</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.
+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.
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."
+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:
<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>
+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.
+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>
<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
+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>
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.
+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
+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
+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
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.
+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
+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.
+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.
+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,
198–200.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</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.
+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
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.
+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.
+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.
+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
mainly about a much simpler brace of questions—whether "piracy" will
be permitted, and whether "property" will be protected. The "war" that
has been waged against the technologies of the Internet—what
- Motion
-Picture Association of America (MPAA) president Jack Valenti
+Motion Picture Association of America (MPAA) president Jack Valenti
calls his "own terrorist war"<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
</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.
+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
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.
+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">
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
+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
+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
+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
+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>
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.
+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
</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.
+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
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.
+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.
+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.
+<!-- 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 -->
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.
+"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
<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
+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
+debate by about a decade. See
<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Fisher, William</primary></indexterm>
</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.
+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
+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.
+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
</para></listitem>
</orderedlist>
<para>
-But what if "piracy" doesn't disappear? What if there is a
- competitive
+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.
+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
+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.
+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>
</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
+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, 1069–70.
</para></footnote>
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
+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, 174–76.
+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, 174–76.
</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.
+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.
+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.
+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
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.
+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.
+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
projects / text-free-culture-lessig.git / commitdiff