msgid ""
msgstr ""
"Project-Id-Version: PACKAGE VERSION\n"
-"POT-Creation-Date: 2012-07-28 13:25+0300\n"
+"POT-Creation-Date: 2012-07-28 23:28+0300\n"
"PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n"
"Last-Translator: FULL NAME <EMAIL@ADDRESS>\n"
"Language-Team: LANGUAGE <LL@li.org>\n"
msgstr ""
#. type: Content of: <book><part><partintro><indexterm><primary>
-#: freeculture.xml:358 freeculture.xml:12696
+#: freeculture.xml:358 freeculture.xml:12702
msgid "CodePink Women in Peace"
msgstr ""
#. type: Content of: <book><part><partintro><para><indexterm><primary>
-#: freeculture.xml:369 freeculture.xml:379 freeculture.xml:12709
+#: freeculture.xml:369 freeculture.xml:379 freeculture.xml:12715
msgid "Safire, William"
msgstr ""
msgstr ""
#. type: Content of: <book><part><partintro><indexterm><primary>
-#: freeculture.xml:464 freeculture.xml:477 freeculture.xml:508 freeculture.xml:527 freeculture.xml:928 freeculture.xml:945 freeculture.xml:991 freeculture.xml:8740 freeculture.xml:12097 freeculture.xml:12800
+#: freeculture.xml:464 freeculture.xml:477 freeculture.xml:508 freeculture.xml:527 freeculture.xml:928 freeculture.xml:945 freeculture.xml:991 freeculture.xml:8746 freeculture.xml:12103 freeculture.xml:12806
msgid "Causby, Thomas Lee"
msgstr ""
#. type: Content of: <book><part><partintro><indexterm><primary>
-#: freeculture.xml:465 freeculture.xml:478 freeculture.xml:509 freeculture.xml:528 freeculture.xml:929 freeculture.xml:946 freeculture.xml:992 freeculture.xml:8741 freeculture.xml:12098 freeculture.xml:12801
+#: freeculture.xml:465 freeculture.xml:478 freeculture.xml:509 freeculture.xml:528 freeculture.xml:929 freeculture.xml:946 freeculture.xml:992 freeculture.xml:8747 freeculture.xml:12104 freeculture.xml:12807
msgid "Causby, Tinie"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:797 freeculture.xml:9275
+#: freeculture.xml:797 freeculture.xml:9281
msgid "Litman, Jessica"
msgstr ""
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:892 freeculture.xml:14057
+#: freeculture.xml:892 freeculture.xml:14063
msgid "Netanel, Neil Weinstock"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1567 freeculture.xml:2750 freeculture.xml:4362 freeculture.xml:4589 freeculture.xml:7142 freeculture.xml:8200
+#: freeculture.xml:1567 freeculture.xml:2750 freeculture.xml:4362 freeculture.xml:4589 freeculture.xml:7145 freeculture.xml:8206
msgid "Vaidhyanathan, Siva"
msgstr ""
#. f31
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:2022 freeculture.xml:3734 freeculture.xml:4775 freeculture.xml:7927
+#: freeculture.xml:2022 freeculture.xml:3734 freeculture.xml:4775 freeculture.xml:7933
msgid "Ibid."
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:2130 freeculture.xml:7865
+#: freeculture.xml:2130 freeculture.xml:7871
msgid "ABC"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2799 freeculture.xml:3044 freeculture.xml:4138 freeculture.xml:9465
+#: freeculture.xml:2799 freeculture.xml:3044 freeculture.xml:4138 freeculture.xml:9471
msgid "Picker, Randal C."
msgstr ""
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><indexterm><primary>
-#: freeculture.xml:2966 freeculture.xml:13729
+#: freeculture.xml:2966 freeculture.xml:13735
msgid "Grisham, John"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:3061 freeculture.xml:8563 freeculture.xml:9019 freeculture.xml:11913
+#: freeculture.xml:3061 freeculture.xml:8569 freeculture.xml:9025 freeculture.xml:11919
msgid "Lovett, Lyle"
msgstr ""
msgstr ""
#. type: Content of: <book><part><partintro><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3330 freeculture.xml:12193 freeculture.xml:12620 freeculture.xml:12627
+#: freeculture.xml:3330 freeculture.xml:12199 freeculture.xml:12626 freeculture.xml:12633
msgid "Drahos, Peter"
msgstr ""
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3350 freeculture.xml:3613 freeculture.xml:14256
+#: freeculture.xml:3350 freeculture.xml:3613 freeculture.xml:14262
msgid "Liebowitz, Stan"
msgstr ""
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><indexterm><primary>
-#: freeculture.xml:3396 freeculture.xml:3423 freeculture.xml:11054 freeculture.xml:12503 freeculture.xml:13053
+#: freeculture.xml:3396 freeculture.xml:3423 freeculture.xml:11060 freeculture.xml:12509 freeculture.xml:13059
msgid "Linux operating system"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3492 freeculture.xml:7996
+#: freeculture.xml:3492 freeculture.xml:8002
msgid "Christensen, Clayton M."
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:5009 freeculture.xml:5017 freeculture.xml:5028 freeculture.xml:5043 freeculture.xml:5052 freeculture.xml:5057 freeculture.xml:5109 freeculture.xml:5125 freeculture.xml:5148 freeculture.xml:5211 freeculture.xml:9568
+#: freeculture.xml:5009 freeculture.xml:5017 freeculture.xml:5028 freeculture.xml:5043 freeculture.xml:5052 freeculture.xml:5057 freeculture.xml:5109 freeculture.xml:5125 freeculture.xml:5148 freeculture.xml:5211 freeculture.xml:9574
msgid "Alben, Alex"
msgstr ""
msgid "Universal Pictures"
msgstr ""
-#. type: Content of: <book><part><chapter><
para><indexterm><primary>
-#: freeculture.xml:5721
+#. type: Content of: <book><part><chapter><
section><indexterm><primary>
+#: freeculture.xml:5721 freeculture.xml:7125
msgid "Warner Brothers"
msgstr ""
msgstr ""
#. type: Content of: <book><part><partintro><para><indexterm><primary>
-#: freeculture.xml:6225 freeculture.xml:12594
+#: freeculture.xml:6225 freeculture.xml:12600
msgid "Gates, Bill"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7122 freeculture.xml:7286
+#: freeculture.xml:7122 freeculture.xml:7292
msgid "Marx Brothers"
msgstr ""
#. f19
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7132
+#: freeculture.xml:7135
msgid ""
"See David Lange, \"Recognizing the Public Domain,\" <citetitle>Law and "
"Contemporary Problems</citetitle> 44 (1981): 172–73."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7125
+#: freeculture.xml:7128
msgid ""
"There's a famous story about a battle between the Marx Brothers and Warner "
"Brothers. The Marxes intended to make a parody of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7141
+#: freeculture.xml:7144
msgid ""
"Ibid. See also Vaidhyanathan, <citetitle>Copyrights and "
"Copywrongs</citetitle>, 1–3. <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7137
+#: freeculture.xml:7140
msgid ""
"This led the Marx Brothers to respond in kind. They warned Warner Brothers "
"that the Marx Brothers \"were brothers long before you were.\"<placeholder "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7149
+#: freeculture.xml:7152
msgid ""
"An absurd and hollow threat, of course, because Warner Brothers, like the "
"Marx Brothers, knew that no court would ever enforce such a silly "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7155
+#: freeculture.xml:7158
msgid ""
"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: "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7166
+#: freeculture.xml:7170
msgid "Consider the life of my Adobe eBook Reader."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7169
+#: freeculture.xml:7173
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7176
+#: freeculture.xml:7180
msgid "On the next page is a picture of an old version of my Adobe eBook Reader."
msgstr ""
#. PAGE BREAK 160
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7180
+#: freeculture.xml:7184
msgid ""
"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: "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7191
+#: freeculture.xml:7195
msgid "Picture of an old version of Adobe eBook Reader"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7192
+#: freeculture.xml:7196
msgid "<graphic fileref=\"images/1611.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7195
+#: freeculture.xml:7199
msgid ""
"If you click on the Permissions button, you'll see a list of the permissions "
"that the publisher purports to grant with this book."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7199
+#: freeculture.xml:7203
msgid "List of the permissions that the publisher purports to grant."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7200
+#: freeculture.xml:7204
msgid "<graphic fileref=\"images/1612.png\"></graphic>"
msgstr ""
#. PAGE BREAK 161
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7204
+#: freeculture.xml:7208
msgid ""
"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 "
"computer."
msgstr ""
+#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
+#: freeculture.xml:7218
+msgid "Aristotle"
+msgstr ""
+
+#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
+#: freeculture.xml:7219
+msgid "<citetitle>Politics</citetitle>, (Aristotle)"
+msgstr ""
+
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7212
+#: freeculture.xml:7216
msgid ""
"Here's the e-book for another work in the public domain (including the "
-"translation): Aristotle's <citetitle>Politics</citetitle>."
+"translation): Aristotle's <citetitle>Politics</citetitle>. <placeholder "
+"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7216
+#: freeculture.xml:7222
msgid "E-book of Aristotle;s "Politics""
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7217
+#: freeculture.xml:7223
msgid "<graphic fileref=\"images/1621.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7220
+#: freeculture.xml:7226
msgid ""
"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."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7225
+#: freeculture.xml:7231
msgid "List of the permissions for Aristotle;s "Politics"."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7226
+#: freeculture.xml:7232
msgid "<graphic fileref=\"images/1622.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7229
+#: freeculture.xml:7235
msgid ""
"Finally (and most embarrassingly), here are the permissions for the original "
"e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7235
+#: freeculture.xml:7241
msgid "List of the permissions for "The Future of Ideas"."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7236
+#: freeculture.xml:7242
msgid "<graphic fileref=\"images/1631.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7239
+#: freeculture.xml:7245
msgid "No copying, no printing, and don't you dare try to listen to this book!"
msgstr ""
#. f21
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7249
+#: freeculture.xml:7255
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7242
+#: freeculture.xml:7248
msgid ""
"Now, the Adobe eBook Reader calls these controls \"permissions\"— as "
"if the publisher has the power to control how you use these works. For "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7264
+#: freeculture.xml:7270
msgid ""
"The control comes instead from the code—from the technology within "
"which the e-book \"lives.\" Though the e-book says that these are "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7282
+#: freeculture.xml:7288
msgid ""
"These are <emphasis>controls</emphasis>, not permissions. Imagine a world "
"where the Marx Brothers sold word processing software that, when you tried "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7289
+#: freeculture.xml:7295
msgid ""
"This is the future of copyright law: not so much copyright "
"<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. The "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7298
+#: freeculture.xml:7304
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7305
+#: freeculture.xml:7311
msgid ""
"We've only scratched the surface of this story. Return to the Adobe eBook "
"Reader."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7309
+#: freeculture.xml:7315
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7317
+#: freeculture.xml:7323
msgid "List of the permissions for "Alice's Adventures in Wonderland"."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7319
+#: freeculture.xml:7325
msgid "<graphic fileref=\"images/1641.png\"></graphic>"
msgstr ""
#. PAGE BREAK 164
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7323
+#: freeculture.xml:7329
msgid ""
"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\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7330
+#: freeculture.xml:7336
msgid ""
"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; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7338
+#: freeculture.xml:7344
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7351
+#: freeculture.xml:7357
msgid ""
"The point is not to blame Adobe. Indeed, Adobe is among the most innovative "
"companies developing strategies to balance open access to content with "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7359
+#: freeculture.xml:7365
msgid ""
"To see the point in a particularly absurd context, consider a favorite story "
"of mine that makes the same point."
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7363
+#: freeculture.xml:7369
msgid "Aibo robotic dog"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7366
+#: freeculture.xml:7372
msgid ""
"Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns "
"tricks, cuddles, and follows you around. It eats only electricity and that "
#. PAGE BREAK 165
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7371
+#: freeculture.xml:7377
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7380
+#: freeculture.xml:7386
msgid ""
"\"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7388
+#: freeculture.xml:7394
msgid ""
"If you're not a programmer or don't know many programmers, the word "
"<citetitle>hack</citetitle> has a particularly unfriendly "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7400
+#: freeculture.xml:7406
msgid ""
"Some hacks are easy. Some are unbelievably hard. Hackers as a community like "
"to challenge themselves and others with increasingly difficult "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7407
+#: freeculture.xml:7413
msgid ""
"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 "
#. PAGE BREAK 166
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7415
+#: freeculture.xml:7421
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7431
+#: freeculture.xml:7437
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7454 freeculture.xml:9881
+#: freeculture.xml:7460 freeculture.xml:9887
msgid "Electronic Frontier Foundation"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7444
+#: freeculture.xml:7450
msgid ""
"See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" "
"<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, \"Play "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7442
+#: freeculture.xml:7448
msgid ""
"But Felten's bravery was really tested in April 2001.<placeholder "
"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7462
+#: freeculture.xml:7468
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7472
+#: freeculture.xml:7478
msgid ""
"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 "
#. PAGE BREAK 167
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7479
+#: freeculture.xml:7485
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7485
+#: freeculture.xml:7491
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7493
+#: freeculture.xml:7499
msgid ""
"What Felten and his colleagues were doing was publishing a paper describing "
"the weakness in a technology. They were not spreading free music, or "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7501
+#: freeculture.xml:7507
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7508
+#: freeculture.xml:7514
msgid ""
"Your site contains information providing the means to circumvent AIBO-ware's "
"copy protection protocol constituting a violation of the anti-circumvention "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7514
+#: freeculture.xml:7520
msgid ""
"And though an academic paper describing the weakness in a system of "
"encryption should also be perfectly legal, Felten received a letter from an "
#. PAGE BREAK 168
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7520
+#: freeculture.xml:7526
msgid ""
"Any disclosure of information gained from participating in the Public "
"Challenge would be outside the scope of activities permitted by the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7528
+#: freeculture.xml:7534
msgid ""
"In both cases, this weirdly Orwellian law was invoked to control the spread "
"of information. The Digital Millennium Copyright Act made spreading such "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7533
+#: freeculture.xml:7539
msgid ""
"The DMCA was enacted as a response to copyright owners' first fear about "
"cyberspace. The fear was that copyright control was effectively dead; the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7544
+#: freeculture.xml:7550
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7551
+#: freeculture.xml:7557
msgid ""
"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 "
#. PAGE BREAK 169
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7560
+#: freeculture.xml:7566
msgid ""
"Aibopet.com and Felten make the point. The Aibo hack circumvented a "
"copyright protection system for the purpose of enabling the dog to dance "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7572
+#: freeculture.xml:7578
msgid ""
"The threat against Felten was more attenuated, but it followed the same line "
"of reasoning. By publishing a paper describing how a copyright protection "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7580
+#: freeculture.xml:7586
msgid ""
"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 "
#. f23
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:7606
+#: freeculture.xml:7612
msgid ""
"<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal "
"City Studios, Inc</citetitle>., 464 U.S. 417, 455 fn. 27 (1984). Rogers "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7591
+#: freeculture.xml:7597
msgid ""
"Some public stations, as well as commercial stations, program the "
"\"Neighborhood\" at hours when some children cannot use it. I think that "
#. PAGE BREAK 170
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7615
+#: freeculture.xml:7621
msgid ""
"Even though there were uses that were legal, because there were some uses "
"that were illegal, the court held the companies producing the VCR "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7620
+#: freeculture.xml:7626
msgid "This led Conrad to draw the cartoon below, which we can adopt to the DMCA."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7624
+#: freeculture.xml:7630
msgid "No argument I have can top this picture, but let me try to get close."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7627
+#: freeculture.xml:7633
msgid ""
"The anticircumvention provisions of the DMCA target copyright circumvention "
"technologies. Circumvention technologies can be used for different "
#. PAGE BREAK 171
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7635
+#: freeculture.xml:7641
msgid ""
"A handgun can be used to shoot a police officer or a child. Most would agree "
"such a use is bad. Or a handgun can be used for target practice or to "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7643
+#: freeculture.xml:7649
msgid "VCR/handgun cartoon."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7644
+#: freeculture.xml:7650
msgid "<graphic fileref=\"images/1711.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7647
+#: freeculture.xml:7653
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7655
+#: freeculture.xml:7661
msgid ""
"The Aibo and RIAA examples demonstrate how copyright owners are changing the "
"balance that copyright law grants. Using code, copyright owners restrict "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7663
+#: freeculture.xml:7669
msgid ""
"This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. The "
"controls built into the technology of copy and access protection become "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7675
+#: freeculture.xml:7681
msgid ""
"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 "
#. f24
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7694
+#: freeculture.xml:7700
msgid ""
"For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, "
"Copyright, Fan Fiction, and a New Common Law,\" <citetitle>Loyola of Los "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7688
+#: freeculture.xml:7694
msgid ""
"For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan "
"club. You gathered every month to share trivia, and maybe to enact a kind of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7700
+#: freeculture.xml:7706
msgid ""
"Before the Internet, this was, in effect, a totally unregulated activity. "
"No matter what happened inside your club room, you would never be interfered "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7707
+#: freeculture.xml:7713
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7717
+#: freeculture.xml:7723
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:7726
+#: freeculture.xml:7732
msgid "Market: Concentration"
msgstr ""
#. PAGE BREAK 173
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7728
+#: freeculture.xml:7734
msgid ""
"So copyright's duration has increased dramatically—tripled in the past "
"thirty years. And copyright's scope has increased as well—from "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7746
+#: freeculture.xml:7752
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7753
+#: freeculture.xml:7759
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7764
+#: freeculture.xml:7770
msgid "These changes are of two sorts: the scope of concentration, and its nature."
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7767
+#: freeculture.xml:7773
msgid "BMG"
msgstr ""
#. f25
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7773
+#: freeculture.xml:7779
msgid ""
"FCC Oversight: Hearing Before the Senate Commerce, Science and "
"Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement "
#. f26
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7780
+#: freeculture.xml:7786
msgid ""
"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" "
"<citetitle>New York Times</citetitle>, 23 December 2002."
#. f27
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7786
+#: freeculture.xml:7792
msgid ""
"Molly Ivins, \"Media Consolidation Must Be Stopped,\" <citetitle>Charleston "
"Gazette</citetitle>, 31 May 2003."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7789
+#: freeculture.xml:7795
msgid "McCain, John"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7769
+#: freeculture.xml:7775
msgid ""
"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 "
#. PAGE BREAK 174
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7792
+#: freeculture.xml:7798
msgid ""
"The story with radio is even more dramatic. Before deregulation, the "
"nation's largest radio broadcasting conglomerate owned fewer than "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7803
+#: freeculture.xml:7809
msgid ""
"Newspaper ownership is becoming more concentrated as well. Today, there are "
"six hundred fewer daily newspapers in the United States than there were "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:7817 freeculture.xml:7834
+#: freeculture.xml:7823 freeculture.xml:7840
msgid "Fallows, James"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7814
+#: freeculture.xml:7820
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:7832
+#: freeculture.xml:7838
msgid ""
"James Fallows, \"The Age of Murdoch,\" <citetitle>Atlantic "
"Monthly</citetitle> (September 2003): 89. <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7821
+#: freeculture.xml:7827
msgid ""
"Murdoch's companies now constitute a production system unmatched in its "
"integration. They supply content—Fox movies . . . Fox TV shows "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7839
+#: freeculture.xml:7845
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7845
+#: freeculture.xml:7851
msgid "Pattern of modern media ownership."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7846
+#: freeculture.xml:7852
msgid "<graphic fileref=\"images/1761.png\"></graphic>"
msgstr ""
#. PAGE BREAK 175
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7850
+#: freeculture.xml:7856
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7855
+#: freeculture.xml:7861
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7861
+#: freeculture.xml:7867
msgid ""
"Here's a representative story that begins to suggest how this integration "
"may matter."
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7864
+#: freeculture.xml:7870
msgid "Lear, Norman"
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7866 freeculture.xml:7930
+#: freeculture.xml:7872 freeculture.xml:7936
msgid "All in the Family"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7868
+#: freeculture.xml:7874
msgid ""
"In 1969, Norman Lear created a pilot for <citetitle>All in the "
"Family</citetitle>. He took the pilot to ABC. The network didn't like it. It "
#. f29
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7880
+#: freeculture.xml:7886
msgid ""
"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center "
"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7875
+#: freeculture.xml:7881
msgid ""
"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 "
#. PAGE BREAK 176
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7892
+#: freeculture.xml:7898
msgid ""
"The network did not control those copyrights because the law forbade the "
"networks from controlling the content they syndicated. The law required a "
#. f30
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7911
+#: freeculture.xml:7917
msgid ""
"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
"Ownership Before the Senate Commerce Committee, 108th Cong., 1st "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7901
+#: freeculture.xml:7907
msgid ""
"In 1994, the FCC abandoned the rules that required this independence. After "
"that change, the networks quickly changed the balance. In 1985, there were "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7932
+#: freeculture.xml:7938
msgid ""
"Today, another Norman Lear with another <citetitle>All in the "
"Family</citetitle> would find that he had the choice either to make the show "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7941
+#: freeculture.xml:7947
msgid "Diller, Barry"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7942
+#: freeculture.xml:7948
msgid "Moyers, Bill"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7938
+#: freeculture.xml:7944
msgid ""
"While the number of channels has increased dramatically, the ownership of "
"those channels has narrowed to an ever smaller and smaller few. As Barry "
#. f32
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:7955
+#: freeculture.xml:7961
msgid ""
"\"Barry Diller Takes on Media Deregulation,\" <citetitle>Now with Bill "
"Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript available "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7946
+#: freeculture.xml:7952
msgid ""
"Well, if you have companies that produce, that finance, that air on their "
"channel and then distribute worldwide everything that goes through their "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7962
+#: freeculture.xml:7968
msgid ""
"This narrowing has an effect on what is produced. The product of such large "
"and concentrated networks is increasingly homogenous. Increasingly "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7973
+#: freeculture.xml:7979
msgid "Clark, Kim B."
msgstr ""
#. f33
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7982
+#: freeculture.xml:7988
msgid ""
"Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
"Revolutionary National Bestseller that Changed the Way We Do "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7975
+#: freeculture.xml:7981
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the \"Innovator's "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7999
+#: freeculture.xml:8005
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8005
+#: freeculture.xml:8011
msgid ""
"But there is a quintessentially obvious example that does strongly suggest "
"the concern."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8009
+#: freeculture.xml:8015
msgid ""
"In addition to the copyright wars, we're in the middle of the drug "
"wars. Government policy is strongly directed against the drug cartels; "
#. PAGE BREAK 178
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8014
+#: freeculture.xml:8020
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8033
+#: freeculture.xml:8039
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8039
+#: freeculture.xml:8045
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8051
+#: freeculture.xml:8057
msgid ""
"Fair enough. It's a good ad. Not terribly misleading. It delivers its "
"message well. It's a fair and reasonable message."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8055
+#: freeculture.xml:8061
msgid ""
"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 "
#. PAGE BREAK 179
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8061
+#: freeculture.xml:8067
msgid ""
"Well, obviously, these ads cost lots of money. Assume you raise the "
"money. Assume a group of concerned citizens donates all the money in the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8102
+#: freeculture.xml:8108
msgid "Comcast"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8103
+#: freeculture.xml:8109
msgid "Marijuana Policy Project"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8104
+#: freeculture.xml:8110
msgid "WJOA"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8078
+#: freeculture.xml:8084
msgid ""
"The Marijuana Policy Project, in February 2003, sought to place ads that "
"directly responded to the Nick and Norm series on stations within the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8068
+#: freeculture.xml:8074
msgid ""
"No. You cannot. Television stations have a general policy of avoiding "
"\"controversial\" ads. Ads sponsored by the government are deemed "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8108
+#: freeculture.xml:8114
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:8120
+#: freeculture.xml:8126
msgid "Together"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8122
+#: freeculture.xml:8128
msgid ""
"There is something innocent and obvious about the claim of the copyright "
"warriors that the government should \"protect my property.\" In the "
#. PAGE BREAK 180
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8128
+#: freeculture.xml:8134
msgid ""
"But when we see how dramatically this \"property\" has changed— when "
"we recognize how it might now interact with both technology and markets to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8144
+#: freeculture.xml:8150
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8150
+#: freeculture.xml:8156
msgid ""
"But there is a space between zero and one, Internet culture "
"notwithstanding. And these massive shifts in the effective power of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8162
+#: freeculture.xml:8168
msgid ""
"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 "
#. PAGE BREAK 181
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8174
+#: freeculture.xml:8180
msgid ""
"For the single point that is lost in this war on pirates is a point that we "
"see only after surveying the range of these changes. When you add together "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8198
+#: freeculture.xml:8204
msgid ""
"Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of "
"copyright law in the digital age. See Vaidhyanathan, 159–60. "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8183
+#: freeculture.xml:8189
msgid ""
"Not when copyrights were perpetual, for when copyrights were perpetual, they "
"affected only that precise creative work. Not when only publishers had the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8204
+#: freeculture.xml:8210
msgid "This has been a long chapter. Its point can now be briefly stated."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8207
+#: freeculture.xml:8213
msgid ""
"At the start of this book, I distinguished between commercial and "
"noncommercial culture. In the course of this chapter, I have distinguished "
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><thead><row><entry>
-#: freeculture.xml:8220 freeculture.xml:8258
+#: freeculture.xml:8226 freeculture.xml:8264
msgid "PUBLISH"
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><thead><row><entry>
-#: freeculture.xml:8221 freeculture.xml:8259 freeculture.xml:8298 freeculture.xml:8331
+#: freeculture.xml:8227 freeculture.xml:8265 freeculture.xml:8304 freeculture.xml:8337
msgid "TRANSFORM"
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8226 freeculture.xml:8264 freeculture.xml:8303 freeculture.xml:8336
+#: freeculture.xml:8232 freeculture.xml:8270 freeculture.xml:8309 freeculture.xml:8342
msgid "Commercial"
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8227 freeculture.xml:8265 freeculture.xml:8266 freeculture.xml:8304 freeculture.xml:8305 freeculture.xml:8337 freeculture.xml:8338 freeculture.xml:8342 freeculture.xml:8343
+#: freeculture.xml:8233 freeculture.xml:8271 freeculture.xml:8272 freeculture.xml:8310 freeculture.xml:8311 freeculture.xml:8343 freeculture.xml:8344 freeculture.xml:8348 freeculture.xml:8349
msgid "©"
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8228 freeculture.xml:8232 freeculture.xml:8233 freeculture.xml:8270 freeculture.xml:8271 freeculture.xml:8310
+#: freeculture.xml:8234 freeculture.xml:8238 freeculture.xml:8239 freeculture.xml:8276 freeculture.xml:8277 freeculture.xml:8316
msgid "Free"
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8231 freeculture.xml:8269 freeculture.xml:8308 freeculture.xml:8341
+#: freeculture.xml:8237 freeculture.xml:8275 freeculture.xml:8314 freeculture.xml:8347
msgid "Noncommercial"
msgstr ""
#. PAGE BREAK 182
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8240
+#: freeculture.xml:8246
msgid ""
"The act of publishing a map, chart, and book was regulated by copyright "
"law. Nothing else was. Transformations were free. And as copyright attached "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8249
+#: freeculture.xml:8255
msgid "By the end of the nineteenth century, the law had changed to this:"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8278
+#: freeculture.xml:8284
msgid ""
"Derivative works were now regulated by copyright law—if published, "
"which again, given the economics of publishing at the time, means if offered "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8284
+#: freeculture.xml:8290
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><thead><row><entry>
-#: freeculture.xml:8297 freeculture.xml:8330
+#: freeculture.xml:8303 freeculture.xml:8336
msgid "COPY"
msgstr ""
#. type: Content of: <book><part><chapter><section><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8309
+#: freeculture.xml:8315
msgid "©/Free"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8317
+#: freeculture.xml:8323
msgid ""
"The law was interpreted to reach noncommercial copying through, say, copy "
"machines, but still much of copying outside of the commercial market "
#. PAGE BREAK 183
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8350
+#: freeculture.xml:8356
msgid ""
"Every realm is governed by copyright law, whereas before most creativity was "
"not. The law now regulates the full range of creativity— commercial or "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8358
+#: freeculture.xml:8364
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8364
+#: freeculture.xml:8370
msgid ""
"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 "
#. f36
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8380
+#: freeculture.xml:8386
msgid ""
"It was the single most important contribution of the legal realist movement "
"to demonstrate that all property rights are always crafted to balance public "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8374
+#: freeculture.xml:8380
msgid ""
"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, "
#. PAGE BREAK 184
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8397
+#: freeculture.xml:8403
msgid ""
"We achieved that free culture because our law respected important limits on "
"the scope of the interests protected by \"property.\" The very birth of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8416
+#: freeculture.xml:8422
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:8433
+#: freeculture.xml:8439
msgid "PUZZLES"
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:8437
+#: freeculture.xml:8443
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8439
+#: freeculture.xml:8445
msgid "chimeras"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8442
+#: freeculture.xml:8448
msgid "Wells, H. G."
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8445
+#: freeculture.xml:8451
msgid ""Country of the Blind, The" (Wells)"
msgstr ""
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:8453
+#: freeculture.xml:8459
msgid ""
"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, "
"<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8449
+#: freeculture.xml:8455
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8465
+#: freeculture.xml:8471
msgid ""
"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.\" "
#. PAGE BREAK 187
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8477
+#: freeculture.xml:8483
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8488
+#: freeculture.xml:8494
msgid ""
"When Nunez announces his desire to marry his \"mysteriously delighted\" "
"love, the father and the village object. \"You see, my dear,\" her father "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8494
+#: freeculture.xml:8500
msgid ""
"After a careful examination, the doctor gives his opinion. \"His brain is "
"affected,\" he reports."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8498
+#: freeculture.xml:8504
msgid ""
"\"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.\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8503
+#: freeculture.xml:8509
msgid ""
"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 "
#. PAGE BREAK 188
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8509
+#: freeculture.xml:8515
msgid ""
"\"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8526
+#: freeculture.xml:8532
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8534
+#: freeculture.xml:8540
msgid ""
"The more I work to understand the current struggle over copyright and "
"culture, which I've sometimes called unfairly, and sometimes not unfairly "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8548
+#: freeculture.xml:8554
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8557
+#: freeculture.xml:8563
msgid ""
"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,\" "
#. PAGE BREAK 189
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8568
+#: freeculture.xml:8574
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8578
+#: freeculture.xml:8584
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8624 freeculture.xml:9325
+#: freeculture.xml:8630 freeculture.xml:9331
msgid "Berman, Howard L."
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:8594
+#: freeculture.xml:8600
msgid ""
"For an excellent summary, see the report prepared by GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School, \"Copyright "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8585
+#: freeculture.xml:8591
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8630
+#: freeculture.xml:8636
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8637
+#: freeculture.xml:8643
msgid ""
"Either response is possible. I think either would be a mistake. Rather than "
"embrace one of these two extremes, we should embrace something that "
#. PAGE BREAK 190
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8649
+#: freeculture.xml:8655
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8657
+#: freeculture.xml:8663
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8670
+#: freeculture.xml:8676
msgid ""
"eMusic opposes music piracy. We are a distributor of copyrighted material, "
"and we want to protect those rights."
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8674
+#: freeculture.xml:8680
msgid ""
"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 "
#. f3.
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:8692
+#: freeculture.xml:8698
msgid ""
"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
"Entertainment on the Internet and Other Media: Hearing Before the "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8682
+#: freeculture.xml:8688
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:8706 freeculture.xml:9055
+#: freeculture.xml:8712 freeculture.xml:9061
msgid "Vivendi Universal"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8703
+#: freeculture.xml:8709
msgid ""
"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the "
"major labels.\" Its position on these matters has now changed. <placeholder "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8709
+#: freeculture.xml:8715
msgid ""
"Reversing our tradition of tolerance now will not merely quash piracy. It "
"will sacrifice values that are important to this culture, and will kill "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:8717
+#: freeculture.xml:8723
msgid "CHAPTER TWELVE: Harms"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8720
+#: freeculture.xml:8726
msgid ""
"To fight \"piracy,\" to protect \"property,\" the content industry has "
"launched a war. Lobbying and lots of campaign contributions have now brought "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8728
+#: freeculture.xml:8734
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8735
+#: freeculture.xml:8741
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8743
+#: freeculture.xml:8749
msgid ""
"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 "
#. PAGE BREAK 193
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8750
+#: freeculture.xml:8756
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:8757
+#: freeculture.xml:8763
msgid "Constraining Creators"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8759
+#: freeculture.xml:8765
msgid ""
"In the next ten years we will see an explosion of digital technologies. "
"These technologies will enable almost anyone to capture and share "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8774
+#: freeculture.xml:8780
msgid ""
"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 "
#. PAGE BREAK 194
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8785
+#: freeculture.xml:8791
msgid ""
"Technology has thus given us an opportunity to do something with culture "
"that has only ever been possible for individuals in small groups, isolated "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8795
+#: freeculture.xml:8801
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:8823 freeculture.xml:8844
+#: freeculture.xml:8829 freeculture.xml:8850
msgid "Worldcom"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8818
+#: freeculture.xml:8824
msgid ""
"See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at "
"WorldCom</citetitle> (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8839
+#: freeculture.xml:8845
msgid "Bush, George W."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8830
+#: freeculture.xml:8836
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8806
+#: freeculture.xml:8812
msgid ""
"That presumption will increasingly chill creativity, as the examples of "
"extreme penalties for vague infringements continue to proliferate. It is "
#. f3.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8866
+#: freeculture.xml:8872
msgid ""
"See Danit Lidor, \"Artists Just Wanna Be Free,\" "
"<citetitle>Wired</citetitle>, 7 July 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8847
+#: freeculture.xml:8853
msgid ""
"The consequence of this legal uncertainty, tied to these extremely high "
"penalties, is that an extraordinary amount of creativity will either never "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8876
+#: freeculture.xml:8882
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8887
+#: freeculture.xml:8893
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8898
+#: freeculture.xml:8904
msgid ""
"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, "
#. PAGE BREAK 196
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8907
+#: freeculture.xml:8913
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8917
+#: freeculture.xml:8923
msgid ""
"Judges and lawyers can tell themselves that fair use provides adequate "
"\"breathing room\" between regulation by the law and the access the law "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8928
+#: freeculture.xml:8934
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8939
+#: freeculture.xml:8945
msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me,"
msgstr ""
#. PAGE BREAK 197
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:8943
+#: freeculture.xml:8949
msgid ""
"We're losing [creative] opportunities right and left. Creative people are "
"being forced not to express themselves. Thoughts are not being "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:8956
+#: freeculture.xml:8962
msgid "Constraining Innovators"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8958
+#: freeculture.xml:8964
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8966
+#: freeculture.xml:8972
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8975
+#: freeculture.xml:8981
msgid ""
"The charge I've been making about the regulation of culture is the same "
"charge free marketers make about regulating markets. Everyone, of course, "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:8987 freeculture.xml:9093
+#: freeculture.xml:8993 freeculture.xml:9099
msgid "Barry, Hank"
msgstr ""
#. PAGE BREAK 198
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8989
+#: freeculture.xml:8995
msgid ""
"This is the single most dramatic effect of the shift in regulatory strategy "
"that I described in chapter 10. The consequence of this massive threat of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9001
+#: freeculture.xml:9007
msgid ""
"Consider one example to make the point, a story whose beginning I told in "
"<citetitle>The Future of Ideas</citetitle> and which has progressed in a way "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9006
+#: freeculture.xml:9012
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9014
+#: freeculture.xml:9020
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9022
+#: freeculture.xml:9028
msgid ""
"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 "
#. PAGE BREAK 199
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9034
+#: freeculture.xml:9040
msgid ""
"No doubt some could use this system to illegally copy content. But that "
"opportunity existed with or without MP3.com. The aim of the my.mp3.com "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9043
+#: freeculture.xml:9049
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9058
+#: freeculture.xml:9064
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9068
+#: freeculture.xml:9074
msgid "That part of the story I have told before. Now consider its conclusion."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9071
+#: freeculture.xml:9077
msgid ""
"After Vivendi purchased MP3.com, Vivendi turned around and filed a "
"malpractice lawsuit against the lawyers who had advised it that they had a "
#. PAGE BREAK 200
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9081
+#: freeculture.xml:9087
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9092
+#: freeculture.xml:9098
msgid "Hummer, John"
msgstr ""
#. f4.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9101
+#: freeculture.xml:9107
msgid ""
"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" <citetitle>Los "
"Angeles Times</citetitle>, 23 April 2003. For a parallel argument about the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9095
+#: freeculture.xml:9101
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary>
-#: freeculture.xml:9122
+#: freeculture.xml:9128
msgid "BMW"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9137
+#: freeculture.xml:9143
msgid "Needleman, Rafe"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:9133
+#: freeculture.xml:9139
msgid ""
"Rafe Needleman, \"Driving in Cars with MP3s,\" <citetitle>Business "
"2.0</citetitle>, 16 June 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9124
+#: freeculture.xml:9130
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9142
+#: freeculture.xml:9148
msgid ""
"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 "
#. PAGE BREAK 201
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9152
+#: freeculture.xml:9158
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9167
+#: freeculture.xml:9173
msgid ""
"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 "
#. PAGE BREAK 202
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9179
+#: freeculture.xml:9185
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9201
+#: freeculture.xml:9207
msgid ""
"The motivation for this response is obvious. The Internet enables the "
"efficient spread of content. That efficiency is a feature of the Internet's "
#. f6.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9215
+#: freeculture.xml:9221
msgid ""
"\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School (2003), "
#. f7.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9231
+#: freeculture.xml:9237
msgid "GartnerG2, 26–27."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9211
+#: freeculture.xml:9217
msgid ""
"The examples of this form of legislation are many. At the urging of the "
"content industry, some in Congress have threatened legislation that would "
#. PAGE BREAK 203
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9236
+#: freeculture.xml:9242
msgid ""
"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 "
#. f8.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9250
+#: freeculture.xml:9256
msgid ""
"See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, "
"February 2002 (Entertainment)."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9247
+#: freeculture.xml:9253
msgid ""
"In March 2002, a broad coalition of technology companies, led by Intel, "
"tried to get Congress to see the harm that such legislation would "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9258
+#: freeculture.xml:9264
msgid ""
"There is one more obvious way in which this war has harmed "
"innovation—again, a story that will be quite familiar to the free "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9264
+#: freeculture.xml:9270
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9273
+#: freeculture.xml:9279
msgid ""
"Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: "
"Prometheus Books, 2001). <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9270
+#: freeculture.xml:9276
msgid ""
"As I described in chapter 10, despite this feature of copyright as "
"regulation, and subject to important qualifications outlined by Jessica "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9284
+#: freeculture.xml:9290
msgid ""
"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 "
#. f10.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9293
+#: freeculture.xml:9299
msgid ""
"The only circuit court exception is found in <citetitle>Recording Industry "
"Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9311
+#: freeculture.xml:9317
msgid ""
"For example, in July 2002, Representative Howard Berman introduced the "
"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9291
+#: freeculture.xml:9297
msgid ""
"The response by the courts has been fairly universal.<placeholder "
"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
#. PAGE BREAK 204
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9333
+#: freeculture.xml:9339
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9343
+#: freeculture.xml:9349
msgid ""
"The reasoning behind this balance struck by Congress makes some sense. The "
"justification was that radio was a kind of advertising. The recording artist "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9354
+#: freeculture.xml:9360
msgid ""
"Enter Internet radio. Like regular radio, Internet radio is a technology to "
"stream content from a broadcaster to a listener. The broadcast travels "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9363
+#: freeculture.xml:9369
msgid ""
"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 "
#. PAGE BREAK 205
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9378
+#: freeculture.xml:9384
msgid ""
"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 "
#. f12.
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:9402
+#: freeculture.xml:9408
msgid "Lessing, 239."
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9388
+#: freeculture.xml:9394
msgid ""
"An almost unlimited number of FM stations was possible in the shortwaves, "
"thus ending the unnatural restrictions imposed on radio in the crowded "
#. f13.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9412
+#: freeculture.xml:9418
msgid "Ibid., 229."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9407
+#: freeculture.xml:9413
msgid ""
"This potential for FM radio was never realized—not because Armstrong "
"was wrong about the technology, but because he underestimated the power of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9417
+#: freeculture.xml:9423
msgid ""
"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 "
#. PAGE BREAK 206
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9425
+#: freeculture.xml:9431
msgid ""
"But here the power of the lobbyists is reversed. Internet radio is a new "
"industry. The recording artists, on the other hand, have a very powerful "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9464
+#: freeculture.xml:9470
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9447
+#: freeculture.xml:9453
msgid ""
"This example was derived from fees set by the original Copyright Arbitration "
"Royalty Panel (CARP) proceedings, and is drawn from an example offered by "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9440
+#: freeculture.xml:9446
msgid ""
"This financial burden is not slight. As Harvard law professor William Fisher "
"estimates, if an Internet radio station distributed adfree popular music to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9471
+#: freeculture.xml:9477
msgid ""
"The burden is not financial only. Under the original rules that were "
"proposed, an Internet radio station (but not a terrestrial radio station) "
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9479
+#: freeculture.xml:9485
msgid "name of the service;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9482
+#: freeculture.xml:9488
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9485
+#: freeculture.xml:9491
msgid "type of program (archived/looped/live);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9488
+#: freeculture.xml:9494
msgid "date of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9491
+#: freeculture.xml:9497
msgid "time of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9494
+#: freeculture.xml:9500
msgid "time zone of origination of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9497
+#: freeculture.xml:9503
msgid "numeric designation of the place of the sound recording within the program;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9500
+#: freeculture.xml:9506
msgid "duration of transmission (to nearest second);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9503
+#: freeculture.xml:9509
msgid "sound recording title;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9506
+#: freeculture.xml:9512
msgid "ISRC code of the recording;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9509
+#: freeculture.xml:9515
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9512
+#: freeculture.xml:9518
msgid "featured recording artist;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9515
+#: freeculture.xml:9521
msgid "retail album title;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9518
+#: freeculture.xml:9524
msgid "recording label;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9521
+#: freeculture.xml:9527
msgid "UPC code of the retail album;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9524
+#: freeculture.xml:9530
msgid "catalog number;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9527
+#: freeculture.xml:9533
msgid "copyright owner information;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9530
+#: freeculture.xml:9536
msgid "musical genre of the channel or program (station format);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9533
+#: freeculture.xml:9539
msgid "name of the service or entity;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9536
+#: freeculture.xml:9542
msgid "channel or program;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9539
+#: freeculture.xml:9545
msgid "date and time that the user logged in (in the user's time zone);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9542
+#: freeculture.xml:9548
msgid "date and time that the user logged out (in the user's time zone);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9545
+#: freeculture.xml:9551
msgid "time zone where the signal was received (user);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9548
+#: freeculture.xml:9554
msgid "Unique User identifier;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9551
+#: freeculture.xml:9557
msgid "the country in which the user received the transmissions."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9556
+#: freeculture.xml:9562
msgid ""
"The Librarian of Congress eventually suspended these reporting requirements, "
"pending further study. And he also changed the original rates set by the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9564
+#: freeculture.xml:9570
msgid ""
"Why? What justifies this difference? Was there any study of the economic "
"consequences from Internet radio that would justify these differences? Was "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9570
+#: freeculture.xml:9576
msgid ""
"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 "
#. PAGE BREAK 208
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9576
+#: freeculture.xml:9582
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9592
+#: freeculture.xml:9598
msgid ""
"And the RIAA experts said, \"Well, we don't really model this as an industry "
"with thousands of webcasters, <emphasis>we think it should be an industry "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9600
+#: freeculture.xml:9606
msgid ""
"Translation: The aim is to use the law to eliminate competition, so that "
"this platform of potentially immense competition, which would cause the "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:9610
+#: freeculture.xml:9616
msgid "Corrupting Citizens"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9612
+#: freeculture.xml:9618
msgid ""
"Overregulation stifles creativity. It smothers innovation. It gives "
"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9618
+#: freeculture.xml:9624
msgid ""
"In addition to these important harms, there is one more that was important "
"to our forebears, but seems forgotten today. Overregulation corrupts "
#. f15.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9627
+#: freeculture.xml:9633
msgid ""
"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet "
"and American Life Project (24 April 2001), available at <ulink "
#. PAGE BREAK 209
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9623
+#: freeculture.xml:9629
msgid ""
"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 "
#. f16.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9661
+#: freeculture.xml:9667
msgid ""
"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" "
"<citetitle>Los Angeles Times</citetitle>, 10 September 2003, Business."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9648
+#: freeculture.xml:9654
msgid ""
"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 "
#. f17.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9683
+#: freeculture.xml:9689
msgid ""
"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During "
"Prohibition,\" <citetitle>American Economic Review</citetitle> 81, no. 2 "
#. f18.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9691
+#: freeculture.xml:9697
msgid ""
"National Drug Control Policy: Hearing Before the House Government Reform "
"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John "
#. f19.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9701
+#: freeculture.xml:9707
msgid ""
"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" "
"<citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9673
+#: freeculture.xml:9679
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9710
+#: freeculture.xml:9716
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9727
+#: freeculture.xml:9733
msgid ""
"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 "
#. PAGE BREAK 211
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9740
+#: freeculture.xml:9746
msgid ""
"My point is not the idiotic one: Just because people violate a law, we "
"should therefore repeal it. Obviously, we could reduce murder statistics "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9747
+#: freeculture.xml:9753
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9761
+#: freeculture.xml:9767
msgid ""
"When at least forty-three million citizens download content from the "
"Internet, and when they use tools to combine that content in ways "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9773
+#: freeculture.xml:9779
msgid "This abstract point can be made more clear with a particular example."
msgstr ""
#. PAGE BREAK 212
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9776
+#: freeculture.xml:9782
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9787
+#: freeculture.xml:9793
msgid ""
"But as the MP3 craze has demonstrated, there is another use of phonograph "
"records that is effectively free. Because these recordings were made without "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9795
+#: freeculture.xml:9801
msgid "Adromeda"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9797
+#: freeculture.xml:9803
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9808
+#: freeculture.xml:9814
msgid ""
"This use is enabled by unprotected media—either CDs or records. But "
"unprotected media also enable file sharing. File sharing threatens (or so "
#. PAGE BREAK 213
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9818
+#: freeculture.xml:9824
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9832
+#: freeculture.xml:9838
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9841
+#: freeculture.xml:9847
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9852
+#: freeculture.xml:9858
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9861
+#: freeculture.xml:9867
msgid ""
"Except that this generation's buggy manufacturers have already saddled "
"Congress, and are riding the law to protect themselves against this new form "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9867
+#: freeculture.xml:9873
msgid ""
"It is understandable why they choose as they do. It is not understandable "
"why we as a democracy continue to choose as we do. Jack Valenti is charming; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:9886 freeculture.xml:9995
+#: freeculture.xml:9892 freeculture.xml:10001
msgid "von Lohmann, Fred"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9884
+#: freeculture.xml:9890
msgid ""
"\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains, "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9890
+#: freeculture.xml:9896
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9902
+#: freeculture.xml:9908
msgid ""
"And the consequence of this transformation of the American public into "
"criminals is that it becomes trivial, as a matter of due process, to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9907
+#: freeculture.xml:9913
msgid ""
"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 "
#. f20.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9925
+#: freeculture.xml:9931
msgid ""
"See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in "
"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" <citetitle>Washington "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9916
+#: freeculture.xml:9922
msgid ""
"The RIAA then expanded this campaign, by announcing a general strategy to "
"sue individual users of the Internet who are alleged to have downloaded "
#. f21.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9943
+#: freeculture.xml:9949
msgid ""
"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some "
"Methods Used,\" CNN.com, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9939
+#: freeculture.xml:9945
msgid ""
"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 "
#. f22.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9964
+#: freeculture.xml:9970
msgid ""
"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" "
"<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9952
+#: freeculture.xml:9958
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9983
+#: freeculture.xml:9989
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9999
+#: freeculture.xml:10005
msgid ""
"So when we're talking about numbers like forty to sixty million Americans "
"that are essentially copyright infringers, you create a situation where the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10019
+#: freeculture.xml:10025
msgid ""
"When forty to sixty million Americans are considered \"criminals\" under the "
"law, and when the law could achieve the same objective— securing "
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:10032
+#: freeculture.xml:10038
msgid "BALANCES"
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10037
+#: freeculture.xml:10043
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10043
+#: freeculture.xml:10049
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10051
+#: freeculture.xml:10057
msgid ""
"A war about copyright rages all around—and we're all focusing on the "
"wrong thing. No doubt, current technologies threaten existing businesses. "
#. PAGE BREAK 219
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10060
+#: freeculture.xml:10066
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10068
+#: freeculture.xml:10074
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10073
+#: freeculture.xml:10079
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10079
+#: freeculture.xml:10085
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:10089
+#: freeculture.xml:10095
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10091
+#: freeculture.xml:10097
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10100
+#: freeculture.xml:10106
msgid ""
"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 "
#. PAGE BREAK 221
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10107
+#: freeculture.xml:10113
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10118
+#: freeculture.xml:10124
msgid ""
"Eldred's freedom to do this with Hawthorne's work grew from the same source "
"as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> had passed "
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10141
+#: freeculture.xml:10147
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10130
+#: freeculture.xml:10136
msgid ""
"The Internet created the possibility of noncommercial publications of public "
"domain works. Eldred's is just one example. There are literally thousands of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10158
+#: freeculture.xml:10164
msgid ""
"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection "
"of poems <citetitle>New Hampshire</citetitle> was slated to pass into the "
#. f2.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10178
+#: freeculture.xml:10184
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10173
+#: freeculture.xml:10179
msgid ""
"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in "
"memory of the congressman and former musician Sonny Bono, who, his widow, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10189
+#: freeculture.xml:10195
msgid ""
"Eldred decided to fight this law. He first resolved to fight it through "
"civil disobedience. In a series of interviews, Eldred announced that he "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10198
+#: freeculture.xml:10204
msgid ""
"It was here that I became involved in Eldred's battle. I was a "
"constitutional scholar whose first passion was constitutional "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:10209
+#: freeculture.xml:10215
msgid ""
"Congress has the power to promote the Progress of Science . . . by securing "
"for limited Times to Authors . . . exclusive Right to their "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10215
+#: freeculture.xml:10221
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10234 freeculture.xml:11677
+#: freeculture.xml:10240 freeculture.xml:11683
msgid "Jaszi, Peter"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10225
+#: freeculture.xml:10231
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10237
+#: freeculture.xml:10243
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10248
+#: freeculture.xml:10254
msgid ""
"For this is the core of the corruption in our present system of "
"government. \"Corruption\" not in the sense that representatives are "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10257
+#: freeculture.xml:10263
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10267
+#: freeculture.xml:10273
msgid ""
"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 "
#. PAGE BREAK 224
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10274
+#: freeculture.xml:10280
msgid ""
"\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C "
"will expire. That means that after next year, we will no longer be receiving "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10282
+#: freeculture.xml:10288
msgid ""
"\"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10288
+#: freeculture.xml:10294
msgid ""
"\"Hope?\" a fellow board member says. \"Can't we be doing something about "
"it?\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10292
+#: freeculture.xml:10298
msgid ""
"\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the "
"campaigns of a number of representatives to try to assure that they support "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10297
+#: freeculture.xml:10303
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10303
+#: freeculture.xml:10309
msgid ""
"\"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10309
+#: freeculture.xml:10315
msgid ""
"You're a bit shocked by the number, but you quickly come to the correct "
"conclusion:"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10313
+#: freeculture.xml:10319
msgid ""
"\"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10319
+#: freeculture.xml:10325
msgid ""
"\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute "
"up to the `present value' of the income you expect from these "
#. PAGE BREAK 225
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10325
+#: freeculture.xml:10331
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10336
+#: freeculture.xml:10342
msgid ""
"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 "
#. f3.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10348
+#: freeculture.xml:10354
msgid ""
"Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse "
"Effort; Congress OKs Bill Granting Creators 20 More Years,\" "
#. f4.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10355
+#: freeculture.xml:10361
msgid ""
"See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>."
#. f5.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10363
+#: freeculture.xml:10369
msgid ""
"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" "
"<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10341
+#: freeculture.xml:10347
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10370
+#: freeculture.xml:10376
msgid ""
"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 "
#. PAGE BREAK 226
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10383
+#: freeculture.xml:10389
msgid ""
"It was also my judgment that <emphasis>this</emphasis> Supreme Court would "
"not allow Congress to extend existing terms. As anyone close to the Supreme "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10396
+#: freeculture.xml:10402
msgid ""
"Since 1937, the Supreme Court had interpreted Congress's granted powers very "
"broadly; so, while the Constitution grants Congress the power to regulate "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10406
+#: freeculture.xml:10412
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10413
+#: freeculture.xml:10419
msgid ""
"The Supreme Court, under Chief Justice Rehnquist's command, changed that in "
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The "
#. f6.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10428
+#: freeculture.xml:10434
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 "
"U.S. 549, 564 (1995)."
#. f7.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10435
+#: freeculture.xml:10441
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 "
"U.S. 598 (2000)."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10426
+#: freeculture.xml:10432
msgid ""
"\"We pause to consider the implications of the government's arguments,\" the "
"Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> If anything "
#. f8.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10442
+#: freeculture.xml:10448
msgid ""
"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 "
#. PAGE BREAK 227
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10439
+#: freeculture.xml:10445
msgid ""
"If a principle were at work here, then it should apply to the Progress "
"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10463
+#: freeculture.xml:10469
msgid ""
"<emphasis>If</emphasis>, that is, the principle announced in "
"<citetitle>Lopez</citetitle> stood for a principle. Many believed the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10476
+#: freeculture.xml:10482
msgid ""
"Now let's pause for a moment to make sure we understand what the argument in "
"<citetitle>Eldred</citetitle> was not about. By insisting on the "
#. f9.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10499
+#: freeculture.xml:10505
msgid ""
"Brief of the Nashville Songwriters Association, "
"<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10493
+#: freeculture.xml:10499
msgid ""
"Some people view the public domain with contempt. In their brief before the "
"Supreme Court, the Nashville Songwriters Association wrote that the public "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10509
+#: freeculture.xml:10515
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10521
+#: freeculture.xml:10527
msgid ""
"It is valuable copyrights that are responsible for terms being extended. "
"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for "
#. f10.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10542
+#: freeculture.xml:10548
msgid ""
"The figure of 2 percent is an extrapolation from the study by the "
"Congressional Research Service, in light of the estimated renewal "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10536
+#: freeculture.xml:10542
msgid ""
"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 "
#. PAGE BREAK 229
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10551
+#: freeculture.xml:10557
msgid ""
"Think practically about the consequence of this extension—practically, "
"as a businessperson, and not as a lawyer eager for more legal work. In 1930, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10563
+#: freeculture.xml:10569
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10571
+#: freeculture.xml:10577
msgid ""
"Then for the books still under copyright, you would need to locate the "
"current copyright owners. How would you do that?"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10575
+#: freeculture.xml:10581
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10582
+#: freeculture.xml:10588
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10591
+#: freeculture.xml:10597
msgid ""
"\"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?\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10596
+#: freeculture.xml:10602
msgid ""
"Well, actually, if you think about it, there <emphasis>are</emphasis> plenty "
"of lists of who owns what property. Think about deeds on houses, or titles "
#. PAGE BREAK 230
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10605
+#: freeculture.xml:10611
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10620
+#: freeculture.xml:10626
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10632
+#: freeculture.xml:10638
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10637
+#: freeculture.xml:10643
msgid "Agee, Michael"
msgstr ""
#. f11.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10650
+#: freeculture.xml:10656
msgid ""
"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" "
"<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10656
+#: freeculture.xml:10662
msgid "Lucky Dog, The"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10639
+#: freeculture.xml:10645
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10659
+#: freeculture.xml:10665
msgid ""
"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 "
#. PAGE BREAK 231
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10665
+#: freeculture.xml:10671
msgid ""
"His argument is straightforward. A tiny fraction of this work has any "
"continuing commercial value. The rest—to the extent it survives at "
#. f12.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10683
+#: freeculture.xml:10689
msgid ""
"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the "
"Petitoners, <citetitle>Eldred</citetitle> "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10676
+#: freeculture.xml:10682
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10693
+#: freeculture.xml:10699
msgid ""
"Restoration technology is not the only cost, nor the most important. "
"Lawyers, too, are a cost, and increasingly, a very important one. In "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10701
+#: freeculture.xml:10707
msgid ""
"Or more accurately, <emphasis>owners</emphasis>. As we've seen, there isn't "
"only a single copyright associated with a film; there are many. There isn't "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10709
+#: freeculture.xml:10715
msgid ""
"\"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 "
#. PAGE BREAK 232
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10720
+#: freeculture.xml:10726
msgid ""
"For some films, the benefit of releasing the film may well exceed these "
"costs. But for the vast majority of them, there is no way the benefit would "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10730
+#: freeculture.xml:10736
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10738
+#: freeculture.xml:10744
msgid ""
"Of all the creative work produced by humans anywhere, a tiny fraction has "
"continuing commercial value. For that tiny fraction, the copyright is a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10747
+#: freeculture.xml:10753
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10757
+#: freeculture.xml:10763
msgid ""
"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 "
#. PAGE BREAK 233
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10770
+#: freeculture.xml:10776
msgid ""
"Copyrights in this context do not drive an engine of free expression. In "
"this context, there is no need for an exclusive right. Copyrights in this "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10777
+#: freeculture.xml:10783
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10788
+#: freeculture.xml:10794
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10797
+#: freeculture.xml:10803
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10803
+#: freeculture.xml:10809
msgid "But this situation has now changed."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10806
+#: freeculture.xml:10812
msgid ""
"One crucially important consequence of the emergence of digital technologies "
"is to enable the archive that Brewster Kahle dreams of. Digital "
#. PAGE BREAK 234
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10819
+#: freeculture.xml:10825
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10829
+#: freeculture.xml:10835
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10840
+#: freeculture.xml:10846
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10846
+#: freeculture.xml:10852
msgid ""
"Maybe. Someday. But there is absolutely no evidence to suggest that "
"publishers would be as complete as libraries. If Barnes & Noble offered "
#. f13.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10869
+#: freeculture.xml:10875
msgid ""
"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 "
"December 2002, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10857
+#: freeculture.xml:10863
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10876
+#: freeculture.xml:10882
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10884
+#: freeculture.xml:10890
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10891
+#: freeculture.xml:10897
msgid ""
"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: "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10902
+#: freeculture.xml:10908
msgid ""
"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 "
#. PAGE BREAK 236
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10908
+#: freeculture.xml:10914
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10917
+#: freeculture.xml:10923
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10924
+#: freeculture.xml:10930
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10930
+#: freeculture.xml:10936
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10940
+#: freeculture.xml:10946
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10945 freeculture.xml:10959
+#: freeculture.xml:10951 freeculture.xml:10965
msgid "Steward, Geoffrey"
msgstr ""
#. PAGE BREAK 237
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10947
+#: freeculture.xml:10953
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10957 freeculture.xml:11298 freeculture.xml:11313 freeculture.xml:11406 freeculture.xml:11620 freeculture.xml:11651 freeculture.xml:11739
+#: freeculture.xml:10963 freeculture.xml:11304 freeculture.xml:11319 freeculture.xml:11412 freeculture.xml:11626 freeculture.xml:11657 freeculture.xml:11745
msgid "Ayer, Don"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10958
+#: freeculture.xml:10964
msgid "Bromberg, Dan"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10961
+#: freeculture.xml:10967
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10971
+#: freeculture.xml:10977
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10992
+#: freeculture.xml:10998
msgid ""
"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 "
#. PAGE BREAK 238
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11000
+#: freeculture.xml:11006
msgid ""
"There was one way, however, in which I felt politics would matter and in "
"which I thought a response was appropriate. I was convinced that the Court "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11031 freeculture.xml:11055
+#: freeculture.xml:11037 freeculture.xml:11061
msgid "Eagle Forum"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11032
+#: freeculture.xml:11038
msgid "Schlafly, Phyllis"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11019
+#: freeculture.xml:11025
msgid ""
"The first step happened all by itself. Phyllis Schlafly's organization, "
"Eagle Forum, had been an opponent of the CTEA from the very beginning. "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11035
+#: freeculture.xml:11041
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11043
+#: freeculture.xml:11049
msgid ""
"In the Supreme Court, the briefs on our side were about as diverse as it "
"gets. They included an extraordinary historical brief by the Free Software "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11058
+#: freeculture.xml:11064
msgid ""
"Those briefs framed a legal argument. Then to support the legal argument, "
"there were a number of powerful briefs by libraries and archives, including "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11064
+#: freeculture.xml:11070
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11070
+#: freeculture.xml:11076
msgid "Akerlof, George"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11071
+#: freeculture.xml:11077
msgid "Arrow, Kenneth"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11072
+#: freeculture.xml:11078
msgid "Buchanan, James"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11073
+#: freeculture.xml:11079
msgid "Coase, Ronald"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11074
+#: freeculture.xml:11080
msgid "Friedman, Milton"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11076
+#: freeculture.xml:11082
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11099 freeculture.xml:11112 freeculture.xml:11304 freeculture.xml:11656
+#: freeculture.xml:11105 freeculture.xml:11118 freeculture.xml:11310 freeculture.xml:11662
msgid "Fried, Charles"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11087
+#: freeculture.xml:11093
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11102
+#: freeculture.xml:11108
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11115
+#: freeculture.xml:11121
msgid ""
"The government, in defending the statute, had its collection of friends, as "
"well. Significantly, however, none of these \"friends\" included historians "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11122
+#: freeculture.xml:11128
msgid ""
"The media companies were not surprising. They had the most to gain from the "
"law. The congressmen were not surprising either—they were defending "
#. f14.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11138
+#: freeculture.xml:11144
msgid ""
"Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, 537 U.S. (2003) (No. 01-618), 19."
#. f15.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11146
+#: freeculture.xml:11152
msgid ""
"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
"the Fray,\" <citetitle>New York Times</citetitle>, 28 March 1998, B7."
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11153
+#: freeculture.xml:11159
msgid "Gershwin, George"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11131
+#: freeculture.xml:11137
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11156
+#: freeculture.xml:11162
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11168
+#: freeculture.xml:11174
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11177
+#: freeculture.xml:11183
msgid ""
"The Supreme Court was divided into two important camps. One camp we called "
"\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11186 freeculture.xml:11210 freeculture.xml:11549 freeculture.xml:11561
+#: freeculture.xml:11192 freeculture.xml:11216 freeculture.xml:11555 freeculture.xml:11567
msgid "Breyer, Stephen"
msgstr ""
#. PAGE BREAK 242
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11188
+#: freeculture.xml:11194
msgid ""
"The Rest were the four Justices who had strongly opposed limits on "
"Congress's power. These four—Justice Stevens, Justice Souter, Justice "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11200
+#: freeculture.xml:11206
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11212
+#: freeculture.xml:11218
msgid ""
"Close behind Justice Ginsburg were two justices whom we also viewed as "
"unlikely allies, though possible surprises. Justice Souter strongly favored "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11220
+#: freeculture.xml:11226
msgid ""
"The only vote we could be confident about was that of Justice "
"Stevens. History will record Justice Stevens as one of the greatest judges "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11228
+#: freeculture.xml:11234
msgid ""
"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 "
#. PAGE BREAK 243
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11238
+#: freeculture.xml:11244
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11252
+#: freeculture.xml:11258
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11259
+#: freeculture.xml:11265
msgid ""
"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 "
#. PAGE BREAK 244
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11266
+#: freeculture.xml:11272
msgid ""
"But this \"consistency\" should be kept in perspective. Congress extended "
"existing terms once in the first hundred years of the Republic. It then "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11289
+#: freeculture.xml:11295
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11300
+#: freeculture.xml:11306
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11307
+#: freeculture.xml:11313
msgid ""
"\"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 "
#. PAGE BREAK 245
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11315
+#: freeculture.xml:11321
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11332
+#: freeculture.xml:11338
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11347
+#: freeculture.xml:11353
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11353
+#: freeculture.xml:11359
msgid ""
"Justice O'Connor stopped me within one minute of my opening. The history "
"was bothering her."
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11358
+#: freeculture.xml:11364
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11365
+#: freeculture.xml:11371
msgid ""
"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 "
#. PAGE BREAK 246
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11371
+#: freeculture.xml:11377
msgid ""
"mr. lessig: Well, if it flies in the face of what the framers had in mind, "
"then the question is, is there a way of interpreting their words that gives "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11379
+#: freeculture.xml:11385
msgid ""
"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,"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11385
+#: freeculture.xml:11391
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11393
+#: freeculture.xml:11399
msgid ""
"Here follows my clear mistake. Like a professor correcting a student, I "
"answered,"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11399
+#: freeculture.xml:11405
msgid ""
"mr. lessig: Justice, we are not making an empirical claim at all. Nothing "
"in our Copyright Clause claim hangs upon the empirical assertion about "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11408
+#: freeculture.xml:11414
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11415
+#: freeculture.xml:11421
msgid ""
"The second came from the Chief, for whom the whole case had been "
"crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> "
#. PAGE BREAK 247
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11420
+#: freeculture.xml:11426
msgid ""
"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:"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11427
+#: freeculture.xml:11433
msgid ""
"chief justice: Well, but you want more than that. You want the right to copy "
"verbatim other people's books, don't you?"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11431
+#: freeculture.xml:11437
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11440
+#: freeculture.xml:11446
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11446
+#: freeculture.xml:11452
msgid ""
"justice scalia: You say that the functional equivalent of an unlimited time "
"would be a violation [of the Constitution], but that's precisely the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11454
+#: freeculture.xml:11460
msgid ""
"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 "
#. PAGE BREAK 248
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11467
+#: freeculture.xml:11473
msgid ""
"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 answered "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11475
+#: freeculture.xml:11481
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11490
+#: freeculture.xml:11496
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11497
+#: freeculture.xml:11503
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11502
+#: freeculture.xml:11508
msgid ""
"My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money "
"in the world against <emphasis>reasoning</emphasis>. And here was the last "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11508
+#: freeculture.xml:11514
msgid ""
"I first scoured the opinion, looking for how the Court would distinguish the "
"principle in this case from the principle in "
#. PAGE BREAK 249
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11517
+#: freeculture.xml:11523
msgid ""
"Justice Ginsburg simply ignored the enumerated powers argument. Consistent "
"with her view that Congress's power was not limited generally, she had found "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11522
+#: freeculture.xml:11528
msgid ""
"Her opinion was perfectly reasonable—for her, and for Justice "
"Souter. Neither believes in <citetitle>Lopez</citetitle>. It would be too "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11528
+#: freeculture.xml:11534
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11539
+#: freeculture.xml:11545
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11551
+#: freeculture.xml:11557
msgid ""
"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
"was crafted internal to the law: He argued that the tradition of "
#. PAGE BREAK 250
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11564
+#: freeculture.xml:11570
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11575
+#: freeculture.xml:11581
msgid ""
"These two justices understood all the arguments we had made. But because "
"neither believed in the <citetitle>Lopez</citetitle> case, neither was "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11582
+#: freeculture.xml:11588
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11587
+#: freeculture.xml:11593
msgid ""
"It was first anger with the five \"Conservatives.\" It would have been one "
"thing for them to have explained why the principle of "
#. PAGE BREAK 251
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11600
+#: freeculture.xml:11606
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11615
+#: freeculture.xml:11621
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11622
+#: freeculture.xml:11628
msgid ""
"Most lawyers, and most law professors, have little patience for idealism "
"about courts in general and this Supreme Court in particular. Most have a "
#. PAGE BREAK 252
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11633
+#: freeculture.xml:11639
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11653
+#: freeculture.xml:11659
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11659
+#: freeculture.xml:11665
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11665
+#: freeculture.xml:11671
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11672
+#: freeculture.xml:11678
msgid ""
"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 "
#. PAGE BREAK 253
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11680
+#: freeculture.xml:11686
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11701
+#: freeculture.xml:11707
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11715
+#: freeculture.xml:11721
msgid "Bolling, Ruben"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11710
+#: freeculture.xml:11716
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11718
+#: freeculture.xml:11724
msgid ""
"The image that will always stick in my head is that evoked by the quote from "
"<citetitle>The New York Times</citetitle>. That \"grand experiment\" we call "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:11729
+#: freeculture.xml:11735
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11731
+#: freeculture.xml:11737
msgid ""
"The day <citetitle>Eldred</citetitle> was decided, fate would have it that I "
"was to travel to Washington, D.C. (The day the rehearing petition in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11741
+#: freeculture.xml:11747
msgid ""
"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 "
#. PAGE BREAK 256
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11751
+#: freeculture.xml:11757
msgid ""
"<citetitle>The New York Times</citetitle> published the piece. In it, I "
"proposed a simple fix: Fifty years after a work has been published, the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11759
+#: freeculture.xml:11765
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11764
+#: freeculture.xml:11770
msgid ""
"Or another two names. For depending upon your perspective, this is either "
"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11772 freeculture.xml:11971
+#: freeculture.xml:11778 freeculture.xml:11977
msgid "Forbes, Steve"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11774
+#: freeculture.xml:11780
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11786
+#: freeculture.xml:11792
msgid ""
"Indeed, many recognized the obvious benefit of the registration "
"requirement. For one of the hardest things about the current system for "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11796
+#: freeculture.xml:11802
msgid "Berlin Act (1908)"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11797 freeculture.xml:11836
+#: freeculture.xml:11803 freeculture.xml:11842
msgid "Berne Convention (1908)"
msgstr ""
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11804
+#: freeculture.xml:11810
msgid ""
"Until the 1908 Berlin Act of the Berne Convention, national copyright "
"legislation sometimes made protection depend upon compliance with "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11800
+#: freeculture.xml:11806
msgid ""
"As I described in chapter 10, formalities in copyright law were removed in "
"1976, when Congress followed the Europeans by abandoning any formal "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11830
+#: freeculture.xml:11836
msgid ""
"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
"copyright policy. It is absurd especially for authors, because a world "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11838
+#: freeculture.xml:11844
msgid ""
"The fight against formalities achieved its first real victory in Berlin in "
"1908. International copyright lawyers amended the Berne Convention in 1908, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11848
+#: freeculture.xml:11854
msgid ""
"These complaints were real and sensible. And the strictness of the "
"formalities, especially in the United States, was absurd. The law should "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11856
+#: freeculture.xml:11862
msgid ""
"Even that would have been resisted, however, because registration in the "
"nineteenth and twentieth centuries was still expensive. It was also a "
#. PAGE BREAK 258
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11864
+#: freeculture.xml:11870
msgid ""
"In addition to the practical complaint of authors in 1908, there was a moral "
"claim as well. There was no reason that creative property should be a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11876
+#: freeculture.xml:11882
msgid ""
"This argument is correct, but its implications are misleading. For the "
"argument in favor of formalities does not depend upon creative property "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11885
+#: freeculture.xml:11891
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11901
+#: freeculture.xml:11907
msgid ""
"It is similarly special physics that makes formalities important in "
"copyright law. Unlike a carpenter's table, there's nothing in nature that "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11916
+#: freeculture.xml:11922
msgid ""
"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.\" "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11926
+#: freeculture.xml:11932
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11935
+#: freeculture.xml:11941
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11942
+#: freeculture.xml:11948
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11949
+#: freeculture.xml:11955
msgid ""
"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 "
#. PAGE BREAK 260
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11955
+#: freeculture.xml:11961
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11973
+#: freeculture.xml:11979
msgid ""
"When Steve Forbes endorsed the idea, some in Washington began to pay "
"attention. Many people contacted me pointing to representatives who might be "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11986
+#: freeculture.xml:11992
msgid "Lofgren, Zoe"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11979
+#: freeculture.xml:11985
msgid ""
"One representative, Zoe Lofgren of California, went so far as to get the "
"bill drafted. The draft solved any problem with international law. It "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11989
+#: freeculture.xml:11995
msgid ""
"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 "
#. PAGE BREAK 261
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11997
+#: freeculture.xml:12003
msgid ""
"The MPAA argued first that Congress had \"firmly rejected the central "
"concept in the proposed bill\"—that copyrights be renewed. That was "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12018
+#: freeculture.xml:12024
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12026
+#: freeculture.xml:12032
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12036
+#: freeculture.xml:12042
msgid ""
"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 "
#. PAGE BREAK 262
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12045
+#: freeculture.xml:12051
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12056
+#: freeculture.xml:12062
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12066
+#: freeculture.xml:12072
msgid "What does this industry really want?"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12069
+#: freeculture.xml:12075
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12080
+#: freeculture.xml:12086
msgid ""
"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 "
#. PAGE BREAK 263
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12088
+#: freeculture.xml:12094
msgid ""
"It is not hard to understand why the warriors take this view. It is not hard "
"to see why it would benefit them if the competition of the public domain "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12100
+#: freeculture.xml:12106
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12107
+#: freeculture.xml:12113
msgid ""
"All this seems to follow easily from this untroubled acceptance of the "
"\"property\" in intellectual property. Common sense supports it, and so long "
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:12119
+#: freeculture.xml:12125
msgid "CONCLUSION"
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12122
+#: freeculture.xml:12128
msgid ""
"There are more than 35 million people with the AIDS virus "
"worldwide. Twenty-five million of them live in sub-Saharan Africa. "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12129
+#: freeculture.xml:12135
msgid ""
"There is no cure for AIDS, but there are drugs to slow its progression. "
"These antiretroviral therapies are still experimental, but they have already "
#. f1.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12144
+#: freeculture.xml:12150
msgid ""
"Commission on Intellectual Property Rights, \"Final Report: Integrating "
"Intellectual Property Rights and Development Policy\" (London, 2002), "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12137
+#: freeculture.xml:12143
msgid ""
"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, "
#. PAGE BREAK 265
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12155
+#: freeculture.xml:12161
msgid ""
"These prices are not high because the ingredients of the drugs are "
"expensive. These prices are high because the drugs are protected by "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12163
+#: freeculture.xml:12169
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12174
+#: freeculture.xml:12180
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><indexterm><primary>
-#: freeculture.xml:12192 freeculture.xml:12621
+#: freeculture.xml:12198 freeculture.xml:12627
msgid "Braithwaite, John"
msgstr ""
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12190
+#: freeculture.xml:12196
msgid ""
"See Peter Drahos with John Braithwaite, Information Feudalism: "
"<citetitle>Who Owns the Knowledge Economy?</citetitle> (New York: The New "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12181
+#: freeculture.xml:12187
msgid ""
"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 "
#. f3.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12203
+#: freeculture.xml:12209
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
#. f4.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12230
+#: freeculture.xml:12236
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12197
+#: freeculture.xml:12203
msgid ""
"However, the United States government opposed the bill. Indeed, more than "
"opposed. As the International Intellectual Property Association "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12236
+#: freeculture.xml:12242
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12246
+#: freeculture.xml:12252
msgid ""
"By stopping the flow of HIV treatment into Africa, the United States "
"government was not saving drugs for United States citizens. This is not "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12254
+#: freeculture.xml:12260
msgid ""
"Nor was the intervention by the United States going to protect the profits "
"of United States drug companies—at least, not substantially. It was "
#. f5.
#. PAGE BREAK 333
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12269
+#: freeculture.xml:12275
msgid ""
"See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at "
"Odds with Firms' Profit Motive,\" <citetitle>San Francisco "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12263
+#: freeculture.xml:12269
msgid ""
"Instead, the argument in favor of restricting this flow of information, "
"which was needed to save the lives of millions, was an argument about the "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12290
+#: freeculture.xml:12296
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12300
+#: freeculture.xml:12306
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12308
+#: freeculture.xml:12314
msgid ""
"The corruption is our own politicians' failure of integrity. For the drug "
"companies would love—they say, and I believe them—to sell their "
#. PAGE BREAK 268
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12316
+#: freeculture.xml:12322
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12331
+#: freeculture.xml:12337
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12337
+#: freeculture.xml:12343
msgid ""
"A sensible patent policy could endorse and strongly support the patent "
"system without having to reach everyone everywhere in exactly the same "
#. PAGE BREAK 269
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12349
+#: freeculture.xml:12355
msgid ""
"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. "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12369
+#: freeculture.xml:12375
msgid ""
"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 "
#. f6.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12386
+#: freeculture.xml:12392
msgid ""
"Jonathan Krim, \"The Quiet War over Open-Source,\" <citetitle>Washington "
"Post</citetitle>, August 2003, E1, available at <ulink "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><indexterm><primary>
-#: freeculture.xml:12414 freeculture.xml:13141
+#: freeculture.xml:12420 freeculture.xml:13147
msgid "PLoS (Public Library of Science)"
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12383
+#: freeculture.xml:12389
msgid ""
"In August 2003, a fight broke out in the United States about a decision by "
"the World Intellectual Property Organization to cancel a "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12417
+#: freeculture.xml:12423
msgid ""
"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 "
#. f7.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12425
+#: freeculture.xml:12431
msgid ""
"I should disclose that I was one of the people who asked WIPO for the "
"meeting."
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12424
+#: freeculture.xml:12430
msgid ""
"From the perspective of this book, then, the conference was "
"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its "
#. PAGE BREAK 271
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12435
+#: freeculture.xml:12441
msgid ""
"Indeed, I was once publicly scolded for not recognizing this fact about "
"WIPO. In February 2003, I delivered a keynote address to a preparatory "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12459
+#: freeculture.xml:12465
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12465
+#: freeculture.xml:12471
msgid ""
"But there is one project within that list that is highly controversial, at "
"least among lobbyists. That project is \"open source and free software.\" "
#. f8.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12487
+#: freeculture.xml:12493
msgid ""
"Microsoft's position about free and open source software is more "
"sophisticated. As it has repeatedly asserted, it has no problem with \"open "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12476
+#: freeculture.xml:12482
msgid ""
"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 "
#. PAGE BREAK 272
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12506
+#: freeculture.xml:12512
msgid ""
"More important for our purposes, to support \"open source and free "
"software\" is not to oppose copyright. \"Open source and free software\" is "
#. f9.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12532
+#: freeculture.xml:12538
msgid ""
"Krim, \"The Quiet War over Open-Source,\" available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #64</ulink>."
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12524
+#: freeculture.xml:12530
msgid ""
"It is therefore understandable that as a proprietary software developer, "
"Microsoft would oppose this WIPO meeting, and understandable that it would "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12538
+#: freeculture.xml:12544
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12546
+#: freeculture.xml:12552
msgid ""
"What was surprising was the United States government's reason for opposing "
"the meeting. Again, as reported by Krim, Lois Boland, acting director of "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12556
+#: freeculture.xml:12562
msgid "These statements are astonishing on a number of levels."
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12560
+#: freeculture.xml:12566
msgid ""
"First, they are just flat wrong. As I described, most open source and free "
"software relies fundamentally upon the intellectual property right called "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12570
+#: freeculture.xml:12576
msgid ""
"Second, who ever said that WIPO's exclusive aim was to \"promote\" "
"intellectual property maximally? As I had been scolded at the preparatory "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12583
+#: freeculture.xml:12589
msgid ""
"Third, even if one believed that the purpose of WIPO was to maximize "
"intellectual property rights, in our tradition, intellectual property rights "
#. PAGE BREAK 274
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12597
+#: freeculture.xml:12603
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12609
+#: freeculture.xml:12615
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12626
+#: freeculture.xml:12632
msgid ""
"See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, "
"210–20. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12623
+#: freeculture.xml:12629
msgid ""
"As Peter Drahos and John Braithwaite relate, this is precisely the choice we "
"are now making about intellectual property.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12635
+#: freeculture.xml:12641
msgid ""
"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 "
#. PAGE BREAK 275
#. type: Content of: <book><part><partintro><blockquote><para>
-#: freeculture.xml:12642
+#: freeculture.xml:12648
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12654
+#: freeculture.xml:12660
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12664
+#: freeculture.xml:12670
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12672
+#: freeculture.xml:12678
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12678
+#: freeculture.xml:12684
msgid ""
"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 "
#. PAGE BREAK 276
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12689
+#: freeculture.xml:12695
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para><indexterm><primary>
-#: freeculture.xml:12708
+#: freeculture.xml:12714
msgid "Turner, Ted"
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12698
+#: freeculture.xml:12704
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12712
+#: freeculture.xml:12718
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12720
+#: freeculture.xml:12726
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12727
+#: freeculture.xml:12733
msgid ""
"The danger in media concentration comes not from the concentration, but "
"instead from the feudalism that this concentration, tied to the change in "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12737
+#: freeculture.xml:12743
msgid ""
"It is therefore significant that so many would rally to demand competition "
"and increased diversity. Still, if the rally is understood as being about "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12744
+#: freeculture.xml:12750
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12752
+#: freeculture.xml:12758
msgid ""
"If we were Achilles, this would be our heel. This would be the place of our "
"tragedy."
msgstr ""
#. type: Content of: <book><part><partintro><indexterm><primary>
-#: freeculture.xml:12755
+#: freeculture.xml:12761
msgid "Dylan, Bob"
msgstr ""
#. f11.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12760
+#: freeculture.xml:12766
msgid ""
"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. f12.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12778
+#: freeculture.xml:12784
msgid ""
"Jon Wiederhorn, \"Eminem Gets Sued . . . by a Little Old Lady,\" mtv.com, 17 "
"September 2003, available at <ulink "
#. f13.
#. PAGE BREAK 334
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12785
+#: freeculture.xml:12791
msgid ""
"Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan "
"Songs,\" Kansascity.com, 9 July 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12757
+#: freeculture.xml:12763
msgid ""
"As I write these final words, the news is filled with stories about the RIAA "
"lawsuits against almost three hundred individuals.<placeholder "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><indexterm><primary>
-#: freeculture.xml:12802 freeculture.xml:13157
+#: freeculture.xml:12808 freeculture.xml:13163
msgid "Creative Commons"
msgstr ""
#. type: Content of: <book><part><partintro><indexterm><primary>
-#: freeculture.xml:12803
+#: freeculture.xml:12809
msgid "Gil, Gilberto"
msgstr ""
#. f14.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12808
+#: freeculture.xml:12814
msgid ""
"\"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 "
#. f15.
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:12817
+#: freeculture.xml:12823
msgid ""
"\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>."
#. PAGE BREAK 278
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12805
+#: freeculture.xml:12811
msgid ""
"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 "
#. PAGE BREAK 279
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12831
+#: freeculture.xml:12837
msgid ""
"Common sense must revolt. It must act to free culture. Soon, if this "
"potential is ever to be realized."
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:12841
+#: freeculture.xml:12847
msgid "AFTERWORD"
msgstr ""
#. PAGE BREAK 280
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12846
+#: freeculture.xml:12852
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12851
+#: freeculture.xml:12857
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12857
+#: freeculture.xml:12863
msgid ""
"That means this movement must begin in the streets. It must recruit a "
"significant number of parents, teachers, librarians, creators, authors, "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:12864
+#: freeculture.xml:12870
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><title>
-#: freeculture.xml:12873
+#: freeculture.xml:12879
msgid "US, NOW"
msgstr ""
#. type: Content of: <book><part><partintro><section><para>
-#: freeculture.xml:12875
+#: freeculture.xml:12881
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><para>
-#: freeculture.xml:12881
+#: freeculture.xml:12887
msgid ""
"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 "
#. PAGE BREAK 282
#. type: Content of: <book><part><partintro><section><para>
-#: freeculture.xml:12891
+#: freeculture.xml:12897
msgid ""
"When the Internet was first born, its initial architecture effectively "
"tilted in the \"no rights reserved\" direction. Content could be copied "
msgstr ""
#. type: Content of: <book><part><partintro><section><para>
-#: freeculture.xml:12903
+#: freeculture.xml:12909
msgid ""
"This initial character produced a reaction (opposite, but not quite equal) "
"by copyright owners. That reaction has been the topic of this book. Through "
msgstr ""
#. type: Content of: <book><part><partintro><section><para>
-#: freeculture.xml:12917
+#: freeculture.xml:12923
msgid ""
"What's needed is a way to say something in the middle—neither \"all "
"rights reserved\" nor \"no rights reserved\" but \"some rights "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><title>
-#: freeculture.xml:12926
+#: freeculture.xml:12932
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:12928
+#: freeculture.xml:12934
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:12938
+#: freeculture.xml:12944
msgid "What made it assured?"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:12942
+#: freeculture.xml:12948
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><indexterm><primary>
-#: freeculture.xml:12956
+#: freeculture.xml:12962
msgid "Amazon"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:12958
+#: freeculture.xml:12964
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:12968
+#: freeculture.xml:12974
msgid ""
"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 "
#. f1.
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:12984
+#: freeculture.xml:12990
msgid ""
"See, for example, Marc Rotenberg, \"Fair Information Practices and the "
"Architecture of Privacy (What Larry Doesn't Get),\" <citetitle>Stanford "
#. PAGE BREAK 284
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:12978
+#: freeculture.xml:12984
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13002
+#: freeculture.xml:13008
msgid ""
"A similar story could be told about the birth of the free software "
"movement. When computers with software were first made available "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><indexterm><primary>
-#: freeculture.xml:13009
+#: freeculture.xml:13015
msgid "Stallman, Richard"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13011
+#: freeculture.xml:13017
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13019
+#: freeculture.xml:13025
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13031
+#: freeculture.xml:13037
msgid ""
"No one answered that question. Instead, the architecture of revenue for "
"computing changed. As it became possible to import programs from one system "
#. PAGE BREAK 285
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13040
+#: freeculture.xml:13046
msgid ""
"Thus, the practice of proprietary code began to spread, and by the early "
"1980s, Stallman found himself surrounded by proprietary code. The world of "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13049
+#: freeculture.xml:13055
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13056
+#: freeculture.xml:13062
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13067
+#: freeculture.xml:13073
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13075
+#: freeculture.xml:13081
msgid ""
"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 "
#. PAGE BREAK 286
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13080
+#: freeculture.xml:13086
msgid ""
"As digital technologies develop, it is becoming obvious to many that "
"printing thousands of copies of journals every month and sending them to "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13096
+#: freeculture.xml:13102
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13105
+#: freeculture.xml:13111
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13110
+#: freeculture.xml:13116
msgid ""
"As many are beginning to notice, this is increasingly the reality with "
"scientific journals. When these journals were distributed in paper form, "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13122
+#: freeculture.xml:13128
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13130
+#: freeculture.xml:13136
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13144
+#: freeculture.xml:13150
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><title>
-#: freeculture.xml:13155
+#: freeculture.xml:13161
msgid "Rebuilding Free Culture: One Idea"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13160
+#: freeculture.xml:13166
msgid ""
"The same strategy could be applied to culture, as a response to the "
"increasing control effected through law and technology."
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13164
+#: freeculture.xml:13170
msgid ""
"Enter the Creative Commons. The Creative Commons is a nonprofit corporation "
"established in Massachusetts, but with its home at Stanford University. Its "
#. PAGE BREAK 288
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13175
+#: freeculture.xml:13181
msgid ""
"<emphasis>Simple</emphasis>—which means without a middleman, or "
"without a lawyer. By developing a free set of licenses that people can "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13193
+#: freeculture.xml:13199
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13204
+#: freeculture.xml:13210
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><indexterm><primary>
-#: freeculture.xml:13225
+#: freeculture.xml:13231
msgid "Garlick, Mia"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13215
+#: freeculture.xml:13221
msgid ""
"This is just one project among many within the Creative Commons. And of "
"course, Creative Commons is not the only organization pursuing such "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13228
+#: freeculture.xml:13234
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13240
+#: freeculture.xml:13246
msgid ""
"Why would creators participate in giving up total control? Some participate "
"to better spread their content. Cory Doctorow, for example, is a science "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13247
+#: freeculture.xml:13253
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13259
+#: freeculture.xml:13265
msgid ""
"Indeed, the experience of his publisher clearly supports that conclusion. "
"The book's first printing was exhausted months before the publisher had "
#. PAGE BREAK 290
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13265
+#: freeculture.xml:13271
msgid ""
"The idea that free content might increase the value of nonfree content was "
"confirmed by the experience of another author. Peter Wayner, who wrote a "
#. f2.
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:13292
+#: freeculture.xml:13298
msgid ""
"<citetitle>Willful Infringement: A Report from the Front Lines of the Real "
"Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13276
+#: freeculture.xml:13282
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13301
+#: freeculture.xml:13307
msgid ""
"Finally, there are many who mark their content with a Creative Commons "
"license just because they want to express to others the importance of "
#. PAGE BREAK 291
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13313
+#: freeculture.xml:13319
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13323
+#: freeculture.xml:13329
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13331
+#: freeculture.xml:13337
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><title>
-#: freeculture.xml:13345
+#: freeculture.xml:13351
msgid "THEM, SOON"
msgstr ""
#. type: Content of: <book><part><partintro><section><para>
-#: freeculture.xml:13347
+#: freeculture.xml:13353
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><para>
-#: freeculture.xml:13354
+#: freeculture.xml:13360
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><title>
-#: freeculture.xml:13361
+#: freeculture.xml:13367
msgid "1. More Formalities"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13363
+#: freeculture.xml:13369
msgid ""
"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 "
#. PAGE BREAK 293
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13370
+#: freeculture.xml:13376
msgid ""
"These are all formalities associated with property. They are requirements "
"that we all must bear if we want our property to be protected."
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13375
+#: freeculture.xml:13381
msgid ""
"In contrast, under current copyright law, you automatically get a copyright, "
"regardless of whether you comply with any formality. You don't have to "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13381
+#: freeculture.xml:13387
msgid "Why?"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13384
+#: freeculture.xml:13390
msgid ""
"As I suggested in chapter 10, the motivation to abolish formalities was a "
"good one. In the world before digital technologies, formalities imposed a "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13392
+#: freeculture.xml:13398
msgid ""
"But the Internet changes all this. Formalities today need not be a "
"burden. Rather, the world without formalities is the world that burdens "
#. f1.
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:13406
+#: freeculture.xml:13412
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13404
+#: freeculture.xml:13410
msgid ""
"The law should therefore change this requirement<placeholder "
"type=\"footnote\" id=\"0\"/>—but it should not change it by going back "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13414
+#: freeculture.xml:13420
msgid ""
"The important formalities are three: marking copyrighted work, registering "
"copyrights, and renewing the claim to copyright. Traditionally, the first of "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><title>
-#: freeculture.xml:13426
+#: freeculture.xml:13432
msgid "REGISTRATION AND RENEWAL"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13428
+#: freeculture.xml:13434
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13441
+#: freeculture.xml:13447
msgid ""
"Yet it is always astonishing to me that we, who come from a tradition of "
"extraordinary innovation in governmental design, can no longer think "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13450
+#: freeculture.xml:13456
msgid ""
"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 "
#. PAGE BREAK 295
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13460
+#: freeculture.xml:13466
msgid ""
"We should adopt a similar model for the registration and renewal of "
"copyrights. The Copyright Office may well serve as the central registry, but "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><title>
-#: freeculture.xml:13475
+#: freeculture.xml:13481
msgid "MARKING"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13477
+#: freeculture.xml:13483
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13487
+#: freeculture.xml:13493
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13493
+#: freeculture.xml:13499
msgid ""
"One of the problems the copyright system confronted early on was that "
"different copyrighted works had to be differently marked. It wasn't clear "
#. f2.
#. type: Content of: <book><part><partintro><section><section><section><para><footnote><para>
-#: freeculture.xml:13510
+#: freeculture.xml:13516
msgid ""
"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 "
#. PAGE BREAK 296
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13503
+#: freeculture.xml:13509
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13523
+#: freeculture.xml:13529
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13530
+#: freeculture.xml:13536
msgid ""
"For example, if a recording industry association devises a method for "
"marking CDs, it would propose that to the Copyright Office. The Copyright "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13542
+#: freeculture.xml:13548
msgid ""
"Finally, marking content clearly would simplify registration requirements. "
"If photographs were marked by author and year, there would be little reason "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13550
+#: freeculture.xml:13556
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><section><para>
-#: freeculture.xml:13555
+#: freeculture.xml:13561
msgid ""
"If formalities such as registration were reinstated, one of the most "
"difficult aspects of relying upon the public domain would be removed. It "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><title>
-#: freeculture.xml:13567
+#: freeculture.xml:13573
msgid "2. Shorter Terms"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13569
+#: freeculture.xml:13575
msgid ""
"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 "
#. f3.
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:13582
+#: freeculture.xml:13588
msgid ""
"\"A Radical Rethink,\" <citetitle>Economist</citetitle>, 366:8308 (25 "
"January 2003): 15, available at <ulink "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13574
+#: freeculture.xml:13580
msgid ""
"In <citetitle>The Future of Ideas</citetitle>, I proposed a "
"seventy-five-year term, granted in five-year increments with a requirement "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13589
+#: freeculture.xml:13595
msgid ""
"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 "
#. (1)
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13597
+#: freeculture.xml:13603
msgid ""
"<emphasis>Keep it short:</emphasis> The term should be as long as necessary "
"to give incentives to create, but no longer. If it were tied to very strong "
#. (2)
#. PAGE BREAK 298
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13606
+#: freeculture.xml:13612
msgid ""
"<emphasis>Keep it simple:</emphasis> The line between the public domain and "
"protected content must be kept clear. Lawyers like the fuzziness of \"fair "
#. f4.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para><footnote><para>
-#: freeculture.xml:13627
+#: freeculture.xml:13633
msgid ""
"Department of Veterans Affairs, Veteran's Application for Compensation "
"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para><indexterm><primary>
-#: freeculture.xml:13635
+#: freeculture.xml:13641
msgid "veterans' pensions"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13619
+#: freeculture.xml:13625
msgid ""
"<emphasis>Keep it alive:</emphasis> Copyright should have to be renewed. "
"Especially if the maximum term is long, the copyright owner should be "
#. (4)
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13639
+#: freeculture.xml:13645
msgid ""
"<emphasis>Keep it prospective:</emphasis> Whatever the term of copyright "
"should be, the clearest lesson that economists teach is that a term once "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13655
+#: freeculture.xml:13661
msgid ""
"These changes together should produce an <emphasis>average</emphasis> "
"copyright term that is much shorter than the current term. Until 1976, the "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13661
+#: freeculture.xml:13667
msgid ""
"No doubt the extremists will call these ideas \"radical.\" (After all, I "
"call them \"extremists.\") But again, the term I recommended was longer than "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><title>
-#: freeculture.xml:13671
+#: freeculture.xml:13677
msgid "3. Free Use Vs. Fair Use"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13673
+#: freeculture.xml:13679
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13681
+#: freeculture.xml:13687
msgid ""
"Our Constitution gives Congress the power to give authors \"exclusive "
"right\" to \"their writings.\" Congress has given authors an exclusive right "
#. f5.
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:13694
+#: freeculture.xml:13700
msgid ""
"Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New "
"York: Columbia University Press, 1967), 32."
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13690
+#: freeculture.xml:13696
msgid ""
"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 "
#. f6.
#. type: Content of: <book><part><partintro><section><section><blockquote><para><footnote><para>
-#: freeculture.xml:13707
+#: freeculture.xml:13713
msgid "Ibid., 56."
msgstr ""
#. type: Content of: <book><part><partintro><section><section><blockquote><para>
-#: freeculture.xml:13703
+#: freeculture.xml:13709
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13712
+#: freeculture.xml:13718
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13719
+#: freeculture.xml:13725
msgid ""
"<emphasis>Term:</emphasis> If Congress wants to grant a derivative right, "
"then that right should be for a much shorter term. It makes sense to protect "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13732
+#: freeculture.xml:13738
msgid ""
"<emphasis>Scope:</emphasis> Likewise should the scope of derivative rights "
"be narrowed. Again, there are some cases in which derivative rights are "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13745
+#: freeculture.xml:13751
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:13761
+#: freeculture.xml:13767
msgid "Goldstein, Paul"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:13759
+#: freeculture.xml:13765
msgid ""
"Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the "
"Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13753
+#: freeculture.xml:13759
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13767
+#: freeculture.xml:13773
msgid ""
"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 "
#. PAGE BREAK 301
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13774
+#: freeculture.xml:13780
msgid ""
"The law could remedy this problem either by removing protection beyond the "
"part explicitly drawn or by granting reuse rights upon certain statutory "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><title>
-#: freeculture.xml:13784
+#: freeculture.xml:13790
msgid "4. Liberate the Music—Again"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13786
+#: freeculture.xml:13792
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13793
+#: freeculture.xml:13799
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13802
+#: freeculture.xml:13808
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13809
+#: freeculture.xml:13815
msgid ""
"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 "
#. A.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13817
+#: freeculture.xml:13823
msgid ""
"There are some who are using sharing networks as substitutes for purchasing "
"CDs."
#. B.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13822
+#: freeculture.xml:13828
msgid ""
"There are also some who are using sharing networks to sample, on the way to "
"purchasing CDs."
#. PAGE BREAK 302
#. C.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13828
+#: freeculture.xml:13834
msgid ""
"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 "
#. D.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13834
+#: freeculture.xml:13840
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13840
+#: freeculture.xml:13846
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13848
+#: freeculture.xml:13854
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13855
+#: freeculture.xml:13861
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13860
+#: freeculture.xml:13866
msgid ""
"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 "
#. PAGE BREAK 303
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13872
+#: freeculture.xml:13878
msgid ""
"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 "
#. f8.
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:13905
+#: freeculture.xml:13911
msgid ""
"See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April "
"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13887
+#: freeculture.xml:13893
msgid ""
"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 "
#. PAGE BREAK 304
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13912
+#: freeculture.xml:13918
msgid ""
"This point about the future is meant to suggest a perspective on the "
"present: It is emphatically temporary. The \"problem\" with file "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13928
+#: freeculture.xml:13934
msgid ""
"The answer begins with recognizing that there are different \"problems\" "
"here to solve. Let's start with type D content—uncopyrighted content "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13939
+#: freeculture.xml:13945
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13948
+#: freeculture.xml:13954
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13958
+#: freeculture.xml:13964
msgid ""
"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 "
#. PAGE BREAK 305
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13969
+#: freeculture.xml:13975
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13979
+#: freeculture.xml:13985
msgid ""
"This system would also create an incentive for publishers to keep works "
"available commercially. Works that are available commercially would not be "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13989
+#: freeculture.xml:13995
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:13997
+#: freeculture.xml:14003
msgid ""
"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."
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14001
+#: freeculture.xml:14007
msgid ""
"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 "
#. PAGE BREAK 306
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14012
+#: freeculture.xml:14018
msgid ""
"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. "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:14058
+#: freeculture.xml:14064
msgid "Fisher, William"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:14024
+#: freeculture.xml:14030
msgid ""
"William Fisher, <citetitle>Digital Music: Problems and "
"Possibilities</citetitle> (last revised: 10 October 2000), available at "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14020
+#: freeculture.xml:14026
msgid ""
"The idea would be a modification of a proposal that has been floated by "
"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14071
+#: freeculture.xml:14077
msgid ""
"Fisher's proposal is careful and comprehensive. It raises a million "
"questions, most of which he answers well in his upcoming book, "
#. PAGE BREAK 307
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14086
+#: freeculture.xml:14092
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14099
+#: freeculture.xml:14105
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14114
+#: freeculture.xml:14120
msgid ""
"This competition has already occurred against the background of \"free\" "
"music from p2p systems. As the sellers of cable television have known for "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14126
+#: freeculture.xml:14132
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14135
+#: freeculture.xml:14141
msgid "In summary, then, my proposal is this:"
msgstr ""
#. PAGE BREAK 308
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14140
+#: freeculture.xml:14146
msgid ""
"The Internet is in transition. We should not be regulating a technology in "
"transition. We should instead be regulating to minimize the harm to "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14147
+#: freeculture.xml:14153
msgid "We can minimize that harm while maximizing the benefit to innovation by"
msgstr ""
#. 1.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14153
+#: freeculture.xml:14159
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""
#. 2.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14157
+#: freeculture.xml:14163
msgid ""
"permitting noncommercial type C sharing without liability, and commercial "
"type C sharing at a low and fixed rate set by statute;"
#. 3.
#. type: Content of: <book><part><partintro><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14163
+#: freeculture.xml:14169
msgid ""
"while in this transition, taxing and compensating for type A sharing, to the "
"extent actual harm is demonstrated."
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14168
+#: freeculture.xml:14174
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14174
+#: freeculture.xml:14180
msgid ""
"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 "
#. PAGE BREAK 309
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14188
+#: freeculture.xml:14194
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><title>
-#: freeculture.xml:14199
+#: freeculture.xml:14205
msgid "5. Fire Lots of Lawyers"
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14201
+#: freeculture.xml:14207
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14207
+#: freeculture.xml:14213
msgid ""
"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 "
#. f10.
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:14224
+#: freeculture.xml:14230
msgid ""
"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer "
"Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14215
+#: freeculture.xml:14221
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14230
+#: freeculture.xml:14236
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para><footnote><para>
-#: freeculture.xml:14240
+#: freeculture.xml:14246
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14235
+#: freeculture.xml:14241
msgid ""
"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 "
#. PAGE BREAK 310
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14264
+#: freeculture.xml:14270
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14272
+#: freeculture.xml:14278
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14282
+#: freeculture.xml:14288
msgid ""
"The costliness and clumsiness and randomness of this system mock our "
"tradition. And lawyers, as well as academics, should consider it their duty "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14290
+#: freeculture.xml:14296
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14296
+#: freeculture.xml:14302
msgid ""
"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 "
#. PAGE BREAK 311
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14305
+#: freeculture.xml:14311
msgid ""
"The law should regulate in certain areas of culture—but it should "
"regulate culture only where that regulation does good. Yet lawyers rarely "
msgstr ""
#. type: Content of: <book><part><partintro><section><section><para>
-#: freeculture.xml:14314
+#: freeculture.xml:14320
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14325
+#: freeculture.xml:14331
msgid "NOTES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14327
+#: freeculture.xml:14333
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14342
+#: freeculture.xml:14348
msgid "ACKNOWLEDGMENTS"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14344
+#: freeculture.xml:14350
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14350
+#: freeculture.xml:14356
msgid ""
"I received guidance in various places from friends and academics, including "
"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and "
#. PAGE BREAK 337
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14363
+#: freeculture.xml:14369
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14374
+#: freeculture.xml:14380
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14394
+#: freeculture.xml:14400
msgid ""
"Richard Stallman and Michael Carroll each read the whole book in draft, and "
"each provided extremely helpful correction and advice. Michael helped me to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14403
+#: freeculture.xml:14409
msgid ""
"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 "
projects / text-free-culture-lessig.git / commitdiff