishment,"
+Wall Street Journal, 10 September 2003, A24.
+</para></footnote>
+</para>
+<para>
+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:
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+Jesse's parents betray a certain pride in their reluctant activist. As
+his father told me, Jesse "considers himself very conservative, and so do
+I. . . . He's not a tree hugger. . . . I think it's bizarre that they would
+pick on him. But he wants to let people know that they're sending the
+wrong message. And he wants to correct the record."
+</para>
+<!-- PAGE BREAK 66 -->
+</sect1>
+<sect1 id="pirates">
+<title>CHAPTER FOUR: "Pirates"</title>
+<para>
+
+If "piracy" means using the creative property of others without
+their permission--if "if value, then right" is true--then the history of
+the content industry is a history of piracy. Every important sector of
+"big media" 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.
+</para>
+<sect2 id="film">
+<title>Film</title>
+<para>
+The film industry of Hollywood was built by fleeing pirates.<footnote><para>
+<!-- f1 -->
+I am grateful to Peter DiMauro for pointing me to this extraordinary
+ history.
+See also Siva Vaidhyanathan, Copyrights and Copywrongs, 8793,
+which details Edison's "adventures" with copyright and patent.
+</para></footnote>
+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 "trust," 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
+<!-- PAGE BREAK 67 -->
+gave him, and the MPPC was serious about the control it demanded.
+</para>
+<para>
+As one commentator tells one part of the story,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f2 -->
+J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
+Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
+posted at "The Edison Movie Monopoly: The Motion Picture Patents
+Company vs. the Independent Outlaws," available at
+<ulink url="http://free-culture.cc/notes/">link #11</ulink>. For a
+ discussion
+of the economic motive behind both these limits and the limits
+imposed by Victor on phonographs, see Randal C. Picker, "From Edison
+to the Broadcast Flag: Mechanisms of Consent and Refusal and the
+ Propertization
+of Copyright" (September 2002), University of Chicago Law
+School, James M. Olin Program in Law and Economics, Working Paper
+No. 159.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+The Napsters of those days, the "independents," were companies like
+Fox. And no less than today, these independents were vigorously
+ resisted.
+"Shooting was disrupted by machinery stolen, and `accidents'
+resulting in loss of negatives, equipment, buildings and sometimes life
+and limb frequently occurred."<footnote><para>
+<!-- f3 -->
+Marc Wanamaker, "The First Studios," The Silents Majority, archived at
+
+<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
+</para></footnote>
+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.
+</para>
+<para>
+Of course, California grew quickly, and the effective enforcement
+of federal law eventually spread west. But because patents grant the
+patent holder a truly "limited" monopoly (just seventeen years at that
+
+<!-- PAGE BREAK 68 -->
+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.
+</para>
+</sect2>
+<sect2 id="recordedmusic">
+<title>Recorded Music</title>
+<para>
+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.
+</para>
+<para>
+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 "Happy Mose," 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.
+</para>
+<para>
+But what if I wanted to record "Happy Mose," 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 "public
+ performance"
+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.
+</para>
+<para>
+The composers (and publishers) were none too happy about
+<!-- PAGE BREAK 69 -->
+this capacity to pirate. As South Dakota senator Alfred Kittredge
+put it,
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f4 -->
+To Amend and Consolidate the Acts Respecting Copyright: Hearings on
+S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th
+Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of
+South Dakota, chairman), reprinted in Legislative History of the
+Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South
+ Hackensack,
+N.J.: Rothman Reprints, 1976).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+The innovators who developed the technology to record other
+people's works were "sponging upon the toil, the work, the talent, and
+genius of American composers,"<footnote><para>
+<!-- f5 -->
+To Amend and Consolidate the Acts Respecting Copyright, 223
+ (statement
+of Nathan Burkan, attorney for the Music Publishers Association).
+</para></footnote>
+and the "music publishing industry"
+was thereby "at the complete mercy of this one pirate."<footnote><para>
+<!-- f6 -->
+To Amend and Consolidate the Acts Respecting Copyright, 226
+ (statement
+of Nathan Burkan, attorney for the Music Publishers Association).
+</para></footnote>
+As John Philip
+Sousa put it, in as direct a way as possible, "When they make money
+out of my pieces, I want a share of it."<footnote><para>
+<!-- f7 -->
+To Amend and Consolidate the Acts Respecting Copyright, 23
+ (statement
+of John Philip Sousa, composer).
+</para></footnote>
+</para>
+<para>
+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 "it is perfectly demonstrable that the
+introduction of automatic music players has not deprived any
+ composer
+of anything he had before their introduction." Rather, the
+ machines
+increased the sales of sheet music.<footnote><para>
+<!-- f8 -->
+To Amend and Consolidate the Acts Respecting Copyright, 28384
+(statement of Albert Walker, representative of the Auto-Music
+ Perforating
+Company of New York).
+</para></footnote> In any case, the innovators
+argued, the job of Congress was "to consider first the interest of [the
+public], whom they represent, and whose servants they are." "All talk
+about `theft,'" the general counsel of the American Graphophone
+Company wrote, "is the merest claptrap, for there exists no property in
+ideas musical, literary or artistic, except as defined by statute."<footnote><para>
+<!-- f9 -->
+To Amend and Consolidate the Acts Respecting Copyright, 376
+ (prepared
+memorandum of Philip Mauro, general patent counsel of the
+ American
+Graphophone Company Association).
+</para></footnote>
+</para>
+<para>
+The law soon resolved this battle in favor of the composer and
+the recording artist. Congress amended the law to make sure that
+composers would be paid for the "mechanical reproductions" 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
+
+<!-- PAGE BREAK 70 -->
+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.
+</para>
+<para>
+American law ordinarily calls this a "compulsory license," but I will
+refer to it as a "statutory license." 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.
+</para>
+<para>
+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.
+</para>
+<para>
+But the law governing recordings gives recording artists less. And
+thus, in effect, the law subsidizes 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.<footnote><para>
+<!-- f10 -->
+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 Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and
+Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
+</para></footnote>
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+the record producers argued vigorously that the compulsory
+<!-- PAGE BREAK 71 -->
+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.<footnote><para>
+<!-- f11 -->
+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.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+By limiting the rights musicians have, by partially pirating their
+ creative
+work, the record producers, and the public, benefit.
+</para>
+</sect2>
+<sect2 id="radio">
+<title>Radio</title>
+<para>
+Radio was also born of piracy.
+</para>
+<para>
+When a radio station plays a record on the air, that constitutes a
+"public performance" of the composer's work.<footnote><para>
+<!-- f12 -->
+See 17 United States Code, sections 106 and 110. At the beginning, record
+companies printed "Not Licensed for Radio Broadcast" 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 RCA
+ Manufacturing
+Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C.
+Picker, "From Edison to the Broadcast Flag: Mechanisms of Consent and
+Refusal and the Propertization of Copyright," University of Chicago Law
+Review 70 (2003): 281.
+</para></footnote>
+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.
+</para>
+<para>
+But when the radio station plays a record, it is not only performing
+a copy of the composer's work. The radio station is also performing a
+copy of the recording artist's work. It's one thing to have "Happy
+ Birthday"
+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.
+
+<!-- PAGE BREAK 72 -->
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+"protected" right. The radio station thus gets to pirate the value of
+Madonna's work without paying her anything.
+</para>
+<para>
+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.
+</para>
+</sect2>
+<sect2 id="cabletv">
+<title>Cable TV</title>
+<para>
+
+Cable TV was also born of a kind of piracy.
+</para>
+<para>
+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
+<!-- PAGE BREAK 73 -->
+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.
+</para>
+<para>
+Broadcasters and copyright owners were quick to attack this theft.
+Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
+"unfair and potentially destructive competition."<footnote><para>
+<!-- f13 -->
+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).
+</para></footnote>
+There may have
+been a "public interest" 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, "Does public
+interest dictate that you use somebody else's property?"<footnote><para>
+<!-- f14 -->
+Copyright Law Revision--CATV, 116 (statement of Douglas A. Anello,
+general counsel of the National Association of Broadcasters).
+</para></footnote>
+As another broadcaster put it,
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f15 -->
+Copyright Law Revision--CATV, 126 (statement of Ernest W. Jennes,
+general counsel of the Association of Maximum Service Telecasters, Inc.).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+Again, the demand of the copyright holders seemed reasonable
+enough:
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f16 -->
+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.).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+These were "free-ride[rs]," Screen Actor's Guild president
+ Charlton
+Heston said, who were "depriving actors of compensation."<footnote><para>
+<!-- f17 -->
+Copyright Law Revision--CATV, 209 (statement of Charlton Heston,
+president of the Screen Actors Guild).
+</para></footnote>
+</para>
+<para>
+But again, there was another side to the debate. As Assistant
+ Attorney
+General Edwin Zimmerman put it,
+</para>
+<blockquote>
+<para>
+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
+
+<!-- PAGE BREAK 74 -->
+question here is how much compensation they should have and
+how far back they should carry their right to compensation.<footnote><para>
+<!-- f18 -->
+Copyright Law Revision--CATV, 216 (statement of Edwin M.
+ Zimmerman,
+acting assistant attorney general).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+Copyright owners took the cable companies to court. Twice the
+Supreme Court held that the cable companies owed the copyright
+owners nothing.
+</para>
+<para>
+It took Congress almost thirty years before it resolved the question
+of whether cable companies had to pay for the content they "pirated."
+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 "piracy" of the value created by
+ broadcasters'
+content.
+</para>
+<para>
+These separate stories sing a common theme. If "piracy"
+means using value from someone else's creative property without
+ permission
+from that creator--as it is increasingly described today<footnote><para>
+<!-- f19 -->
+See, for example, National Music Publisher's Association, The Engine of Free
+Expression: Copyright on the Internet--The Myth of Free Information,
+ available
+at
+<ulink url="http://free-culture.cc/notes/">link #13</ulink>. "The threat of piracy--the use of someone else's creative
+work without permission or compensation--has grown with the Internet."
+</para></footnote>
+--
+then every industry affected by copyright today is the product and
+beneficiary of a certain kind of piracy. Film, records, radio, cable
+TV. . . . The list is long and could well be expanded. Every generation
+welcomes the pirates from the last. Every generation--until now.
+</para>
+<!-- PAGE BREAK 75 -->
+</sect2>
+</sect1>
+<sect1 id="piracy">
+<title>CHAPTER FIVE: "Piracy"</title>
+<para>
+
+There is piracy 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.
+</para>
+<para>
+But as well as copy-shop piracy, there is another kind of "taking"
+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 "piracy," 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.
+<!-- PAGE BREAK 76 -->
+</para>
+<sect2 id="piracy-i">
+<title>Piracy I</title>
+<para>
+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<footnote><para>
+<!-- f1 -->
+See IFPI (International Federation of the Phonographic Industry), The
+Recording Industry Commercial Piracy Report 2003, July 2003, available at
+
+<ulink url="http://free-culture.cc/notes/">link #14</ulink>. See also Ben Hunt, "Companies Warned on Music Piracy Risk,"
+Financial Times, 14 February 2003, 11.
+</para></footnote>
+(that works out to one in three CDs sold
+worldwide). The MPAA estimates that it loses $3 billion annually
+worldwide to piracy.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+True, these local rules have, in effect, been imposed upon these
+countries. No country can be part of the world economy and choose
+<!-- PAGE BREAK 77 -->
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f2 -->
+See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns
+the Knowledge Economy? (New York: The New Press, 2003), 1013, 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.
+</para></footnote>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f3 -->
+For an analysis of the economic impact of copying technology, see Stan
+Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
+14490. "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." Ibid., 149.
+</para></footnote>
+</para>
+<para>
+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,
+"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?"
+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.
+</para>
+<para>
+This argument is still very weak. However, although copyright is a
+property right of a very special sort, it is 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 "take"
+ copyrighted
+content whether or not the copyright owner wants to sell. But
+
+<!-- PAGE BREAK 78 -->
+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 "property" means.
+</para>
+<para>
+Finally, we could try to excuse this piracy with the argument that
+the piracy actually helps the copyright owner. When the Chinese
+"steal" 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.
+</para>
+<para>
+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).
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 79 -->
+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.
+</para>
+<para>
+But as the examples from the four chapters that introduced this
+part suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
+at least, not all "piracy" is wrong if that term is understood in the way
+it is increasingly used today. Many kinds of "piracy" 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 "piracy" in
+that sense of the term.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+</sect2>
+<sect2 id="piracy-ii">
+<title>Piracy II</title>
+<para>
+The key to the "piracy" that the law aims to quash is a use that "rob[s]
+the author of [his] profit."<footnote><para>
+<!-- f4 -->
+Bach v. Longman, 98 Eng. Rep. 1274 (1777).
+</para></footnote>
+This means we must determine whether
+and how much p2p sharing harms before we know how strongly the
+<!-- PAGE BREAK 80 -->
+law should seek to either prevent it or find an alternative to assure the
+author of his profit.
+</para>
+<para>
+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<footnote><para>
+<!-- f5 -->
+See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
+National Bestseller That Changed the Way We Do Business (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, Future, 8992, 139.
+</para></footnote>), Shawn Fanning and crew had simply
+put together components that had been developed independently.
+</para>
+<para>
+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.<footnote><para>
+<!-- f6 -->
+See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare,"
+San Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
+New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
+Secures New Financing," San Francisco Chronicle, 23 May 2003, C1;
+ "Napster's
+Wake-Up Call," Economist, 24 June 2000, 23; John Naughton,
+ "Hollywood
+at War with the Internet" (London) Times, 26 July 2002, 18.
+</para></footnote>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f7 -->
+See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
+(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.
+</para></footnote>
+A survey by the NPD
+group quoted in The New York Times estimated that 43 million citizens
+used file-sharing networks to exchange content in May 2003.<footnote><para>
+<!-- f8 -->
+Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
+York Times, 6 June 2003, A1.
+</para></footnote>
+The vast
+majority of these are not kids. Whatever the actual figure, a massive
+quantity of content is being "taken" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 81 -->
+File sharers share different kinds of content. We can divide these
+different kinds into four types.
+</para>
+<orderedlist numeration="upperalpha">
+<listitem><para>
+<!-- A. -->
+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.
+</para></listitem>
+<listitem><para>
+<!-- B. -->
+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.
+</para></listitem>
+<listitem><para>
+<!-- C. -->
+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 "recalling" 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.
+</para></listitem>
+<listitem><para>
+<!-- PAGE BREAK 82 -->
+<!-- D. -->
+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.
+</para></listitem>
+</orderedlist>
+<para>
+How do these different types of sharing balance out?
+</para>
+<para>
+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.<footnote><para>
+<!-- f9 -->
+See Liebowitz, Rethinking the Network Economy,14849.
+</para></footnote>
+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.
+</para>
+<para>
+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 "theft"
+that is "devastating" the industry.
+</para>
+<para>
+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, "Rather than exploiting this new, popular technology, the
+labels fought it."<footnote><para>
+<!-- f10 -->
+See Cap Gemini Ernst & Young, Technology Evolution and the Music
+ Industry's
+Business Model Crisis (2003), 3. This report describes the music
+ industry's
+effort to stigmatize the budding practice of cassette taping in the
+1970s, including an advertising campaign featuring a cassette-shape skull
+and the caption "Home taping is killing music."
+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, Copyright and Home Copying:
+Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
+Government Printing Office, October 1989), 14556.
+</para></footnote>
+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.
+</para>
+<para>
+Yet soon thereafter, and before Congress was given an opportunity
+to enact regulation, MTV was launched, and the industry had a record
+turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was
+not the fault of the tapers--who did not [stop after MTV came into
+<!-- PAGE BREAK 83 -->
+being]--but had to a large extent resulted from stagnation in musical
+innovation at the major labels."<footnote><para>
+<!-- f11 -->
+U.S. Congress, Copyright and Home Copying, 4.
+</para></footnote>
+</para>
+<para>
+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 how
+harmful type A sharing is, and how beneficial the other types of
+ sharing
+are.
+</para>
+<para>
+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 "net harm" 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 static reason to resist them.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f12 -->
+See Recording Industry Association of America, 2002 Yearend Statistics,
+available at
+<ulink url="http://free-culture.cc/notes/">link #15</ulink>. A later report indicates even greater losses. See
+Recording Industry Association of America, Some Facts About Music Piracy,
+25 June 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #16</ulink>: "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)."
+</para></footnote>
+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. "From 1999 to 2001, the average
+price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote><para>
+<!-- f13 -->
+Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
+ February
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #17</ulink>.
+</para></footnote>
+Competition
+from other forms of media could also account for some of the decline.
+As Jane Black of BusinessWeek notes, "The soundtrack to the film High
+Fidelity has a list price of $18.98. You could get the whole movie [on
+DVD] for $19.99."<footnote><para>
+<!-- f14 -->
+Ibid.
+</para></footnote>
+</para>
+<para>
+
+<!-- PAGE BREAK 84 -->
+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.
+</para>
+<para>
+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, "What's the difference
+ between
+downloading a song and stealing a CD?"--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
+"rob[bed] the author of [his] profit"--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
+"downloading a song and stealing a CD."
+</para>
+<para>
+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?
+</para>
+<para>
+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.<footnote><para>
+<!-- f15 -->
+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
+<ulink url="http://free-culture.cc/notes/">link #18</ulink>.
+</para></footnote>
+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 to the company to
+make it available.
+</para>
+<para>
+In real space--long before the Internet--the market had a simple
+<!-- PAGE BREAK 85 -->
+response to this problem: used book and record stores. There are
+ thousands
+of used book and used record stores in America today.<footnote><para>
+<!-- f16 -->
+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, The Quiet
+Revolution: The Expansion of the Used Book Market (2002), available at
+<ulink url="http://free-culture.cc/notes/">link #19</ulink>. Used records accounted for $260 million in sales in 2002. See
+ National
+Association of Recording Merchandisers, "2002 Annual Survey
+ Results,"
+available at
+<ulink url="http://free-culture.cc/notes/">link #20</ulink>.
+</para></footnote>
+These
+stores buy content from owners, then sell the content they buy. And
+under American copyright law, when they buy and sell this content,
+even if the content is still under copyright, 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.
+</para>
+<para>
+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 "Two Love Songs," 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.
+</para>
+<para>
+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?
+</para>
+<para>
+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, Down and Out in
+the Magic Kingdom, both free on-line and in bookstores on the same
+
+<!-- PAGE BREAK 86 -->
+day. His (and his publisher's) thinking was that the on-line distribution
+would be a great advertisement for the "real" 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!)
+</para>
+<para>
+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.
+</para>
+<para>
+The point throughout is this: While the recording industry
+ understandably
+says, "This is how much we've lost," we must also ask, "How
+much has society gained from p2p sharing? What are the efficiencies?
+What is the content that otherwise would be unavailable?"
+</para>
+<para>
+For unlike the piracy I described in the first section of this chapter,
+much of the "piracy" that file sharing enables is plainly legal and good.
+And like the piracy I described in chapter 4, much of 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.
+</para>
+<para>
+"But isn't the war just a war against illegal sharing? Isn't the target
+just what you call type A sharing?"
+</para>
+<para>
+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
+<!-- PAGE BREAK 87 -->
+infringing material, the district court told counsel for Napster 99.4
+percent was not good enough. Napster had to push the infringements
+"down to zero."<footnote><para>
+<!-- f17 -->
+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
+<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an account of the litigation and its toll on
+Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn
+ Fanning's
+Napster (New York: Crown Business, 2003), 26982.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+So, as we've seen, when "mechanical reproduction" 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 "creative property" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 88 -->
+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 compensation without giving the past (broadcasters)
+ control
+over the future (cable).
+</para>
+<para>
+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 "record"
+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.
+</para>
+<para>
+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 "copy me" 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
+<!-- PAGE BREAK 89 -->
+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.
+</para>
+<para>
+MPAA president Jack Valenti became the studios' most vocal
+champion. Valenti called VCRs "tapeworms." He warned, "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."<footnote><para>
+<!-- f18 -->
+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.).
+</para></footnote>
+"One does not have to be trained in sophisticated marketing
+and creative judgment," he told Congress, "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."<footnote><para>
+<!-- f19 -->
+Copyright Infringements (Audio and Video Recorders), 475.
+</para></footnote>
+Indeed, as surveys would later show,
+percent of VCR owners had movie libraries of ten videos or more<footnote><para>
+<!-- f20 -->
+Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429,
+(C.D. Cal., 1979).
+</para></footnote>
+--a
+use the Court would later hold was not "fair." By "allowing VCR
+ owners
+to copy freely by the means of an exemption from copyright
+ infringement
+without creating a mechanism to compensate copyright
+owners," Valenti testified, Congress would "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."<footnote><para>
+<!-- f21 -->
+Copyright Infringements (Audio and Video Recorders), 485 (testimony
+of Jack Valenti).
+</para></footnote>
+</para>
+<para>
+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 "Hollywood Circuit"--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 "the Boston Strangler
+of the American film industry" (worse yet, it was a Japanese Boston
+Strangler of the American film industry)--was an illegal technology.<footnote><para>
+<!-- f22 -->
+Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
+1981).
+</para></footnote>
+</para>
+<para>
+But the Supreme Court reversed the decision of the Ninth Circuit.
+
+<!-- PAGE BREAK 90 -->
+And in its reversal, the Court clearly articulated its understanding of
+when and whether courts should intervene in such disputes. As the
+Court wrote,
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f23 -->
+Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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 "taking" notwithstanding.
+If we put these cases together, a pattern is clear:
+</para>
+
+<table id="t1">
+<title>Table</title>
+<tgroup cols="4" align="char">
+<thead>
+ <row>
+ <entry>CASE</entry>
+ <entry>WHOSE VALUE WAS "PIRATED"</entry>
+ <entry>RESPONSE OF THE COURTS</entry>
+ <entry>RESPONSE OF CONGRESS</entry>
+ </row>
+</thead>
+<tbody>
+ <row>
+ <entry>Recordings</entry>
+ <entry>Composers</entry>
+ <entry>No protection</entry>
+ <entry>Statutory license</entry>
+ </row>
+ <row>
+ <entry>Radio</entry>
+ <entry>Recording artists</entry>
+ <entry>N/A</entry>
+ <entry>Nothing</entry>
+ </row>
+ <row>
+ <entry>Cable TV</entry>
+ <entry>Broadcasters</entry>
+ <entry>No protection</entry>
+ <entry>Statutory license</entry>
+ </row>
+ <row>
+ <entry>VCR</entry>
+ <entry>Film creators</entry>
+ <entry>No protection</entry>
+ <entry>Nothing</entry>
+ </row>
+</tbody>
+</tgroup>
+</table>
+
+<para>
+In each case throughout our history, a new technology changed the
+way content was distributed.<footnote><para>
+<!-- f24 -->
+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 United States Code), 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, Future, 71. See also Picker, "From Edison to the Broadcast Flag,"
+University of Chicago Law Review 70 (2003): 29396.
+</para></footnote>
+In each case, throughout our history,
+that change meant that someone got a "free ride" on someone else's
+work.
+</para>
+<para>
+In none of these cases did either the courts or Congress eliminate all
+free riding. In none 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
+"piracy." In every case, Congress acted to recognize some of the
+ legitimacy
+in the behavior of the "pirates." In each case, Congress allowed
+some new technology to benefit from content made before. It balanced
+the interests at stake.
+<!-- PAGE BREAK 91 -->
+</para>
+<para>
+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?
+</para>
+<para>
+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 "has never accorded the copyright owner complete control
+over all possible uses of his work."<footnote><para>
+<!-- f25 -->
+Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,
+(1984).
+</para></footnote>
+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 after a
+ technology
+has matured, or settled into the mix of technologies that facilitate
+the distribution of content.
+</para>
+<para>
+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 "stealing" 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.
+</para>
+<para>
+
+<!-- PAGE BREAK 92 -->
+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 "potential public benefits," as John Schwartz writes in
+The New York Times, "could be delayed in the P2P fight."<footnote><para>
+<!-- f26 -->
+John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
+Echoes Past Efforts," New York Times, 22 September 2003, C3.
+</para></footnote>
+Yet when anyone begins to talk about "balance," the copyright
+ warriors
+raise a different argument. "All this hand waving about balance
+and incentives," they say, "misses a fundamental point. Our content,"
+the warriors insist, "is our property. 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?"
+</para>
+<para>
+"It is our property," the warriors insist. "And it should be protected
+just as any other property is protected."
+</para>
+<!-- PAGE BREAK 93 -->
+</sect2>
+</sect1>
+</chapter>
+<chapter id="c-property">
+<title>"PROPERTY"</title>
+<para>
+
+<!-- PAGE BREAK 94 -->
+The copyright warriors 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.
+</para>
+<para>
+But in ordinary language, to call a copyright a "property" 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
+idea 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?
+</para>
+<para>
+The point is not just about the thingness of picnic tables versus
+ideas, though that's an important difference. The point instead is that
+<!-- PAGE BREAK 95 -->
+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), "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."<footnote><para>
+<!-- f1 -->
+Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
+The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert
+Ellery Bergh, eds., 1903), 330, 33334.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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
+ "property"
+in its proper context.<footnote><para>
+<!-- f2 -->
+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, "What Is
+ Property?
+Putting the Pieces Back Together," Arizona Law Review 45 (2003):
+373, 429 n. 241.
+</para></footnote>
+</para>
+<para>
+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 "copyright
+ material
+is property" 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--"copyright material is property"--
+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.
+</para>
+
+<!-- PAGE BREAK 96 -->
+<sect1 id="founders">
+<title>CHAPTER SIX: Founders</title>
+<para>
+William Shakespeare wrote Romeo and Juliet 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: "I liked it, but Shakespeare is so full of clichés."
+</para>
+<para>
+In 1774, almost 180 years after Romeo and Juliet was written, the
+"copy-right" for the work was still thought by many to be the exclusive
+right of a single London publisher, Jacob Tonson.<footnote><para>
+<!-- f1 -->
+Jacob Tonson is typically remembered for his associations with prominent
+eighteenth-century literary figures, especially John Dryden, and for his
+handsome "definitive editions" of classic works. In addition to Romeo and
+Juliet, 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, "Jacob Tonson,
+Bookseller," American Scholar 61:3 (1992): 42431.
+</para></footnote>
+Tonson was the
+most prominent of a small group of publishers called the Conger<footnote><para>
+<!-- f2 -->
+Lyman Ray Patterson, Copyright in Historical Perspective (Nashville:
+ Vanderbilt
+University Press, 1968), 15152.
+</para></footnote>
+who
+controlled bookselling in England during the eighteenth century. The
+Conger claimed a perpetual right to control the "copy" of books that
+they had acquired from authors. That perpetual right meant that no
+<!-- PAGE BREAK 97 -->
+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.
+</para>
+<para>
+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 "copyright" 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.<footnote><para>
+<!-- f3 -->
+As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
+ "copyright
+law." See Vaidhyanathan, Copyrights and Copywrongs, 40.
+</para></footnote>
+Under this law, Romeo and Juliet should have been free in 1731. So why
+was there any issue about it still being under Tonson's control in 1774?
+</para>
+<para>
+The reason is that the English hadn't yet agreed on what a
+ "copyright"
+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 "Stationers," had an exclusive right to print books.
+</para>
+<para>
+There was no positive 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
+ "positive
+law." We call the words from judges "common law." 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.
+</para>
+<para>
+This question was important to the publishers, or "booksellers," 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
+
+<!-- PAGE BREAK 98 -->
+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.
+</para>
+<para>
+The Statute of Anne granted the author or "proprietor" 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
+ "expired,"
+and the work would then be free and could be published by
+anyone. Or so the legislature is thought to have believed.
+</para>
+<para>
+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 at all?
+</para>
+<para>
+For the booksellers, and the authors whom they represented, had a
+very strong claim. Take Romeo and Juliet 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 "steal" Shakespeare's work?
+</para>
+<para>
+The answer comes in two parts. We first need to see something
+ special
+about the notion of "copyright" that existed at the time of the
+Statute of Anne. Second, we have to see something important about
+"booksellers."
+</para>
+<para>
+First, about copyright. In the last three hundred years, we have
+come to apply the concept of "copyright" 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 "copy-right" 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
+<!-- PAGE BREAK 99 -->
+a work could be used. 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.
+</para>
+<para>
+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 "copy-right" was only an exclusive right
+to print--no less, of course, but also no more.
+</para>
+<para>
+Even that limited right was viewed with skepticism by the British.
+They had had a long and ugly experience with "exclusive rights,"
+ especially
+"exclusive rights" 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.
+</para>
+<para>
+Thus the "copy-right," when viewed as a monopoly right, was
+ naturally
+viewed as a right that should be limited. (However convincing
+the claim that "it's my property, and I should have it forever," try
+sounding convincing when uttering, "It's my monopoly, and I should
+have it forever.") 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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 100 -->
+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 "old patentees and monopolizers in
+the trade of book-selling"; they were "men who do not therefore labour
+in an honest profession to which learning is indetted."<footnote><para>
+<!-- f4 -->
+Philip Wittenberg, The Protection and Marketing of Literary Property (New
+York: J. Messner, Inc., 1937), 31.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Parliament rejected their requests. As one pamphleteer put it, in
+words that echo today,
+</para>
+<blockquote>
+<para>
+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
+<!-- PAGE BREAK 101 -->
+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.<footnote><para>
+<!-- f5 -->
+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,
+Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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
+"property" 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.
+</para>
+<para>
+This was a clever argument, and one that had the support of some
+of the leading jurists of the day. It also displayed extraordinary
+ chutzpah.
+Until then, as law professor Raymond Patterson has put it, "The
+publishers . . . had as much concern for authors as a cattle rancher has
+for cattle."<footnote><para>
+<!-- f6 -->
+Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
+Law Review 40 (1987): 28. For a wonderfully compelling account, see
+Vaidhyanathan, 3748.
+</para></footnote>
+The bookseller didn't care squat for the rights of the
+ author.
+His concern was the monopoly profit that the author's work gave.
+</para>
+<para>
+The booksellers' argument was not accepted without a fight.
+The hero of this fight was a Scottish bookseller named Alexander
+Donaldson.<footnote><para>
+<!-- f7 -->
+For a compelling account, see David Saunders, Authorship and Copyright
+(London: Routledge, 1992), 6269.
+</para></footnote>
+</para>
+<para>
+Donaldson was an outsider to the London Conger. He began his
+career in Edinburgh in 1750. The focus of his business was inexpensive
+reprints "of standard works whose copyright term had expired," at least
+under the Statute of Anne.<footnote><para>
+<!-- f8 -->
+Mark Rose, Authors and Owners (Cambridge: Harvard University Press,
+1993), 92.
+</para></footnote>
+Donaldson's publishing house prospered
+<!-- PAGE BREAK 102 -->
+and became "something of a center for literary Scotsmen." "[A]mong
+them," Professor Mark Rose writes, was "the young James Boswell
+who, together with his friend Andrew Erskine, published an anthology
+of contemporary Scottish poems with Donaldson."<footnote><para>
+<!-- f9 -->
+Ibid., 93.
+</para></footnote>
+</para>
+<para>
+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 "of the most popular English books, in
+ defiance
+of the supposed common law right of Literary Property."<footnote><para>
+<!-- f10 -->
+Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting
+Borwell).
+</para></footnote>
+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.
+</para>
+<para>
+The London booksellers quickly brought suit to block "piracy" like
+Donaldson's. A number of actions were successful against the "pirates,"
+the most important early victory being Millar v. Taylor.
+</para>
+<para>
+Millar was a bookseller who in 1729 had purchased the rights to
+James Thomson's poem "The Seasons." 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.<footnote><para>
+<!-- f11 -->
+Howard B. Abrams, "The Historic Foundation of American Copyright
+Law: Exploding the Myth of Common Law Copyright," Wayne Law
+ Review
+29 (1983): 1152.
+</para></footnote>
+</para>
+<para>
+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 "pirates."
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 103 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f12 -->
+Ibid., 1156.
+</para></footnote>
+Donaldson then released an unauthorized edition
+of Thomson's works. Beckett, on the strength of the decision in Millar,
+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.
+</para>
+<para>
+As few legal cases ever do, Donaldson v. Beckett 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.
+</para>
+<para>
+The House of Lords was an odd institution. Legal questions were
+presented to the House and voted upon first by the "law lords,"
+ 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.
+</para>
+<para>
+The reports about the law lords' votes are mixed. On some counts,
+it looks as if perpetual copyright prevailed. But there is no ambiguity
+<!-- PAGE BREAK 104 -->
+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.
+</para>
+<para>
+"The public domain." Before the case of Donaldson v. Beckett, 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.
+</para>
+<para>
+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 "pirate publishers" did their work, people celebrated
+the decision in the streets. As the Edinburgh Advertiser reported, "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." "Great rejoicing in
+ Edinburgh
+upon victory over literary property: bonfires and
+ illuminations."<footnote><para>
+<!-- f13 -->
+Rose, 97.
+</para></footnote>
+</para>
+<para>
+In London, however, at least among publishers, the reaction was
+equally strong in the opposite direction. The Morning Chronicle
+ reported:
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f14 -->
+Ibid.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+<!-- PAGE BREAK 105 -->
+"Ruined" is a bit of an exaggeration. But it is not an exaggeration to
+say that the change was profound. The decision of the House of Lords
+meant that the booksellers could no longer control how culture in
+ England
+would grow and develop. Culture in England was thereafter free.
+Not in the sense that copyrights would not be respected, for of course,
+for a limited time after a work was published, the bookseller had an
+ exclusive
+right to control the publication of that book. And not in the
+sense that books could be stolen, for even after a copyright expired, you
+still had to buy the book from someone. But free in the sense that the
+culture and its growth would no longer be controlled by a small group
+of publishers. As every free market does, this free market of free culture
+would grow as the consumers and producers chose. English culture
+would develop as the many English readers chose to let it develop--
+chose in the books they bought and wrote; chose in the memes they
+repeated and endorsed. Chose in a competitive context, not a context
+in which the choices about what culture is available to people and
+how they get access to it are made by the few despite the wishes of
+the many.
+</para>
+<para>
+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.
+</para>
+<!-- PAGE BREAK 106 -->
+</sect1>
+<sect1 id="recorders">
+<title>CHAPTER SEVEN: Recorders</title>
+<para>
+Jon Else 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.)
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 The Simpsons. As Else judged
+<!-- PAGE BREAK 107 -->
+it, this touch of cartoon helped capture the flavor of what was special
+about the scene.
+</para>
+<para>
+Years later, when he finally got funding to complete the film, Else
+attempted to clear the rights for those few seconds of The Simpsons.
+For of course, those few seconds are copyrighted; and of course, to use
+copyrighted material you need the permission of the copyright owner,
+unless "fair use" or some other privilege applies.
+</para>
+<para>
+Else called Simpsons 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.
+</para>
+<para>
+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.
+</para>
+<para>
+Then, as Else told me, "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." And
+second, Fox "wanted ten thousand dollars as a licensing fee for us to use
+this four-point-five seconds of . . . entirely unsolicited Simpsons which
+was in the corner of the shot."
+</para>
+<para>
+Else was certain there was a mistake. He worked his way up to
+someone he thought was a vice president for licensing, Rebecca
+ Herrera.
+He explained to her, "There must be some mistake here. . . .
+We're asking for your educational rate on this." That was the
+ educational
+rate, Herrera told Else. A day or so later, Else called again to
+confirm what he had been told.
+</para>
+<para>
+"I wanted to make sure I had my facts straight," he told me. "Yes,
+you have your facts straight," she said. It would cost $10,000 to use the
+clip of The Simpsons in the corner of a shot in a documentary film about
+
+<!-- PAGE BREAK 108 -->
+Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And
+if you quote me, I'll turn you over to our attorneys." As an assistant to
+Herrera told Else later on, "They don't give a shit. They just want the
+money."
+</para>
+<para>
+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, The Day After
+Trinity, from ten years before.
+</para>
+<para>
+There's no doubt that someone, whether Matt Groening or Fox,
+owns the copyright to The Simpsons. 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
+Simpsons 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.
+</para>
+<para>
+For example, "public performance" is a use of The Simpsons 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 "My
+Favorite Simpsons," 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.
+</para>
+<para>
+But when lawyers hear this story about Jon Else and Fox, their first
+thought is "fair use."<footnote><para>
+<!-- f1 -->
+For an excellent argument that such use is "fair use," but that lawyers don't
+permit recognition that it is "fair use," see Richard A. Posner with William
+F. Patry, "Fair Use and Statutory Reform in the Wake of Eldred " (draft on
+file with author), University of Chicago Law School, 5 August 2003.
+</para></footnote>
+Else's use of just 4.5 seconds of an indirect shot
+of a Simpsons episode is clearly a fair use of The Simpsons--and fair use
+does not require the permission of anyone.
+</para>
+<para>
+<!-- PAGE BREAK 109 -->
+So I asked Else why he didn't just rely upon "fair use." Here's his reply:
+</para>
+<blockquote>
+<para>
+The Simpsons fiasco was for me a great lesson in the gulf
+ between
+what lawyers find irrelevant in some abstract sense, and
+what is crushingly relevant in practice to those of us actually
+trying to make and broadcast documentaries. I never had any
+doubt that it was "clearly fair use" in an absolute legal sense. But
+I couldn't rely on the concept in any concrete way. Here's why:
+</para>
+<orderedlist numeration="arabic">
+<listitem><para>
+<!-- 1. -->
+Before our films can be broadcast, the network requires
+that we buy Errors and Omissions insurance. The carriers
+ require
+a detailed "visual cue sheet" listing the source and
+ licensing
+status of each shot in the film. They take a dim view of
+"fair use," and a claim of "fair use" can grind the application
+process to a halt.
+</para></listitem>
+<listitem><para>
+<!-- 2. -->
+I probably never should have asked Matt Groening in the
+first place. But I knew (at least from folklore) that Fox had a
+history of tracking down and stopping unlicensed Simpsons
+usage, just as George Lucas had a very high profile litigating
+Star Wars usage. So I decided to play by the book, thinking
+that we would be granted free or cheap license to four seconds
+of Simpsons. As a documentary producer working to
+ exhaustion
+on a shoestring, the last thing I wanted was to risk legal
+trouble, even nuisance legal trouble, and even to defend a
+principle.
+</para></listitem>
+<listitem><para>
+<!-- 3. -->
+I did, in fact, speak with one of your colleagues at Stanford
+Law School . . . who confirmed that it was fair use. He also
+confirmed that Fox would "depose and litigate you to within
+an inch of your life," regardless of the merits of my claim. He
+made clear that it would boil down to who had the bigger
+ legal
+department and the deeper pockets, me or them.
+<!-- PAGE BREAK 110 -->
+</para></listitem>
+<listitem><para>
+<!-- 4. -->
+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.
+</para></listitem>
+</orderedlist>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<!-- PAGE BREAK 111 -->
+</sect1>
+<sect1 id="transformers">
+<title>CHAPTER EIGHT: Transformers</title>
+<para>
+In 1993, 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 112 -->
+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.
+</para>
+<para>
+Then Alben and his team decided to include actual film clips. "Our
+goal was that we were going to have a clip from every one of
+ Eastwood's
+films," Alben told me. It was here that the problem arose. "No
+one had ever really done this before," Alben explained. "No one had
+ever tried to do this in the context of an artistic look at an actor's
+career."
+</para>
+<para>
+Alben brought the idea to Michael Slade, the CEO of Starwave.
+Slade asked, "Well, what will it take?"
+</para>
+<para>
+Alben replied, "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." Slade said, "Great! Go
+for it."<footnote><para>
+<!-- f1 -->
+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 "Rip, Mix, Burn" creativity, as this chapter
+evinces.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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:
+</para>
+<blockquote>
+<para>
+So we very mechanically went about looking up the film clips.
+We made some artistic decisions about what film clips to
+ include--of
+course we were going to use the "Make my day" clip
+from Dirty Harry. But you then need to get the guy on the ground
+who's wiggling under the gun and you need to get his
+ permission.
+And then you have to decide what you are going to pay
+him.
+</para>
+<para>
+<!-- PAGE BREAK 113 -->
+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.
+</para>
+</blockquote>
+<para>
+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,
+"Hey, can I pay you $600 or maybe if you were in two films, you
+know, $1,200?" And they would say, "Are you for real? Hey, I'd love
+to get $1,200." 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.
+</para>
+<para>
+It was one year later--"and even then we weren't sure whether we
+were totally in the clear."
+</para>
+<para>
+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.
+</para>
+<blockquote>
+<para>
+Everyone thought it would be too hard. Everyone just threw up
+their hands and said, "Oh, my gosh, a film, it's so many
+ copyrights,
+there's the music, there's the screenplay, there's the director,
+there's the actors." But we just broke it down. We just put it into
+its constituent parts and said, "Okay, there's this many actors, this
+many directors, . . . this many musicians," and we just went at it
+very systematically and cleared the rights.
+</para>
+</blockquote>
+<para>
+
+<!-- PAGE BREAK 114 -->
+And no doubt, the product itself was exceptionally good. Eastwood
+loved it, and it sold very well.
+</para>
+<para>
+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, "There is
+ nothing
+so useless as doing efficiently that which should not be done at
+all."<footnote><para>
+<!-- f2 -->
+U.S. Department of Commerce Office of Acquisition Management, Seven
+Steps to Performance-Based Services Acquisition, available at
+<ulink url="http://free-culture.cc/notes/">link #22</ulink>.
+</para></footnote>
+Did it make sense, I asked Alben, that this is the way a new work
+has to be made?
+</para>
+<para>
+For, as he acknowledged, "very few . . . have the time and resources,
+and the will to do this," and thus, very few such works would ever be
+made. Does it make sense, I asked him, from the standpoint of what
+anybody really thought they were ever giving rights for originally, that
+you would have to go clear rights for these kinds of clips?
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+Or at least, is this how 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?
+</para>
+<blockquote>
+<para>
+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
+<!-- PAGE BREAK 115 -->
+retrospective of someone's career and meaningfully illustrate it
+with lots of media from that person's career. You'd build in a cost
+as the producer of one of these things. You'd build in a cost of
+ paying
+X dollars to the talent that performed. But it would be a
+known cost. That's the thing that trips everybody up and makes
+this kind of product hard to get off the ground. If you knew I have
+a hundred minutes of film in this product and it's going to cost me
+X, then you build your budget around it, and you can get
+ investments
+and everything else that you need to produce it. But if you
+say, "Oh, I want a hundred minutes of something and I have no
+idea what it's going to cost me, and a certain number of people are
+going to hold me up for money," then it becomes difficult to put
+one of these things together.
+</para>
+</blockquote>
+<para>
+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?
+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, "Does this
+still make sense?"
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 116 -->
+from an L.A. firm, introduced the panel with a video that he and a
+friend, Robert Fairbank, had produced.
+</para>
+<para>
+The video was a brilliant collage of film from every period in the
+twentieth century, all framed around the idea of a 60 Minutes episode.
+The execution was perfect, down to the sixty-minute stopwatch. The
+judges loved every minute of it.
+</para>
+<para>
+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: "Do you know how many federal laws
+were just violated in this room?"
+</para>
+<para>
+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.
+</para>
+<para>
+We live in a "cut and paste" 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.
+</para>
+<para>
+But presentations are just a tiny beginning. Using the Internet and
+<!-- PAGE BREAK 117 -->
+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.
+</para>
+<para>
+All of these creations are technically illegal. Even if the creators
+wanted to be "legal," 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.
+</para>
+<para>
+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 "free" use be free as in "free beer." 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 "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." 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.
+</para>
+<para>
+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?
+</para>
+<para>
+In February 2003, DreamWorks studios announced an
+ agreement
+with Mike Myers, the comic genius of Saturday Night Live and
+<!-- PAGE BREAK 118 -->
+Austin Powers. According to the announcement, Myers and
+ Dream-Works
+would work together to form a "unique filmmaking pact." Under
+the agreement, DreamWorks "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."
+</para>
+<para>
+The announcement called this "film sampling." As Myers
+ explained,
+"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." Steven Spielberg is
+quoted as saying, "If anyone can create a way to bring old films to new
+audiences, it is Mike."
+</para>
+<para>
+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.
+</para>
+<para>
+This privilege becomes reserved for two sorts of reasons. The first
+continues the story of the last chapter: the vagueness of "fair use."
+Much of "sampling" should be considered "fair use." 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.
+</para>
+<!-- PAGE BREAK 119 -->
+</sect1>
+<sect1 id="collectors">
+<title>CHAPTER NINE: Collectors</title>
+<para>
+In April 1996, millions of "bots"--computer codes designed to
+"spider," 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.
+</para>
+<para>
+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 "the Way Back Machine," you could
+enter a Web page, and see all of its copies going back to 1996, as well
+as when those pages changed.
+</para>
+<para>
+This is the thing about the Internet that Orwell would have
+ appreciated.
+In the dystopia described in 1984, 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.
+</para>
+<para>
+<!-- PAGE BREAK 120 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f1 -->
+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, "Combat Operations in Iraq Have Ended." That was later
+changed, without notice, to "Major Combat Operations in Iraq Have Ended."
+E-mail from Brewster Kahle, 1 December 2003.
+</para></footnote>
+</para>
+<para>
+We take it 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.
+</para>
+<para>
+It is said that those who fail to remember history are doomed to
+ repeat
+it. That's not quite correct. We all 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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 121 -->
+ 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.
+</para>
+<para>
+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.
+</para>
+<para>
+The Way Back Machine is the largest archive of human knowledge
+in human history. At the end of 2002, it held "two hundred and thirty
+terabytes of material"--and was "ten times larger than the Library of
+Congress." 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. "But other than that, [television] is almost
+unavailable," Kahle told me. "If you were Barbara Walters you could get
+access to [the archives], but if you are just a graduate student?" As Kahle
+put it,
+</para>
+<blockquote>
+<para>
+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
+
+<!-- PAGE BREAK 122 -->
+60 Minutes episode that came out after it . . . it would be almost
+impossible. . . . Those materials are almost unfindable. . . .
+</para>
+</blockquote>
+<para>
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+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 "borrowed back."
+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.<footnote><para>
+<!-- f2 -->
+Doug Herrick, "Toward a National Film Collection: Motion Pictures at the
+Library of Congress," Film Library Quarterly 13 nos. 23 (1980): 5;
+ Anthony
+Slide, Nitrate Won't Wait: A History of Film Preservation in the United
+States ( Jefferson, N.C.: McFarland & Co., 1992), 36.
+</para></footnote>
+</para>
+<para>
+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 "theft." 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
+ "copyrighted."
+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.
+</para>
+<para>
+Kahle was eager to correct this. Before September 11, 2001, he and
+<!-- PAGE BREAK 123 -->
+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.
+</para>
+<para>
+Kahle had the same idea with film. Working with Rick Prelinger,
+whose archive of film includes close to 45,000 "ephemeral films"
+(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 "Duck and Cover" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+For here is an idea that we should more clearly recognize. Every bit
+of creative property goes through different "lives." In its first life, if the
+
+<!-- PAGE BREAK 124 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+The same has always been true about books. A book goes out of
+print very quickly (the average today is after about a year<footnote><para>
+<!-- f3 -->
+Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
+Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune,
+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, "The
+First Sale Doctrine in the Era of Digital Networks," Boston College Law
+ Review
+44 (2003): 593 n. 51.
+</para></footnote>). 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.
+</para>
+<para>
+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.
+</para>
+<para>
+For most of 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
+<!-- PAGE BREAK 125 -->
+real restriction was economics. The market made it impossibly difficult
+to do anything about this ephemeral culture; the law had little
+ practical
+effect.
+</para>
+<para>
+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.
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+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. When 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;
+<!-- PAGE BREAK 126 -->
+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 for our past. The
+technology of digital arts could make the dream of the Library of
+Alexandria real again.
+</para>
+<para>
+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 "archives," as warm as the idea of a "library" might
+seem, the "content" that is collected in these digital spaces is also
+ someone's
+"property." And the law of property restricts the freedoms that
+Kahle and others would exercise.
+</para>
+<!-- PAGE BREAK 127 -->
+</sect1>
+<sect1 id="property-i">
+<title>CHAPTER TEN: "Property"</title>
+<para>
+Jack Valenti 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.
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 128 -->
+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.
+</para>
+<para>
+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 "creative property."
+</para>
+<para>
+In 1982, Valenti's testimony to Congress captured the strategy
+ perfectly:
+</para>
+<blockquote>
+<para>
+No matter the lengthy arguments made, no matter the charges
+and the counter-charges, no matter the tumult and the shouting,
+reasonable men and women will keep returning to the
+ fundamental
+issue, the central theme which animates this entire debate:
+ Creative
+property owners must be accorded the same rights and protection
+resident in all other property owners in the nation. That is the issue.
+That is the question. And that is the rostrum on which this entire
+hearing and the debates to follow must rest.<footnote><para>
+<!-- f1 -->
+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).
+</para></footnote>
+</para>
+</blockquote>
+<para>
+The strategy of this rhetoric, like the strategy of most of Valenti's
+rhetoric, is brilliant and simple and brilliant because simple. The
+ "central
+theme" to which "reasonable men and women" will return is this:
+<!-- PAGE BREAK 129 -->
+"Creative property owners must be accorded the same rights and
+ protections
+resident in all other property owners in the nation." There are
+no second-class citizens, Valenti might have continued. There should
+be no second-class property owners.
+</para>
+<para>
+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 anyone 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 "creative property." His views have no reasonable connection to our
+actual legal tradition, even if the subtle pull of his Texan charm has
+slowly redefined that tradition, at least in Washington.
+</para>
+<para>
+While "creative property" is certainly "property" in a nerdy and
+ precise
+sense that lawyers are trained to understand,<footnote><para>
+<!-- f2 -->
+Lawyers speak of "property" not as an absolute thing, but as a bundle of
+rights that are sometimes associated with a particular object. Thus, my
+"property right" 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 "property" to "lawyer talk," see Bruce Ackerman, Private
+Property and the Constitution (New Haven: Yale University Press, 1977),
+2627.
+</para></footnote> it has never been the
+case, nor should it be, that "creative property owners" have been
+ "accorded
+the same rights and protection resident in all other property
+owners." 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 130 -->
+fundamentally weaken the opportunity for new creators to create.
+ Creativity
+depends upon the owners of creativity having less than perfect
+control.
+</para>
+<para>
+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.
+To get just a hint that there is something fundamentally wrong in
+Valenti's argument, we need look no further than the United States
+Constitution itself.
+</para>
+<para>
+The framers of our Constitution loved "property." 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 "Takings Clause," to pay you
+"just compensation" for that taking. The Constitution thus guarantees
+that property is, in a certain sense, sacred. It cannot ever be taken from
+the property owner unless the government pays for the privilege.
+</para>
+<para>
+Yet the very same Constitution speaks very differently about what
+Valenti calls "creative property." In the clause granting Congress the
+power to create "creative property," the Constitution requires that after
+a "limited time," Congress take back the rights that it has granted and
+set the "creative property" free to the public domain. Yet when
+ Congress
+does this, when the expiration of a copyright term "takes" your
+copyright and turns it over to the public domain, Congress does not
+have any obligation to pay "just compensation" for this "taking."
+ Instead,
+the same Constitution that requires compensation for your land
+<!-- PAGE BREAK 131 -->
+requires that you lose your "creative property" right without any
+ compensation
+at all.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Instead, my argument is that because Jefferson did it, we should at
+least try to understand why. 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?
+</para>
+<para>
+To answer this question, we need to get some perspective on the
+ history
+of these "creative property" 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 whether creative property should be
+ protected,
+but how. Not whether we will enforce the rights the law gives to
+creative-property owners, but what the particular mix of rights ought to
+be. Not whether artists should be paid, but whether institutions designed
+to assure that artists get paid need also control how culture develops.
+</para>
+<para>
+
+<!-- PAGE BREAK 132 -->
+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 Code and Other
+Laws of Cyberspace, 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:
+</para>
+<figure id="fig-1331">
+<title></title>
+<graphic fileref="1331.jpg"></graphic>
+</figure>
+<para>
+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
+<!-- PAGE BREAK 133 -->
+with a $150,000 fine. The fine is an ex post punishment for violating
+an ex ante rule. It is imposed by the state.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Finally, and for the moment, perhaps, most mysteriously,
+ "architecture"--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 "architecture."
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 134 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+So, for example, consider the "freedom" 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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f3 -->
+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, Code: And Other Laws of Cyberspace (New
+York: Basic Books, 1999): 9095; Lawrence Lessig, "The New Chicago
+School," Journal of Legal Studies, June 1998.
+</para></footnote>
+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
+<!-- PAGE BREAK 135 -->
+strict--a federal requirement that states decrease the speed limit, for
+example--so as to decrease the attractiveness of fast driving.
+</para>
+<figure id="fig-1361">
+<title></title>
+<graphic fileref="1361.jpg"></graphic>
+</figure>
+<para>
+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.<footnote><para>
+<!-- f4 -->
+Some people object to this way of talking about "liberty." 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 Code, 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, On Liberty (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, "The Right
+to Work," in Malcom Rutherford and Warren J. Samuels, eds., John R.
+Commons: Selected Essays (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 United States Code, 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.
+</para></footnote>
+</para>
+<sect2 id="hollywood">
+<title>Why Hollywood Is Right</title>
+<para>
+
+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.
+</para>
+<para>
+Let's say this is the picture of copyright's regulation before the
+ Internet:
+</para>
+<figure id="fig-1371">
+<title></title>
+<graphic fileref="1371.jpg"></graphic>
+</figure>
+<para>
+<!-- PAGE BREAK 136 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 137 -->
+after the fall of Saddam, but this time no government is justifying the
+looting that results.
+</para>
+<figure id="fig-1381">
+<title></title>
+<graphic fileref="1381.jpg"></graphic>
+</figure>
+<para>
+Neither this analysis nor the conclusions that follow are new to the
+warriors. Indeed, in a "White Paper" 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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 138 -->
+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.
+</para>
+<para>
+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 "architecture of revenue."
+</para>
+<para>
+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.<footnote><para>
+<!-- f5 -->
+See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+ BusinessWeek
+online, 2 August 1999, available at
+<ulink url="http://free-culture.cc/notes/">link #23</ulink>. For a more recent
+analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can
+Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003,
+ available
+at
+<ulink url="http://free-culture.cc/notes/">link #24</ulink>.
+</para></footnote>
+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 for the purpose of protecting the railroads? Closer to the
+ subject
+of this book, remote channel changers have weakened the
+ "stickiness"
+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?)
+</para>
+<para>
+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
+<!-- PAGE BREAK 139 -->
+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, "established companies
+have an interest in excluding future competitors."<footnote><para>
+<!-- f6 -->
+Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 17071.
+</para></footnote>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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: "Congress shall make no law . . .
+abridging the freedom of speech." So when Congress is being asked to
+pass laws that would "abridge" the freedom of speech, it should ask--
+carefully--whether such regulation is justified.
+</para>
+<para>
+My argument just now, however, has nothing to do with whether
+<!-- PAGE BREAK 140 -->
+the changes that are being pushed by the copyright warriors are
+ "justified."
+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.
+</para>
+<para>
+Here's the metaphor that will capture the argument to follow.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+But in 1962, Rachel Carson published Silent Spring, 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.
+</para>
+<para>
+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.
+</para>
+<para>
+It is to this image precisely that Duke University law professor James
+Boyle appeals when he argues that we need an "environmentalism" for
+culture.<footnote><para>
+<!-- f7 -->
+See, for example, James Boyle, "A Politics of Intellectual Property:
+ Environmentalism
+for the Net?" Duke Law Journal 47 (1997): 87.
+</para></footnote>
+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 "for free." 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
+<!-- PAGE BREAK 141 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+</sect2>
+<sect2 id="beginnings">
+<title>Beginnings</title>
+<para>
+America copied English copyright law. Actually, we copied and
+ improved
+English copyright law. Our Constitution makes the purpose of
+"creative property" rights clear; its express limitations reinforce the
+ English
+aim to avoid overly powerful publishers.
+</para>
+<para>
+The power to establish "creative property" rights is granted to
+ Congress
+in a way that, for our Constitution, at least, is very odd. Article I,
+section 8, clause 8 of our Constitution states that:
+</para>
+<para>
+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.
+
+<!-- PAGE BREAK 142 -->
+We can call this the "Progress Clause," for notice what this clause does
+not say. It does not say Congress has the power to grant "creative
+ property
+rights." It says that Congress has the power to promote progress. 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.
+</para>
+<para>
+The Progress Clause expressly limits the term of copyrights. As we
+saw in chapter 6, the English limited the term of copyright so as to
+ assure
+that a few would not exercise disproportionate control over culture
+by exercising disproportionate control over publishing. We can assume
+the framers followed the English for a similar purpose. Indeed, unlike
+the English, the framers reinforced that objective, by requiring that
+copyrights extend "to Authors" only.
+</para>
+<para>
+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 structure built
+checks and balances into the constitutional frame, structured to
+ prevent
+otherwise inevitable concentrations of power.
+</para>
+<para>
+I doubt the framers would recognize the regulation we call
+ "copyright"
+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 "copyright" in context: We need to see how it has changed in the
+210 years since they first struck its design.
+</para>
+<para>
+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
+<!-- PAGE BREAK 143 -->
+particular concentration of market power. In terms of our model, we
+started here:
+</para>
+<figure id="fig-1441">
+<title></title>
+<graphic fileref="1441.jpg"></graphic>
+</figure>
+<para>
+We will end here:
+</para>
+<figure id="fig-1442">
+<title></title>
+<graphic fileref="1442.jpg"></graphic>
+</figure>
+<para>
+Let me explain how.
+<!-- PAGE BREAK 144 -->
+</para>
+</sect2>
+<sect2 id="lawduration">
+<title>Law: Duration</title>
+<para>
+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.<footnote><para>
+<!-- f8 -->
+William W. Crosskey, Politics and the Constitution in the History of the
+United States (London: Cambridge University Press, 1953), vol. 1, 48586:
+"extinguish[ing], by plain implication of `the supreme Law of the Land,'
+the perpetual rights which authors had, or were supposed by some to have, under
+the Common Law" (emphasis added).
+</para></footnote>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f9 -->
+Although 13,000 titles were published in the United States from 1790 to
+1799, only 556 copyright registrations were filed; John Tebbel, A History of
+Book Publishing in the United States, vol. 1, The Creation of an Industry,
+16301865 (New York: Bowker, 1972), 141. Of the 21,000 imprints
+recorded before 1790, only twelve were copyrighted under the 1790 act;
+William J. Maher, Copyright Term, Retrospective Extension and the
+ Copyright
+Law of 1790 in Historical Context, 710 (2002), available at
+<ulink url="http://free-culture.cc/notes/">link #25</ulink>.
+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.
+</para></footnote>
+</para>
+<para>
+This system of renewal was a crucial part of the American system
+of copyright. It assured that the maximum terms of copyright would be
+<!-- PAGE BREAK 145 -->
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f10 -->
+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, "Study No. 31: Renewal of Copyright," Studies on Copyright,
+vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more recent
+and comprehensive analysis, see William M. Landes and Richard A.
+ Posner,
+"Indefinitely Renewable Copyright," University of Chicago Law
+ Review
+70 (2003): 471, 498501, and accompanying figures.
+</para></footnote>
+</para>
+<para>
+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.<footnote><para>
+<!-- f11 -->
+See Ringer, ch. 9, n. 2.
+</para></footnote>
+When that happens, the used books are
+traded free of copyright regulation. Thus the books are no longer
+ effectively
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 146 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 "natural" 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.
+</para>
+<para>
+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 "limited," we have no evidence that anything
+will limit them.
+</para>
+<para>
+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.<footnote><para>
+<!-- f12 -->
+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, "Indefinitely Renewable Copyright," loc. cit.
+</para></footnote>
+</para>
+<!-- PAGE BREAK 147 -->
+</sect2>
+<sect2 id="lawscope">
+<title>Law: Scope</title>
+<para>
+The "scope" 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.
+</para>
+<para>
+In 1790, that scope was very narrow. Copyright covered only "maps,
+charts, and books." 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 "publish" 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 "derivative works." 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).
+</para>
+<para>
+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 "publish" the work, but also the exclusive right of
+control over any "copies" 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 "derivative work" 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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 148 -->
+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 copyright. 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.
+</para>
+<para>
+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.
+</para>
+<para>
+All of these "formalities" 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.
+</para>
+<para>
+Consider a practical example to understand the scope of these
+ differences.
+</para>
+<para>
+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.<footnote><para>
+<!-- f13 -->
+See Thomas Bender and David Sampliner, "Poets, Pirates, and the
+ Creation
+of American Literature," 29 New York University Journal of
+ International
+Law and Politics 255 (1997), and James Gilraeth, ed., Federal
+Copyright Records, 17901800 (U.S. G.P.O., 1987).
+</para></footnote>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 149 -->
+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.
+</para>
+<para>
+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, every 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 "derivative
+rights." 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.
+</para>
+<para>
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 150 -->
+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 that 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.<footnote><para>
+<!-- f14 -->
+Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
+</para></footnote>
+Whether or not you go that far, it seems
+plain that whatever wrong is involved is fundamentally different from
+the wrong of direct piracy.
+</para>
+<para>
+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.<footnote><para>
+<!-- f15 -->
+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 "copies" and derivative works. See
+Jed Rubenfeld, "The Freedom of Imagination: Copyright's
+ Constitutionality,"
+Yale Law Journal 112 (2002): 160 (see especially pp. 5359).
+</para></footnote>
+These two different uses of my creative work are
+treated the same.
+</para>
+<para>
+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 "Mickey Mouse," why should you be able to make
+Mickey Mouse toys and be the one to trade on the value that Disney
+originally created?
+</para>
+<para>
+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.
+</para>
+</sect2>
+<sect2 id="lawreach">
+<title>Law and Architecture: Reach</title>
+<para>
+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.<footnote><para>
+<!-- f16 -->
+This is a simplification of the law, but not much of one. The law certainly
+regulates more than "copies"--a public performance of a copyrighted
+song, for example, is regulated even though performance per se doesn't
+make a copy; 17 United States Code, section 106(4). And it certainly
+ sometimes
+doesn't regulate a "copy"; 17 United States Code, section 112(a). But
+the presumption under the existing law (which regulates "copies;" 17
+United States Code, section 102) is that if there is a copy, there is a right.
+</para></footnote>
+</para>
+<para>
+<!-- PAGE BREAK 151 -->
+"Copies." That certainly sounds like the obvious thing for copyright
+law to regulate. But as with Jack Valenti's argument at the start of this
+chapter, that "creative property" deserves the "same rights" as all other
+property, it is the obvious 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 not be the
+trigger for copyright law. More precisely, they should not always be the
+trigger for copyright law.
+</para>
+<para>
+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,<footnote><para>
+<!-- f17 -->
+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.
+</para></footnote>
+because it is clear that the
+current reach of copyright was never contemplated, much less chosen,
+by the legislators who enacted copyright law.
+</para>
+<para>
+We can see this point abstractly by beginning with this largely
+empty circle.
+</para>
+<figure id="fig-1521">
+<title></title>
+<graphic fileref="1521.jpg"></graphic>
+</figure>
+<para>
+<!-- PAGE BREAK 152 -->
+Think about a book in real space, and imagine this circle to
+ represent
+all its potential uses. 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.
+</para>
+<figure id="fig-1531">
+<title></title>
+<graphic fileref="1531.jpg"></graphic>
+</figure>
+<para>
+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).
+</para>
+<para>
+Finally, there is a tiny sliver of otherwise regulated copying uses
+that remain unregulated because the law considers these "fair uses."
+</para>
+<!-- PAGE BREAK 153 -->
+<figure id="fig-1541">
+<title></title>
+<graphic fileref="1541.jpg"></graphic>
+</figure>
+<para>
+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 "fair uses" for public
+policy (and possibly First Amendment) reasons.
+</para>
+<figure id="fig-1542">
+<title></title>
+<graphic fileref="1542.jpg"></graphic>
+</figure>
+<para> </para>
+<figure id="fig-1551">
+<title></title>
+<graphic fileref="1551.jpg"></graphic>
+</figure>
+<para>
+<!-- PAGE BREAK 154 -->
+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 "fair" regardless of the copyright owner's views.
+</para>
+<para>
+Enter the Internet--a distributed, digital network where every use
+of a copyrighted work produces a copy.<footnote><para>
+<!-- f18 -->
+I don't mean "nature" 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.
+</para></footnote>
+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.
+</para>
+<para>
+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 copyright-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
+<!-- PAGE BREAK 155 -->
+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.
+</para>
+<para>
+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 copyright law 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.
+</para>
+<para>
+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:
+</para>
+<para>
+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.
+</para>
+<para>
+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 any
+ transformation
+you make of creative work using a machine. "Copy and paste"
+and "cut and paste" 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.
+</para>
+<para>
+Third, this shift from category 1 to category 2 puts an extraordinary
+
+<!-- PAGE BREAK 156 -->
+burden on category 3 ("fair use") 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.
+</para>
+<para>
+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 unregulated. But
+when everything becomes presumptively regulated, then the
+ protections
+of fair use are not enough.
+</para>
+<para>
+The case of Video Pipeline is a good example. Video Pipeline was
+in the business of making "trailer" 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.
+</para>
+<para>
+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 "selling by sampling" technique by
+giving on-line stores the same ability to enable "browsing." 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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 157 -->
+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 "fair use" 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.
+</para>
+<para>
+Disney countersued--for $100 million in damages. Those damages
+were predicated upon a claim that Video Pipeline had "willfully
+ infringed"
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 "first-sale doctrine" 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.
+</para>
+<para>
+<!-- PAGE BREAK 158 -->
+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.
+</para>
+<para>
+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.
+</para>
+</sect2>
+<sect2 id="lawforce">
+<title>Architecture and Law: Force</title>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+There's a famous story about a battle between the Marx Brothers
+and Warner Brothers. The Marxes intended to make a parody of
+<!-- PAGE BREAK 159 -->
+Casablanca. 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.<footnote><para>
+<!-- f19 -->
+See David Lange, "Recognizing the Public Domain," Law and
+ Contemporary
+Problems 44 (1981): 17273.
+</para></footnote>
+</para>
+<para>
+This led the Marx Brothers to respond in kind. They warned
+Warner Brothers that the Marx Brothers "were brothers long before
+you were."<footnote><para>
+<!-- f20 -->
+Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 13.
+</para></footnote>
+The Marx Brothers therefore owned the word brothers,
+and if Warner Brothers insisted on trying to control Casablanca, then
+the Marx Brothers would insist on control over brothers.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Consider the life of my Adobe eBook Reader.
+</para>
+<para>
+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.
+</para>
+<para>
+On the next page is a picture of an old version of my Adobe eBook
+Reader.
+</para>
+<para>
+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: Middlemarch, for example, is in the public domain.
+Some of them reproduce content that is not in the public domain: My
+own book The Future of Ideas is not yet within the public domain.
+Consider Middlemarch first. If you click on my e-book copy of
+<!-- PAGE BREAK 160 -->
+Middlemarch, you'll see a fancy cover, and then a button at the bottom
+called Permissions.
+</para>
+<figure id="fig-1611">
+<title>Acrobat eBook Reader</title>
+<graphic fileref="1611.jpg"></graphic>
+</figure>
+<para>
+If you click on the Permissions button, you'll see a list of the
+ permissions
+that the publisher purports to grant with this book.
+</para>
+<figure id="fig-1612">
+<title></title>
+<graphic fileref="1612.jpg"></graphic>
+</figure>
+<para>
+<!-- PAGE BREAK 161 -->
+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
+ Middlemarch
+read aloud through the
+computer.
+</para>
+<para>
+Here's the e-book for another
+work in the public domain
+ (including
+the translation):
+ Aristotle's
+Politics.
+</para>
+<figure id="fig-1621">
+<title></title>
+<graphic fileref="1621.jpg"></graphic>
+</figure>
+<para>
+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.
+</para>
+<figure id="fig-1622">
+<title></title>
+<graphic fileref="1622.jpg"></graphic>
+</figure>
+<para>
+Finally (and most embarrassingly), here are the permissions for the
+original e-book version of my last book, The Future of Ideas:
+</para>
+<!-- PAGE BREAK 162 -->
+<figure id="fig-1631">
+<title></title>
+<graphic fileref="1631.jpg"></graphic>
+</figure>
+<para>
+No copying, no printing, and don't you dare try to listen to this book!
+</para>
+<para>
+Now, the Adobe eBook Reader calls these controls "permissions"--
+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.<footnote><para>
+<!-- f21 -->
+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.
+</para></footnote>
+When my e-book of
+Middlemarch 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.
+</para>
+<para>
+The control comes instead from the code--from the technology
+within which the e-book "lives." Though the e-book says that these are
+permissions, they are not the sort of "permissions" that most of us deal
+with. When a teenager gets "permission" 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.
+</para>
+<para>
+<!-- PAGE BREAK 163 -->
+These are controls, not permissions. Imagine a world where the
+Marx Brothers sold word processing software that, when you tried to
+type "Warner Brothers," erased "Brothers" from the sentence.
+</para>
+<para>
+This is the future of copyright law: not so much copyright law as
+copyright code. 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.
+</para>
+<para>
+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?
+</para>
+<para>
+We've only scratched the surface of this story. Return to the Adobe
+eBook Reader.
+</para>
+<para>
+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 Alice's Adventures in Wonderland.
+This wonderful book is in the public domain. Yet when you clicked on
+Permissions for that book, you got the following report:
+</para>
+<figure id="fig-1641">
+<title></title>
+<graphic fileref="1641.jpg"></graphic>
+</figure>
+<para>
+<!-- PAGE BREAK 164 -->
+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
+ "permissions"
+indicated, not allowed to "read aloud"!
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+To see the point in a particularly absurd context, consider a favorite
+story of mine that makes the same point.
+</para>
+<para>
+Consider the robotic dog made by Sony named "Aibo." 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).
+</para>
+<para>
+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
+<!-- PAGE BREAK 165 -->
+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.
+</para>
+<para>
+"Teach" 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
+"dog" to make it do new tricks (thus, aibohack.com).
+</para>
+<para>
+If you're not a programmer or don't know many programmers, the
+word hack 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, hack is a much
+more positive term. Hack 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 "drive," 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 166 -->
+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, What possible problem could there be with teaching a robot dog to
+dance?
+</para>
+<para>
+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.
+</para>
+<para>
+But Felten's bravery was really tested in April 2001.<footnote><para>
+<!-- f22 -->
+See Pamela Samuelson, "Anticircumvention Rules: Threat to Science,"
+Science 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
+the Techies Who Teach a Robot Dog New Tricks," American Prospect,
+January 2002; "Court Dismisses Computer Scientists' Challenge to
+DMCA," Intellectual Property Litigation Reporter, 11 December 2001; Bill
+Holland, "Copyright Act Raising Free-Speech Concerns," Billboard,
+May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com,
+April 2001; Electronic Frontier Foundation, "Frequently Asked
+ Questions
+about Felten and USENIX v. RIAA Legal Case," available at
+<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
+</para></footnote>
+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.
+</para>
+<para>
+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
+"this music cannot be copied," and have a computer respect that
+ command.
+The technology was to be part of a "trusted system" of control
+that would get content owners to trust the system of the Internet much
+more.
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 167 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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:
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+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:
+</para>
+<blockquote>
+<para>
+Any disclosure of information gained from participating in the
+<!-- PAGE BREAK 168 -->
+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
+("DMCA").
+</para>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+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 code to modify the original code of the
+Internet, to reestablish some protection for copyright owners.
+</para>
+<para>
+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, legal code intended to buttress software code which itself was
+ intended
+to support the legal code of copyright.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 169 -->
+use of the copyrighted material was a copyright violation. The question
+is whether a copyright protection system was circumvented.
+</para>
+<para>
+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.
+</para>
+<para>
+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 "Mr. Rogers," for example, had
+ testified
+in that case that he wanted people to feel free to tape Mr. Rogers'
+Neighborhood.
+</para>
+<blockquote>
+<para>
+Some public stations, as well as commercial stations, program the
+"Neighborhood" 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 "Neighborhood" off-the-air, and I'm
+ speaking
+for the "Neighborhood" 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 "You are an important person just the way
+you are. You can make healthy decisions." 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.<footnote><para>
+<!-- f23 -->
+Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
+455 fn. 27 (1984). Rogers never changed his view about the VCR. See
+James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of
+the VCR (New York: W. W. Norton, 1987), 27071.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+<!-- PAGE BREAK 170 -->
+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.
+</para>
+<para>
+This led Conrad to draw the cartoon below, which we can adopt to
+the DMCA.
+</para>
+<para>
+No argument I have can top this picture, but let me try to get close.
+</para>
+<para>
+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.
+</para>
+<para>
+A handgun can be used to shoot a police officer or a child. Most
+<!-- PAGE BREAK 171 -->
+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.
+</para>
+<figure id="fig-1711">
+<title></title>
+<graphic fileref="1711.jpg"></graphic>
+</figure>
+<para>
+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: No one ever died from
+copyright circumvention. 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.
+</para>
+<para>
+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.
+</para>
+<para>
+This is how code becomes law. 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.
+</para>
+<para>
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 172 -->
+For example, imagine you were part of a Star Trek 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.<footnote><para>
+<!-- f24 -->
+For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions,
+Copyright, Fan Fiction, and a New Common Law," Loyola of Los Angeles
+Entertainment Law Journal 17 (1997): 651.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+</sect2>
+<sect2 id="marketconcentration">
+<title>Market: Concentration</title>
+<para>
+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
+<!-- PAGE BREAK 173 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+percent of the media.
+</para>
+<para>
+These changes are of two sorts: the scope of concentration, and its
+nature.
+</para>
+<para>
+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, "five companies control 85 percent of our media sources."<footnote><para>
+<!-- f25 -->
+FCC Oversight: Hearing Before the Senate Commerce, Science and
+Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
+ (statement
+of Senator John McCain).
+</para></footnote>
+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.<footnote><para>
+<!-- f26 -->
+Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
+Slide," New York Times, 23 December 2002.
+</para></footnote>
+The "five largest cable companies pipe
+programming to 74 percent of the cable subscribers nationwide."<footnote><para>
+<!-- f27 -->
+Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
+31 May 2003.
+</para></footnote>
+</para>
+<para>
+The story with radio is even more dramatic. Before deregulation,
+the nation's largest radio broadcasting conglomerate owned fewer than
+<!-- PAGE BREAK 174 -->
+seventy-five stations. Today one 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+Murdoch's companies now constitute a production system
+ unmatched
+in its integration. They supply content--Fox movies . . .
+Fox TV shows . . . Fox-controlled sports broadcasts, plus
+ 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.<footnote><para>
+<!-- f28 -->
+James Fallows, "The Age of Murdoch," Atlantic Monthly (September
+2003): 89.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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:
+</para>
+<figure id="fig-1761">
+<title></title>
+<graphic fileref="1761.jpg"></graphic>
+</figure>
+<para>
+<!-- PAGE BREAK 175 -->
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+Here's a representative story that begins to suggest how this
+ integration
+may matter.
+</para>
+<indexterm><primary>ABC</primary></indexterm>
+<para>
+In 1969, Norman Lear created a pilot for All in the Family. 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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f29 -->
+Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
+Forum, "Entertainment Economics: The Movie Industry," St. Louis,
+ Missouri,
+3 April 2003 (transcript of prepared remarks available at
+<ulink url="http://free-culture.cc/notes/">link #28</ulink>;
+for the Lear story, not included in the prepared remarks, see
+<ulink url="http://free-culture.cc/notes/">link #29</ulink>).
+</para></footnote>
+</para>
+<para>
+
+<!-- PAGE BREAK 176 -->
+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 "independent" of the networks.
+</para>
+<para>
+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. "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." "In 1992,
+16 new series were produced independently of conglomerate control,
+last year there was one."<footnote><para>
+<!-- f30 -->
+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
+<ulink url="http://free-culture.cc/notes/">link #30</ulink>. Kimmelman quotes Victoria Riskin, president of Writers Guild of
+America, West, in her Remarks at FCC En Banc Hearing, Richmond,
+Virginia, 27 February 2003.
+</para></footnote>
+In 2002, 75 percent of prime time television
+was owned by the networks that ran it. "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%."<footnote><para>
+<!-- f31 -->
+Ibid.
+</para></footnote>
+</para>
+<para>
+Today, another Norman Lear with another All in the Family 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.
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+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
+<!-- PAGE BREAK 177 -->
+u]sed to have dozens and dozens of thriving independent
+ production
+companies producing television programs. Now you have less
+than a handful.<footnote><para>
+<!-- f32 -->
+"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
+Moyers, 25 April 2003, edited transcript available at
+<ulink url="http://free-culture.cc/notes/">link #31</ulink>.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+Economics itself offers a parallel that explains why this integration
+affects creativity. Clay Christensen has written about the "Innovator's
+Dilemma": 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.<footnote><para>
+<!-- f33 -->
+Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
+ National
+Bestseller that Changed the Way We Do Business (Cambridge: Harvard
+Business School Press, 1997). Christensen acknowledges that the idea was
+first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of
+Design Hierarchies and Market Concepts in Technological Evolution,"
+Research Policy 14 (1985): 23551. For a more recent study, see Richard
+Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are
+Built to Last Underperform the Market--and How to Successfully Transform
+Them (New York: Currency/Doubleday, 2001).
+</para></footnote>
+
+ 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.
+</para>
+<para>
+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.
+</para>
+<para>
+But there is a quintessentially obvious example that does strongly
+suggest the concern.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 178 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Beginning in 1998, the Office of National Drug Control Policy
+launched a media campaign as part of the "war on drugs." 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.
+</para>
+<para>
+Fair enough. It's a good ad. Not terribly misleading. It delivers its
+message well. It's a fair and reasonable message.
+</para>
+<para>
+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?
+</para>
+<para>
+Well, obviously, these ads cost lots of money. Assume you raise the
+<!-- PAGE BREAK 179 -->
+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?
+</para>
+<para>
+No. You cannot. Television stations have a general policy of
+ avoiding
+"controversial" 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.<footnote><para>
+<!-- f34 -->
+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 "against [their]
+ policy."
+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, "On the Issue of an Iraq War, Advocacy Ads Meet with
+Rejection from TV Networks," New York Times, 13 March 2003, C4.
+ Outside
+of election-related air time there is very little that the FCC or the
+courts are willing to do to even the playing field. For a general overview,
+see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial
+ Advertising
+on Television and Radio," Yale Law and Policy Review 6 (1988):
+44979, and for a more recent summary of the stance of the FCC and the
+courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d
+872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
+the networks. In a recent example from San Francisco, the San Francisco
+transit authority rejected an ad that criticized its Muni diesel buses. Phillip
+Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects
+Ad," SFGate.com, 16 June 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #32</ulink>. The ground was
+that the criticism was "too controversial."
+</para></footnote>
+</para>
+<para>
+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.
+
+</para>
+</sect2>
+<sect2 id="together">
+<title>Together</title>
+<para>
+There is something innocent and obvious about the claim of the
+ copyright
+warriors that the government should "protect my property." In
+the abstract, it is obviously true and, ordinarily, totally harmless. No
+sane sort who is not an anarchist could disagree.
+</para>
+<para>
+But when we see how dramatically this "property" 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
+
+<!-- PAGE BREAK 180 -->
+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 "property" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 reductions in the scope of copyright, in
+ response
+to the extraordinary increase in control that technology and the
+market enable.
+</para>
+<para>
+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
+<!-- PAGE BREAK 181 -->
+together the effect of changing law, concentrated markets, and
+ changing
+technology, together they produce an astonishing conclusion:
+Never in our history have fewer had a legal right to control more of the
+ development
+of our culture than now.
+</para>
+<para>
+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. Never 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.<footnote><para>
+<!-- f35 -->
+Siva Vaidhyanathan captures a similar point in his "four surrenders" of
+copyright law in the digital age. See Vaidhyanathan, 15960.
+</para></footnote>
+</para>
+<para>
+This has been a long chapter. Its point can now be briefly stated.
+</para>
+<para>
+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:
+</para>
+
+<table id="t2">
+<title></title>
+<tgroup cols="3" align="char">
+<thead>
+ <row>
+ <entry></entry>
+ <entry>PUBLISH</entry>
+ <entry>TRANSFORM</entry>
+ </row>
+</thead>
+<tbody>
+ <row>
+ <entry>Commercial</entry>
+ <entry>©</entry>
+ <entry>Free</entry>
+ </row>
+ <row>
+ <entry>Noncommercial</entry>
+ <entry>Free</entry>
+ <entry>Free</entry>
+ </row>
+</tbody>
+</tgroup>
+</table>
+
+<para>
+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
+
+<!-- PAGE BREAK 182 -->
+to benefit commercially would register, copying through publishing of
+noncommercial work was also free.
+</para>
+<para>
+By the end of the nineteenth century, the law had changed to this:
+</para>
+
+<table id="t3">
+<title></title>
+<tgroup cols="3" align="char">
+<thead>
+ <row>
+ <entry></entry>
+ <entry>PUBLISH</entry>
+ <entry>TRANSFORM</entry>
+ </row>
+</thead>
+<tbody>
+ <row>
+ <entry>Commercial</entry>
+ <entry>©</entry>
+ <entry>©</entry>
+ </row>
+ <row>
+ <entry>Noncommercial</entry>
+ <entry>Free</entry>
+ <entry>Free</entry>
+ </row>
+</tbody>
+</tgroup>
+</table>
+
+<para>
+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.
+</para>
+<para>
+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:
+</para>
+
+<table id="t4">
+<title></title>
+<tgroup cols="3" align="char">
+<thead>
+ <row>
+ <entry></entry>
+ <entry>COPY</entry>
+ <entry>TRANSFORM</entry>
+ </row>
+</thead>
+<tbody>
+ <row>
+ <entry>Commercial</entry>
+ <entry>©</entry>
+ <entry>©</entry>
+ </row>
+ <row>
+ <entry>Noncommercial</entry>
+ <entry>©/Free</entry>
+ <entry>Free</entry>
+ </row>
+</tbody>
+</tgroup>
+</table>
+
+<para>
+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:
+</para>
+
+<table id="t5">
+<title></title>
+<tgroup cols="3" align="char">
+<thead>
+ <row>
+ <entry></entry>
+ <entry>COPY</entry>
+ <entry>TRANSFORM</entry>
+ </row>
+</thead>
+<tbody>
+ <row>
+ <entry>Commercial</entry>
+ <entry>©</entry>
+ <entry>©</entry>
+ </row>
+ <row>
+ <entry>Noncommercial</entry>
+ <entry>©</entry>
+ <entry>©</entry>
+ </row>
+</tbody>
+</tgroup>
+</table>
+
+<para>
+Every realm is governed by copyright law, whereas before most
+ creativity
+was not. The law now regulates the full range of creativity--
+<!-- PAGE BREAK 183 -->
+commercial or not, transformative or not--with the same rules designed
+to regulate commercial publishers.
+</para>
+<para>
+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.
+</para>
+<para>
+I have no doubt that it does good in regulating commercial copying.
+But I also have no doubt that it does more harm than good when
+regulating (as it regulates just now) noncommercial copying and,
+ especially,
+noncommercial transformation. And increasingly, for the
+ reasons
+sketched especially in chapters 7 and 8, one might well wonder
+whether it does more harm than good for commercial transformation.
+More commercial transformative work would be created if derivative
+rights were more sharply restricted.
+</para>
+<para>
+The issue is therefore not simply whether copyright is property. Of
+course copyright is a kind of "property," 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<footnote><para>
+<!-- f36 -->
+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, "The Disintegration of
+Property," in Nomos XXII: Property, J. Roland Pennock and John W.
+Chapman, eds. (New York: New York University Press, 1980).
+</para></footnote>)
+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 "copyright" did not
+control at all 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.
+</para>
+<para>
+We achieved that free culture because our law respected important
+limits on the scope of the interests protected by "property." The very
+birth of "copyright" as a statutory right recognized those limits, by
+granting copyright owners protection for a limited time only (the story
+of chapter 6). The tradition of "fair use" 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 7). Adding
+<!-- PAGE BREAK 184 -->
+statutory rights where markets might stifle innovation is another
+ familiar
+limit on the property right that copyright is (chapter 8). 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 9). 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.
+</para>
+<para>
+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.
+</para>
+<!-- PAGE BREAK 185 -->
+</sect2>
+</sect1>
+</chapter>
+<chapter id="c-puzzles">
+<title>PUZZLES</title>
+
+<para> </para>
+
+<!-- PAGE BREAK 186 -->
+<sect1 id="chimera">
+<title>CHAPTER ELEVEN: Chimera</title>
+<para>
+
+In a well-known 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.<footnote><para>
+<!-- f1. --> H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
+The Country of the Blind and Other Stories, Michael Sherborne, ed. (New
+York: Oxford University Press, 1996).
+</para></footnote>
+The valley is extraordinarily
+beautiful, with "sweet water, pasture, an even climate, slopes of rich
+brown soil with tangles of a shrub that bore an excellent fruit." But the
+villagers are all blind. Nunez takes this as an opportunity. "In the
+Country of the Blind," he tells himself, "the One-Eyed Man is King."
+So he resolves to live with the villagers to explore life as a king.
+</para>
+<para>
+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
+"blind." They don't have the word blind. 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. "`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!'"
+</para>
+<para>
+<!-- PAGE BREAK 187 -->
+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 "the most beautiful thing in
+the whole of creation," understands the beauty of sight. Nunez's
+ description
+of what he sees "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."
+"She did not believe," Wells tells us, and "she could only half
+ understand,
+but she was mysteriously delighted."
+</para>
+<para>
+When Nunez announces his desire to marry his "mysteriously
+ delighted"
+love, the father and the village object. "You see, my dear," her
+father instructs, "he's an idiot. He has delusions. He can't do anything
+right." They take Nunez to the village doctor.
+</para>
+<para>
+After a careful examination, the doctor gives his opinion. "His brain
+is affected," he reports.
+</para>
+<para>
+"What affects it?" the father asks.
+"Those queer things that are called the eyes . . . are diseased . . . in
+such a way as to affect his brain."
+</para>
+<para>
+The doctor continues: "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]."
+</para>
+<para>
+"Thank Heaven for science!" 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.)
+It sometimes happens that the eggs of twins fuse in the mother's
+womb. That fusion produces a "chimera." 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
+
+<!-- PAGE BREAK 188 -->
+plot for murder mysteries. "But the DNA shows with 100 percent
+ certainty
+that she was not the person whose blood was at the scene. . . ."
+</para>
+<para>
+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 "person" should reflect this reality.
+</para>
+<para>
+The more I work to understand the current struggle over copyright
+and culture, which I've sometimes called unfairly, and sometimes not
+unfairly enough, "the copyright wars," the more I think we're dealing
+with a chimera. For example, in the battle over the question "What is
+p2p file sharing?" both sides have it right, and both sides have it wrong.
+One side says, "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." 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.
+</para>
+<para>
+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
+"friends" beyond recognition to say "my ten thousand best friends" can
+get access. Whether or not sharing my music with my best friend is
+what "we have always been allowed to do," we have not always been
+ allowed
+to share music with "our ten thousand best friends."
+</para>
+<para>
+Likewise, when the other side says, "File sharing is just like walking
+into a Tower Records and taking a CD off the shelf and walking out
+with it," 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.
+</para>
+<para>
+
+<!-- PAGE BREAK 189 -->
+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.)
+</para>
+<para>
+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?
+</para>
+<para>
+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.<footnote><para>
+<!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+ "Copyright
+and Digital Media in a Post-Napster World," 27 June 2003, available
+at
+<ulink url="http://free-culture.cc/notes/">link #33</ulink>. 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, "House Bill Aims to Up Stakes on Piracy,"
+Los Angeles Times, 17 July 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #34</ulink>. 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 RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 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, "Downloading Could Lead to Fines," redandblack.com,
+August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #35</ulink>. 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, "RIAA Steps Up
+Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003,
+D3, available at
+<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+</para></footnote>
+
+</para>
+<para>
+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.
+</para>
+<para>
+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 either extreme would be worse than a reasonable
+ alternative.
+But I believe the zero-tolerance solution would be the worse
+of the two extremes.
+</para>
+<para>
+
+<!-- PAGE BREAK 190 -->
+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.
+</para>
+<para>
+I'm not talking about the opportunities for kids to "steal" 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,
+</para>
+<blockquote>
+<para>
+eMusic opposes music piracy. We are a distributor of copyrighted
+material, and we want to protect those rights.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f3. --> 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.
+</para></footnote>
+</para>
+</blockquote>
+<!-- PAGE BREAK 191 -->
+<para>
+In April 2001, eMusic.com was purchased by Vivendi Universal,
+one of "the major labels." Its position on these matters has now
+changed.
+</para>
+<para>
+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.
+</para>
+
+<!-- PAGE BREAK 192 -->
+</sect1>
+<sect1 id="harms">
+<title>CHAPTER TWELVE: Harms</title>
+<para>
+
+To fight "piracy," to protect "property," 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.
+</para>
+<para>
+My aim so far has been to describe the consequences of this war, in
+particular, the consequences for "free culture." But my aim now is to
+ extend
+this description of consequences into an argument. Is this war
+ justified?
+</para>
+<para>
+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 "intellectual property" is at its greatest in
+our history.
+</para>
+<para>
+Yet "common sense" 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 "piracy" still has play.
+</para>
+<para>
+<!-- PAGE BREAK 193 -->
+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.
+</para>
+<sect2 id="constrain">
+<title>Constraining Creators</title>
+<para>
+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.
+</para>
+<para>
+This digital "capturing and sharing" 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 "capturing and sharing" 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.
+</para>
+<para>
+Technology has thus given us an opportunity to do something with
+culture that has only ever been possible for individuals in small groups,
+
+<!-- PAGE BREAK 194 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 3 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.<footnote><para>
+<!-- f1. --> See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
+ (Hoboken,
+N.J.: John Wiley & Sons, 2003), 176, 204; for details of the
+ settlement,
+see MCI press release, "MCI Wins U.S. District Court Approval for
+SEC Settlement" (7 July 2003), available at
+<ulink url="http://free-culture.cc/notes/">link #37</ulink>.
+</para></footnote>
+ 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.<footnote><para>
+<!-- f2. --> The bill, modeled after California's tort reform model, was passed in the
+House of Representatives but defeated in a Senate vote in July 2003. For
+an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
+Say Tort Reformers," amednews.com, 28 July 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #38</ulink>,
+and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003,
+available at
+<ulink url="http://free-culture.cc/notes/">link #39</ulink>. President Bush has continued to urge tort reform in
+recent months.
+</para></footnote>
+ 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?
+</para>
+<para>
+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
+"pirates." We make it impossible for businesses to rely upon a public
+domain, because the boundaries of the public domain are designed to
+
+<!-- PAGE BREAK 195 -->
+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
+ "illegal
+art" tour the United States.<footnote><para>
+<!-- f3. --> See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003,
+ available
+at
+<ulink url="http://free-culture.cc/notes/">link #40</ulink>. For an overview of the exhibition, see
+<ulink url="http://free-culture.cc/notes/">link #41</ulink>.
+</para></footnote>
+ In what does their "illegality" consist?
+In the act of mixing the culture around us with an expression that is
+critical or reflective.
+</para>
+<para>
+Part of the reason for this fear of illegality has to do with the
+ changing
+law. I described that change in detail in chapter 10. But an 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.
+</para>
+<para>
+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.
+</para>
+<para>
+Lawyers rarely see this because lawyers are rarely empirical. As I
+described in chapter 7, in response to the story about documentary
+filmmaker Jon Else, I have been lectured again and again by lawyers
+who insist Else's use was fair use, and hence I am wrong to say that the
+law regulates such a use.
+</para>
+<para>
+
+<!-- PAGE BREAK 196 -->
+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.
+</para>
+<para>
+Judges and lawyers can tell themselves that fair use provides
+ adequate
+"breathing room" 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 "law" with which judges comfort themselves.
+</para>
+<para>
+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 "copyright" 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.
+</para>
+<para>
+As Jed Horovitz, the businessman behind Video Pipeline, said
+to me,
+</para>
+<blockquote>
+<para>
+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
+<!-- PAGE BREAK 197 -->
+you've got a little note from a lawyer saying, "This has been
+cleared." You're not even going to get it on PBS without that kind
+of permission. That's the point at which they control it.
+</para>
+</blockquote>
+</sect2>
+<sect2 id="innovators">
+<title>Constraining Innovators</title>
+<para>
+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.
+</para>
+<para>
+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, 188 pages into a book like this), then you can see this other aspect
+by substituting "free market" every place I've spoken of "free culture."
+The point is the same, even if the interests affecting culture are more
+fundamental.
+</para>
+<para>
+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.
+</para>
+<para>
+This is the single most dramatic effect of the shift in regulatory
+<!-- PAGE BREAK 198 -->
+strategy that I described in chapter 10. The consequence of this
+ massive
+threat of liability tied to the murky boundaries of copyright law is
+that innovators who want to innovate in this space can safely innovate
+only if they have the sign-off from last generation's dominant
+ industries.
+That lesson has been taught through a series of cases that were
+designed and executed to teach venture capitalists a lesson. That
+ lesson--what
+former Napster CEO Hank Barry calls a "nuclear pall" that
+has fallen over the Valley--has been learned.
+</para>
+<para>
+Consider one example to make the point, a story whose beginning
+I told in The Future of Ideas and which has progressed in a way that
+even I (pessimist extraordinaire) would never have predicted.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+No doubt some could use this system to illegally copy content. But
+that opportunity existed with or without MP3.com. The aim of the
+
+<!-- PAGE BREAK 199 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+That part of the story I have told before. Now consider its conclusion.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 200 -->
+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.
+</para>
+<para>
+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).<footnote><para>
+<!-- f4. --> See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles
+Times, 23 April 2003. For a parallel argument about the effects on
+ innovation
+in the distribution of music, see Janelle Brown, "The Music
+ Revolution
+Will Not Be Digitized," Salon.com, 1 June 2001, available at
+<ulink url="http://free-culture.cc/notes/">link #42</ulink>.
+See also Jon Healey, "Online Music Services Besieged," Los Angeles
+Times, 28 May 2001.
+</para></footnote>
+ 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 Business
+2.0, Rafe Needleman describes a discussion with BMW:
+</para>
+<blockquote>
+<para>
+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. . . . <footnote><para>
+<!-- f5. --> Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli
+for this example.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+This is the world of the mafia--filled with "your money or your
+life" 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.
+</para>
+<para>
+
+<!-- PAGE BREAK 201 -->
+The point is not that businesses should have a right to start illegal
+enterprises. The point is the definition of "illegal." 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.
+</para>
+<para>
+The point is directly parallel to the crunchy-lefty point about fair
+use. Whatever the "real" 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
+ overregulatedregulated
+market.
+</para>
+<para>
+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
+<!-- PAGE BREAK 202 -->
+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.
+The uncertainty 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.
+</para>
+<para>
+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 "bug." 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 "piracy," then, this response says,
+we should break the kneecaps of the Internet.
+</para>
+<para>
+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.<footnote><para>
+<!-- f6. --> "Copyright and Digital Media in a Post-Napster World," GartnerG2 and
+the Berkman Center for Internet and Society at Harvard Law School
+(2003), 3335, available at
+<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
+</para></footnote>
+
+ Congress
+has already launched proceedings to explore a mandatory
+ "broadcast
+flag" 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.<footnote><para>
+<!-- f7. --> GartnerG2, 2627.
+</para></footnote>
+
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 203 -->
+the technology, but will likely be eclipsed by advances around exactly
+those requirements.
+</para>
+<para>
+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.<footnote><para>
+<!-- f8. --> See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
+February 2002 (Entertainment).
+</para></footnote>
+ Their argument was obviously not that copyright should not
+be protected. Instead, they argued, any protection should not do more
+harm than good.
+</para>
+<para>
+There is one more obvious way in which this war has harmed
+ innovation--again,
+a story that will be quite familiar to the free market
+crowd.
+</para>
+<para>
+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.
+</para>
+<para>
+As I described in chapter 10, despite this feature of copyright as
+regulation, and subject to important qualifications outlined by Jessica
+Litman in her book Digital Copyright,<footnote><para>
+<!-- f9. --> Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books,
+2001).
+</para></footnote>
+ overall this history of copyright
+is not bad. As chapter 10 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.
+</para>
+<para>
+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.
+</para>
+<para>
+The response by the courts has been fairly universal.<footnote><para>
+<!-- f10. --> The only circuit court exception is found in Recording Industry Association
+of America (RIAA) v. Diamond Multimedia Systems, 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
+ Metro-Goldwyn-Mayer
+Studios, Inc. v. Grokster, Ltd., 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.
+</para></footnote>
+ It has been
+mirrored in the responses threatened and actually implemented by
+Congress. I won't catalog all of those responses here.<footnote><para>
+<!-- f11. --> 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 "broadcast flag" 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, "Copyright and Digital Media in a Post-Napster
+World," 27 June 2003, 3334, available at
+<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
+</para></footnote>
+ But there is one
+example that captures the flavor of them all. This is the story of the
+ demise
+of Internet radio.
+</para>
+<para>
+
+<!-- PAGE BREAK 204 -->
+As I described in chapter 4, when a radio station plays a song, the
+recording artist doesn't get paid for that "radio performance" unless he
+or she is also the composer. So, for example if Marilyn Monroe had
+recorded a version of "Happy Birthday"--to memorialize her famous
+performance before President Kennedy at Madison Square Garden--
+then whenever that recording was played on the radio, the current
+ copyright
+owners of "Happy Birthday" would get some money, whereas
+Marilyn Monroe would not.
+</para>
+<para>
+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.
+</para>
+<para>
+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 "tune in" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 205 -->
+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,
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f12. --> Lessing, 239.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+This potential for FM radio was never realized--not because
+ Armstrong
+was wrong about the technology, but because he underestimated
+the power of "vested interests, habits, customs and legislation"<footnote><para>
+<!-- f13. --> Ibid., 229.
+</para></footnote>
+to
+ retard
+the growth of this competing technology.
+</para>
+<para>
+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?
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 206 -->
+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
+"Happy Birthday" on the air, Internet radio does. Not only is the law not
+neutral toward Internet radio--the law actually burdens Internet radio
+more than it burdens terrestrial radio.
+</para>
+<para>
+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.<footnote><para>
+<!-- f14. --> 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
+<ulink url="http://free-culture.cc/notes/">link #45</ulink>.
+For an excellent analysis making a similar point, see Randal C. Picker,
+"Copyright as Entry Policy: The Case of Digital Distribution," Antitrust
+Bulletin (Summer/Fall 2002): 461: "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."
+</para></footnote>
+ A regular radio station broadcasting the same
+content would pay no equivalent fee.
+</para>
+<para>
+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 every listening transaction:
+</para>
+<!-- PAGE BREAK 207 -->
+<orderedlist numeration="arabic">
+<listitem><para>
+name of the service;
+</para></listitem>
+<listitem><para>
+channel of the program (AM/FM stations use station ID);
+</para></listitem>
+<listitem><para>
+type of program (archived/looped/live);
+</para></listitem>
+<listitem><para>
+date of transmission;
+</para></listitem>
+<listitem><para>
+time of transmission;
+</para></listitem>
+<listitem><para>
+time zone of origination of transmission;
+</para></listitem>
+<listitem><para>
+numeric designation of the place of the sound recording within the program;
+</para></listitem>
+<listitem><para>
+duration of transmission (to nearest second);
+</para></listitem>
+<listitem><para>
+sound recording title;
+</para></listitem>
+<listitem><para>
+ISRC code of the recording;
+</para></listitem>
+<listitem><para>
+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;
+</para></listitem>
+<listitem><para>
+featured recording artist;
+</para></listitem>
+<listitem><para>
+retail album title;
+</para></listitem>
+<listitem><para>
+recording label;
+</para></listitem>
+<listitem><para>
+UPC code of the retail album;
+</para></listitem>
+<listitem><para>
+catalog number;
+</para></listitem>
+<listitem><para>
+copyright owner information;
+</para></listitem>
+<listitem><para>
+musical genre of the channel or program (station format);
+</para></listitem>
+<listitem><para>
+name of the service or entity;
+</para></listitem>
+<listitem><para>
+channel or program;
+</para></listitem>
+<listitem><para>
+date and time that the user logged in (in the user's time zone);
+</para></listitem>
+<listitem><para>
+date and time that the user logged out (in the user's time zone);
+</para></listitem>
+<listitem><para>
+time zone where the signal was received (user);
+</para></listitem>
+<listitem><para>
+Unique User identifier;
+</para></listitem>
+<listitem><para>
+the country in which the user received the transmissions.
+</para></listitem>
+</orderedlist>
+
+<para>
+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 type of copyright fee that terrestrial radio
+does not.
+</para>
+<para>
+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?
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+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, . . . "How do you come up with a
+
+<!-- PAGE BREAK 208 -->
+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. . . ."
+</para>
+<para>
+And the RIAA experts said, "Well, we don't really model this
+as an industry with thousands of webcasters, 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." (Emphasis added.)
+</para>
+</blockquote>
+<para>
+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.
+</para>
+</sect2>
+<sect2 id="corruptingcitizens">
+<title>Corrupting Citizens</title>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 The New York Times, 43 million
+Americans downloaded music in May 2002.<footnote><para>
+<!-- f15. --> Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
+Internet and American Life Project (24 April 2001), available at
+<ulink url="http://free-culture.cc/notes/">link #46</ulink>.
+The Pew Internet and American Life Project reported that 37 million
+Americans had downloaded music files from the Internet by early 2001.
+</para></footnote>
+ 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
+
+<!-- PAGE BREAK 209 -->
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f16. --> Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
+Angeles Times, 10 September 2003, Business.
+</para></footnote>
+ 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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f17. --> Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
+ Prohibition,"
+American Economic Review 81, no. 2 (1991): 242.
+</para></footnote>
+ We have
+
+<!-- PAGE BREAK 210 -->
+launched a war on drugs aimed at reducing the consumption of
+ regulated
+narcotics that 7 percent (or 16 million) Americans now use.<footnote><para>
+<!-- f18. --> 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).
+</para></footnote>
+
+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.<footnote><para>
+<!-- f19. --> See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
+ Compliance,"
+Journal of Economic Literature 36 (1998): 818 (survey of compliance
+literature).
+</para></footnote>
+ We
+pride ourselves on our "free society," but an endless array of ordinary
+behavior is regulated within our society. And as a result, a huge
+ proportion
+of Americans regularly violate at least some law.
+</para>
+<para>
+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 "ethics." 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 "normally"
+entails a certain degree of illegality.
+</para>
+<para>
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 211 -->
+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.
+</para>
+<para>
+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 "sharing." We need to be able to call these
+twenty million Americans "citizens," not "felons."
+</para>
+<para>
+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?
+</para>
+<para>
+This abstract point can be made more clear with a particular example.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 212 -->
+record store and buy jazz records to replace them. That "use" of the
+recordings is free.
+</para>
+<para>
+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 "free" to copy,
+or "rip," music from my records onto a computer hard disk. Indeed,
+Apple Corporation went so far as to suggest that "freedom" was a right:
+In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+ capacities
+of digital technologies.
+</para>
+<para>
+This "use" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 213 -->
+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 "digital rights
+ management"
+system.
+</para>
+<para>
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 214 -->
+Valenti is charming; but not so charming as to justify giving up a
+ tradition
+as deep and important as our tradition of free culture.
+There's one more 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 "collateral damage" that "arises whenever you turn
+a very large percentage of the population into criminals." This is the
+collateral damage to civil liberties generally.
+</para>
+<para>
+"If you can treat someone as a putative lawbreaker," von Lohmann
+explains,
+</para>
+<blockquote>
+<para>
+then all of a sudden a lot of basic civil liberty protections
+ evaporate
+to one degree or another. . . . If you're a copyright infringer,
+how can you hope to have any privacy rights? If you're a copyright
+infringer, how can you hope to be secure against seizures of your
+computer? How can you hope to continue to receive Internet
+access? . . . Our sensibilities change as soon as we think, "Oh,
+well, but that person's a criminal, a lawbreaker." Well, what this
+campaign against file sharing has done is turn a remarkable
+ percentage
+of the American Internet-using population into
+ "lawbreakers."
+</para>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 215 -->
+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.<footnote><para>
+<!-- f20. --> See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
+ Washington
+Post, 10 September 2003, E1; Chris Cobbs, "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," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham,
+"Recording Industry Sues Parents," USA Today, 15 September 2003, 4D;
+John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either,"
+New York Times, 25 September 2003, C1; Margo Varadi, "Is Brianna a
+Criminal?" Toronto Star, 18 September 2003, P7.
+</para></footnote>
+
+</para>
+<para>
+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.<footnote><para>
+<!-- f21. --> See "Revealed: How RIAA Tracks Downloaders: Music Industry
+ Discloses
+Some Methods Used," CNN.com, available at
+<ulink url="http://free-culture.cc/notes/">link #47</ulink>.
+</para></footnote>
+ 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 "fingerprint."
+</para>
+<para>
+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
+ "cooperating"
+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 "criminal."
+And under the rules that universities are beginning to deploy,<footnote><para>
+<!-- f22. --> See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," Boston
+Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued
+over Music Sites; Industry Group Targets File Sharing at Colleges,"
+ Washington
+Post, 4 April 2003, E1; Elizabeth Armstrong, "Students `Rip, Mix,
+Burn' at Their Own Risk," Christian Science Monitor, 2 September 2003,
+20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to
+ Loyola;
+Two Students Names Are Handed Over; Lawsuit Possible," Chicago
+Tribune, 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on
+Universities," Internet News, 30 January 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #48</ulink>; Benny
+Evangelista, "Download Warning 101: Freshman Orientation This Fall to
+Include Record Industry Warnings Against File Sharing," San Francisco
+Chronicle, 11 August 2003, E11; "Raid, Letters Are Weapons at
+ Universities,"
+USA Today, 26 September 2000, 3D.
+</para></footnote>
+ your
+daughter can lose the right to use the university's computer network.
+She can, in some cases, be expelled.
+</para>
+<para>
+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
+ "contraband"
+as presumptive of guilt. And as any number of college students
+
+<!-- PAGE BREAK 216 -->
+have already learned, our presumptions about innocence disappear in
+the middle of wars of prohibition. This war is no different.
+Says von Lohmann,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+When forty to sixty million Americans are considered "criminals"
+under the law, and when the law could achieve the same objective--
+securing rights to authors--without these millions being considered
+"criminals," 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?
+</para>
+
+<!-- PAGE BREAK 217 -->
+</sect2>
+</sect1>
+</chapter>
+<chapter id="c-balances">
+<title>BALANCES</title>
+
+<!-- PAGE BREAK 218 -->
+<para>
+So here's 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.
+</para>
+<para>
+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.
+</para>
+<para>
+A war 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.
+</para>
+<para>
+<!-- PAGE BREAK 219 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+
+<!-- PAGE BREAK 220 -->
+<sect1 id="eldred">
+<title>CHAPTER THIRTEEN: Eldred</title>
+<para>
+
+In 1995, 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 221 -->
+accessible to the twentieth century, Eldred transformed Hawthorne,
+and many others, into a form more accessible--technically
+ accessible--today.
+</para>
+<para>
+Eldred's freedom to do this with Hawthorne's work grew from the
+same source as Disney's. Hawthorne's Scarlet Letter 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 (Cinderella), sometimes not
+(The Hunchback of Notre Dame, Treasure Planet). These are all
+ commercial
+publications of public domain works.
+</para>
+<para>
+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 "noncommercial publishing industry," 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.<footnote><para>
+<!-- f1. --> 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.
+</para></footnote>
+
+</para>
+<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.
+</para>
+<para>
+
+<!-- PAGE BREAK 222 -->
+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).
+</para></footnote>
+
+</para>
+<para>
+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.
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+Congress has the power to promote the Progress of Science . . .
+by securing for limited Times to Authors . . . exclusive Right to
+their . . . Writings. . . .
+</para>
+</blockquote>
+<para>
+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 "commerce among the several
+states" or "declare War." But here, the "something" is something quite
+ specific--to
+"promote . . . Progress"--through means that are also specific--
+by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times."
+</para>
+<para>
+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 "limited" will have
+<!-- PAGE BREAK 223 -->
+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 "on the installment
+plan," as Professor Peter Jaszi so nicely put it.
+</para>
+<para>
+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.
+</para>
+<para>
+For this is the core of the corruption in our present system of
+government. "Corruption" not in the sense that representatives are bribed.
+Rather, "corruption" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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:
+</para>
+<para>
+"Next year," the adviser announces, "our copyrights in works A, B,
+
+<!-- PAGE BREAK 224 -->
+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.
+</para>
+<para>
+"There's a proposal in Congress, however," she continues, "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."
+</para>
+<para>
+"Hope?" a fellow board member says. "Can't we be doing something
+about it?"
+</para>
+<para>
+"Well, obviously, yes," the adviser responds. "We could contribute
+to the campaigns of a number of representatives to try to assure that
+they support the bill."
+</para>
+<para>
+You hate politics. You hate contributing to campaigns. So you want
+to know whether this disgusting practice is worth it. "How much
+would we get if this extension were passed?" you ask the adviser. "How
+much is it worth?"
+</para>
+<para>
+"Well," the adviser says, "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."
+</para>
+<para>
+You're a bit shocked by the number, but you quickly come to the
+correct conclusion:
+</para>
+<para>
+"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?"
+</para>
+<para>
+"Absolutely," the adviser responds. "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."
+</para>
+<para>
+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,
+<!-- PAGE BREAK 225 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+In the lobbying that led to the passage of the Sonny Bono
+ Copyright
+Term Extension Act, this "theory" 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.<footnote><para>
+<!-- f3. --> Associated Press, "Disney Lobbying for Copyright Extension No Mickey
+Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,"
+Chicago Tribune, 17 October 1998, 22.
+</para></footnote>
+ 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.<footnote><para>
+<!-- f4. --> See Nick Brown, "Fair Use No More?: Copyright in the Information
+Age," available at
+<ulink url="http://free-culture.cc/notes/">link #49</ulink>.
+</para></footnote>
+ Disney is estimated to have
+contributed more than $800,000 to reelection campaigns in the
+cycle.<footnote><para>
+<!-- f5. --> Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
+ Congressional
+Quarterly This Week, 8 August 1990, available at
+<ulink url="http://free-culture.cc/notes/">link #50</ulink>.
+</para></footnote>
+
+</para>
+<para>
+Constitutional law 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
+ "limited."
+If they could extend it once, they would extend it again and again
+and again.
+</para>
+<para>
+It was also my judgment that this 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
+
+<!-- PAGE BREAK 226 -->
+decision in 1995 to strike down a law that banned the possession of
+guns near schools.
+</para>
+<para>
+Since 1937, the Supreme Court had interpreted Congress's granted
+powers very broadly; so, while the Constitution grants Congress the
+power to regulate only "commerce among the several states" (aka
+ "interstate
+commerce"), the Supreme Court had interpreted that power to
+include the power to regulate any activity that merely affected
+ interstate
+commerce.
+</para>
+<para>
+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.
+</para>
+<para>
+The Supreme Court, under Chief Justice Rehnquist's command,
+changed that in United States v. Lopez. 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.
+</para>
+<para>
+"We pause to consider the implications of the government's
+ arguments,"
+the Chief Justice wrote.<footnote><para>
+<!-- f6. --> United States v. Lopez, 514 U.S. 549, 564 (1995).
+</para></footnote>
+ 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 Lopez was
+reaffirmed five years later in United States v. Morrison.<footnote><para>
+<!-- f7. --> United States v. Morrison, 529 U.S. 598 (2000).
+</para></footnote>
+
+</para>
+<para>
+If a principle were at work here, then it should apply to the Progress
+Clause as much as the Commerce Clause.<footnote><para>
+<!-- f8. --> 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 "limited times" notwithstanding.
+</para></footnote>
+ And if it is applied to the
+Progress Clause, the principle should yield the conclusion that
+ Congress
+<!-- PAGE BREAK 227 -->
+can't extend an existing term. If Congress could extend an
+ existing
+term, then there would be no "stopping point" 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.
+</para>
+<para>
+If, that is, the principle announced in Lopez stood for a principle.
+Many believed the decision in Lopez 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 "fidelity" 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.
+</para>
+<para>
+Now let's pause for a moment to make sure we understand what
+the argument in Eldred 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.
+</para>
+<para>
+Some people view the public domain with contempt. In their brief
+
+<!-- PAGE BREAK 228 -->
+before the Supreme Court, the Nashville Songwriters Association
+wrote that the public domain is nothing more than "legal piracy."<footnote><para>
+<!-- f9. --> Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S.
+186 (2003) (No. 01-618), n.10, available at
+<ulink url="http://free-culture.cc/notes/">link #51</ulink>.
+</para></footnote>
+ 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.
+</para>
+<para>
+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.
+</para>
+<para>
+It is valuable copyrights that are responsible for terms being
+ extended.
+Mickey Mouse and "Rhapsody in Blue." 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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f10. --> 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, Eldred v. Ashcroft, 7, available at
+<ulink url="http://free-culture.cc/notes/">link #52</ulink>.
+</para></footnote>
+
+</para>
+<para>
+Think practically about the consequence of this
+ extension--practically,
+as a businessperson, and not as a lawyer eager for more legal
+
+<!-- PAGE BREAK 229 -->
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+Then for the books still under copyright, you would need to locate
+the current copyright owners. How would you do that?
+</para>
+<para>
+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?
+</para>
+<para>
+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!
+</para>
+<para>
+"But there isn't a list of who owns property generally," the
+ apologists
+for the system respond. "Why should there be a list of copyright
+owners?"
+</para>
+<para>
+Well, actually, if you think about it, there are 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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 230 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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, The Lucky
+Dog, 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, "Roach has sold about
+60,000 videocassettes and 50,000 DVDs of the duo's silent films."<footnote><para>
+<!-- f11. --> See David G. Savage, "High Court Scene of Showdown on Copyright
+Law," Los Angeles Times, 6 October 2002; David Streitfeld, "Classic
+Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today
+on Striking Down Copyright Extension," Orlando Sentinel Tribune, 9
+ October
+2002.
+</para></footnote>
+
+</para>
+<para>
+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.
+</para>
+<para>
+His argument is straightforward. A tiny fraction of this work has
+
+<!-- PAGE BREAK 231 -->
+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.
+</para>
+<para>
+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
+mm film.<footnote><para>
+<!-- f12. --> Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
+ Supporting
+the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-
+618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by
+the Internet Archive, Eldred v. Ashcroft, available at
+<ulink url="http://free-culture.cc/notes/">link #53</ulink>.
+</para></footnote>
+
+</para>
+<para>
+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.
+</para>
+<para>
+Or more accurately, owners. 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.
+</para>
+<para>
+"But can't you just restore the film, distribute it, and then pay the
+copyright owner when she shows up?" 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.
+</para>
+<para>
+For some films, the benefit of releasing the film may well exceed
+
+<!-- PAGE BREAK 232 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Of all the 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 "engine of
+free expression."
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Copyrights in this context do not drive an engine of free expression.
+
+<!-- PAGE BREAK 233 -->
+In this context, there is no need for an exclusive right. Copyrights in
+this context do no good.
+</para>
+<para>
+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
+copyright-related use 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+But this situation has now changed.
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 234 -->
+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.
+</para>
+<para>
+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
+copyright 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 at all related to the spread of knowledge. In this
+ context,
+copyright is not an engine of free expression. Copyright is a brake.
+</para>
+<para>
+You may well ask, "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?"
+</para>
+<para>
+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 "the market" 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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 235 -->
+freedom to fill the gaps. As one researcher calculated for American
+ culture,
+94 percent of the films, books, and music produced between
+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.<footnote><para>
+<!-- f13. --> Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+ December
+2002, available at
+<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
+</para></footnote>
+
+</para>
+<para>
+In January 1999, 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 "limited Times" requirement, and (2) that
+ extending
+terms by another twenty years violated the First Amendment.
+</para>
+<para>
+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.
+</para>
+<para>
+Judge David Sentelle said the CTEA violated the requirement that
+copyrights be for "limited Times" only. His argument was as elegant as
+it was simple: If Congress can extend existing terms, then there is no
+"stopping point" to Congress's power under the Copyright Clause. The
+power to extend existing terms means Congress is not required to grant
+terms that are "limited." Thus, Judge Sentelle argued, the court had to
+interpret the term "limited Times" to give it meaning. And the best
+ interpretation,
+Judge Sentelle argued, would be to deny Congress the
+power to extend existing terms.
+</para>
+<para>
+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 "en banc" to hear the case.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 236 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+It is over 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.
+</para>
+<para>
+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.
+</para>
+<para>
+The mistake 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
+<!-- PAGE BREAK 237 -->
+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.
+</para>
+<para>
+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 "important" 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 "the
+most powerful media companies in the world."
+</para>
+<para>
+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
+"right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be
+that way." 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.
+</para>
+<para>
+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.
+</para>
+<para>
+There was one way, however, in which I felt politics would matter
+
+<!-- PAGE BREAK 238 -->
+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 law 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.
+</para>
+<para>
+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, "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?"
+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.
+</para>
+<para>
+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.
+</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
+
+<!-- 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.
+</para>
+<para>
+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.
+</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.
+</para>
+<para>
+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 "rent-seeking"--the fancy term economists use 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
+
+<!-- PAGE BREAK 240 -->
+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
+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.
+</para>
+<para>
+The government, in defending the statute, had its collection of
+friends, as well. Significantly, however, none of these "friends" included
+historians or economists. The briefs on the other side of the case were
+written exclusively by major media companies, congressmen, and
+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.
+</para>
+<para>
+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
+ "glorify
+drugs or to create pornography."<footnote><para>
+<!-- f14. --> Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S.
+(2003) (No. 01-618), 19.
+</para></footnote>
+ That was also the motive of
+the Gershwin estate, which defended its "protection" of the work of
+George Gershwin. They refuse, for example, to license Porgy and Bess
+to anyone who refuses to use African Americans in the cast.<footnote><para>
+<!-- f15. --> Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
+Mouse Joins the Fray," New York Times, 28 March 1998, B7.
+</para></footnote>
+ 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.
+</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.
+</para>
+<para>
+The Supreme Court was divided into two important camps. One
+camp we called "the Conservatives." The other we called "the Rest."
+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 Lopez/Morrison line of cases that said that
+an enumerated power had to be interpreted to assure that Congress's
+powers had limits.
+</para>
+<para>
+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
+<!-- PAGE BREAK 242 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+This analysis of "the Rest" 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.
+</para>
+<para>
+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 Lopez
+
+<!-- PAGE BREAK 243 -->
+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 "limited." Our aim would be to get the
+Court to reconcile Eldred with Lopez: If Congress's power to regulate
+commerce was limited, then so, too, must Congress's power to regulate
+copyright be limited.
+</para>
+<para>
+The argument 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.
+</para>
+<para>
+There was some truth to the government's claim, but not much. We
+certainly agreed that Congress had extended existing terms in
+and in 1909. And of course, in 1962, Congress began extending
+ existing
+terms regularly--eleven times in forty years.
+</para>
+<para>
+But this "consistency" 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.
+Oral argument 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 "mooted" by lawyers who had volunteered to
+
+<!-- PAGE BREAK 244 -->
+help in the case. Such "moots" are basically practice rounds, where
+wannabe justices fire questions at wannabe winners.
+</para>
+<para>
+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.
+</para>
+<para>
+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:
+</para>
+<para>
+"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."
+</para>
+<para>
+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.
+The night before 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
+
+<!-- PAGE BREAK 245 -->
+for the chance to see the proceedings. Scores spent the night on the
+Supreme Court steps so that they would be assured a seat.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Justice O'Connor stopped me within one minute of my opening.
+The history was bothering her.
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+She was quite willing to concede "that this flies directly in the face
+of what the framers had in mind." But my response again and again
+was to emphasize limits on Congress's power.
+</para>
+<blockquote>
+<para>
+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
+<!-- PAGE BREAK 246 -->
+words that gives effect to what they had in mind, and the answer
+is yes.
+</para>
+</blockquote>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+Here follows my clear mistake. Like a professor correcting a
+ student,
+I answered,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+The second came from the Chief, for whom the whole case had
+been crafted. For the Chief Justice had crafted the Lopez ruling, and we
+hoped that he would see this case as its second cousin.
+</para>
+<para>
+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:
+
+<!-- PAGE BREAK 247 -->
+</para>
+<blockquote>
+<para>
+chief justice: Well, but you want more than that. You want the
+right to copy verbatim other people's books, don't you?
+</para>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+As I left 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
+
+<!-- PAGE BREAK 248 -->
+answered differently. But one way of thinking about this case left me
+optimistic.
+</para>
+<para>
+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.
+</para>
+<para>
+The morning 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.
+</para>
+<para>
+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.
+</para>
+<para>
+My reasoning. Here was a case that pitted all the money in the
+world against reasoning. And here was the last naïve law professor,
+scouring the pages, looking for reasoning.
+</para>
+<para>
+I first scoured the opinion, looking for how the Court would
+ distinguish
+the principle in this case from the principle in Lopez. 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.
+</para>
+<para>
+
+<!-- PAGE BREAK 249 -->
+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.
+</para>
+<para>
+Her opinion was perfectly reasonable--for her, and for Justice
+Souter. Neither believes in Lopez. 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.
+</para>
+<para>
+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 by not addressing the argument. There was no
+inconsistency because they would not talk about the two together.
+There was therefore no principle that followed from the Lopez case: In
+that context, Congress's power would be limited, but in this context it
+would not.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+
+<!-- PAGE BREAK 250 -->
+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 "limited," and
+the existing term was so long as to be effectively unlimited, then it was
+unconstitutional.
+</para>
+<para>
+These two justices understood all the arguments we had made. But
+because neither believed in the Lopez 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 Hamlet without the Prince.
+</para>
+<para>
+Defeat brings depression. 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.
+</para>
+<para>
+It was first anger with the five "Conservatives." It would have been
+one thing for them to have explained why the principle of Lopez 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 "originalism"--to first understand
+the framers' text, interpreted in their context, in light of the structure
+of the Constitution. That method had produced Lopez and many other
+"originalist" rulings. Where was their "originalism" now?
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 251 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 252 -->
+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.
+</para>
+<para>
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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. "The Court is not ready," Peter Jaszi said; this issue should
+not be raised until it is.
+</para>
+<para>
+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.
+While the reaction 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
+
+<!-- PAGE BREAK 253 -->
+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. The New
+York Times wrote in its editorial,
+</para>
+<blockquote>
+<para>
+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.
+</para>
+</blockquote>
+<para>
+The best responses were in the cartoons. There was a gaggle of
+ hilarious
+images--of Mickey in jail and the like. The best, from my view
+of the case, was Ruben Bolling's, reproduced on the next page. The
+"powerful and wealthy" line is a bit unfair. But the punch in the face felt
+exactly like that.
+</para>
+<para>
+The image that will always stick in my head is that evoked by the
+quote from The New York Times. That "grand experiment" we call the
+"public domain" is over? When I can make light of it, I think, "Honey,
+I shrunk the Constitution." 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.
+</para>
+<!-- PAGE BREAK 254 -->
+</sect1>
+<sect1 id="eldred-ii">
+<title>CHAPTER FOURTEEN: Eldred II</title>
+<para>
+The day Eldred was decided, fate would have it that I was to travel to
+Washington, D.C. (The day the rehearing petition in Eldred 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.
+</para>
+<para>
+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: "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." And so, having failed in the argument of constitutional principle,
+finally, I turned to an argument of politics.
+</para>
+<para>
+The New York Times published the piece. In it, I proposed a simple
+fix: Fifty years after a work has been published, the copyright owner
+<!-- PAGE BREAK 256 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Or another two names. For depending upon your perspective, this
+is either the "Public Domain Enhancement Act" or the "Copyright
+Term Deregulation Act." 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 257 -->
+As I described in chapter 10, formalities in copyright law were
+ removed
+in 1976, when Congress followed the Europeans by
+ abandoning
+any formal requirement before a copyright is granted.<footnote><para>
+<!-- f1. --> 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 "the enjoyment and the exercise" of
+rights guaranteed by the Convention "shall not be subject to any
+ formality."
+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, International Intellectual
+Property Law, Cases and Materials (New York: Foundation Press, 2001),
+15354.
+</para></footnote>
+ The
+ Europeans
+are said to view copyright as a "natural right." 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.
+</para>
+<para>
+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
+"Walt Disney creativity" is destroyed when there is no simple way to
+know what's protected and what's not.
+</para>
+<para>
+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 i or cross a t resulted in the loss of widows' only income.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+In addition to the practical complaint of authors in 1908, there was
+a moral claim as well. There was no reason that creative property
+
+<!-- PAGE BREAK 258 -->
+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 "naturally," 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 259 -->
+a world without formalities. Complex, expensive, lawyer transactions
+take their place.
+</para>
+<para>
+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 "get." 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, "short," 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.
+</para>
+<para>
+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
+because there are no formalities.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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?
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 260 -->
+registrations. Any real solution to the problem of formalities must
+ address
+the real problem of governments 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?
+</para>
+<para>
+When Steve Forbes 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.
+</para>
+<para>
+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, "we are close." There was a general
+ reaction
+in the blog community that something good might happen here.
+</para>
+<para>
+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.
+</para>
+<para>
+The MPAA argued first that Congress had "firmly rejected the
+ central
+concept in the proposed bill"--that copyrights be renewed. That
+was true, but irrelevant, as Congress's "firm rejection" had occurred
+<!-- PAGE BREAK 261 -->
+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 "enormous" 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.
+</para>
+<para>
+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.
+</para>
+<para>
+At the beginning 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.
+</para>
+<para>
+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?
+</para>
+<para>
+
+<!-- PAGE BREAK 262 -->
+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.
+</para>
+<para>
+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 "Dark Content" that
+fills archives around the world. So when the warriors oppose a change
+like this, we should ask one simple question:
+</para>
+<para>
+What does this industry really want?
+</para>
+<para>
+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 their 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 their
+permission first.
+</para>
+<para>
+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 "property" but the rejection of a
+ tradition.
+Their aim is not simply to protect what is theirs. Their aim is to
+ assure
+that all there is is what is theirs.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 263 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+All this seems to follow easily from this untroubled acceptance of
+the "property" 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 "permission
+ society."
+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.
+</para>
+<!-- PAGE BREAK 264 -->
+</sect1>
+</chapter>
+<chapter id="c-conclusion">
+<title>CONCLUSION</title>
+<para>
+There are more 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f1. --> Commission on Intellectual Property Rights, "Final Report: Integrating
+Intellectual Property Rights and Development Policy" (London, 2002),
+available at
+<ulink url="http://free-culture.cc/notes/">link #55</ulink>. 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.
+</para></footnote>
+</para>
+<para>
+<!-- PAGE BREAK 265 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 "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
+Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
+</para></footnote>
+</para>
+<para>
+However, the United States government opposed the bill. Indeed,
+more than opposed. As the International Intellectual Property
+ Association
+characterized it, "The U.S. government pressured South Africa . . .
+not to permit compulsory licensing or parallel imports."<footnote><para>
+<!-- f3. --> International Intellectual Property Institute (IIPI), Patent Protection and
+Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report
+ Prepared
+for the World Intellectual Property Organization (Washington, D.C.,
+2000), 14, available at
+<ulink url="http://free-culture.cc/notes/">link #56</ulink>. 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), 15057
+(statement of James Love).
+</para></footnote>
+ 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.
+<!-- PAGE BREAK 266 -->
+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.<footnote><para>
+<!-- f4. --> International Intellectual Property Institute (IIPI), Patent Protection and
+Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report
+ Prepared
+for the World Intellectual Property Organization (Washington, D.C.,
+2000), 15.
+</para></footnote>
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+Instead, the argument in favor of restricting this flow of
+ information,
+which was needed to save the lives of millions, was an argument
+<!-- PAGE BREAK 267 -->
+about the sanctity of property.<footnote><para>
+<!-- f5. --> See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
+Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24
+May 1999, A1, available at
+<ulink url="http://free-culture.cc/notes/">link #57</ulink> ("compulsory licenses and gray
+ markets
+pose a threat to the entire system of intellectual property protection");
+Robert Weissman, "AIDS and Developing Countries: Democratizing
+ Access
+to Essential Medicines," Foreign Policy in Focus 4:23 (August 1999),
+available at
+<ulink url="http://free-culture.cc/notes/">link #58</ulink> (describing U.S. policy); John A. Harrelson, "TRIPS,
+Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper
+Balance Between Intellectual Property Rights and Compassion, a
+ Synopsis,"
+Widener Law Symposium Journal (Spring 2001): 175.
+<!-- PAGE BREAK 333 -->
+</para></footnote>
+ It was because "intellectual property"
+would be violated that these drugs should not flow into Africa. It was
+a principle about the importance of "intellectual property" that led
+these government actors to intervene against the South African
+ response
+to AIDS.
+</para>
+<para>
+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 "sanctity" 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?
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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, "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?" Because there is no "sound
+bite" 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
+<!-- PAGE BREAK 268 -->
+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 "intellectual property."
+</para>
+<para>
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+A simple idea 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
+<!-- PAGE BREAK 269 -->
+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.
+</para>
+<para>
+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 "piracy," and devastate a culture for creativity. They defend
+the idea of "creative property," 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 "perfect storm" for free culture.
+</para>
+<para>
+In August 2003, a fight broke out in the United States about a
+decision by the World Intellectual Property Organization to cancel a
+meeting.<footnote><para>
+<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," Washington Post,
+August 2003, E1, available at
+<ulink url="http://free-culture.cc/notes/">link #59</ulink>; William New, "Global Group's
+Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology
+Daily, 19 August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #60</ulink>; William New, "U.S. Official
+Opposes `Open Source' Talks at WIPO," National Journal's Technology
+Daily, 19 August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #61</ulink>.
+</para></footnote>
+ At the request of a wide range of interests, WIPO had
+ decided
+to hold a meeting to discuss "open and collaborative projects to
+create public goods." 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 the Afterword. 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,
+<!-- PAGE BREAK 270 -->
+Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
+ Glaxo-SmithKline,
+IBM, Motorola, Novartis, Pfizer, and Searle.) It included
+the Global Positioning System, which Ronald Reagan set free in the
+early 1980s. And it included "open source and free software."
+</para>
+<para>
+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.
+</para>
+<para>
+From the perspective of this book, then, the conference was ideal.<footnote><para>
+<!-- f7. --> I should disclose that I was one of the people who asked WIPO for the
+meeting.
+</para></footnote>
+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.
+</para>
+<para>
+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
+"Information Society" 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
+<!-- PAGE BREAK 271 -->
+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.
+</para>
+<para>
+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 "open and collaborative projects to
+create public goods" seemed perfectly appropriate within the WIPO
+agenda.
+</para>
+<para>
+But there is one project within that list that is highly controversial,
+at least among lobbyists. That project is "open source and free
+ software."
+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 "proprietary
+software," for their own internal uses.
+</para>
+<para>
+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 "free software"--and IBM is
+emphatically a commercial entity. Thus, to support "open source and
+free software" is not to oppose commercial entities. It is, instead, to
+support a mode of software development that is different from
+ Microsoft's.<footnote><para>
+<!-- f8. --> Microsoft's position about free and open source software is more
+ sophisticated.
+As it has repeatedly asserted, it has no problem with "open source"
+software or software in the public domain. Microsoft's principal
+ opposition
+is to "free software" licensed under a "copyleft" license, meaning a
+ license
+that requires the licensee to adopt the same terms on any derivative
+work. See Bradford L. Smith, "The Future of Software: Enabling the
+ Marketplace
+to Decide," Government Policy Toward Open Source Software
+(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies,
+American Enterprise Institute for Public Policy Research, 2002), 69,
+available at
+<ulink url="http://free-culture.cc/notes/">link #62</ulink>. See also Craig Mundie, Microsoft senior vice
+ president,
+The Commercial Software Model, discussion at New York University
+Stern School of Business (3 May 2001), available at
+<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
+</para></footnote>
+</para>
+<para>
+More important for our purposes, to support "open source and free
+software" is not to oppose copyright. "Open source and free
+ software"
+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
+<!-- PAGE BREAK 272 -->
+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.
+</para>
+<para>
+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 Washington Post,
+ Microsoft's
+lobbyists succeeded in getting the United States government
+to veto the meeting.<footnote><para>
+<!-- f9. --> Krim, "The Quiet War over Open-Source," available at
+<ulink url="http://free-culture.cc/notes/">link #64</ulink>.
+</para></footnote>
+ And without U.S. backing, the meeting was
+ canceled.
+</para>
+<para>
+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.
+</para>
+<para>
+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 "open-source software runs counter to the
+ mission
+of WIPO, which is to promote intellectual-property rights." She
+is quoted as saying, "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."
+</para>
+<para>
+These statements are astonishing on a number of levels.
+</para>
+<!-- PAGE BREAK 273 -->
+<para>
+First, they are just flat wrong. As I described, most open source and
+free software relies fundamentally upon the intellectual property right
+called "copyright." Without it, restrictions imposed by those licenses
+wouldn't work. Thus, to say it "runs counter" 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.
+</para>
+<para>
+Second, who ever said that WIPO's exclusive aim was to "promote"
+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?
+</para>
+<para>
+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 their rights. If they
+want to "waive" or "disclaim" 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 their property.
+</para>
+<para>
+When Ms. Boland says that there is something wrong with a
+ meeting
+"which has as its purpose to disclaim or waive such rights," she's
+saying that WIPO has an interest in interfering with the choices of
+<!-- PAGE BREAK 274 -->
+the individuals who own intellectual property rights. That somehow,
+WIPO's objective should be to stop an individual from "waiving" or
+ "disclaiming"
+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.
+</para>
+<para>
+There is a history of just such a property system that is well known
+in the Anglo-American tradition. It is called "feudalism." 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.
+</para>
+<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, 21020.
+</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 feudal. The trend is
+ toward
+the feudal.
+</para>
+<para>
+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,
+</para>
+<blockquote>
+<para>
+George, you misunderstand Lessig: He's only talking about the
+world as it should be ("the goal of WIPO, and the goal of any
+government, should be to promote the right balance of
+ intellectualproperty
+rights, not simply to promote intellectual property
+rights"), 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
+<!-- PAGE BREAK 275 -->
+as Lessig would have it, then of course she did. Always pay
+ attention
+to the distinction between Lessig's world and ours.
+</para>
+</blockquote>
+<para>
+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.)
+</para>
+<para>
+Obviously, however, the poster was not supporting that idea.
+ Instead,
+the poster was ridiculing the very idea that in the real world, the
+"goal" of a government should be "to promote the right balance" of
+ intellectual
+property. That was obviously silly to him. And it obviously
+betrayed, he believed, my own silly utopianism. "Typical for an
+ academic,"
+the poster might well have continued.
+</para>
+<para>
+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).
+</para>
+<para>
+But when it has become silly to suppose that the role of our
+ government
+should be to "seek balance," 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?
+</para>
+<para>
+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.
+<!-- PAGE BREAK 276 -->
+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.
+</para>
+<para>
+If this is crazy, then let there be more crazies. Soon.
+There are moments 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<!-- PAGE BREAK 277 -->
+<para>
+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 "big," wisely or not. That we could be
+ motivated
+to fight "big" again is not something new.
+</para>
+<para>
+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 "intellectual property." 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
+"property" is not well exercised within this tradition anymore.
+</para>
+<para>
+If we were Achilles, this would be our heel. This would be the place
+of our tragedy.
+</para>
+<para>
+As I write these final words, the news is filled with stories about
+the RIAA lawsuits against almost three hundred individuals.<footnote><para>
+<!-- f11. --> John Borland, "RIAA Sues 261 File Swappers," CNET News.com,
+September 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #65</ulink>; Paul R. La Monica, "Music
+ Industry
+Sues Swappers," CNN/Money, 8 September 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #66</ulink>; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a
+Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily
+News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet
+ Surprised
+Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
+Defendants," Washington Post, 10 September 2003, E1; Katie Dean,
+"Schoolgirl Settles with RIAA," Wired News, 10 September 2003,
+ available
+at
+<ulink url="http://free-culture.cc/notes/">link #67</ulink>.
+</para></footnote>
+
+ Eminem
+has just been sued for "sampling" someone else's music.<footnote><para>
+<!-- f12. --> Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com,
+17 September 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #68</ulink>.
+</para></footnote>
+ The
+story about Bob Dylan "stealing" from a Japanese author has just
+ finished
+making the rounds.<footnote><para>
+<!-- f13. --> Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
+ Dylan
+Songs," Kansascity.com, 9 July 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #69</ulink>.
+<!-- PAGE BREAK 334 -->
+</para></footnote>
+ An insider from Hollywood--who insists
+he must remain anonymous--reports "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." 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.
+</para>
+<para>
+Yet on the other side of the Atlantic, the BBC has just announced
+that it will build a "Creative Archive," from which British citizens can
+download BBC content, and rip, mix, and burn it.<footnote><para>
+<!-- f14. --> "BBC Plans to Open Up Its Archive to the Public," BBC press release,
+24 August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #70</ulink>.
+</para></footnote>
+ 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.<footnote><para>
+<!-- f15. --> "Creative Commons and Brazil," Creative Commons Weblog, 6 August
+2003, available at
+<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
+</para></footnote>
+<!-- PAGE BREAK 278 -->
+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.
+</para>
+<para>
+Common sense must revolt. It must act to free culture. Soon, if this
+potential is ever to be realized.
+
+<!-- PAGE BREAK 279 -->
+
+</para>
+</chapter>
+<chapter id="c-afterword">
+<title>AFTERWORD</title>
+<para>
+
+<!-- PAGE BREAK 280 -->
+At least some 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<!-- PAGE BREAK 281 -->
+
+<sect1 id="usnow">
+<title>US, NOW</title>
+<para>
+Common sense 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.
+</para>
+<para>
+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--"All Rights Reserved"--
+and those who reject copyright--"No Rights Reserved." The "All
+Rights Reserved" sorts believe that you should ask permission before
+you "use" a copyrighted work in any way. The "No Rights Reserved"
+sorts believe you should be able to do with content as you wish,
+ regardless
+of whether you have permission or not.
+</para>
+<para>
+When the Internet was first born, its initial architecture effectively
+tilted in the "no rights reserved" 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
+
+<!-- PAGE BREAK 282 -->
+original design of the Internet was "no rights reserved." Content was
+"taken" regardless of the rights. Any rights were effectively
+ unprotected.
+</para>
+<para>
+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 "no rights reserved," the future
+architecture will make the effective default "all rights reserved." The
+ architecture
+and law that surround the Internet's design will increasingly
+produce an environment where all use of content requires permission.
+The "cut and paste" world that defines the Internet today will become
+a "get permission to cut and paste" world that is a creator's nightmare.
+</para>
+<para>
+What's needed is a way to say something in the middle--neither "all
+rights reserved" nor "no rights reserved" but "some rights reserved"--
+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.
+</para>
+
+<sect2 id="examples">
+<title>Rebuilding Freedoms Previously Presumed: Examples</title>
+<para>
+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 "privacy" of your browsing habits was assured.
+</para>
+<para>
+What made it assured?
+</para>
+<!-- PAGE BREAK 283 -->
+<para>
+Well, if we think in terms of the modalities I described in chapter
+10, your privacy was assured because of an inefficient architecture for
+gathering data and hence a market constraint (cost) on anyone who
+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
+"privacy" 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.
+</para>
+<para>
+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
+ "recently
+viewed" 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 "privacy" protected by
+the friction disappears, too.
+</para>
+<para>
+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 "right" 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.
+</para>
+<para>
+It is this reality that explains the push of many to define "privacy"
+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.<footnote><para>
+<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
+ Architecture
+of Privacy (What Larry Doesn't Get)," Stanford Technology Law
+Review 1 (2001): par. 618, available at
+<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
+which technology defines privacy policy). See also Jeffrey Rosen, The Naked
+Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
+ Random
+House, 2004) (mapping tradeoffs between technology and privacy).
+</para></footnote>
+ 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
+
+<!-- PAGE BREAK 284 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+Thus, the practice of proprietary code began to spread, and by the
+early 1980s, Stallman found himself surrounded by proprietary code.
+<!-- PAGE BREAK 285 -->
+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.
+</para>
+<para>
+Therefore, in 1984, Stallman began a project to build a free
+ operating
+system, so that at least a strain of free software would survive. That
+was the birth of the GNU project, into which Linus Torvalds's "Linux"
+kernel was added to produce the GNU/Linux operating system.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 286 -->
+to charge users for the privilege of gaining access to that Supreme
+Court opinion through their respective services.
+</para>
+<para>
+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.
+</para>
+<para>
+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?
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 287 -->
+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.
+</para>
+<para>
+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.
+</para>
+
+</sect2>
+<sect2 id="oneidea">
+<title>Rebuilding Free Culture: One Idea</title>
+<para>
+The same strategy could be applied to culture, as a response to the
+ increasing
+control effected through law and technology.
+</para>
+<para>
+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 reasonable 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.
+</para>
+<para>
+Simple--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
+<!-- PAGE BREAK 288 -->
+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 "All" or "No" extremes. Content is marked with the
+CC mark, which does not mean that copyright is waived, but that
+ certain
+freedoms are given.
+</para>
+<para>
+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 ("share and share alike"). 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 289 -->
+of content ("content conducers," 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.
+</para>
+<para>
+The aim is not to fight the "All Rights Reserved" 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.
+</para>
+<para>
+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, Down and Out in the Magic
+Kingdom, was released on-line and for free, under a Creative
+ Commons
+license, on the same day that it went on sale in bookstores.
+</para>
+<para>
+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 increase sales of Cory's book.
+</para>
+<para>
+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.
+</para>
+<para>
+The idea that free content might increase the value of nonfree
+ content
+was confirmed by the experience of another author. Peter Wayner,
+<!-- PAGE BREAK 290 -->
+who wrote a book about the free software movement titled Free for All,
+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.
+</para>
+<para>
+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 "sampling license" 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 legal 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 "allow" Public Enemy to sample anymore, because the legal costs
+are so high<footnote><para>
+<!-- f2. --> Willful Infringement: A Report from the Front Lines of the Real Culture Wars
+(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat
+ Lucre
+production, available at
+<ulink url="http://free-culture.cc/notes/">link #72</ulink>.
+</para></footnote>),
+these artists release into the creative environment content
+that others can build upon, so that their form of creativity might grow.
+</para>
+<para>
+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 "All Rights Reserved"
+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 "Some
+Rights Reserved," and gives many the chance to say it to others.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 291 -->
+with Creative Commons freedoms. Then the next step is to watch and
+celebrate creators who build content based upon content set free.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+
+<!-- PAGE BREAK 292 -->
+</sect2>
+</sect1>
+<sect1 id="themsoon">
+<title>THEM, SOON</title>
+<para>
+We will 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.
+</para>
+<para>
+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.
+</para>
+
+<sect2 id="formalities">
+<title>1. More Formalities</title>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 293 -->
+These are all formalities associated with property. They are
+ requirements
+that we all must bear if we want our property to be protected.
+</para>
+<para>
+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 "formalities" are banished.
+</para>
+<para>
+Why?
+</para>
+<para>
+As I suggested in chapter 10, 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.
+</para>
+<para>
+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
+lack of formalities forces many into silence where they otherwise could
+speak.
+</para>
+<para>
+The law should therefore change this requirement<footnote><para>
+<!-- f1. --> 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.
+</para></footnote>--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.
+</para>
+<para>
+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.
+</para>
+
+<!-- PAGE BREAK 294 -->
+
+<sect3 id="registration">
+<title>REGISTRATION AND RENEWAL</title>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 295 -->
+of registrations that would facilitate the licensing of content.
+</para>
+
+</sect3>
+<sect3 id="marking">
+<title>MARKING</title>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f2. --> 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.
+</para></footnote>
+ The meaning of an unmarked work would
+therefore be "use unless someone complains." If someone does
+ complain,
+then the obligation would be to stop using the work in any new
+<!-- PAGE BREAK 296 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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 solely 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+
+<!-- PAGE BREAK 297 -->
+</sect3>
+</sect2>
+<sect2 id="shortterms">
+<title>2. Shorter Terms</title>
+<para>
+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.
+</para>
+<para>
+In The Future of Ideas, 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 Eldred v.
+Ashcroft, the proposals became even more radical. The Economist
+ endorsed
+a proposal for a fourteen-year copyright term.<footnote><para>
+<!-- f3. --> "A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, available
+at
+<ulink url="http://free-culture.cc/notes/">link #74</ulink>.
+</para></footnote>
+ Others have
+proposed tying the term to the term for patents.
+</para>
+<para>
+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.
+</para>
+<orderedlist numeration="arabic">
+<listitem><para>
+<!-- (1) -->
+Keep it short: 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.
+</para></listitem>
+<listitem><para>
+<!-- (2) -->
+Keep it simple: The line between the public domain and
+protected content must be kept clear. Lawyers like the
+ fuzziness
+of "fair use," and the distinction between "ideas" and
+ "expression."
+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 "lawyer-free zone" makes the
+ complexities
+of "fair use" and "idea/expression" less necessary to
+navigate.
+<!-- PAGE BREAK 298 -->
+</para></listitem>
+<listitem><para>
+<!-- (3) -->
+Keep it alive: 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.<footnote><para>
+<!-- f4. --> Department of Veterans Affairs, Veteran's Application for Compensation
+and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
+available at
+<ulink url="http://free-culture.cc/notes/">link #75</ulink>.
+</para></footnote>
+ 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.
+</para></listitem>
+<listitem><para>
+<!-- (4) -->
+Keep it prospective: 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.
+</para></listitem>
+</orderedlist>
+<para>
+These changes together should produce an average 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.
+</para>
+<para>
+No doubt the extremists will call these ideas "radical." (After all, I
+call them "extremists.") But again, the term I recommended was longer
+than the term under Richard Nixon. How "radical" can it be to ask for
+a more generous copyright law than Richard Nixon presided over?
+</para>
+
+<!-- PAGE BREAK 299 -->
+
+</sect2>
+<sect2 id="freefairuse">
+<title>3. Free Use Vs. Fair Use</title>
+<para>
+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.
+</para>
+<para>
+Our Constitution gives Congress the power to give authors
+ "exclusive
+right" to "their writings." Congress has given authors an exclusive
+right to "their writings" 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 "my writing."
+</para>
+<para>
+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.<footnote><para>
+<!-- f5. --> Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
+University Press, 1967), 32.
+</para></footnote>
+ 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.
+</para>
+<blockquote>
+<para>
+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.<footnote><para>
+<!-- f6. --> Ibid., 56.
+</para></footnote>
+</para>
+</blockquote>
+<para>
+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.
+</para>
+<para>
+Term: If Congress wants to grant a derivative right, then that right
+should be for a much shorter term. It makes sense to protect John
+
+<!-- PAGE BREAK 300 -->
+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.
+</para>
+<para>
+Scope: Likewise should the scope of derivative rights be narrowed.
+Again, there are some cases in which derivative rights are important.
+Those should be specified. But the law should draw clear lines around
+regulated and unregulated uses of copyrighted material. When all
+"reuse" of creative material was within the control of businesses,
+ perhaps
+it made sense to require lawyers to negotiate the lines. It no longer
+makes sense for lawyers to negotiate the lines. Think about all the
+ creative
+possibilities that digital technologies enable; now imagine
+ pouring
+molasses into the machines. That's what this general requirement
+of permission does to the creative process. Smothers it.
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f7. --> Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
+ Jukebox
+(Stanford: Stanford University Press, 2003), 187216.
+</para></footnote>
+ His view is that the law should be written so that expanded
+protections follow expanded uses.
+</para>
+<para>
+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.
+</para>
+<para>
+The law could remedy this problem either by removing protection
+<!-- PAGE BREAK 301 -->
+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.
+</para>
+</sect2>
+
+<sect2 id="liberatemusic">
+<title>4. Liberate the Music--Again</title>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+File-sharing networks complicate this model by enabling the
+spread of content for which the performer has not been paid. But of
+course, that's not all the file-sharing networks do. As I described in
+chapter 5, they enable four different kinds of sharing:
+</para>
+<orderedlist numeration="upperalpha">
+<listitem><para>
+<!-- A. -->
+There are some who are using sharing networks as substitutes
+for purchasing CDs.
+</para></listitem>
+<listitem><para>
+<!-- B. -->
+There are also some who are using sharing networks to sample,
+on the way to purchasing CDs.
+</para></listitem>
+<listitem><para>
+<!-- PAGE BREAK 302 -->
+<!-- C. -->
+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.
+</para></listitem>
+<listitem><para>
+<!-- D. -->
+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.
+</para></listitem>
+</orderedlist>
+<para>
+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.
+</para>
+<para>
+As I said in chapter 5, 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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 303 -->
+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.
+</para>
+<para>
+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 extremely easy to connect to services that give
+access to content, it will be easier to connect to services that give you
+access to content than it will be to download and store content on the
+many devices you will have for playing content. 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 "free" content is available in the form
+of MP3s across the Web.<footnote><para>
+<!-- f8. --> See, for example, "Music Media Watch," The J@pan Inc. Newsletter,
+3 April 2002, available at
+<ulink url="http://free-culture.cc/notes/">link #76</ulink>.
+</para></footnote>
+
+</para>
+<para>
+This point about the future is meant to suggest a perspective on the
+present: It is emphatically temporary. The "problem" 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
+"solving" 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
+
+<!-- PAGE BREAK 304 -->
+this transition between twentieth-century models for doing business
+and twenty-first-century technologies.
+</para>
+<para>
+The answer begins with recognizing that there are different
+ "problems"
+here to solve. Let's start with type D content--uncopyrighted
+content or copyrighted content that the artist wants shared. The
+ "problem"
+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.
+</para>
+<para>
+Type C content raises a different "problem." 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.
+</para>
+<para>
+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 "sharing" of his content without his being compensated is
+less than ideal.
+</para>
+<para>
+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 "share" 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.
+</para>
+<para>
+
+<!-- PAGE BREAK 305 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+<!-- PAGE BREAK 306 -->
+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.
+</para>
+<para>
+The idea would be a modification of a proposal that has been
+floated by Harvard law professor William Fisher.<footnote><para>
+<!-- f9. --> William Fisher, Digital Music: Problems and Possibilities (last revised:
+10 October 2000), available at
+<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William Fisher, Promises to Keep:
+Technology, Law, and the Future of Entertainment (forthcoming) (Stanford:
+Stanford University Press, 2004), ch. 6, available at
+<ulink url="http://free-culture.cc/notes/">link #78</ulink>. 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, "Impose a
+ Noncommercial
+Use Levy to Allow Free P2P File Sharing," available at
+<ulink url="http://free-culture.cc/notes/">link #79</ulink>. For other proposals, see Lawrence Lessig, "Who's Holding Back
+Broadband?" Washington Post, 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
+<ulink url="http://free-culture.cc/notes/">link #80</ulink>; Serguei Osokine, A Quick Case for Intellectual Property
+Use Fee (IPUF), 3 March 2002, available at
+<ulink url="http://free-culture.cc/notes/">link #81</ulink>; Jefferson Graham,
+"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May
+2002, available at
+<ulink url="http://free-culture.cc/notes/">link #82</ulink>; Steven M. Cherry, "Getting Copyright Right,"
+IEEE Spectrum Online, 1 July 2002, available at
+<ulink url="http://free-culture.cc/notes/">link #83</ulink>; Declan
+ McCullagh,
+"Verizon's Copyright Campaign," CNET News.com, 27 August
+2002, available at
+<ulink url="http://free-culture.cc/notes/">link #84</ulink>.
+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
+<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
+</para></footnote>
+ 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.
+</para>
+<para>
+Fisher's proposal is careful and comprehensive. It raises a million
+questions, most of which he answers well in his upcoming book,
+Promises to Keep. 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.
+</para>
+<para>
+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 "semiotic democracy" possible. But
+the aims of semiotic democracy would be satisfied if the other changes
+I described were accomplished--in particular, the limits on derivative
+
+<!-- PAGE BREAK 307 -->
+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.
+</para>
+<para>
+No doubt it would be difficult to calculate the proper measure of
+"harm" 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 "free" 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.
+</para>
+<para>
+This competition has already occurred against the background of
+"free" 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 "competing with
+free." 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 "first class" seats, and meals
+served while you watch a movie--as they struggle and succeed in
+ finding
+ways to compete with "free."
+</para>
+<para>
+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.
+</para>
+<para>
+In summary, then, my proposal is this:
+</para>
+<para>
+
+<!-- PAGE BREAK 308 -->
+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.
+</para>
+<para>
+We can minimize that harm while maximizing the benefit to
+ innovation
+by
+</para>
+<orderedlist numeration="arabic">
+<listitem><para>
+<!-- 1. -->
+guaranteeing the right to engage in type D sharing;
+</para></listitem>
+<listitem><para>
+<!-- 2. -->
+permitting noncommercial type C sharing without liability,
+and commercial type C sharing at a low and fixed rate set by
+statute;
+</para></listitem>
+<listitem><para>
+<!-- 3. -->
+while in this transition, taxing and compensating for type A
+sharing, to the extent actual harm is demonstrated.
+</para></listitem>
+</orderedlist>
+<para>
+But what if "piracy" doesn't disappear? What if there is a
+ competitive
+market providing content at a low cost, but a significant number of
+consumers continue to "take" content for nothing? Should the law do
+something then?
+</para>
+<para>
+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 x, or
+(b) to have a technology that is 50 percent secure but produces a
+ market
+of five times x? 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.
+</para>
+<para>
+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
+
+<!-- PAGE BREAK 309 -->
+should be on how to make sure the artists are paid, while protecting the
+space for innovation and creativity that the Internet is.
+</para>
+</sect2>
+
+<sect2 id="firelawyers">
+<title>5. Fire Lots of Lawyers</title>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+The evidence of this bending is compelling. I'm attacked as a
+ "radical"
+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.<footnote><para>
+<!-- f10. --> Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
+Memorial Lecture), UCLA Law Review 48 (2001): 1057, 106970.
+</para></footnote>
+
+</para>
+<para>
+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.
+</para>
+<para>
+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.<footnote><para>
+<!-- f11. --> 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, Rethinking the Network Economy: The True
+Forces That Drive the Digital Marketplace (New York: Amacom, 2002),
+(reviewing his original view but expressing skepticism) with Stan J.
+Liebowitz, "Will MP3s Annihilate the Record Industry?" working paper,
+June 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #86</ulink>.
+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, Rethinking, 17476.
+</para></footnote>
+ 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.
+</para>
+<para>
+<!-- PAGE BREAK 310 -->
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+The law should regulate in certain areas of culture--but it should
+regulate culture only where that regulation does good. Yet lawyers
+
+<!-- PAGE BREAK 311 -->
+rarely test their power, or the power they promote, against this simple
+pragmatic question: "Will it do good?" When challenged about the
+ expanding
+reach of the law, the lawyer answers, "Why not?"
+</para>
+<para>
+We should ask, "Why?" 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.
+</para>
+<!-- PAGE BREAK 312 -->
+</sect2>
+</sect1>
+</chapter>
+<chapter id="c-notes">
+<title>NOTES</title>
+<para>
+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.
+</para>
+<!-- PAGE BREAK 336 -->
+
+</chapter>
+<chapter id="c-acknowledgments">
+<title>ACKNOWLEDGMENTS</title>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<para>
+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
+<!-- PAGE BREAK 337 -->
+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.
+</para>
+<para>
+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, "Wink," Roger
+Wood, "Ximmbo da Jazz," 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.)
+</para>
+<para>
+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.
+</para>
+<para>
+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.
+</para>
+<!-- PAGE BREAK 338 -->
+
+</chapter>
+</book>
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