Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
<!-- PAGE BREAK 36 -->
The coincidence of titles is not coincidental. Steamboat Willie is a
- direct
-cartoon parody of Steamboat Bill,<footnote><para>
+direct cartoon parody of Steamboat Bill,<footnote><para>
<!-- f2 -->
I am grateful to David Gerstein and his careful history, described at
<ulink url="http://free-culture.cc/notes/">link #4</ulink>.
Straw," was already in the public domain. Letter from David Smith to
Harry Surden, 10 July 2003, on file with author.
</para></footnote>
-and both are built upon a
- common
-song as a source. It is not just from the invention of synchronized
-sound in The Jazz Singer that we get Steamboat Willie. It is also from
-Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the
-song "Steamboat Bill," that we get Steamboat Willie, and then from
-Steamboat Willie, Mickey Mouse.
+and both are built upon a common song as a source. It is not just from
+the invention of synchronized sound in The Jazz Singer that we get
+Steamboat Willie. It is also from Buster Keaton's invention of
+Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill,"
+that we get Steamboat Willie, and then from Steamboat Willie, Mickey
+Mouse.
</para>
<para>
This "borrowing" was nothing unique, either for Disney or for the
improved
quality, and a greater choice.<footnote><para>
<!-- f11 -->
-Copyright Law Revision: Report to Accompany H.R. 2512, House
- Committee
-on the Judiciary, 90th Cong., 1st sess., House Document no. 83,
-(8 March 1967). I am grateful to Glenn Brown for drawing my attention
-to this report.
-</para></footnote>
+Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
+on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
+March 1967). I am grateful to Glenn Brown for drawing my attention to
+this report.</para></footnote>
</para>
</blockquote>
<para>
than 20 percent drop in the number of CDs released since 1999. That
no doubt accounts for some of the decrease in sales. Rising prices could
account for at least some of the loss. "From 1999 to 2001, the average
-price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote><para>
+price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote>
<!-- f13 -->
+<indexterm><primary>Black, Jane</primary></indexterm>
+<para>
Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
- February
-2003, available at
+February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #17</ulink>.
-</para></footnote>
-Competition
-from other forms of media could also account for some of the decline.
-As Jane Black of BusinessWeek notes, "The soundtrack to the film High
-Fidelity has a list price of $18.98. You could get the whole movie [on
-DVD] for $19.99."<footnote><para>
+</para>
+</footnote>
+Competition from other forms of media could also account for some of the
+decline. As Jane Black of BusinessWeek notes, "The soundtrack to the film
+High Fidelity has a list price of $18.98. You could get the whole movie
+
[on DVD] for $19.99."<footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
control
over the future (cable).
</para>
+<indexterm><primary>Betamax</primary></indexterm>
<para>
-In the same year that Congress struck this balance, two major
- producers
-and distributors of film content filed a lawsuit against another
-technology, the video tape recorder (VTR, or as we refer to them today,
-VCRs) that Sony had produced, the Betamax. Disney's and Universal's
-claim against Sony was relatively simple: Sony produced a device,
- Disney
-and Universal claimed, that enabled consumers to engage in
- copyright
-infringement. Because the device that Sony built had a "record"
-button, the device could be used to record copyrighted movies and
-shows. Sony was therefore benefiting from the copyright infringement
-of its customers. It should therefore, Disney and Universal claimed, be
-partially liable for that infringement.
+In the same year that Congress struck this balance, two major
+producers and distributors of film content filed a lawsuit against
+another technology, the video tape recorder (VTR, or as we refer to
+them today, VCRs) that Sony had produced, the Betamax. Disney's and
+Universal's claim against Sony was relatively simple: Sony produced a
+device, Disney and Universal claimed, that enabled consumers to engage
+in copyright infringement. Because the device that Sony built had a
+"record" button, the device could be used to record copyrighted movies
+and shows. Sony was therefore benefiting from the copyright
+infringement of its customers. It should therefore, Disney and
+Universal claimed, be partially liable for that infringement.
</para>
<para>
There was something to Disney's and Universal's claim. Sony did
doubt the majority of shows would not have authorized copying. And
<!-- PAGE BREAK 89 -->
in the face of this obvious preference, Sony could have designed its
- system
-to minimize the opportunity for copyright infringement. It did
+system to minimize the opportunity for copyright infringement. It did
not, and for that, Disney and Universal wanted to hold it responsible
for the architecture it chose.
</para>
<para>
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "When
-there are 20, 30, 40 million of these VCRs in the land, we will be
- invaded
-by millions of `tapeworms,' eating away at the very heart and
-essence of the most precious asset the copyright owner has, his
- copyright."<footnote><para>
+champion. Valenti called VCRs "tapeworms." He warned, "When there are
+20, 30, 40 million of these VCRs in the land, we will be invaded by
+millions of `tapeworms,' eating away at the very heart and essence of
+the most precious asset the copyright owner has, his
+copyright."<footnote><para>
<!-- f18 -->
Copyright Infringements (Audio and Video Recorders): Hearing on
S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
Picture Association of America, Inc.).
</para></footnote>
-"One does not have to be trained in sophisticated marketing
-and creative judgment," he told Congress, "to understand the
- devastation
-on the after-theater marketplace caused by the hundreds of
- millions
-of tapings that will adversely impact on the future of the creative
+"One does not have to be trained in sophisticated marketing and
+creative judgment," he told Congress, "to understand the devastation
+on the after-theater marketplace caused by the hundreds of millions of
+tapings that will adversely impact on the future of the creative
community in this country. It is simply a question of basic economics
and plain common sense."<footnote><para>
<!-- f19 -->
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
</para>
+<indexterm><primary>Nimmer, David</primary></indexterm>
<para>
When the lights came up, I looked over to my copanelist, David
Nimmer, perhaps the leading copyright scholar and practitioner in the
began his talk with a question: "Do you know how many federal laws
were just violated in this room?"
</para>
+<indexterm><primary>Boies, David</primary></indexterm>
<para>
For of course, the two brilliantly talented creators who made this
film hadn't done what Alben did. They hadn't spent a year clearing the
-rights to these clips; technically, what they had done violated the law.
-Of course, it wasn't as if they or anyone were going to be prosecuted for
-this violation (the presence of 250 judges and a gaggle of federal
- marshals
-notwithstanding). But Nimmer was making an important point:
-A year before anyone would have heard of the word Napster, and two
-years before another member of our panel, David Boies, would defend
-Napster before the Ninth Circuit Court of Appeals, Nimmer was
- trying
-to get the judges to see that the law would not be friendly to the
-capacities that this technology would enable. Technology means you
-can now do amazing things easily; but you couldn't easily do them
-legally.
+rights to these clips; technically, what they had done violated the
+law. Of course, it wasn't as if they or anyone were going to be
+prosecuted for this violation (the presence of 250 judges and a gaggle
+of federal marshals notwithstanding). But Nimmer was making an
+important point: A year before anyone would have heard of the word
+Napster, and two years before another member of our panel, David
+Boies, would defend Napster before the Ninth Circuit Court of Appeals,
+Nimmer was trying to get the judges to see that the law would not be
+friendly to the capacities that this technology would
+enable. Technology means you can now do amazing things easily; but you
+couldn't easily do them legally.
</para>
<para>
We live in a "cut and paste" culture enabled by technology. Anyone
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
-its archives, musicians are able to string together mixes of sound never
-before imagined; filmmakers are able to build movies out of clips on
-computers around the world. An extraordinary site in Sweden takes
-images of politicians and blends them with music to create biting
- political
-commentary. A site called Camp Chaos has produced some of
-the most biting criticism of the record industry that there is through
-the mixing of Flash! and music.
+its archives, musicians are able to string together mixes of sound
+never before imagined; filmmakers are able to build movies out of
+clips on computers around the world. An extraordinary site in Sweden
+takes images of politicians and blends them with music to create
+biting political commentary. A site called Camp Chaos has produced
+some of the most biting criticism of the record industry that there is
+through the mixing of Flash! and music.
</para>
<para>
All of these creations are technically illegal. Even if the creators
clearance rules, it doesn't get released.
</para>
<para>
-To some, these stories suggest a solution: Let's alter the mix of
-rights so that people are free to build upon our culture. Free to add or
-mix as they see fit. We could even make this change without
- necessarily
-requiring that the "free" use be free as in "free beer." Instead, the
- system
-could simply make it easy for follow-on creators to compensate
-artists without requiring an army of lawyers to come along: a rule, for
-example, that says "the royalty owed the copyright owner of an
- unregistered
-work for the derivative reuse of his work will be a flat 1 percent
-of net revenues, to be held in escrow for the copyright owner." Under
-this rule, the copyright owner could benefit from some royalty, but he
-would not have the benefit of a full property right (meaning the right
-to name his own price) unless he registers the work.
+To some, these stories suggest a solution: Let's alter the mix of
+rights so that people are free to build upon our culture. Free to add
+or mix as they see fit. We could even make this change without
+necessarily requiring that the "free" use be free as in "free beer."
+Instead, the system could simply make it easy for follow-on creators
+to compensate artists without requiring an army of lawyers to come
+along: a rule, for example, that says "the royalty owed the copyright
+owner of an unregistered work for the derivative reuse of his work
+will be a flat 1 percent of net revenues, to be held in escrow for the
+copyright owner." Under this rule, the copyright owner could benefit
+from some royalty, but he would not have the benefit of a full
+property right (meaning the right to name his own price) unless he
+registers the work.
</para>
<para>
Who could possibly object to this? And what reason would there be
What reason would anyone have to oppose it?
</para>
<para>
-In February 2003, DreamWorks studios announced an
- agreement
-with Mike Myers, the comic genius of Saturday Night Live and
+In February 2003, DreamWorks studios announced an agreement with Mike
+Myers, the comic genius of Saturday Night Live and
<!-- PAGE BREAK 118 -->
-Austin Powers. According to the announcement, Myers and
- Dream-Works
-would work together to form a "unique filmmaking pact." Under
-the agreement, DreamWorks "will acquire the rights to existing motion
-picture hits and classics, write new storylines and—with the use of
- stateof-the-art
-digital technology—insert Myers and other actors into the
-film, thereby creating an entirely new piece of entertainment."
-</para>
-<para>
-The announcement called this "film sampling." As Myers
- explained,
-"Film Sampling is an exciting way to put an original spin on
-existing films and allow audiences to see old movies in a new light. Rap
+Austin Powers. According to the announcement, Myers and Dream-Works
+would work together to form a "unique filmmaking pact." Under the
+agreement, DreamWorks "will acquire the rights to existing motion
+picture hits and classics, write new storylines and—with the use
+of stateof-the-art digital technology—insert Myers and other
+actors into the film, thereby creating an entirely new piece of
+entertainment."
+</para>
+<para>
+The announcement called this "film sampling." As Myers explained,
+"Film Sampling is an exciting way to put an original spin on existing
+films and allow audiences to see old movies in a new light. Rap
artists have been doing this for years with music and now we are able
to take that same concept and apply it to film." Steven Spielberg is
-quoted as saying, "If anyone can create a way to bring old films to new
-audiences, it is Mike."
+quoted as saying, "If anyone can create a way to bring old films to
+new audiences, it is Mike."
</para>
<para>
Spielberg is right. Film sampling by Myers will be brilliant. But if
you don't think about it, you might miss the truly astonishing point
-about this announcement. As the vast majority of our film heritage
- remains
-under copyright, the real meaning of the DreamWorks
- announcement
-is just this: It is Mike Myers and only Mike Myers who is
+about this announcement. As the vast majority of our film heritage
+remains under copyright, the real meaning of the DreamWorks
+announcement is just this: It is Mike Myers and only Mike Myers who is
free to sample. Any general freedom to build upon the film archive of
our culture, a freedom in other contexts presumed for us all, is now a
privilege reserved for the funny and famous—and presumably rich.
These changes are of two sorts: the scope of concentration, and its
nature.
</para>
+<indexterm><primary>BMG</primary></indexterm>
<para>
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
<!-- f25 -->
FCC Oversight: Hearing Before the Senate Commerce, Science and
Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
-(statement of Senator John McCain). </para></footnote> The five
-recording labels of Universal Music Group, BMG, Sony Music
+(statement of Senator John McCain). </para></footnote>
+The five recording labels of Universal Music Group, BMG, Sony Music
Entertainment, Warner Music Group, and EMI control 84.8 percent of the
U.S. music market.<footnote><para>
<!-- f26 -->
engineers in Germany had rigged a new vehicle to play MP3s via
the car's built-in sound system, but that the company's marketing
and legal departments weren't comfortable with pushing this
- forward
-for release stateside. Even today, no new cars are sold in the
+forward for release stateside. Even today, no new cars are sold in the
United States with bona fide MP3 players. . . . <footnote><para>
-<!-- f5. --> Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+<!-- f5. -->
+Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
2003, available at
-<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli
-for this example.
+<ulink url="http://free-culture.cc/notes/">link #43</ulink>. I am grateful
+to Dr. Mohammad Al-Ubaydli for this example.
</para></footnote>
</para>
</blockquote>
the stupid harm of the present system.
</para>
<para>
-Indeed, many recognized the obvious benefit of the registration
- requirement.
-For one of the hardest things about the current system for
-people who want to license content is that there is no obvious place to
-look for the current copyright owners. Since registration is not
- required,
-since marking content is not required, since no formality at all
-is required, it is often impossibly hard to locate copyright owners to ask
-permission to use or license their work. This system would lower these
-costs, by establishing at least one registry where copyright owners
-could be identified.
+Indeed, many recognized the obvious benefit of the registration
+requirement. For one of the hardest things about the current system
+for people who want to license content is that there is no obvious
+place to look for the current copyright owners. Since registration is
+not required, since marking content is not required, since no
+formality at all is required, it is often impossibly hard to locate
+copyright owners to ask permission to use or license their work. This
+system would lower these costs, by establishing at least one registry
+where copyright owners could be identified.
</para>
<indexterm><primary>Berlin Act (1908)</primary></indexterm>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
<!-- PAGE BREAK 257 -->
As I described in chapter 10, formalities in copyright law were
"Walt Disney creativity" is destroyed when there is no simple way to
know what's protected and what's not.
</para>
+<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<para>
The fight against formalities achieved its first real victory in
Berlin in 1908. International copyright lawyers amended the Berne
content that have been crafted elsewhere.
</para>
<para>
-For example, if a recording industry association devises a method
-for marking CDs, it would propose that to the Copyright Office. The
+For example, if a recording industry association devises a method for
+marking CDs, it would propose that to the Copyright Office. The
Copyright Office would hold a hearing, at which other proposals could
be made. The Copyright Office would then select the proposal that it
-judged preferable, and it would base that choice solely upon the
- consideration
-of which method could best be integrated into the registration
-and renewal system. We would not count on the government to
- innovate;
-but we would count on the government to keep the product of
- innovation
-in line with its other important functions.
+judged preferable, and it would base that choice solely upon the
+consideration of which method could best be integrated into the
+registration and renewal system. We would not count on the government
+to innovate; but we would count on the government to keep the product
+of innovation in line with its other important functions.
</para>
<para>
-Finally, marking content clearly would simplify registration
- requirements.
-If photographs were marked by author and year, there
-would be little reason not to allow a photographer to reregister, for
- example,
-all photographs taken in a particular year in one quick step. The
-aim of the formality is not to burden the creator; the system itself
-should be kept as simple as possible.
+Finally, marking content clearly would simplify registration
+requirements. If photographs were marked by author and year, there
+would be little reason not to allow a photographer to reregister, for
+example, all photographs taken in a particular year in one quick
+step. The aim of the formality is not to burden the creator; the
+system itself should be kept as simple as possible.
</para>
<para>
The objective of formalities is to make things clear. The existing
<chapter id="c-notes">
<title>NOTES</title>
<para>
-Throughout this text, there are references to links on the World Wide Web. As
-anyone who has tried to use the Web knows, these links can be highly unstable. I
-have tried to remedy the instability by redirecting readers to the original source
-through the Web site associated with this book. For each link below, you can go to
-http://free-culture.cc/notes and locate the original source by clicking on the
-number after the # sign. If the original link remains alive, you will be redirected to
-that link. If the original link has disappeared, you will be redirected to an
- appropriate
-reference for the material.
+Throughout this text, there are references to links on the World Wide
+Web. As anyone who has tried to use the Web knows, these links can be
+highly unstable. I have tried to remedy the instability by redirecting
+readers to the original source through the Web site associated with
+this book. For each link below, you can go to
+http://free-culture.cc/notes and locate the original source by
+clicking on the number after the # sign. If the original link remains
+alive, you will be redirected to that link. If the original link has
+disappeared, you will be redirected to an appropriate reference for
+the material.
</para>
<!-- PAGE BREAK 336 -->
</para>
<para>
I received guidance in various places from friends and academics,
-including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard
-Posner, Mark Rose, and Kathleen Sullivan. And I received correction
-and guidance from many amazing students at Stanford Law School
-and Stanford University. They included Andrew B. Coan, John Eden,
-James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert
- Hallman,
-Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum,
-Alina Ng, and Erica Platt. I am particularly grateful to Catherine
-Crump and Harry Surden, who helped direct their research, and to
-Laura Lynch, who brilliantly managed the army that they assembled,
-and provided her own critical eye on much of this.
+including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
+Mark Rose, and Kathleen Sullivan. And I received correction and
+guidance from many amazing students at Stanford Law School and
+Stanford University. They included Andrew B. Coan, John Eden, James
+P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
+Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
+Erica Platt. I am particularly grateful to Catherine Crump and Harry
+Surden, who helped direct their research, and to Laura Lynch, who
+brilliantly managed the army that they assembled, and provided her own
+critical eye on much of this.
</para>
<para>
Yuko Noguchi helped me to understand the laws of Japan as well as
Yamagami for their generous help while I was there.
</para>
<para>
-These are the traditional sorts of help that academics regularly
-draw upon. But in addition to them, the Internet has made it possible
-to receive advice and correction from many whom I have never even
-met. Among those who have responded with extremely helpful advice
-to requests on my blog about the book are Dr. Mohammad Al-Ubaydli,
-David Gerstein, and Peter DiMauro, as well as a long list of those who
-had specific ideas about ways to develop my argument. They included
-Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob
-Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy
-Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James
- Lindenschmidt,
-K. L. Mann, Mark Manning, Nora McCauley, Jeffrey
-McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D.
-Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack,
-Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina,
-Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger
-Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have
-missed anyone; with computers come glitches, and a crash of my
-e-mail system meant I lost a bunch of great replies.)
-</para>
-<para>
-Richard Stallman and Michael Carroll each read the whole book
-in draft, and each provided extremely helpful correction and advice.
-Michael helped me to see more clearly the significance of the
- regulation
-of derivitive works. And Richard corrected an embarrassingly large
-number of errors. While my work is in part inspired by Stallman's, he
-does not agree with me in important places throughout this book.
-</para>
-<para>
-Finally, and forever, I am thankful to Bettina, who has always
- insisted
-that there would be unending happiness away from these battles,
-and who has always been right. This slow learner is, as ever, grateful for
-her perpetual patience and love.
+These are the traditional sorts of help that academics regularly draw
+upon. But in addition to them, the Internet has made it possible to
+receive advice and correction from many whom I have never even
+met. Among those who have responded with extremely helpful advice to
+requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
+Gerstein, and Peter DiMauro, as well as a long list of those who had
+specific ideas about ways to develop my argument. They included
+Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
+Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
+Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
+K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
+McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
+Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
+Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
+Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
+and Richard Yanco. (I apologize if I have missed anyone; with
+computers come glitches, and a crash of my e-mail system meant I lost
+a bunch of great replies.)
+</para>
+<para>
+Richard Stallman and Michael Carroll each read the whole book in
+draft, and each provided extremely helpful correction and advice.
+Michael helped me to see more clearly the significance of the
+regulation of derivitive works. And Richard corrected an
+embarrassingly large number of errors. While my work is in part
+inspired by Stallman's, he does not agree with me in important places
+throughout this book.
+</para>
+<para>
+Finally, and forever, I am thankful to Bettina, who has always
+insisted that there would be unending happiness away from these
+battles, and who has always been right. This slow learner is, as ever,
+grateful for her perpetual patience and love.
</para>
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