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<!--
-->
Review
48 (1996): 1293, 1333. See also Paul Goldstein, Real Property
(Mineola,
-N.Y.: Foundation Press, 1984), 111213.
+N.Y.: Foundation Press, 1984), 1112–13.
</para></footnote>
</para>
</blockquote>
right to first publication, state copyright law gave authors the power to
control the spread of facts about them. See Samuel D. Warren and Louis
D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193,
-198200.
+198–200.
</para></footnote>
This is also, of
course, an important part of creativity and culture, and it has become
technology of the Internet itself, has massively increased the effective
regulation of creativity in America. To build upon or critique the
culture
-around us one must ask, Oliver Twistlike, for permission first.
+around us one must ask, Oliver Twist–like, for permission first.
Permission is, of course, often granted—but it is not often granted to
the critical or the independent. We have built a kind of cultural
nobility;
<!-- f1 -->
Leonard Maltin, Of Mice and Magic: A History of American Animated
Cartoons
-(New York: Penguin Books, 1987), 3435.
+(New York: Penguin Books, 1987), 34–35.
</para></footnote>
</para>
</blockquote>
See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary
Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law
Review
-48 (1960) 398407; White v. Samsung Electronics America, Inc., 971 F.
+48 (1960) 398–407; White v. Samsung Electronics America, Inc., 971 F.
2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993).
</para></footnote>)
</para>
and isolated discourse becomes more extreme.<footnote><para>
<!-- f17 -->
Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
-6580, 175, 182, 183, 192.
+65–80, 175, 182, 183, 192.
</para></footnote> We say what our
friends want to hear, and hear very little beyond what our friends say.
</para>
artist makes $45,900.<footnote><para>
<!-- f2 -->
Occupational Employment Survey, U.S. Dept. of Labor (2001)
-(272042—Musicians and Singers). See also National Endowment for
+(27–2042—Musicians and Singers). See also National Endowment for
the Arts, More Than One in a Blue Moon (2000).
</para></footnote>
There are plenty of ways for the RIAA to affect
<!-- f1 -->
I am grateful to Peter DiMauro for pointing me to this extraordinary
history.
-See also Siva Vaidhyanathan, Copyrights and Copywrongs, 8793,
+See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
which details Edison's "adventures" with copyright and patent.
</para></footnote>
Creators
machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
-To Amend and Consolidate the Acts Respecting Copyright, 28384
+To Amend and Consolidate the Acts Respecting Copyright, 283–84
(statement of Albert Walker, representative of the Auto-Music
Perforating
Company of New York).
of intellectual property law.<footnote><para>
<!-- f2 -->
See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 1013,
+Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
209. The Trade-Related Aspects of Intellectual Property Rights
(TRIPS) agreement obligates member nations to create administrative
and enforcement mechanisms for intellectual property rights, a costly
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
-14490. "In some instances . . . the impact of piracy on the copyright holder's
+144–90. "In some instances . . . the impact of piracy on the copyright holder's
ability to appropriate the value of the work will be negligible. One obvious
instance
is the case where the individual engaging in pirating would not have
This job usually falls to outside innovators, who reassemble existing
technology
in inventive ways. For a discussion of Christensen's ideas, see
-Lawrence Lessig, Future, 8992, 139.
+Lawrence Lessig, Future, 89–92, 139.
</para></footnote>), Shawn Fanning and crew had simply
put together components that had been developed independently.
</para>
of the law, only type D sharing is clearly legal. From the
perspective of economics, only type A sharing is clearly harmful.<footnote><para>
<!-- f9 -->
-See Liebowitz, Rethinking the Network Economy,14849.
+See Liebowitz, Rethinking the Network Economy,148–49.
</para></footnote>
Type B sharing is illegal but plainly beneficial. Type C sharing is
illegal,
of consumers older than ten had taped music to a cassette format. U.S.
Congress, Office of Technology Assessment, Copyright and Home Copying:
Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S.
-Government Printing Office, October 1989), 14556.
+Government Printing Office, October 1989), 145–56.
</para></footnote>
The labels claimed that every album taped was an
album unsold, and when record sales fell by 11.4 percent in 1981, the
<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an account of the litigation and its toll on
Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn
Fanning's
-Napster (New York: Crown Business, 2003), 26982.
+Napster (New York: Crown Business, 2003), 269–82.
</para></footnote>
</para>
<para>
4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
eliminate the opportunity for free riding in the sense I've described. See
Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag,"
-University of Chicago Law Review 70 (2003): 29396.
+University of Chicago Law Review 70 (2003): 293–96.
</para></footnote>
In each case, throughout our history,
that change meant that someone got a "free ride" on someone else's
<!-- f1 -->
Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert
-Ellery Bergh, eds., 1903), 330, 33334.
+Ellery Bergh, eds., 1903), 330, 333–34.
</para></footnote>
</para>
<para>
Juliet, he published an astonishing array of works that still remain at the
heart of the English canon, including collected works of Shakespeare, Ben
Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson,
-Bookseller," American Scholar 61:3 (1992): 42431.
+Bookseller," American Scholar 61:3 (1992): 424–31.
</para></footnote>
Tonson was the
most prominent of a small group of publishers called the Conger<footnote><para>
<!-- f2 -->
Lyman Ray Patterson, Copyright in Historical Perspective (Nashville:
Vanderbilt
-University Press, 1968), 15152.
+University Press, 1968), 151–52.
</para></footnote>
who
controlled bookselling in England during the eighteenth century. The
<!-- f6 -->
Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
Law Review 40 (1987): 28. For a wonderfully compelling account, see
-Vaidhyanathan, 3748.
+Vaidhyanathan, 37–48.
</para></footnote>
The bookseller didn't care squat for the rights of the
author.
Donaldson.<footnote><para>
<!-- f7 -->
For a compelling account, see David Saunders, Authorship and Copyright
-(London: Routledge, 1992), 6269.
+(London: Routledge, 1992), 62–69.
</para></footnote>
</para>
<para>
film company.<footnote><para>
<!-- f2 -->
Doug Herrick, "Toward a National Film Collection: Motion Pictures at the
-Library of Congress," Film Library Quarterly 13 nos. 23 (1980): 5;
+Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5;
Anthony
Slide, Nitrate Won't Wait: A History of Film Preservation in the United
States ( Jefferson, N.C.: McFarland & Co., 1992), 36.
ordinary
meaning of "property" to "lawyer talk," see Bruce Ackerman, Private
Property and the Constitution (New Haven: Yale University Press, 1977),
-2627.
+26–27.
</para></footnote> it has never been the
case, nor should it be, that "creative property owners" have been
"accorded
change the other three. The right of the other three is more timidly
expressed.
See Lawrence Lessig, Code: And Other Laws of Cyberspace (New
-York: Basic Books, 1999): 9095; Lawrence Lessig, "The New Chicago
+York: Basic Books, 1999): 90–95; Lawrence Lessig, "The New Chicago
School," Journal of Legal Studies, June 1998.
</para></footnote>
The law, in other words, sometimes
1991, in a memo criticizing software patents, "established companies
have an interest in excluding future competitors."<footnote><para>
<!-- f6 -->
-Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 17071.
+Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71.
</para></footnote>
And relative to a
startup, established companies also have the means. (Think RCA and
authorship.<footnote><para>
<!-- f8 -->
William W. Crosskey, Politics and the Constitution in the History of the
-United States (London: Cambridge University Press, 1953), vol. 1, 48586:
+United States (London: Cambridge University Press, 1953), vol. 1, 485–86:
"extinguish[ing], by plain implication of `the supreme Law of the Land,'
the perpetual rights which authors had, or were supposed by some to have, under
the Common Law" (emphasis added).
Although 13,000 titles were published in the United States from 1790
to 1799, only 556 copyright registrations were filed; John Tebbel, A
History of Book Publishing in the United States, vol. 1, The Creation
-of an Industry, 16301865 (New York: Bowker, 1972), 141. Of the 21,000
+of an Industry, 1630–1865 (New York: Bowker, 1972), 141. Of the 21,000
imprints recorded before 1790, only twelve were copyrighted under the
1790 act; William J. Maher, Copyright Term, Retrospective Extension
-and the Copyright Law of 1790 in Historical Context, 710 (2002),
+and the Copyright Law of 1790 in Historical Context, 7–10 (2002),
available at <ulink url="http://free-culture.cc/notes/">link
#25</ulink>. Thus, the overwhelming majority of works fell
immediately into the public domain. Even those works that were
Studies on Copyright, vol. 1 (New York: Practicing Law Institute,
1963), 618. For a more recent and comprehensive analysis, see William
M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright,"
-University of Chicago Law Review 70 (2003): 471, 498501, and
+University of Chicago Law Review 70 (2003): 471, 498–501, and
accompanying figures. </para></footnote>
</para>
<para>
of American Literature," 29 New York University Journal of
International
Law and Politics 255 (1997), and James Gilraeth, ed., Federal
-Copyright Records, 17901800 (U.S. G.P.O., 1987).
+Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
</para></footnote>
The Copyright Act was thus a tiny
regulation of a tiny proportion of a tiny part of the creative market in
of the First Amendment) between mere "copies" and derivative works. See
Jed Rubenfeld, "The Freedom of Imagination: Copyright's
Constitutionality,"
-Yale Law Journal 112 (2002): 160 (see especially pp. 5359).
+Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59).
</para></footnote>
These two different uses of my creative work are
treated the same.
<!-- f19 -->
See David Lange, "Recognizing the Public Domain," Law and
Contemporary
-Problems 44 (1981): 17273.
+Problems 44 (1981): 172–73.
</para></footnote>
</para>
<para>
Warner Brothers that the Marx Brothers "were brothers long before
you were."<footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 13.
+Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3.
</para></footnote>
The Marx Brothers therefore owned the word brothers,
and if Warner Brothers insisted on trying to control Casablanca, then
Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
455 fn. 27 (1984). Rogers never changed his view about the VCR. See
James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of
-the VCR (New York: W. W. Norton, 1987), 27071.
+the VCR (New York: W. W. Norton, 1987), 270–71.
</para></footnote>
</para>
</blockquote>
Business School Press, 1997). Christensen acknowledges that the idea was
first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of
Design Hierarchies and Market Concepts in Technological Evolution,"
-Research Policy 14 (1985): 23551. For a more recent study, see Richard
+Research Policy 14 (1985): 235–51. For a more recent study, see Richard
Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are
Built to Last Underperform the Market—and How to Successfully Transform
Them (New York: Currency/Doubleday, 2001).
see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial
Advertising
on Television and Radio," Yale Law and Policy Review 6 (1988):
-44979, and for a more recent summary of the stance of the FCC and the
+449–79, and for a more recent summary of the stance of the FCC and the
courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d
872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
the networks. In a recent example from San Francisco, the San Francisco
known.<footnote><para>
<!-- f35 -->
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
-copyright law in the digital age. See Vaidhyanathan, 15960.
+copyright law in the digital age. See Vaidhyanathan, 159–60.
</para></footnote>
</para>
<para>
is protected or not, and to disable the spread of protected content.<footnote><para>
<!-- f6. --> "Copyright and Digital Media in a Post-Napster World," GartnerG2 and
the Berkman Center for Internet and Society at Harvard Law School
-(2003), 3335, available at
+(2003), 33–35, available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
</para></footnote>
for technology they might deploy that would hunt down copyright
violators
and disable their machines.<footnote><para>
-<!-- f7. --> GartnerG2, 2627.
+<!-- f7. --> GartnerG2, 26–27.
</para></footnote>
</para>
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, 3334, available at
+World," 27 June 2003, 33–34, available at
<ulink url="http://free-culture.cc/notes/">link #44</ulink>.
</para></footnote>
But there is one
anonymous
or pseudonymous works. Paul Goldstein, International Intellectual
Property Law, Cases and Materials (New York: Foundation Press, 2001),
-15354.
+153–54.
</para></footnote>
The
Europeans
<ulink url="http://free-culture.cc/notes/">link #56</ulink>. For a firsthand account of the struggle over
South Africa, see Hearing Before the Subcommittee on Criminal Justice,
Drug Policy, and Human Resources, House Committee on Government
-Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 15057
+Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150–57
(statement of James Love).
</para></footnote>
Through the
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
-<!-- f10. --> See Drahos with Braithwaite, Information Feudalism, 21020.
+<!-- f10. --> See Drahos with Braithwaite, Information Feudalism, 210–20.
</para></footnote>
We will have
an information society. That much is certain. Our only choice now is
<!-- f1. --> See, for example, Marc Rotenberg, "Fair Information Practices and the
Architecture
of Privacy (What Larry Doesn't Get)," Stanford Technology Law
-Review 1 (2001): par. 618, available at
+Review 1 (2001): par. 6–18, available at
<ulink url="http://free-culture.cc/notes/">link #72</ulink> (describing examples in
which technology defines privacy policy). See also Jeffrey Rosen, The Naked
Crowd: Reclaiming Security and Freedom in an Anxious Age (New York:
Goldstein.<footnote><para>
<!-- f7. --> Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
Jukebox
-(Stanford: Stanford University Press, 2003), 187216.
+(Stanford: Stanford University Press, 2003), 187–216.
</para></footnote>
His view is that the law should be written so that expanded
protections follow expanded uses.
and practitioner in the field of copyright, Melville Nimmer, thought it
obvious.<footnote><para>
<!-- f10. --> Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
-Memorial Lecture), UCLA Law Review 48 (2001): 1057, 106970.
+Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
</para></footnote>
</para>
Liebowitz's careful analysis is extremely valuable in estimating the
effect
of file-sharing technology. In my view, however, he underestimates the
-costs of the legal system. See, for example, Rethinking, 17476.
+costs of the legal system. See, for example, Rethinking, 174–76.
</para></footnote>
They see a system that has been
around for hundreds of years, and they assume it works the way their
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