that no computer is used to commit this crime. These responses might
be extreme, but each of them has either been proposed or actually
implemented.<footnote><para>
-<!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
-Berkman Center for Internet and Society at Harvard Law School,
- "Copyright
-and Digital Media in a Post-Napster World," 27 June 2003, available
-at
-<ulink url="http://free-culture.cc/notes/">link #33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
-(D-Calif.) have introduced a bill that would treat unauthorized on-line
-copying as a felony offense with punishments ranging as high as five years
-imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy,"
-Los Angeles Times, 17 July 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil penalties are
-currently set at $150,000 per copied song. For a recent (and unsuccessful)
-legal challenge to the RIAA's demand that an ISP reveal the identity of a
-user accused of sharing more than 600 songs through a family computer,
-see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F.
-Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as
-high as $90 million. Such astronomical figures furnish the RIAA with a
-powerful arsenal in its prosecution of file sharers. Settlements ranging
-from $12,000 to $17,500 for four students accused of heavy file sharing on
-university networks must have seemed a mere pittance next to the $98
- billion
-the RIAA could seek should the matter proceed to court. See
- Elizabeth
-Young, "Downloading Could Lead to Fines," redandblack.com,
-August 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an example of the RIAA's
- targeting
-of student file sharing, and of the subpoenas issued to universities to
-reveal student file-sharer identities, see James Collins, "RIAA Steps Up
-Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003,
-D3, available at
+<!-- f2. -->
+For an excellent summary, see the report prepared by GartnerG2 and the
+Berkman Center for Internet and Society at Harvard Law School,
+"Copyright and Digital Media in a Post-Napster World," 27 June 2003,
+available at
+<ulink url="http://free-culture.cc/notes/">link
+#33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized
+on-line copying as a felony offense with punishments ranging as high
+as five years imprisonment; see Jon Healey, "House Bill Aims to Up
+Stakes on Piracy," Los Angeles Times, 17 July 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #34</ulink>. Civil
+penalties are currently set at $150,000 per copied song. For a recent
+(and unsuccessful) legal challenge to the RIAA's demand that an ISP
+reveal the identity of a user accused of sharing more than 600 songs
+through a family computer, see RIAA v. Verizon Internet Services (In
+re. Verizon Internet Services), 240 F. Supp. 2d 24
+(D.D.C. 2003). Such a user could face liability ranging as high as $90
+million. Such astronomical figures furnish the RIAA with a powerful
+arsenal in its prosecution of file sharers. Settlements ranging from
+$12,000 to $17,500 for four students accused of heavy file sharing on
+university networks must have seemed a mere pittance next to the $98
+billion the RIAA could seek should the matter proceed to court. See
+Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com,
+August 2003, available at
+<ulink url="http://free-culture.cc/notes/">link #35</ulink>. For an
+example of the RIAA's targeting of student file sharing, and of the
+subpoenas issued to universities to reveal student file-sharer
+identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
+Name Students," Boston Globe, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
</para>
It has been
mirrored in the responses threatened and actually implemented by
Congress. I won't catalog all of those responses here.<footnote><para>
-<!-- f11. --> For example, in July 2002, Representative Howard Berman introduced the
+<!-- f11. -->
+For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
-copyright holders use technology to stop copyright infringement. In
- August
-2002, Representative Billy Tauzin introduced a bill to mandate that
-technologies capable of rebroadcasting digital copies of films broadcast on
-TV (i.e., computers) respect a "broadcast flag" that would disable copying
-of that content. And in March of the same year, Senator Fritz Hollings
-introduced the Consumer Broadband and Digital Television Promotion
-Act, which mandated copyright protection technology in all digital media
-devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster
-World," 27 June 2003, 33–34, available at
+copyright holders use technology to stop copyright infringement. In
+August 2002, Representative Billy Tauzin introduced a bill to mandate
+that technologies capable of rebroadcasting digital copies of films
+broadcast on TV (i.e., computers) respect a "broadcast flag" that
+would disable copying of that content. And in March of the same year,
+Senator Fritz Hollings introduced the Consumer Broadband and Digital
+Television Promotion Act, which mandated copyright protection
+technology in all digital media devices. See GartnerG2, "Copyright and
+Digital Media in a Post-Napster World," 27 June 2003, 33–34,
+available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
+<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
- But there is one
-example that captures the flavor of them all. This is the story of the
- demise
-of Internet radio.
+But there is one example that captures the flavor of them all. This is
+the story of the demise of Internet radio.
</para>
<para>
<!-- PAGE BREAK 204 -->
As I described in chapter 4, when a radio station plays a song, the
-recording artist doesn't get paid for that "radio performance" unless he
-or she is also the composer. So, for example if Marilyn Monroe had
+recording artist doesn't get paid for that "radio performance" unless
+he or she is also the composer. So, for example if Marilyn Monroe had
recorded a version of "Happy Birthday"—to memorialize her famous
performance before President Kennedy at Madison Square Garden—
-then whenever that recording was played on the radio, the current
- copyright
-owners of "Happy Birthday" would get some money, whereas
+then whenever that recording was played on the radio, the current
+copyright owners of "Happy Birthday" would get some money, whereas
Marilyn Monroe would not.
</para>
<para>
<para>
<!-- PAGE BREAK 205 -->
-Internet radio is thus to radio what FM was to AM. It is an
- improvement
-potentially vastly more significant than the FM
- improvement
-over AM, since not only is the technology better, so, too, is the
-competition. Indeed, there is a direct parallel between the fight to
- establish
-FM radio and the fight to protect Internet radio. As one author
-describes Howard Armstrong's struggle to enable FM radio,
+Internet radio is thus to radio what FM was to AM. It is an
+improvement potentially vastly more significant than the FM
+improvement over AM, since not only is the technology better, so, too,
+is the competition. Indeed, there is a direct parallel between the
+fight to establish FM radio and the fight to protect Internet
+radio. As one author describes Howard Armstrong's struggle to enable
+FM radio,
</para>
<blockquote>
<para>
An almost unlimited number of FM stations was possible in the
-shortwaves, thus ending the unnatural restrictions imposed on
- radio
-in the crowded longwaves. If FM were freely developed, the
-number of stations would be limited only by economics and
- competition
-rather than by technical restrictions. . . . Armstrong
-likened the situation that had grown up in radio to that following
-the invention of the printing press, when governments and ruling
-interests attempted to control this new instrument of mass
- communications
-by imposing restrictive licenses on it. This tyranny
-was broken only when it became possible for men freely to
- acquire
-printing presses and freely to run them. FM in this sense
-was as great an invention as the printing presses, for it gave radio
-the opportunity to strike off its shackles.<footnote><para>
-<!-- f12. --> Lessing, 239.
+shortwaves, thus ending the unnatural restrictions imposed on radio in
+the crowded longwaves. If FM were freely developed, the number of
+stations would be limited only by economics and competition rather
+than by technical restrictions. . . . Armstrong likened the situation
+that had grown up in radio to that following the invention of the
+printing press, when governments and ruling interests attempted to
+control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it
+became possible for men freely to acquire printing presses and freely
+to run them. FM in this sense was as great an invention as the
+printing presses, for it gave radio the opportunity to strike off its
+shackles.<footnote><para>
+<!-- f12. -->
+Lessing, 239.
</para></footnote>
</para>
</blockquote>
<para>
-This potential for FM radio was never realized—not because
- Armstrong
-was wrong about the technology, but because he underestimated
-the power of "vested interests, habits, customs and legislation"<footnote><para>
-<!-- f13. --> Ibid., 229.
+This potential for FM radio was never realized—not
+because Armstrong was wrong about the technology, but because he
+underestimated the power of "vested interests, habits, customs and
+legislation"<footnote><para>
+<!-- f13. -->
+Ibid., 229.
</para></footnote>
-to
- retard
-the growth of this competing technology.
+to retard the growth of this competing technology.
</para>
<para>
Now the very same claim could be made about Internet radio. For
</para>
<blockquote>
<para>
-justice scalia: You say that the functional equivalent of an
- unlimited
-time would be a violation [of the Constitution], but that's
-precisely the argument that's being made by petitioners here, that
-a limited time which is extendable is the functional equivalent of
-an unlimited time.
+justice scalia: You say that the functional equivalent of an unlimited
+time would be a violation [of the Constitution], but that's precisely
+the argument that's being made by petitioners here, that a limited
+time which is extendable is the functional equivalent of an unlimited
+time.
</para>
</blockquote>
<para>
When Olson was finished, it was my turn to give a closing rebuttal.
Olson's flailing had revived my anger. But my anger still was directed
to the academic, not the practical. The government was arguing as if
-this were the first case ever to consider limits on Congress's Copyright
-and Patent Clause power. Ever the professor and not the advocate, I
-closed by pointing out the long history of the Court imposing limits on
-Congress's power in the name of the Copyright and Patent Clause—
-indeed, the very first case striking a law of Congress as exceeding a
- specific
-enumerated power was based upon the Copyright and Patent
-Clause. All true. But it wasn't going to move the Court to my side.
+this were the first case ever to consider limits on Congress's
+Copyright and Patent Clause power. Ever the professor and not the
+advocate, I closed by pointing out the long history of the Court
+imposing limits on Congress's power in the name of the Copyright and
+Patent Clause— indeed, the very first case striking a law of
+Congress as exceeding a specific enumerated power was based upon the
+Copyright and Patent Clause. All true. But it wasn't going to move the
+Court to my side.
</para>
<para>
As I left the court that day, I knew there were a hundred points I
optimistic.
</para>
<para>
-The government had been asked over and over again, what is the
-limit? Over and over again, it had answered there is no limit. This
-was precisely the answer I wanted the Court to hear. For I could not
-imagine how the Court could understand that the government
- believed
-Congress's power was unlimited under the terms of the
- Copyright
-Clause, and sustain the government's argument. The solicitor
-general had made my argument for me. No matter how often I tried,
-I could not understand how the Court could find that Congress's
-power under the Commerce Clause was limited, but under the
- Copyright
-Clause, unlimited. In those rare moments when I let myself
- believe
-that we may have prevailed, it was because I felt this Court—in
-particular, the Conservatives—would feel itself constrained by the rule
-of law that it had established elsewhere.
+The government had been asked over and over again, what is the limit?
+Over and over again, it had answered there is no limit. This was
+precisely the answer I wanted the Court to hear. For I could not
+imagine how the Court could understand that the government believed
+Congress's power was unlimited under the terms of the Copyright
+Clause, and sustain the government's argument. The solicitor general
+had made my argument for me. No matter how often I tried, I could not
+understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause,
+unlimited. In those rare moments when I let myself believe that we may
+have prevailed, it was because I felt this Court—in particular,
+the Conservatives—would feel itself constrained by the rule of
+law that it had established elsewhere.
</para>
<para>
The morning of January 15, 2003, I was five minutes late to the office
my view of the case, was Ruben Bolling's, reproduced on the next
page. The "powerful and wealthy" line is a bit unfair. But the punch
in the face felt exactly like that.
+<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
<para>
The image that will always stick in my head is that evoked by the
projects / text-free-culture-lessig.git / commitdiff