</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.
+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,
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.
+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.
+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
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.
+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
<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.
+AIBO-ware's copy protection protocol constituting a violation of the
+anti-circumvention provisions of the Digital Millennium Copyright Act.
</para>
</blockquote>
<para>
<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").
+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>
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.
+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
+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.
+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
</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.
+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 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>
+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
</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.
+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
<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
+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.
+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
<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
+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.
+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
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>
+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.
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.
+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
+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.
+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
</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>
+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.
weave together a string—a mash-up— of songs from your
favorite artists in a collage and make it available on the Net.
</para>
-<indexterm><primary>Kodax</primary></indexterm>
<para>
This digital "capturing and sharing" is in part an extension of the
capturing and sharing that has always been integral to our culture,
projects / text-free-culture-lessig.git / commitdiff