<para>
LAWRENCE LESSIG
(<ulink url="http://www.lessig.org/">http://www.lessig.org</ulink>),
-professor of law and a John A. Wilson Distinguished Faculty Scholar
+professor of law and a John A. Wilson Distinguished Faculty Scholar
at Stanford Law School, is founder of the Stanford Center for Internet
and Society and is chairman of the Creative Commons
(<ulink url="http://creativecommons.org/">http://creativecommons.org</ulink>).
<blockquote>
<para>
A glass of water was poured before the microphone in Yonkers; it
-sounded like a glass of water being poured. . . . A paper was
+sounded like a glass of water being poured. . . . A paper was
crumpled and torn; it sounded like paper and not like a crackling
forest fire. . . . Sousa marches were played from records and a
piano
The series of body blows that FM radio received right after the
war, in a series of rulings manipulated through the FCC by the
big radio interests, were almost incredible in their force and
-
deviousness.<footnote><para>
+deviousness.<footnote><para>
Lessing, 256.
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>AT&T</primary></indexterm>
<para>
To make room in the spectrum for RCA's latest gamble, television,
FM radio users were to be moved to a totally new spectrum band. The
least temporarily.
</para>
<para>
-Armstrong resisted RCA's efforts. In response, RCA resisted
- Armstrong's
-patents. After incorporating FM technology into the emerging
-standard for television, RCA declared the patents invalid—baselessly,
-and almost fifteen years after they were issued. It thus refused to pay
-him royalties. For six years, Armstrong fought an expensive war of
- litigation
-to defend the patents. Finally, just as the patents expired, RCA
-offered a settlement so low that it would not even cover Armstrong's
-lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong
-wrote a short note to his wife and then stepped out of a
- thirteenth-story
-window to his death.
+Armstrong resisted RCA's efforts. In response, RCA resisted
+Armstrong's patents. After incorporating FM technology into the
+emerging standard for television, RCA declared the patents
+invalid—baselessly, and almost fifteen years after they were
+issued. It thus refused to pay him royalties. For six years, Armstrong
+fought an expensive war of litigation to defend the patents. Finally,
+just as the patents expired, RCA offered a settlement so low that it
+would not even cover Armstrong's lawyers' fees. Defeated, broken, and
+now broke, in 1954 Armstrong wrote a short note to his wife and then
+stepped out of a thirteenth-story window to his death.
</para>
<para>
This is how the law sometimes works. Not often this tragically, and
-rarely with heroic drama, but sometimes, this is how it works. From the
-beginning, government and government agencies have been subject
-to capture. They are more likely captured when a powerful interest is
-threatened by either a legal or technical change. That powerful interest
-too often exerts its influence within the government to get the
- government
-to protect it. The rhetoric of this protection is of course always
-public spirited; the reality is something different. Ideas that were as
-solid as rock in one age, but that, left to themselves, would crumble in
+rarely with heroic drama, but sometimes, this is how it works. From
+the beginning, government and government agencies have been subject to
+capture. They are more likely captured when a powerful interest is
+threatened by either a legal or technical change. That powerful
+interest too often exerts its influence within the government to get
+the government to protect it. The rhetoric of this protection is of
+course always public spirited; the reality is something
+different. Ideas that were as solid as rock in one age, but that, left
+to themselves, would crumble in
<!-- PAGE BREAK 22 -->
another, are sustained through this subtle corruption of our political
process. RCA had what the Causbys did not: the power to stifle the
sell those exclusive rights in a commercial
marketplace.<footnote><para>
This is not the only purpose of copyright, though it is the overwhelmingly
-primary purpose of the copyright established in the federal constitution.
+primary purpose of the copyright established in the federal constitution.
State copyright law historically protected not just the commercial interest in
publication, but also a privacy interest. By granting authors the exclusive
right to first publication, state copyright law gave authors the power to
who we have always been.
</para>
<para>
-We allow this, I believe, not because it is right, and not because
-most of us really believe in these changes. We allow it because the
- interests
-most threatened are among the most powerful players in our
-depressingly compromised process of making law. This book is the
-story of one more consequence of this form of corruption—a
- consequence
+We allow this, I believe, not because it is right, and not because
+most of us really believe in these changes. We allow it because the
+interests most threatened are among the most powerful players in our
+depressingly compromised process of making law. This book is the story
+of one more consequence of this form of corruption—a consequence
to which most of us remain oblivious.
</para>
</chapter>
<para>
This view runs deep within the current debates. It is what NYU law
professor Rochelle Dreyfuss criticizes as the "if value, then right"
- theory
-of creative property<footnote><para>
+theory of creative property<footnote><para>
<!-- f2 -->
See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
</para></footnote>
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
- organization,
-ASCAP, to sue the Girl Scouts for failing to pay for the
+organization, ASCAP, to sue the Girl Scouts for failing to pay for the
songs that girls sang around Girl Scout campfires.<footnote><para>
<!-- f3 -->
Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
Speech, No One Wins," Boston Globe, 24 November 2002.
</para></footnote>
-There was "value"
-(the songs) so there must have been a "right"—even against the Girl
-Scouts.
+There was "value" (the songs) so there must have been a
+"right"—even against the Girl Scouts.
</para>
+<indexterm><primary>ASCAP</primary></indexterm>
<para>
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
</para>
<para>
Instead, in our tradition, intellectual property is an instrument. It
-sets the groundwork for a richly creative society but remains
- subservient
-to the value of creativity. The current debate has this turned
-around. We have become so concerned with protecting the instrument
-that we are losing sight of the value.
+sets the groundwork for a richly creative society but remains
+subservient to the value of creativity. The current debate has this
+turned around. We have become so concerned with protecting the
+instrument that we are losing sight of the value.
</para>
<para>
The source of this confusion is a distinction that the law no longer
copyright law today regulates both.
</para>
<para>
-Before the technologies of the Internet, this conflation didn't
- matter
+Before the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive; that
meant the vast majority of publishing was commercial. Commercial
entities could bear the burden of the law—even the burden of the
<para>
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
-commercial creators but effectively that of anyone. Although that
- expansion
-would not matter much if copyright law regulated only
- "copying,"
-when the law regulates as broadly and obscurely as it does, the
-extension matters a lot. The burden of this law now vastly outweighs
-any original benefit—certainly as it affects noncommercial creativity,
-and increasingly as it affects commercial creativity as well. Thus, as
-we'll see more clearly in the chapters below, the law's role is less and
-less to support creativity, and more and more to protect certain
- industries
-against competition. Just at the time digital technology could
-unleash an extraordinary range of commercial and noncommercial
-creativity, the law burdens this creativity with insanely complex and
-vague rules and with the threat of obscenely severe penalties. We may
+commercial creators but effectively that of anyone. Although that
+expansion would not matter much if copyright law regulated only
+"copying," when the law regulates as broadly and obscurely as it does,
+the extension matters a lot. The burden of this law now vastly
+outweighs any original benefit—certainly as it affects
+noncommercial creativity, and increasingly as it affects commercial
+creativity as well. Thus, as we'll see more clearly in the chapters
+below, the law's role is less and less to support creativity, and more
+and more to protect certain industries against competition. Just at
+the time digital technology could unleash an extraordinary range of
+commercial and noncommercial creativity, the law burdens this
+creativity with insanely complex and vague rules and with the threat
+of obscenely severe penalties. We may
<!-- PAGE BREAK 33 -->
be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote><para>
<!-- f4 -->
-In The Rise of the Creative Class (New York: Basic Books, 2002), Richard
-Florida documents a shift in the nature of labor toward a labor of
- creativity.
-His work, however, doesn't directly address the legal conditions under
-which that creativity is enabled or stifled. I certainly agree with him about
-the importance and significance of this change, but I also believe the
- conditions
-under which it will be enabled are much more tenuous.
+In The Rise of the Creative Class (New York: Basic Books, 2002),
+Richard Florida documents a shift in the nature of labor toward a
+labor of creativity. His work, however, doesn't directly address the
+legal conditions under which that creativity is enabled or stifled. I
+certainly agree with him about the importance and significance of this
+change, but I also believe the conditions under which it will be
+enabled are much more tenuous.
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
to life the character that would become Mickey Mouse.
</para>
<para>
-Synchronized sound had been introduced to film a year earlier in
-the movie The Jazz Singer. That success led Walt Disney to copy the
-technique and mix sound with cartoons. No one knew whether it
-would work or, if it did work, whether it would win an audience. But
-when Disney ran a test in the summer of 1928, the results were
- unambiguous.
+Synchronized sound had been introduced to film a year earlier in the
+movie The Jazz Singer. That success led Walt Disney to copy the
+technique and mix sound with cartoons. No one knew whether it would
+work or, if it did work, whether it would win an audience. But when
+Disney ran a test in the summer of 1928, the results were unambiguous.
As Disney describes that first experiment,
</para>
<blockquote>
<!-- PAGE BREAK 35 -->
</para>
<para>
-The boys worked from a music and sound-effects score. After
-several false starts, sound and action got off with the gun. The
-mouth organist played the tune, the rest of us in the sound
- department
-bammed tin pans and blew slide whistles on the beat.
-The synchronization was pretty close.
+The boys worked from a music and sound-effects score. After several
+false starts, sound and action got off with the gun. The mouth
+organist played the tune, the rest of us in the sound department
+bammed tin pans and blew slide whistles on the beat. The
+synchronization was pretty close.
</para>
<para>
The effect on our little audience was nothing less than
in my life. Nothing since has ever equaled it."
</para>
<para>
-Disney had created something very new, based upon something
- relatively
-new. Synchronized sound brought life to a form of creativity
-that had rarely—except in Disney's hands—been anything more than
-filler for other films. Throughout animation's early history, it was
- Disney's
-invention that set the standard that others struggled to match.
-And quite often, Disney's great genius, his spark of creativity, was built
-upon the work of others.
+Disney had created something very new, based upon something relatively
+new. Synchronized sound brought life to a form of creativity that had
+rarely—except in Disney's hands—been anything more than
+filler for other films. Throughout animation's early history, it was
+Disney's invention that set the standard that others struggled to
+match. And quite often, Disney's great genius, his spark of
+creativity, was built upon the work of others.
</para>
<para>
This much is familiar. What you might not know is that 1928 also
films of his day.<footnote><para>
<!-- f3 -->
He was also a fan of the public domain. See Chris Sprigman, "The Mouse
-that Ate the Public Domain," Findlaw, 5 March 2002, at
+that Ate the Public Domain," Findlaw, 5 March 2002, at
<ulink url="http://free-culture.cc/notes/">link #5</ulink>.
</para></footnote>
-So did many others. Early cartoons are filled with
-knockoffs—slight variations on winning themes; retellings of ancient
-stories. The key to success was the brilliance of the differences. With
-Disney, it was sound that gave his animation its spark. Later, it was the
-quality of his work relative to the production-line cartoons with which
-he competed. Yet these additions were built upon a base that was
- borrowed.
-Disney added to the work of others before him, creating
- something
-new out of something just barely old.
+So did many others. Early cartoons are filled with
+knockoffs—slight variations on winning themes; retellings of
+ancient stories. The key to success was the brilliance of the
+differences. With Disney, it was sound that gave his animation its
+spark. Later, it was the quality of his work relative to the
+production-line cartoons with which he competed. Yet these additions
+were built upon a base that was borrowed. Disney added to the work of
+others before him, creating something new out of something just barely
+old.
</para>
<para>
Sometimes this borrowing was slight. Sometimes it was significant.
-Think about the fairy tales of the Brothers Grimm. If you're as
- oblivious
-as I was, you're likely to think that these tales are happy, sweet
- stories,
-appropriate for any child at bedtime. In fact, the Grimm fairy tales
-are, well, for us, grim. It is a rare and perhaps overly ambitious parent
-who would dare to read these bloody, moralistic stories to his or her
-child, at bedtime or anytime.
-</para>
-<para>
-Disney took these stories and retold them in a way that carried
-them into a new age. He animated the stories, with both characters and
+Think about the fairy tales of the Brothers Grimm. If you're as
+oblivious as I was, you're likely to think that these tales are happy,
+sweet stories, appropriate for any child at bedtime. In fact, the
+Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
+overly ambitious parent who would dare to read these bloody,
+moralistic stories to his or her child, at bedtime or anytime.
+</para>
+<para>
+Disney took these stories and retold them in a way that carried them
+into a new age. He animated the stories, with both characters and
light. Without removing the elements of fear and danger altogether, he
-made funny what was dark and injected a genuine emotion of
- compassion
+made funny what was dark and injected a genuine emotion of compassion
where before there was fear. And not just with the work of the
-Brothers Grimm. Indeed, the catalog of Disney work drawing upon
-the work of others is astonishing when set together: Snow White
-(1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi
-(1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland
-(1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp
+Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
+work of others is astonishing when set together: Snow White (1937),
+Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of
+the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin
+Hood (1952), Peter Pan (1953), Lady and the Tramp
<!-- PAGE BREAK 37 -->
(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961),
-The Sword in the Stone (1963), and The Jungle Book (1967)—not to
-mention a recent example that we should perhaps quickly forget,
- Treasure
-Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped
-creativity from the culture around him, mixed that creativity with his
-own extraordinary talent, and then burned that mix into the soul of his
-culture. Rip, mix, and burn.
-</para>
-<para>
-This is a kind of creativity. It is a creativity that we should
- remember
-and celebrate. There are some who would say that there is no
- creativity
-except this kind. We don't need to go that far to recognize its
-importance. We could call this "Disney creativity," though that would
-be a bit misleading. It is, more precisely, "Walt Disney creativity"—a
-form of expression and genius that builds upon the culture around us
-and makes it something different.
-</para>
-<para>
-In 1928, the culture that Disney was free to draw upon was
- relatively
-fresh. The public domain in 1928 was not very old and was
+The Sword in the Stone (1963), and The Jungle Book (1967)—not to
+mention a recent example that we should perhaps quickly forget,
+Treasure Planet (2003). In all of these cases, Disney (or Disney,
+Inc.) ripped creativity from the culture around him, mixed that
+creativity with his own extraordinary talent, and then burned that mix
+into the soul of his culture. Rip, mix, and burn.
+</para>
+<para>
+This is a kind of creativity. It is a creativity that we should
+remember and celebrate. There are some who would say that there is no
+creativity except this kind. We don't need to go that far to recognize
+its importance. We could call this "Disney creativity," though that
+would be a bit misleading. It is, more precisely, "Walt Disney
+creativity"—a form of expression and genius that builds upon the
+culture around us and makes it something different.
+</para>
+<para> In 1928, the culture that Disney was free to draw upon was
+relatively fresh. The public domain in 1928 was not very old and was
therefore quite vibrant. The average term of copyright was just around
-thirty years—for that minority of creative work that was in fact copyrighted.<footnote><para>
+thirty years—for that minority of creative work that was in fact
+copyrighted.<footnote><para>
<!-- f4 -->
Until 1976, copyright law granted an author the possibility of two terms: an
initial term and a renewal term. I have calculated the "average" term by
- determining
+determining
the weighted average of total registrations for any particular year,
and the proportion renewing. Thus, if 100 copyrights are registered in year
1, and only 15 are renewed, and the renewal term is 28 years, then the
- average
+average
term is 32.2 years. For the renewal data and other relevant data, see the
Web site associated with this book, available at
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
required the permission of the copyright owner.
</para>
<para>
-At the end of a copyright term, a work passes into the public
- domain.
+At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
permission and, hence, no lawyers. The public domain is a "lawyer-free
zone." Thus, most of the content from the nineteenth century was free
-for Disney to use and build upon in 1928. It was free for anyone—
-whether connected or not, whether rich or not, whether approved or
-not—to use and build upon.
+for Disney to use and build upon in 1928. It was free for
+anyone— whether connected or not, whether rich or not, whether
+approved or not—to use and build upon.
</para>
<para>
This is the ways things always were—until quite recently. For most
<!-- PAGE BREAK 38 -->
free for anyone to build upon without the permission of anyone else.
-Today's equivalent would be for creative work from the 1960s and
-1970s to now be free for the next Walt Disney to build upon without
-permission. Yet today, the public domain is presumptive only for
- content
-from before the Great Depression.
+Today's equivalent would be for creative work from the 1960s and 1970s
+to now be free for the next Walt Disney to build upon without
+permission. Yet today, the public domain is presumptive only for
+content from before the Great Depression.
</para>
<para>
-Of course, Walt Disney had no monopoly on "Walt Disney
- creativity."
-Nor does America. The norm of free culture has, until recently,
-and except within totalitarian nations, been broadly exploited and quite
+Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+Nor does America. The norm of free culture has, until recently, and
+except within totalitarian nations, been broadly exploited and quite
universal.
</para>
<para>
-Consider, for example, a form of creativity that seems strange to
-many Americans but that is inescapable within Japanese culture:
-manga, or comics. The Japanese are fanatics about comics. Some 40
-percent of publications are comics, and 30 percent of publication
- revenue
-derives from comics. They are everywhere in Japanese society, at
-every magazine stand, carried by a large proportion of commuters on
-Japan's extraordinary system of public transportation.
+Consider, for example, a form of creativity that seems strange to many
+Americans but that is inescapable within Japanese culture: manga, or
+comics. The Japanese are fanatics about comics. Some 40 percent of
+publications are comics, and 30 percent of publication revenue derives
+from comics. They are everywhere in Japanese society, at every
+magazine stand, carried by a large proportion of commuters on Japan's
+extraordinary system of public transportation.
</para>
<para>
Americans tend to look down upon this form of culture. That's an
-unattractive characteristic of ours. We're likely to misunderstand much
-about manga, because few of us have ever read anything close to the
-stories that these "graphic novels" tell. For the Japanese, manga cover
-every aspect of social life. For us, comics are "men in tights." And
- anyway,
-it's not as if the New York subways are filled with readers of Joyce
-or even Hemingway. People of different cultures distract themselves in
-different ways, the Japanese in this interestingly different way.
+unattractive characteristic of ours. We're likely to misunderstand
+much about manga, because few of us have ever read anything close to
+the stories that these "graphic novels" tell. For the Japanese, manga
+cover every aspect of social life. For us, comics are "men in tights."
+And anyway, it's not as if the New York subways are filled with
+readers of Joyce or even Hemingway. People of different cultures
+distract themselves in different ways, the Japanese in this
+interestingly different way.
</para>
<para>
But my purpose here is not to understand manga. It is to describe a
and reject any copycat comic that is merely a copy.
</para>
<para>
-These copycat comics are not a tiny part of the manga market. They
-are huge. More than 33,000 "circles" of creators from across Japan
- produce
-these bits of Walt Disney creativity. More than 450,000 Japanese
-come together twice a year, in the largest public gathering in the
- country,
+These copycat comics are not a tiny part of the manga market. They are
+huge. More than 33,000 "circles" of creators from across Japan produce
+these bits of Walt Disney creativity. More than 450,000 Japanese come
+together twice a year, in the largest public gathering in the country,
to exchange and sell them. This market exists in parallel to the
mainstream commercial manga market. In some ways, it obviously
competes with that market, but there is no sustained effort by those
-who control the commercial manga market to shut the doujinshi
- market
+who control the commercial manga market to shut the doujinshi market
down. It flourishes, despite the competition and despite the law.
</para>
<para>
-The most puzzling feature of the doujinshi market, for those
-trained in the law, at least, is that it is allowed to exist at all. Under
-Japanese copyright law, which in this respect (on paper) mirrors
- American
-copyright law, the doujinshi market is an illegal one. Doujinshi are
-plainly "derivative works." There is no general practice by doujinshi
-artists of securing the permission of the manga creators. Instead, the
-practice is simply to take and modify the creations of others, as Walt
-Disney did with Steamboat Bill, Jr. Under both Japanese and American
-law, that "taking" without the permission of the original copyright
-owner is illegal. It is an infringement of the original copyright to make
-a copy or a derivative work without the original copyright owner's
-permission.
+The most puzzling feature of the doujinshi market, for those trained
+in the law, at least, is that it is allowed to exist at all. Under
+Japanese copyright law, which in this respect (on paper) mirrors
+American copyright law, the doujinshi market is an illegal
+one. Doujinshi are plainly "derivative works." There is no general
+practice by doujinshi artists of securing the permission of the manga
+creators. Instead, the practice is simply to take and modify the
+creations of others, as Walt Disney did with Steamboat Bill, Jr. Under
+both Japanese and American law, that "taking" without the permission
+of the original copyright owner is illegal. It is an infringement of
+the original copyright to make a copy or a derivative work without the
+original copyright owner's permission.
</para>
<para>
Yet this illegal market exists and indeed flourishes in Japan, and in
which are fifty years old."
</para>
<para>
-The norm in Japan mitigates this legal difficulty. Some say it is
- precisely
-the benefit accruing to the Japanese manga market that explains
-the mitigation. Temple University law professor Salil Mehra, for
- example,
-hypothesizes that the manga market accepts these technical
-violations because they spur the manga market to be more wealthy and
-productive. Everyone would be worse off if doujinshi were banned, so
-the law does not ban doujinshi.<footnote><para>
+The norm in Japan mitigates this legal difficulty. Some say it is
+precisely the benefit accruing to the Japanese manga market that
+explains the mitigation. Temple University law professor Salil Mehra,
+for example, hypothesizes that the manga market accepts these
+technical violations because they spur the manga market to be more
+wealthy and productive. Everyone would be worse off if doujinshi were
+banned, so the law does not ban doujinshi.<footnote><para>
<!-- f6 -->
See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law
-Review 55 (2002): 155, 182. "[T]here might be a collective economic
- rationality
-that would lead manga and anime artists to forgo bringing legal
-actions for infringement. One hypothesis is that all manga artists may be
-better off collectively if they set aside their individual self-interest and
- decide
-not to press their legal rights. This is essentially a prisoner's dilemma
-solved."
+Review 55 (2002): 155, 182. "[T]here might be a collective economic
+rationality that would lead manga and anime artists to forgo bringing
+legal actions for infringement. One hypothesis is that all manga
+artists may be better off collectively if they set aside their
+individual self-interest and decide not to press their legal
+rights. This is essentially a prisoner's dilemma solved."
</para></footnote>
</para>
<para>
-The problem with this story, however, as Mehra plainly
- acknowledges,
+The problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response is not
-clear. It may well be that the market as a whole is better off if
- doujinshi
-are permitted rather than banned, but that doesn't explain why
- individual
-copyright owners don't sue nonetheless. If the law has no
-general exception for doujinshi, and indeed in some cases individual
-manga artists have sued doujinshi artists, why is there not a more
- general
-pattern of blocking this "free taking" by the doujinshi culture?
+clear. It may well be that the market as a whole is better off if
+doujinshi are permitted rather than banned, but that doesn't explain
+why individual copyright owners don't sue nonetheless. If the law has
+no general exception for doujinshi, and indeed in some cases
+individual manga artists have sued doujinshi artists, why is there not
+a more general pattern of blocking this "free taking" by the doujinshi
+culture?
</para>
<para>
I spent four wonderful months in Japan, and I asked this question
be puzzled about something you hadn't thought through before.
</para>
<para>
-We live in a world that celebrates "property." I am one of those
- celebrants.
-I believe in the value of property in general, and I also believe
-in the value of that weird form of property that lawyers call
- "intellectual
-property."<footnote><para>
+We live in a world that celebrates "property." I am one of those
+celebrants. I believe in the value of property in general, and I also
+believe in the value of that weird form of property that lawyers call
+"intellectual property."<footnote><para>
<!-- f7 -->
The term intellectual property is of relatively recent origin. See Siva
Vaidhyanathan,
intellectual property.
</para>
<para>
-But it takes just a second's reflection to realize that there is plenty of
-value out there that "property" doesn't capture. I don't mean "money
-can't buy you love," but rather, value that is plainly part of a process of
-production, including commercial as well as noncommercial
- production.
-If Disney animators had stolen a set of pencils to draw Steamboat
-Willie, we'd have no hesitation in condemning that taking as wrong—
-even though trivial, even if unnoticed. Yet there was nothing wrong, at
-least under the law of the day, with Disney's taking from Buster Keaton
-or from the Brothers Grimm. There was nothing wrong with the
- taking
-from Keaton because Disney's use would have been considered
-"fair." There was nothing wrong with the taking from the Grimms
- because
-the Grimms' work was in the public domain.
+But it takes just a second's reflection to realize that there is
+plenty of value out there that "property" doesn't capture. I don't
+mean "money can't buy you love," but rather, value that is plainly
+part of a process of production, including commercial as well as
+noncommercial production. If Disney animators had stolen a set of
+pencils to draw Steamboat Willie, we'd have no hesitation in
+condemning that taking as wrong— even though trivial, even if
+unnoticed. Yet there was nothing wrong, at least under the law of the
+day, with Disney's taking from Buster Keaton or from the Brothers
+Grimm. There was nothing wrong with the taking from Keaton because
+Disney's use would have been considered "fair." There was nothing
+wrong with the taking from the Grimms because the Grimms' work was in
+the public domain.
</para>
<para>
Thus, even though the things that Disney took—or more generally,
valuable, our tradition does not treat those takings as wrong. Some
<!-- PAGE BREAK 42 -->
-things remain free for the taking within a free culture, and that
- freedom
-is good.
+things remain free for the taking within a free culture, and that
+freedom is good.
</para>
<para>
The same with the doujinshi culture. If a doujinshi artist broke into
</para>
<para>
Yet there is an obvious reluctance, even among Japanese lawyers, to
-say that the copycat comic artists are "stealing." This form of Walt
- Disney
-creativity is seen as fair and right, even if lawyers in particular find
-it hard to say why.
-</para>
-<para>
-It's the same with a thousand examples that appear everywhere once
-you begin to look. Scientists build upon the work of other scientists
-without asking or paying for the privilege. ("Excuse me, Professor
- Einstein,
-but may I have permission to use your theory of relativity to show
-that you were wrong about quantum physics?") Acting companies
- perform
-adaptations of the works of Shakespeare without securing
- permission
-from anyone. (Does anyone believe Shakespeare would be
+say that the copycat comic artists are "stealing." This form of Walt
+Disney creativity is seen as fair and right, even if lawyers in
+particular find it hard to say why.
+</para>
+<para>
+It's the same with a thousand examples that appear everywhere once you
+begin to look. Scientists build upon the work of other scientists
+without asking or paying for the privilege. ("Excuse me, Professor
+Einstein, but may I have permission to use your theory of relativity
+to show that you were wrong about quantum physics?") Acting companies
+perform adaptations of the works of Shakespeare without securing
+permission from anyone. (Does anyone believe Shakespeare would be
better spread within our culture if there were a central Shakespeare
rights clearinghouse that all productions of Shakespeare must appeal
to first?) And Hollywood goes through cycles with a certain kind of
-movie: five asteroid films in the late 1990s; two volcano disaster films
-in 1997.
+movie: five asteroid films in the late 1990s; two volcano disaster
+films in 1997.
</para>
<para>
Creators here and everywhere are always and at all times building
<!-- PAGE BREAK 43 -->
</para>
<para>
-The hard question is therefore not whether a culture is free. All
- cultures
-are free to some degree. The hard question instead is "How free is
-this culture?" How much, and how broadly, is the culture free for
- others
-to take and build upon? Is that freedom limited to party members?
-To members of the royal family? To the top ten corporations on the
-New York Stock Exchange? Or is that freedom spread broadly? To
-artists generally, whether affiliated with the Met or not? To musicians
-generally, whether white or not? To filmmakers generally, whether
- affiliated
-with a studio or not?
+The hard question is therefore not whether a culture is free. All
+cultures are free to some degree. The hard question instead is "How
+free is this culture?" How much, and how broadly, is the culture free
+for others to take and build upon? Is that freedom limited to party
+members? To members of the royal family? To the top ten corporations
+on the New York Stock Exchange? Or is that freedom spread broadly? To
+artists generally, whether affiliated with the Met or not? To
+musicians generally, whether white or not? To filmmakers generally,
+whether affiliated with a studio or not?
</para>
<para>
Free cultures are cultures that leave a great deal open for others to
<sect1 id="mere-copyists">
<title>CHAPTER TWO: "Mere Copyists"</title>
<para>
-
In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call "photographs." Appropriately enough,
-they were called "daguerreotypes." The process was complicated and
+producing what we would call "photographs." Appropriately enough, they
+were called "daguerreotypes." The process was complicated and
expensive, and the field was thus limited to professionals and a few
zealous and wealthy amateurs. (There was even an American Daguerre
-Association that helped regulate the industry, as do all such
- associations,
-by keeping competition down so as to keep prices up.)
+Association that helped regulate the industry, as do all such
+associations, by keeping competition down so as to keep prices up.)
</para>
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
-This pushed inventors to find simpler and cheaper ways to make
- "automatic
-pictures." William Talbot soon discovered a process for
- making
-"negatives." But because the negatives were glass, and had to be
-kept wet, the process still remained expensive and cumbersome. In the
-1870s, dry plates were developed, making it easier to separate the
- taking
-of a picture from its developing. These were still plates of glass, and
-thus it was still not a process within reach of most amateurs.
+This pushed inventors to find simpler and cheaper ways to make
+"automatic pictures." William Talbot soon discovered a process for
+making "negatives." But because the negatives were glass, and had to
+be kept wet, the process still remained expensive and cumbersome. In
+the 1870s, dry plates were developed, making it easier to separate the
+taking of a picture from its developing. These were still plates of
+glass, and thus it was still not a process within reach of most
+amateurs.
</para>
<para>
The technological change that made mass photography possible
<!-- PAGE BREAK 45 -->
Eastman, himself an amateur photographer, was frustrated by the
technology of photographs made with plates. In a flash of insight (so
-to speak), Eastman saw that if the film could be made to be flexible, it
-could be held on a single spindle. That roll could then be sent to a
- developer,
-driving the costs of photography down substantially. By
- lowering
-the costs, Eastman expected he could dramatically broaden the
+to speak), Eastman saw that if the film could be made to be flexible,
+it could be held on a single spindle. That roll could then be sent to
+a developer, driving the costs of photography down substantially. By
+lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.
</para>
<para>
Eastman developed flexible, emulsion-coated paper film and placed
-rolls of it in small, simple cameras: the Kodak. The device was
- marketed
-on the basis of its simplicity. "You press the button and we do the
-rest."<footnote><para>
+rolls of it in small, simple cameras: the Kodak. The device was
+marketed on the basis of its simplicity. "You press the button and we
+do the rest."<footnote><para>
<!-- f1 -->
Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in The Kodak Primer:
</para>
<blockquote>
<para>
-The principle of the Kodak system is the separation of the work
-that any person whomsoever can do in making a photograph,
-from the work that only an expert can do. . . . We furnish
- anybody,
-man, woman or child, who has sufficient intelligence to
-point a box straight and press a button, with an instrument which
-altogether removes from the practice of photography the
- necessity
-for exceptional facilities or, in fact, any special knowledge of
-the art. It can be employed without preliminary study, without a
-darkroom and without chemicals.<footnote><para>
+The principle of the Kodak system is the separation of the work that
+any person whomsoever can do in making a photograph, from the work
+that only an expert can do. . . . We furnish anybody, man, woman or
+child, who has sufficient intelligence to point a box straight and
+press a button, with an instrument which altogether removes from the
+practice of photography the necessity for exceptional facilities or,
+in fact, any special knowledge of the art. It can be employed without
+preliminary study, without a darkroom and without
+chemicals.<footnote><para>
<!-- f2 -->
Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
<!-- PAGE BREAK 46 -->
The real significance of Eastman's invention, however, was not
economic. It was social. Professional photography gave individuals a
-glimpse of places they would never otherwise see. Amateur
- photography
+glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had
-never been able to do before. As author Brian Coe notes, "For the first
-time the snapshot album provided the man on the street with a
- permanent
-record of his family and its activities. . . . For the first time in
-history there exists an authentic visual record of the appearance and
- activities
-of the common man made without [literary] interpretation
-or bias."<footnote><para>
+never been able to do before. As author Brian Coe notes, "For the
+first time the snapshot album provided the man on the street with a
+permanent record of his family and its activities. . . . For the first
+time in history there exists an authentic visual record of the
+appearance and activities of the common man made without [literary]
+interpretation or bias."<footnote><para>
<!-- f5 -->
Coe, 58.
</para></footnote>
</para>
<para>
What was required for this technology to flourish? Obviously,
-Eastman's genius was an important part. But also important was the
- legal
-environment within which Eastman's invention grew. For early in
-the history of photography, there was a series of judicial decisions that
-could well have changed the course of photography substantially.
+Eastman's genius was an important part. But also important was the
+legal environment within which Eastman's invention grew. For early in
+the history of photography, there was a series of judicial decisions
+that could well have changed the course of photography substantially.
Courts were asked whether the photographer, amateur or professional,
required permission before he could capture and print whatever image
he wanted. Their answer was no.<footnote><para>
</para></footnote>
</para>
<para>
-The arguments in favor of requiring permission will sound
- surprisingly
-familiar. The photographer was "taking" something from the
- person
-or building whose photograph he shot—pirating something of
-value. Some even thought he was taking the target's soul. Just as
- Disney
-was not free to take the pencils that his animators used to draw
+The arguments in favor of requiring permission will sound surprisingly
+familiar. The photographer was "taking" something from the person or
+building whose photograph he shot—pirating something of
+value. Some even thought he was taking the target's soul. Just as
+Disney was not free to take the pencils that his animators used to
+draw
<!-- PAGE BREAK 47 -->
Mickey, so, too, should these photographers not be free to take images
that they thought valuable.
</para></footnote>)
</para>
<para>
-We can only speculate about how photography would have
- developed
-had the law gone the other way. If the presumption had been
-against the photographer, then the photographer would have had to
-demonstrate permission. Perhaps Eastman Kodak would have had to
-demonstrate permission, too, before it developed the film upon which
-images were captured. After all, if permission were not granted, then
-Eastman Kodak would be benefiting from the "theft" committed by
-the photographer. Just as Napster benefited from the copyright
- infringements
-committed by Napster users, Kodak would be benefiting
+We can only speculate about how photography would have developed had
+the law gone the other way. If the presumption had been against the
+photographer, then the photographer would have had to demonstrate
+permission. Perhaps Eastman Kodak would have had to demonstrate
+permission, too, before it developed the film upon which images were
+captured. After all, if permission were not granted, then Eastman
+Kodak would be benefiting from the "theft" committed by the
+photographer. Just as Napster benefited from the copyright
+infringements committed by Napster users, Kodak would be benefiting
from the "image-right" infringement of its photographers. We could
imagine the law then requiring that some form of permission be
-demonstrated before a company developed pictures. We could imagine
-a system developing to demonstrate that permission.
+demonstrated before a company developed pictures. We could imagine a
+system developing to demonstrate that permission.
</para>
<para>
<!-- PAGE BREAK 48 -->
-But though we could imagine this system of permission, it would
-be very hard to see how photography could have flourished as it did if
-the requirement for permission had been built into the rules that
- govern
-it. Photography would have existed. It would have grown in
- importance
-over time. Professionals would have continued to use the
-technology as they did—since professionals could have more easily borne
-the burdens of the permission system. But the spread of photography
-to ordinary people would not have occurred. Nothing like that growth
-would have been realized. And certainly, nothing like that growth in a
-democratic technology of expression would have been realized.
-If you drive through San Francisco's Presidio, you might see two
-gaudy yellow school buses painted over with colorful and striking
- images,
-and the logo "Just Think!" in place of the name of a school. But
-there's little that's "just" cerebral in the projects that these busses
- enable.
-These buses are filled with technologies that teach kids to tinker
-with film. Not the film of Eastman. Not even the film of your VCR.
-Rather the "film" of digital cameras. Just Think! is a project that
- enables
-kids to make films, as a way to understand and critique the filmed
-culture that they find all around them. Each year, these busses travel to
-more than thirty schools and enable three hundred to five hundred
-children to learn something about media by doing something with
- media.
-By doing, they think. By tinkering, they learn.
+But though we could imagine this system of permission, it would be
+very hard to see how photography could have flourished as it did if
+the requirement for permission had been built into the rules that
+govern it. Photography would have existed. It would have grown in
+importance over time. Professionals would have continued to use the
+technology as they did—since professionals could have more
+easily borne the burdens of the permission system. But the spread of
+photography to ordinary people would not have occurred. Nothing like
+that growth would have been realized. And certainly, nothing like that
+growth in a democratic technology of expression would have been
+realized. If you drive through San Francisco's Presidio, you might
+see two gaudy yellow school buses painted over with colorful and
+striking images, and the logo "Just Think!" in place of the name of a
+school. But there's little that's "just" cerebral in the projects that
+these busses enable. These buses are filled with technologies that
+teach kids to tinker with film. Not the film of Eastman. Not even the
+film of your VCR. Rather the "film" of digital cameras. Just Think!
+is a project that enables kids to make films, as a way to understand
+and critique the filmed culture that they find all around them. Each
+year, these busses travel to more than thirty schools and enable three
+hundred to five hundred children to learn something about media by
+doing something with media. By doing, they think. By tinkering, they
+learn.
</para>
<para>
These buses are not cheap, but the technology they carry is
<para>
<!-- PAGE BREAK 49 -->
"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability . . . to understand, analyze, and
- deconstruct
-media images. Its aim is to make [kids] literate about the way
-media works, the way it's constructed, the way it's delivered, and the
-way people access it."
+Think!, puts it, "is the ability . . . to understand, analyze, and
+deconstruct media images. Its aim is to make [kids] literate about the
+way media works, the way it's constructed, the way it's delivered, and
+the way people access it."
</para>
<para>
This may seem like an odd way to think about "literacy." For most
<para>
Maybe. But in a world where children see on average 390 hours of
television commercials per year, or between 20,000 and 45,000
- commercials
-generally,<footnote><para>
+commercials generally,<footnote><para>
<!-- f10 -->
Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
</para></footnote>
But as computers open up an interactive space where a story is
"played" as well as experienced, that grammar changes. The simple
-control of narrative is lost, and so other techniques are necessary.
- Author
+control of narrative is lost, and so other techniques are necessary. Author
Michael Crichton had mastered the narrative of science fiction.
But when he tried to design a computer game based on one of his
works, it was a new craft he had to learn. How to lead people through
to a wildly successful author.<footnote><para>
<!-- f12 -->
See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
- November
-2000, available at
+November 2000, available at
<ulink url="http://free-culture.cc/notes/">link #8</ulink>; "Timeline," 22 November 2000,
- available
-at
+available at
<ulink url="http://free-culture.cc/notes/">link #9</ulink>.
</para></footnote>
</para>
+<indexterm><primary>computer games</primary></indexterm>
<para>
This skill is precisely the craft a filmmaker learns. As Daley
describes,
content, but more egregiously than anything Napster ever did—
Napster never charged for the content it enabled others to give away.
</para>
+<indexterm><primary>Anello, Douglas</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
"unfair and potentially destructive competition."<footnote><para>
<!-- f13 -->
-Copyright Law Revision—CATV: Hearing on S. 1006 Before the
- Subcommittee
-on Patents, Trademarks, and Copyrights of the Senate
- Committee
+Copyright Law Revision—CATV: Hearing on S. 1006 Before the Subcommittee
+on Patents, Trademarks, and Copyrights of the Senate Committee
on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of
Rosel H. Hyde, chairman of the Federal Communications Commission).
</para></footnote>
-There may have
-been a "public interest" in spreading the reach of cable TV, but as
- Douglas
-Anello, general counsel to the National Association of
- Broadcasters,
-asked Senator Quentin Burdick during testimony, "Does public
+There may have been a "public interest" in spreading the reach of cable
+TV, but as Douglas Anello, general counsel to the National Association
+of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
interest dictate that you use somebody else's property?"<footnote><para>
<!-- f14 -->
Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
The reports about the law lords' votes are mixed. On some counts,
it looks as if perpetual copyright prevailed. But there is no ambiguity
<!-- PAGE BREAK 104 -->
-about how the House of Lords voted as whole. By a two-to-one
- majority
+about how the House of Lords voted as whole. By a two-to-one majority
(22 to 11) they voted to reject the idea of perpetual copyrights.
-Whatever one's understanding of the common law, now a copyright
-was fixed for a limited time, after which the work protected by
- copyright
+Whatever one's understanding of the common law, now a copyright was
+fixed for a limited time, after which the work protected by copyright
passed into the public domain.
</para>
+<indexterm><primary>Bacon, Francis</primary></indexterm>
<para>
"The public domain." Before the case of Donaldson v. Beckett, there
was no clear idea of a public domain in England. Before 1774, there
was a strong argument that common law copyrights were perpetual.
After 1774, the public domain was born. For the first time in
- Anglo-American
-history, the legal control over creative works expired, and the
-greatest works in English history—including those of Shakespeare,
-Bacon, Milton, Johnson, and Bunyan—were free of legal restraint.
+Anglo-American history, the legal control over creative works expired,
+and the greatest works in English history—including those of
+Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of
+legal restraint.
</para>
<para>
It is hard for us to imagine, but this decision by the House of Lords
phonograph records that is effectively free. Because these recordings
were made without copy-protection technologies, I am "free" to copy,
or "rip," music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that "freedom" was a right:
-In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
- capacities
-of digital technologies.
+Apple Corporation went so far as to suggest that "freedom" was a
+right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+capacities of digital technologies.
</para>
+<indexterm><primary>Adromeda</primary></indexterm>
<para>
This "use" of my records is certainly valuable. I have begun a large
process at home of ripping all of my and my wife's CDs, and storing
-them in one archive. Then, using Apple's iTunes, or a wonderful
- program
-called Andromeda, we can build different play lists of our music:
-Bach, Baroque, Love Songs, Love Songs of Significant Others—the
-potential is endless. And by reducing the costs of mixing play lists,
-these technologies help build a creativity with play lists that is itself
- independently
-valuable. Compilations of songs are creative and
- meaningful
-in their own right.
+them in one archive. Then, using Apple's iTunes, or a wonderful
+program called Andromeda, we can build different play lists of our
+music: Bach, Baroque, Love Songs, Love Songs of Significant
+Others—the potential is endless. And by reducing the costs of
+mixing play lists, these technologies help build a creativity with
+play lists that is itself independently valuable. Compilations of
+songs are creative and meaningful in their own right.
</para>
<para>
This use is enabled by unprotected media—either CDs or records.
But unprotected media also enable file sharing. File sharing threatens
-(or so the content industry believes) the ability of creators to earn a fair
-return from their creativity. And thus, many are beginning to
- experiment
-with technologies to eliminate unprotected media. These
- technologies,
-for example, would enable CDs that could not be ripped. Or
-they might enable spy programs to identify ripped content on people's
-machines.
+(or so the content industry believes) the ability of creators to earn
+a fair return from their creativity. And thus, many are beginning to
+experiment with technologies to eliminate unprotected media. These
+technologies, for example, would enable CDs that could not be
+ripped. Or they might enable spy programs to identify ripped content
+on people's machines.
</para>
<para>
If these technologies took off, then the building of large archives of
-your own music would become quite difficult. You might hang in
-hacker circles, and get technology to disable the technologies that
- protect
+your own music would become quite difficult. You might hang in hacker
+circles, and get technology to disable the technologies that protect
the content. Trading in those technologies is illegal, but maybe that
doesn't bother you much. In any case, for the vast majority of people,
these protection technologies would effectively destroy the archiving
<!-- PAGE BREAK 213 -->
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
-plastic or were part of a massively complex "digital rights
- management"
-system.
+plastic or were part of a massively complex "digital rights
+management" system.
</para>
<para>
If the only way to assure that artists get paid were the elimination
-of the ability to freely move content, then these technologies to
- interfere
-with the freedom to move content would be justifiable. But what
-if there were another way to assure that artists are paid, without
- locking
-down any content? What if, in other words, a different system
-could assure compensation to artists while also preserving the freedom
-to move content easily?
-</para>
-<para>
-My point just now is not to prove that there is such a system. I
- offer
+of the ability to freely move content, then these technologies to
+interfere with the freedom to move content would be justifiable. But
+what if there were another way to assure that artists are paid,
+without locking down any content? What if, in other words, a different
+system could assure compensation to artists while also preserving the
+freedom to move content easily?
+</para>
+<para>
+My point just now is not to prove that there is such a system. I offer
a version of such a system in the last chapter of this book. For now,
-the only point is the relatively uncontroversial one: If a different system
-achieved the same legitimate objectives that the existing copyright
- system
-achieved, but left consumers and creators much more free, then
-we'd have a very good reason to pursue this alternative—namely,
- freedom.
-The choice, in other words, would not be between property and
-piracy; the choice would be between different property systems and the
-freedoms each allowed.
+the only point is the relatively uncontroversial one: If a different
+system achieved the same legitimate objectives that the existing
+copyright system achieved, but left consumers and creators much more
+free, then we'd have a very good reason to pursue this
+alternative—namely, freedom. The choice, in other words, would
+not be between property and piracy; the choice would be between
+different property systems and the freedoms each allowed.
</para>
<para>
I believe there is a way to assure that artists are paid without
consequence
for other creative works is much more dire.
</para>
+<indexterm><primary>Agee, Michael</primary></indexterm>
<para>
-Consider the story of Michael Agee, chairman of Hal Roach
- Studios,
-which owns the copyrights for the Laurel and Hardy films. Agee
-is a direct beneficiary of the Bono Act. The Laurel and Hardy films
-were made between 1921 and 1951. Only one of these films, The Lucky
-Dog, is currently out of copyright. But for the CTEA, films made after
-1923 would have begun entering the public domain. Because Agee
-controls the exclusive rights for these popular films, he makes a great
-deal of money. According to one estimate, "Roach has sold about
-60,000 videocassettes and 50,000 DVDs of the duo's silent films."<footnote><para>
-<!-- f11. --> See David G. Savage, "High Court Scene of Showdown on Copyright
-Law," Los Angeles Times, 6 October 2002; David Streitfeld, "Classic
-Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today
-on Striking Down Copyright Extension," Orlando Sentinel Tribune, 9
- October
-2002.
+Consider the story of Michael Agee, chairman of Hal Roach Studios,
+which owns the copyrights for the Laurel and Hardy films. Agee is a
+direct beneficiary of the Bono Act. The Laurel and Hardy films were
+made between 1921 and 1951. Only one of these films, The Lucky Dog, is
+currently out of copyright. But for the CTEA, films made after 1923
+would have begun entering the public domain. Because Agee controls the
+exclusive rights for these popular films, he makes a great deal of
+money. According to one estimate, "Roach has sold about 60,000
+videocassettes and 50,000 DVDs of the duo's silent
+films."<footnote><para>
+<!-- f11. -->
+See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
+Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
+Down Copyright Extension," Orlando Sentinel Tribune, 9 October 2002.
</para></footnote>
</para>
<para>
-Yet Agee opposed the CTEA. His reasons demonstrate a rare
-virtue in this culture: selflessness. He argued in a brief before the
-Supreme Court that the Sonny Bono Copyright Term Extension Act
-will, if left standing, destroy a whole generation of American film.
+Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
+this culture: selflessness. He argued in a brief before the Supreme
+Court that the Sonny Bono Copyright Term Extension Act will, if left
+standing, destroy a whole generation of American film.
</para>
<para>
His argument is straightforward. A tiny fraction of this work has
<!-- PAGE BREAK 231 -->
-any continuing commercial value. The rest—to the extent it survives at
-all—sits in vaults gathering dust. It may be that some of this work not
-now commercially valuable will be deemed to be valuable by the
- owners
-of the vaults. For this to occur, however, the commercial benefit
-from the work must exceed the costs of making the work available for
-distribution.
+any continuing commercial value. The rest—to the extent it
+survives at all—sits in vaults gathering dust. It may be that
+some of this work not now commercially valuable will be deemed to be
+valuable by the owners of the vaults. For this to occur, however, the
+commercial benefit from the work must exceed the costs of making the
+work available for distribution.
</para>
<para>
We can't know the benefits, but we do know a lot about the costs.
this pressure (something that few law firms today would ever
do), and throughout the case, they gave it everything they could.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
There were three key lawyers on the case from Jones Day. Geoff
Stewart was the first, but then Dan Bromberg and Don Ayer became
unless the law was struck, a whole generation of American film would
disappear. The other made the economic argument absolutely clear.
</para>
+<indexterm><primary>Akerlof, George</primary></indexterm>
+<indexterm><primary>Arrow, Kenneth</primary></indexterm>
<para>
This economists' brief was signed by seventeen economists, including
five Nobel Prize winners, including Ronald Coase, James Buchanan,
-Milton Friedman, Kenneth Arrow, and George Akerlof. The
- economists,
-as the list of Nobel winners demonstrates, spanned the political
+Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
+the list of Nobel winners demonstrates, spanned the political
spectrum. Their conclusions were powerful: There was no plausible
-claim that extending the terms of existing copyrights would do anything
-to increase incentives to create. Such extensions were nothing more
-than "rent-seeking"—the fancy term economists use to describe
-special-interest legislation gone wild.
+claim that extending the terms of existing copyrights would do
+anything to increase incentives to create. Such extensions were
+nothing more than "rent-seeking"—the fancy term economists use
+to describe special-interest legislation gone wild.
</para>
<para>
The same effort at balance was reflected in the legal team we
were an effective practice; I found ways to take every question back to
this central idea.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
One moot was before the lawyers at Jones Day. Don Ayer was the
-skeptic. He had served in the Reagan Justice Department with
- Solicitor
-General Charles Fried. He had argued many cases before the
-Supreme Court. And in his review of the moot, he let his concern
-speak:
+skeptic. He had served in the Reagan Justice Department with Solicitor
+General Charles Fried. He had argued many cases before the Supreme
+Court. And in his review of the moot, he let his concern speak:
</para>
<para>
"I'm just afraid that unless they really see the harm, they won't be
-willing to upset this practice that the government says has been a
- consistent
-practice for two hundred years. You have to make them see the
-harm—passionately get them to see the harm. For if they don't see
-that, then we haven't any chance of winning."
+willing to upset this practice that the government says has been a
+consistent practice for two hundred years. You have to make them see
+the harm—passionately get them to see the harm. For if they
+don't see that, then we haven't any chance of winning."
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
He may have argued many cases before this Court, I thought, but
he didn't understand its soul. As a clerk, I had seen the Justices do the
perpetual term not be permitted under the copyright laws.
</para>
</blockquote>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
That was a correct answer, but it wasn't the right answer. The right
answer was instead that there was an obvious and profound harm. Any
For I had let a view of the law that I liked interfere with a view of
the law as it is.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
-Most lawyers, and most law professors, have little patience for
- idealism
-about courts in general and this Supreme Court in particular.
-Most have a much more pragmatic view. When Don Ayer said that
-this case would be won based on whether I could convince the Justices
-that the framers' values were important, I fought the idea, because I
-didn't want to believe that that is how this Court decides. I insisted on
-arguing this case as if it were a simple application of a set of principles.
-I had an argument that followed in logic. I didn't need to waste my
-time showing it should also follow in popularity.
+Most lawyers, and most law professors, have little patience for
+idealism about courts in general and this Supreme Court in particular.
+Most have a much more pragmatic view. When Don Ayer said that this
+case would be won based on whether I could convince the Justices that
+the framers' values were important, I fought the idea, because I
+didn't want to believe that that is how this Court decides. I insisted
+on arguing this case as if it were a simple application of a set of
+principles. I had an argument that followed in logic. I didn't need
+to waste my time showing it should also follow in popularity.
</para>
<para>
As I read back over the transcript from that argument in October, I
I had used elsewhere. It was not the basis on which a court should
decide the issue.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
Would it have been different if I had argued it differently? Would it
have been different if Don Ayer had argued it? Or Charles Fried? Or
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
The day Eldred was decided, fate would have it that I was to travel to
-Washington, D.C. (The day the rehearing petition in Eldred was
- denied—meaning
-the case was really finally over—fate would have it that
-I was giving a speech to technologists at Disney World.) This was a
-particularly long flight to my least favorite city. The drive into the city
-from Dulles was delayed because of traffic, so I opened up my
- computer
-and wrote an op-ed piece.
+Washington, D.C. (The day the rehearing petition in Eldred was
+denied—meaning the case was really finally over—fate would
+have it that I was giving a speech to technologists at Disney World.)
+This was a particularly long flight to my least favorite city. The
+drive into the city from Dulles was delayed because of traffic, so I
+opened up my computer and wrote an op-ed piece.
</para>
+<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
It was an act of contrition. During the whole of the flight from San
Francisco to Washington, I had heard over and over again in my head
intellectual property is. As every economist and lawyer knows, the
hard question in intellectual property law is to find that
balance. But that there should be limits is, I had thought,
-uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
+uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
based on drugs whose patent has expired) contrary to the WIPO mission?
Does the public domain weaken intellectual property? Would it have
been better if the protocols of the Internet had been patented?
<para>
But we're a long way away from whittling the problem down to this
subset of type A sharers. And our focus until we're there should not be
-on finding ways to break the Internet. Our focus until we're there
+on finding ways to break the Internet. Our focus until we're there
<!-- PAGE BREAK 309 -->
should be on how to make sure the artists are paid, while protecting the
projects / text-free-culture-lessig.git / commitdiff