By doing, they think. By tinkering, they learn.
</para>
<para>
-These buses are not cheap, but the technology they carry is
- increasingly
-so. The cost of a high-quality digital video system has fallen
- dramatically.
-As one analyst puts it, "Five years ago, a good real-time
-digital video editing system cost $25,000. Today you can get
- professional
-quality for $595."<footnote><para>
+These buses are not cheap, but the technology they carry is
+increasingly so. The cost of a high-quality digital video system has
+fallen dramatically. As one analyst puts it, "Five years ago, a good
+real-time digital video editing system cost $25,000. Today you can get
+professional quality for $595."<footnote><para>
<!-- f9 -->
H. Edward Goldberg, "Essential Presentation Tools: Hardware and
Software
these nations live gives them some opportunities to escape the burden
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, 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 proposition for
- developing
-countries. Additionally, patent rights may lead to higher prices for
-staple industries such as agriculture. Critics of TRIPS question the
- disparity
-between burdens imposed upon developing countries and benefits
- conferred
-to industrialized nations. TRIPS does permit governments to use
-patents for public, noncommercial uses without first obtaining the patent
-holder's permission. Developing nations may be able to use this to gain the
-benefits of foreign patents at lower prices. This is a promising strategy for
-developing nations within the TRIPS framework.
-</para></footnote>
-In my view, more developing nations
-should take advantage of that opportunity, but when they don't, then
-their laws should be respected. And under the laws of these nations,
-this piracy is wrong.
+See Peter Drahos with John Braithwaite, Information Feudalism: Who
+Owns the Knowledge Economy? (New York: The New Press, 2003), 1013,
+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
+proposition for developing countries. Additionally, patent rights may
+lead to higher prices for staple industries such as
+agriculture. Critics of TRIPS question the disparity between burdens
+imposed upon developing countries and benefits conferred to
+industrialized nations. TRIPS does permit governments to use patents
+for public, noncommercial uses without first obtaining the patent
+holder's permission. Developing nations may be able to use this to
+gain the benefits of foreign patents at lower prices. This is a
+promising strategy for developing nations within the TRIPS framework.
+</para></footnote> In my view, more developing nations should take
+advantage of that opportunity, but when they don't, then their laws
+should be respected. And under the laws of these nations, this piracy
+is wrong.
</para>
<para>
Alternatively, we could try to excuse this piracy by noting that in
</sect1>
<sect1 id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
+<indexterm><primary>Allen, Paul</primary></indexterm>
<para>
-In 1993, Alex Alben was a lawyer working at Starwave, Inc.
- Starwave
-was an innovative company founded by Microsoft cofounder
-Paul Allen to develop digital entertainment. Long before the Internet
-became popular, Starwave began investing in new technology for
- delivering
+In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
+was an innovative company founded by Microsoft cofounder Paul Allen to
+develop digital entertainment. Long before the Internet became
+popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
</para>
<para>
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
<para>
Consider the robotic dog made by Sony named "Aibo." The Aibo
learns tricks, cuddles, and follows you around. It eats only electricity
</para>
<para>
"Teach" here has a special meaning. Aibos are just cute computers.
-You teach a computer how to do something by programming it
- differently.
-So to say that aibopet.com was giving information about how to
-teach the dog to do new tricks is just to say that aibopet.com was
- giving
-information to users of the Aibo pet about how to hack their
- computer
-"dog" to make it do new tricks (thus, aibohack.com).
+You teach a computer how to do something by programming it
+differently. So to say that aibopet.com was giving information about
+how to teach the dog to do new tricks is just to say that aibopet.com
+was giving information to users of the Aibo pet about how to hack
+their computer "dog" to make it do new tricks (thus, aibohack.com).
</para>
<para>
If you're not a programmer or don't know many programmers, the
well. There's a well-deserved respect that goes with the talent to hack
ethically.
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
<para>
-The Aibo fan was displaying a bit of both when he hacked the
- program
-and offered to the world a bit of code that would enable the Aibo
-to dance jazz. The dog wasn't programmed to dance jazz. It was a
-clever bit of tinkering that turned the dog into a more talented creature
+The Aibo fan was displaying a bit of both when he hacked the program
+and offered to the world a bit of code that would enable the Aibo to
+dance jazz. The dog wasn't programmed to dance jazz. It was a clever
+bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
<para>
I've told this story in many contexts, both inside and outside the
United States. Once I was asked by a puzzled member of the audience,
-is it permissible for a dog to dance jazz in the United States? We
- forget
-that stories about the backcountry still flow across much of the
+is it permissible for a dog to dance jazz in the United States? We
+forget that stories about the backcountry still flow across much of
+the
<!-- PAGE BREAK 166 -->
-world. So let's just be clear before we continue: It's not a crime
- anywhere
-(anymore) to dance jazz. Nor is it a crime to teach your dog to
-dance jazz. Nor should it be a crime (though we don't have a lot to go
-on here) to teach your robot dog to dance jazz. Dancing jazz is a
- completely
-legal activity. One imagines that the owner of aibopet.com
-thought, What possible problem could there be with teaching a robot dog to
-dance?
+world. So let's just be clear before we continue: It's not a crime
+anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
+to dance jazz. Nor should it be a crime (though we don't have a lot to
+go on here) to teach your robot dog to dance jazz. Dancing jazz is a
+completely legal activity. One imagines that the owner of aibopet.com
+thought, What possible problem could there be with teaching a robot
+dog to dance?
</para>
<para>
Let's put the dog to sleep for a minute, and turn to a pony show—
</para>
<para>
The SDMI coalition had as its goal a technology to enable content
-owners to exercise much better control over their content than the
- Internet,
-as it originally stood, granted them. Using encryption, SDMI
+owners to exercise much better control over their content than the
+Internet, as it originally stood, granted them. Using encryption, SDMI
hoped to develop a standard that would allow the content owner to say
-"this music cannot be copied," and have a computer respect that
- command.
-The technology was to be part of a "trusted system" of control
-that would get content owners to trust the system of the Internet much
-more.
+"this music cannot be copied," and have a computer respect that
+command. The technology was to be part of a "trusted system" of
+control that would get content owners to trust the system of the
+Internet much more.
</para>
<para>
-When SDMI thought it was close to a standard, it set up a
- competition.
+When SDMI thought it was close to a standard, it set up a competition.
In exchange for providing contestants with the code to an
SDMI-encrypted bit of content, contestants were to try to crack it
and, if they did, report the problems to the consortium.
</para>
<para>
<!-- PAGE BREAK 167 -->
-Felten and his team figured out the encryption system quickly. He
-and the team saw the weakness of this system as a type: Many
- encryption
+Felten and his team figured out the encryption system quickly. He and
+the team saw the weakness of this system as a type: Many encryption
systems would suffer the same weakness, and Felten and his team
thought it worthwhile to point this out to those who study encryption.
</para>
<para>
Let's review just what Felten was doing. Again, this is the United
States. We have a principle of free speech. We have this principle not
-just because it is the law, but also because it is a really great idea. A
-strongly protected tradition of free speech is likely to encourage a wide
-range of criticism. That criticism is likely, in turn, to improve the
- systems
-or people or ideas criticized.
+just because it is the law, but also because it is a really great
+idea. A strongly protected tradition of free speech is likely to
+encourage a wide range of criticism. That criticism is likely, in
+turn, to improve the systems or people or ideas criticized.
</para>
<para>
What Felten and his colleagues were doing was publishing a paper
would have been a copyright violation.
</para>
<para>
-Aibopet.com and Felten make the point. The Aibo hack
- circumvented
-a copyright protection system for the purpose of enabling the
-dog to dance jazz. That enablement no doubt involved the use of
- copyrighted
-material. But as aibopet.com's site was noncommercial, and the
-use did not enable subsequent copyright infringements, there's no doubt
-that aibopet.com's hack was fair use of Sony's copyrighted material. Yet
+Aibopet.com and Felten make the point. The Aibo hack circumvented a
+copyright protection system for the purpose of enabling the dog to
+dance jazz. That enablement no doubt involved the use of copyrighted
+material. But as aibopet.com's site was noncommercial, and the use did
+not enable subsequent copyright infringements, there's no doubt that
+aibopet.com's hack was fair use of Sony's copyrighted material. Yet
fair use is not a defense to the DMCA. The question is not whether the
<!-- PAGE BREAK 169 -->
use of the copyrighted material was a copyright violation. The question
</para>
<para>
The threat against Felten was more attenuated, but it followed the
-same line of reasoning. By publishing a paper describing how a
- copyright
-protection system could be circumvented, the RIAA lawyer
- suggested,
-Felten himself was distributing a circumvention technology.
+same line of reasoning. By publishing a paper describing how a
+copyright protection system could be circumvented, the RIAA lawyer
+suggested, Felten himself was distributing a circumvention technology.
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
</para>
<para>
-The bizarreness of these arguments is captured in a cartoon drawn
-in 1981 by Paul Conrad. At that time, a court in California had held
-that the VCR could be banned because it was a copyright-infringing
+The bizarreness of these arguments is captured in a cartoon drawn in
+1981 by Paul Conrad. At that time, a court in California had held that
+the VCR could be banned because it was a copyright-infringing
technology: It enabled consumers to copy films without the permission
of the copyright owner. No doubt there were uses of the technology
-that were legal: Fred Rogers, aka "Mr. Rogers," for example, had
- testified
-in that case that he wanted people to feel free to tape Mr. Rogers'
-Neighborhood.
+that were legal: Fred Rogers, aka "Mr. Rogers," for example, had
+testified in that case that he wanted people to feel free to tape
+Mr. Rogers' Neighborhood.
</para>
<blockquote>
<para>
Some public stations, as well as commercial stations, program the
-"Neighborhood" at hours when some children cannot use it. I
-think that it's a real service to families to be able to record such
-programs and show them at appropriate times. I have always felt
-that with the advent of all of this new technology that allows
-people to tape the "Neighborhood" off-the-air, and I'm
- speaking
-for the "Neighborhood" because that's what I produce,
-that they then become much more active in the programming of
-their family's television life. Very frankly, I am opposed to people
-being programmed by others. My whole approach in
- broadcasting
-has always been "You are an important person just the way
-you are. You can make healthy decisions." Maybe I'm going on
-too long, but I just feel that anything that allows a person to be
-more active in the control of his or her life, in a healthy way, is
+"Neighborhood" at hours when some children cannot use it. I think that
+it's a real service to families to be able to record such programs and
+show them at appropriate times. I have always felt that with the
+advent of all of this new technology that allows people to tape the
+"Neighborhood" off-the-air, and I'm speaking for the "Neighborhood"
+because that's what I produce, that they then become much more active
+in the programming of their family's television life. Very frankly, I
+am opposed to people being programmed by others. My whole approach in
+broadcasting has always been "You are an important person just the way
+you are. You can make healthy decisions." Maybe I'm going on too long,
+but I just feel that anything that allows a person to be more active
+in the control of his or her life, in a healthy way, is
important.<footnote><para>
<!-- f23 -->
Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
permits guns, despite the obvious and tragic harm they do.
</para>
<para>
-The Aibo and RIAA examples demonstrate how copyright owners
-are changing the balance that copyright law grants. Using code,
- copyright
-owners restrict fair use; using the DMCA, they punish those who
-would attempt to evade the restrictions on fair use that they impose
-through code. Technology becomes a means by which fair use can be
-erased; the law of the DMCA backs up that erasing.
+The Aibo and RIAA examples demonstrate how copyright owners are
+changing the balance that copyright law grants. Using code, copyright
+owners restrict fair use; using the DMCA, they punish those who would
+attempt to evade the restrictions on fair use that they impose through
+code. Technology becomes a means by which fair use can be erased; the
+law of the DMCA backs up that erasing.
</para>
<para>
This is how code becomes law. The controls built into the technology
who can write the nasty letters that Felten and aibopet.com received.
</para>
<para>
-There is one final aspect of the interaction between architecture
-and law that contributes to the force of copyright's regulation. This is
+There is one final aspect of the interaction between architecture and
+law that contributes to the force of copyright's regulation. This is
the ease with which infringements of the law can be detected. For
contrary to the rhetoric common at the birth of cyberspace that on the
-Internet, no one knows you're a dog, increasingly, given changing
- technologies
-deployed on the Internet, it is easy to find the dog who
- committed
-a legal wrong. The technologies of the Internet are open to
-snoops as well as sharers, and the snoops are increasingly good at
- tracking
-down the identity of those who violate the rules.
+Internet, no one knows you're a dog, increasingly, given changing
+technologies deployed on the Internet, it is easy to find the dog who
+committed a legal wrong. The technologies of the Internet are open to
+snoops as well as sharers, and the snoops are increasingly good at
+tracking down the identity of those who violate the rules.
</para>
<para>
</para>
<para>
But if you moved your club onto the Internet, and made it generally
-available for others to join, the story would be very different. Bots
- scouring
-the Net for trademark and copyright infringement would quickly
-find your site. Your posting of fan fiction, depending upon the
- ownership
-of the series that you're depicting, could well inspire a lawyer's
-threat. And ignoring the lawyer's threat would be extremely costly
- indeed.
-The law of copyright is extremely efficient. The penalties are
- severe,
-and the process is quick.
+available for others to join, the story would be very different. Bots
+scouring the Net for trademark and copyright infringement would
+quickly find your site. Your posting of fan fiction, depending upon
+the ownership of the series that you're depicting, could well inspire
+a lawyer's threat. And ignoring the lawyer's threat would be extremely
+costly indeed. The law of copyright is extremely efficient. The
+penalties are severe, and the process is quick.
</para>
<para>
This change in the effective force of the law is caused by a change
</para>
<indexterm><primary>Lear, Norman</primary></indexterm>
<indexterm><primary>ABC</primary></indexterm>
+<indexterm><primary>All in the Family</primary></indexterm>
<para>
In 1969, Norman Lear created a pilot for All in the Family. He took
the pilot to ABC. The network didn't like it. It was too edgy, they told
Ibid.
</para></footnote>
</para>
+<indexterm><primary>All in the Family</primary></indexterm>
<para>
Today, another Norman Lear with another All in the Family would
find that he had the choice either to make the show less edgy or to be
doubt because they are terribly funded) in enabling simple and cheap
<!-- PAGE BREAK 260 -->
-registrations. Any real solution to the problem of formalities must
- address
-the real problem of governments standing at the core of any
- system
-of formalities. In this book, I offer such a solution. That solution
-essentially remakes the Copyright Office. For now, assume it was
-Amazon that ran the registration system. Assume it was one-click
- registration.
-The Eldred Act would propose a simple, one-click
- registration
-fifty years after a work was published. Based upon historical data,
-that system would move up to 98 percent of commercial work,
- commercial
-work that no longer had a commercial life, into the public
- domain
-within fifty years. What do you think?
+registrations. Any real solution to the problem of formalities must
+address the real problem of governments standing at the core of any
+system of formalities. In this book, I offer such a solution. That
+solution essentially remakes the Copyright Office. For now, assume it
+was Amazon that ran the registration system. Assume it was one-click
+registration. The Eldred Act would propose a simple, one-click
+registration fifty years after a work was published. Based upon
+historical data, that system would move up to 98 percent of commercial
+work, commercial work that no longer had a commercial life, into the
+public domain within fifty years. What do you think?
</para>
<para>
-When Steve Forbes endorsed the idea, some in Washington began
-to pay attention. Many people contacted me pointing to
- representatives
-who might be willing to introduce the Eldred Act. And I had a few
-who directly suggested that they might be willing to take the first step.
+When Steve Forbes endorsed the idea, some in Washington began to pay
+attention. Many people contacted me pointing to representatives who
+might be willing to introduce the Eldred Act. And I had a few who
+directly suggested that they might be willing to take the first step.
</para>
<para>
One representative, Zoe Lofgren of California, went so far as to get
-the bill drafted. The draft solved any problem with international law. It
-imposed the simplest requirement upon copyright owners possible. In
-May 2003, it looked as if the bill would be introduced. On May 16, I
-posted on the Eldred Act blog, "we are close." There was a general
- reaction
-in the blog community that something good might happen here.
+the bill drafted. The draft solved any problem with international
+law. It imposed the simplest requirement upon copyright owners
+possible. In May 2003, it looked as if the bill would be
+introduced. On May 16, I posted on the Eldred Act blog, "we are
+close." There was a general reaction in the blog community that
+something good might happen here.
</para>
<para>
But at this stage, the lobbyists began to intervene. Jack Valenti and
-the MPAA general counsel came to the congresswoman's office to
-give the view of the MPAA. Aided by his lawyer, as Valenti told me,
-Valenti informed the congresswoman that the MPAA would oppose
-the Eldred Act. The reasons are embarrassingly thin. More importantly,
-their thinness shows something clear about what this debate is
- really
-about.
+the MPAA general counsel came to the congresswoman's office to give
+the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
+informed the congresswoman that the MPAA would oppose the Eldred
+Act. The reasons are embarrassingly thin. More importantly, their
+thinness shows something clear about what this debate is really about.
</para>
<para>
-The MPAA argued first that Congress had "firmly rejected the
- central
+The MPAA argued first that Congress had "firmly rejected the central
concept in the proposed bill"—that copyrights be renewed. That
was true, but irrelevant, as Congress's "firm rejection" had occurred
<!-- PAGE BREAK 261 -->
long before the Internet made subsequent uses much more likely.
- Second,
-they argued that the proposal would harm poor copyright
- owners—apparently
-those who could not afford the $1 fee. Third, they
- argued
-that Congress had determined that extending a copyright term
-would encourage restoration work. Maybe in the case of the small
- percentage
-of work covered by copyright law that is still commercially
-valuable, but again this was irrelevant, as the proposal would not cut off
-the extended term unless the $1 fee was not paid. Fourth, the MPAA
-argued that the bill would impose "enormous" costs, since a registration
-system is not free. True enough, but those costs are certainly less than
-the costs of clearing the rights for a copyright whose owner is not
-known. Fifth, they worried about the risks if the copyright to a story
-underlying a film were to pass into the public domain. But what risk is
-that? If it is in the public domain, then the film is a valid derivative use.
-</para>
-<para>
-Finally, the MPAA argued that existing law enabled copyright
-owners to do this if they wanted. But the whole point is that there are
-thousands of copyright owners who don't even know they have a
- copyright
-to give. Whether they are free to give away their copyright or
-not—a controversial claim in any case—unless they know about a
-copyright, they're not likely to.
-</para>
-<para>
-At the beginning of this book, I told two stories about the law
- reacting
-to changes in technology. In the one, common sense prevailed.
-In the other, common sense was delayed. The difference between the
-two stories was the power of the opposition—the power of the side that
-fought to defend the status quo. In both cases, a new technology
- threatened
-old interests. But in only one case did those interest's have the
-power to protect themselves against this new competitive threat.
+Second, they argued that the proposal would harm poor copyright
+owners—apparently those who could not afford the $1 fee. Third,
+they argued that Congress had determined that extending a copyright
+term would encourage restoration work. Maybe in the case of the small
+percentage of work covered by copyright law that is still commercially
+valuable, but again this was irrelevant, as the proposal would not cut
+off the extended term unless the $1 fee was not paid. Fourth, the MPAA
+argued that the bill would impose "enormous" costs, since a
+registration system is not free. True enough, but those costs are
+certainly less than the costs of clearing the rights for a copyright
+whose owner is not known. Fifth, they worried about the risks if the
+copyright to a story underlying a film were to pass into the public
+domain. But what risk is that? If it is in the public domain, then the
+film is a valid derivative use.
+</para>
+<para>
+Finally, the MPAA argued that existing law enabled copyright owners to
+do this if they wanted. But the whole point is that there are
+thousands of copyright owners who don't even know they have a
+copyright to give. Whether they are free to give away their copyright
+or not—a controversial claim in any case—unless they know
+about a copyright, they're not likely to.
+</para>
+<para>
+At the beginning of this book, I told two stories about the law
+reacting to changes in technology. In the one, common sense prevailed.
+In the other, common sense was delayed. The difference between the two
+stories was the power of the opposition—the power of the side
+that fought to defend the status quo. In both cases, a new technology
+threatened old interests. But in only one case did those interest's
+have the power to protect themselves against this new competitive
+threat.
</para>
<para>
I used these two cases as a way to frame the war that this book has
<para>
<!-- PAGE BREAK 262 -->
-When the issue is piracy, it is right for the law to back the copyright
-owners. The commercial piracy that I described is wrong and harmful,
-and the law should work to eliminate it. When the issue is p2p
- sharing,
-it is easy to understand why the law backs the owners still: Much
-of this sharing is wrong, even if much is harmless. When the issue is
-copyright terms for the Mickey Mouses of the world, it is possible still
-to understand why the law favors Hollywood: Most people don't
- recognize
-the reasons for limiting copyright terms; it is thus still possible
-to see good faith within the resistance.
-</para>
-<para>
-But when the copyright owners oppose a proposal such as the
- Eldred
-Act, then, finally, there is an example that lays bare the naked
- selfinterest
-driving this war. This act would free an extraordinary range of
-content that is otherwise unused. It wouldn't interfere with any
- copyright
-owner's desire to exercise continued control over his content. It
-would simply liberate what Kevin Kelly calls the "Dark Content" that
-fills archives around the world. So when the warriors oppose a change
-like this, we should ask one simple question:
+When the issue is piracy, it is right for the law to back the
+copyright owners. The commercial piracy that I described is wrong and
+harmful, and the law should work to eliminate it. When the issue is
+p2p sharing, it is easy to understand why the law backs the owners
+still: Much of this sharing is wrong, even if much is harmless. When
+the issue is copyright terms for the Mickey Mouses of the world, it is
+possible still to understand why the law favors Hollywood: Most people
+don't recognize the reasons for limiting copyright terms; it is thus
+still possible to see good faith within the resistance.
+</para>
+<para>
+But when the copyright owners oppose a proposal such as the Eldred
+Act, then, finally, there is an example that lays bare the naked
+selfinterest driving this war. This act would free an extraordinary
+range of content that is otherwise unused. It wouldn't interfere with
+any copyright owner's desire to exercise continued control over his
+content. It would simply liberate what Kevin Kelly calls the "Dark
+Content" that fills archives around the world. So when the warriors
+oppose a change like this, we should ask one simple question:
</para>
<para>
What does this industry really want?
permission first.
</para>
<para>
-The opposition to the Eldred Act reveals how extreme the other
-side is. The most powerful and sexy and well loved of lobbies really has
-as its aim not the protection of "property" but the rejection of a
- tradition.
-Their aim is not simply to protect what is theirs. Their aim is to
- assure
-that all there is is what is theirs.
+The opposition to the Eldred Act reveals how extreme the other side
+is. The most powerful and sexy and well loved of lobbies really has as
+its aim not the protection of "property" but the rejection of a
+tradition. Their aim is not simply to protect what is theirs. Their
+aim is to assure that all there is is what is theirs.
</para>
<para>
It is not hard to understand why the warriors take this view. It is not
block the progress of others.
</para>
<para>
-All this seems to follow easily from this untroubled acceptance of
-the "property" in intellectual property. Common sense supports it, and
-so long as it does, the assaults will rain down upon the technologies of
-the Internet. The consequence will be an increasing "permission
- society."
-The past can be cultivated only if you can identify the owner and
-gain permission to build upon his work. The future will be controlled
-by this dead (and often unfindable) hand of the past.
+All this seems to follow easily from this untroubled acceptance of the
+"property" in intellectual property. Common sense supports it, and so
+long as it does, the assaults will rain down upon the technologies of
+the Internet. The consequence will be an increasing "permission
+society." The past can be cultivated only if you can identify the
+owner and gain permission to build upon his work. The future will be
+controlled by this dead (and often unfindable) hand of the past.
</para>
<!-- PAGE BREAK 264 -->
</sect1>
importantly, it is seventeen million Africans.
</para>
<para>
-There is no cure for AIDS, but there are drugs to slow its
- progression.
-These antiretroviral therapies are still experimental, but they have
-already had a dramatic effect. In the United States, AIDS patients who
-regularly take a cocktail of these drugs increase their life expectancy
-by ten to twenty years. For some, the drugs make the disease almost
-invisible.
+There is no cure for AIDS, but there are drugs to slow its
+progression. These antiretroviral therapies are still experimental,
+but they have already had a dramatic effect. In the United States,
+AIDS patients who regularly take a cocktail of these drugs increase
+their life expectancy by ten to twenty years. For some, the drugs make
+the disease almost invisible.
</para>
<para>
These drugs are expensive. When they were first introduced in the
<!-- PAGE BREAK 265 -->
These prices are not high because the ingredients of the drugs are
expensive. These prices are high because the drugs are protected by
-patents. The drug companies that produced these life-saving mixes
- enjoy
-at least a twenty-year monopoly for their inventions. They use that
-monopoly power to extract the most they can from the market. That
+patents. The drug companies that produced these life-saving mixes
+enjoy at least a twenty-year monopoly for their inventions. They use
+that monopoly power to extract the most they can from the market. That
power is in turn used to keep the prices high.
</para>
<para>
There are many who are skeptical of patents, especially drug
-patents. I am not. Indeed, of all the areas of research that might be
- supported
-by patents, drug research is, in my view, the clearest case where
-patents are needed. The patent gives the drug company some assurance
-that if it is successful in inventing a new drug to treat a disease, it will
-be able to earn back its investment and more. This is socially an
- extremely
-valuable incentive. I am the last person who would argue that
-the law should abolish it, at least without other changes.
-</para>
-<para>
-But it is one thing to support patents, even drug patents. It is
- another
-thing to determine how best to deal with a crisis. And as African
-leaders began to recognize the devastation that AIDS was bringing,
-they started looking for ways to import HIV treatments at costs
- significantly
-below the market price.
+patents. I am not. Indeed, of all the areas of research that might be
+supported by patents, drug research is, in my view, the clearest case
+where patents are needed. The patent gives the drug company some
+assurance that if it is successful in inventing a new drug to treat a
+disease, it will be able to earn back its investment and more. This is
+socially an extremely valuable incentive. I am the last person who
+would argue that the law should abolish it, at least without other
+changes.
+</para>
+<para>
+But it is one thing to support patents, even drug patents. It is
+another thing to determine how best to deal with a crisis. And as
+African leaders began to recognize the devastation that AIDS was
+bringing, they started looking for ways to import HIV treatments at
+costs significantly below the market price.
</para>
<para>
In 1997, South Africa tried one tack. It passed a law to allow the
importation of patented medicines that had been produced or sold in
-another nation's market with the consent of the patent owner. For
- example,
-if the drug was sold in India, it could be imported into Africa
-from India. This is called "parallel importation," and it is generally
- permitted
-under international trade law and is specifically permitted
-within the European Union.<footnote><para>
+another nation's market with the consent of the patent owner. For
+example, if the drug was sold in India, it could be imported into
+Africa from India. This is called "parallel importation," and it is
+generally permitted under international trade law and is specifically
+permitted within the European Union.<footnote><para>
<!-- f2. --> See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
</para></footnote>
them. So uncritically do we accept the idea of property in culture that
we don't even question when the control of that property removes our
<!-- PAGE BREAK 269 -->
-ability, as a people, to develop our culture democratically. Blindness
- becomes
-our common sense. And the challenge for anyone who would
-reclaim the right to cultivate our culture is to find a way to make this
-common sense open its eyes.
+ability, as a people, to develop our culture democratically. Blindness
+becomes our common sense. And the challenge for anyone who would
+reclaim the right to cultivate our culture is to find a way to make
+this common sense open its eyes.
</para>
<para>
So far, common sense sleeps. There is no revolt. Common sense
friction
imposes on anyone who would want to spy.
</para>
+<indexterm><primary>Amazon</primary></indexterm>
<para>
-Enter the Internet, where the cost of tracking browsing in
- particular
+Enter the Internet, where the cost of tracking browsing in particular
has become quite tiny. If you're a customer at Amazon, then as you
browse the pages, Amazon collects the data about what you've looked
-at. You know this because at the side of the page, there's a list of
- "recently
-viewed" pages. Now, because of the architecture of the Net and
-the function of cookies on the Net, it is easier to collect the data than
-not. The friction has disappeared, and hence any "privacy" protected by
-the friction disappears, too.
+at. You know this because at the side of the page, there's a list of
+"recently viewed" pages. Now, because of the architecture of the Net
+and the function of cookies on the Net, it is easier to collect the
+data than not. The friction has disappeared, and hence any "privacy"
+protected by the friction disappears, too.
</para>
<para>
-Amazon, of course, is not the problem. But we might begin to
-worry about libraries. If you're one of those crazy lefties who thinks that
-people should have the "right" to browse in a library without the
- government
-knowing which books you look at (I'm one of those lefties,
+Amazon, of course, is not the problem. But we might begin to worry
+about libraries. If you're one of those crazy lefties who thinks that
+people should have the "right" to browse in a library without the
+government knowing which books you look at (I'm one of those lefties,
too), then this change in the technology of monitoring might concern
-you. If it becomes simple to gather and sort who does what in electronic
-spaces, then the friction-induced privacy of yesterday disappears.
+you. If it becomes simple to gather and sort who does what in
+electronic spaces, then the friction-induced privacy of yesterday
+disappears.
</para>
<para>
It is this reality that explains the push of many to define "privacy"
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
ground to the heavens. The airplane came along. The scope of property
-rights quickly changed. There was no fuss, no constitutional challenge.
-It made no sense anymore to grant that much control, given the
- emergence
-of that new technology.
+rights quickly changed. There was no fuss, no constitutional
+challenge. It made no sense anymore to grant that much control, given
+the emergence of that new technology.
</para>
<para>
Our Constitution gives Congress the power to give authors
regulate culture only where that regulation does good. Yet lawyers
<!-- PAGE BREAK 311 -->
-rarely test their power, or the power they promote, against this simple
-pragmatic question: "Will it do good?" When challenged about the
- expanding
-reach of the law, the lawyer answers, "Why not?"
+rarely test their power, or the power they promote, against this
+simple pragmatic question: "Will it do good?" When challenged about
+the expanding reach of the law, the lawyer answers, "Why not?"
</para>
<para>
We should ask, "Why?" Show me why your regulation of culture is
projects / text-free-culture-lessig.git / commitdiff