</para>
<para>
This financial burden is not slight. As Harvard law professor
-William Fisher estimates, if an Internet radio station distributed
- adfree
+William Fisher estimates, if an Internet radio station distributed adfree
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
over $1 million a year.<footnote><para>
sued 261 individuals—including a twelve-year-old girl living in public
housing and a seventy-year-old man who had no idea what file sharing
was.<footnote><para>
-<!-- f16. --> Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
+<!-- f16. -->
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
Angeles Times, 10 September 2003, Business.
</para></footnote>
- As these scapegoats discovered, it will always cost more to
- defend
+As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
year old, for example, like Jesse Jordan, paid her life savings of $2,000
to settle the case.) Our law is an awful system for defending rights. It
</para>
<para>
Wars of prohibition are nothing new in America. This one is just
-something more extreme than anything we've seen before. We
- experimented
-with alcohol prohibition, at a time when the per capita
- consumption
-of alcohol was 1.5 gallons per capita per year. The war against
-drinking initially reduced that consumption to just 30 percent of its
-preprohibition levels, but by the end of prohibition, consumption was
-up to 70 percent of the preprohibition level. Americans were drinking
-just about as much, but now, a vast number were criminals.<footnote><para>
-<!-- f17. --> Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
- Prohibition,"
-American Economic Review 81, no. 2 (1991): 242.
-</para></footnote>
- We have
-
+something more extreme than anything we've seen before. We
+experimented with alcohol prohibition, at a time when the per capita
+consumption of alcohol was 1.5 gallons per capita per year. The war
+against drinking initially reduced that consumption to just 30 percent
+of its preprohibition levels, but by the end of prohibition,
+consumption was up to 70 percent of the preprohibition
+level. Americans were drinking just about as much, but now, a vast
+number were criminals.<footnote><para>
+<!-- f17. -->
+Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
+Prohibition," American Economic Review 81, no. 2 (1991): 242.
+</para></footnote>
+We have
<!-- PAGE BREAK 210 -->
-launched a war on drugs aimed at reducing the consumption of
- regulated
+launched a war on drugs aimed at reducing the consumption of regulated
narcotics that 7 percent (or 16 million) Americans now use.<footnote><para>
-<!-- f18. --> National Drug Control Policy: Hearing Before the House Government
+<!-- f18. -->
+National Drug Control Policy: Hearing Before the House Government
Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
John P. Walters, director of National Drug Control Policy).
</para></footnote>
-
-That is a drop from the high (so to speak) in 1979 of 14 percent of the
-population. We regulate automobiles to the point where the vast
- majority
-of Americans violate the law every day. We run such a complex
-tax system that a majority of cash businesses regularly cheat.<footnote><para>
-<!-- f19. --> See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
- Compliance,"
-Journal of Economic Literature 36 (1998): 818 (survey of compliance
-literature).
+That is a drop from the high (so to speak) in 1979 of 14 percent of
+the population. We regulate automobiles to the point where the vast
+majority of Americans violate the law every day. We run such a complex
+tax system that a majority of cash businesses regularly
+cheat.<footnote><para>
+<!-- f19. -->
+See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
+Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+compliance literature).
</para></footnote>
- We
-pride ourselves on our "free society," but an endless array of ordinary
-behavior is regulated within our society. And as a result, a huge
- proportion
-of Americans regularly violate at least some law.
+We pride ourselves on our "free society," but an endless array of
+ordinary behavior is regulated within our society. And as a result, a
+huge proportion of Americans regularly violate at least some law.
</para>
<para>
This state of affairs is not without consequence. It is a particularly
-salient issue for teachers like me, whose job it is to teach law students
-about the importance of "ethics." As my colleague Charlie Nesson told
-a class at Stanford, each year law schools admit thousands of students
-who have illegally downloaded music, illegally consumed alcohol and
-sometimes drugs, illegally worked without paying taxes, illegally driven
-cars. These are kids for whom behaving illegally is increasingly the
-norm. And then we, as law professors, are supposed to teach them how
-to behave ethically—how to say no to bribes, or keep client funds
- separate,
-or honor a demand to disclose a document that will mean that
-your case is over. Generations of Americans—more significantly in
-some parts of America than in others, but still, everywhere in America
-today—can't live their lives both normally and legally, since "normally"
-entails a certain degree of illegality.
+salient issue for teachers like me, whose job it is to teach law
+students about the importance of "ethics." As my colleague Charlie
+Nesson told a class at Stanford, each year law schools admit thousands
+of students who have illegally downloaded music, illegally consumed
+alcohol and sometimes drugs, illegally worked without paying taxes,
+illegally driven cars. These are kids for whom behaving illegally is
+increasingly the norm. And then we, as law professors, are supposed to
+teach them how to behave ethically—how to say no to bribes, or
+keep client funds separate, or honor a demand to disclose a document
+that will mean that your case is over. Generations of
+Americans—more significantly in some parts of America than in
+others, but still, everywhere in America today—can't live their
+lives both normally and legally, since "normally" entails a certain
+degree of illegality.
</para>
<para>
The response to this general illegality is either to enforce the law
-more severely or to change the law. We, as a society, have to learn how
-to make that choice more rationally. Whether a law makes sense
- depends,
-in part, at least, upon whether the costs of the law, both
- intended
-and collateral, outweigh the benefits. If the costs, intended and
-collateral, do outweigh the benefits, then the law ought to be changed.
-Alternatively, if the costs of the existing system are much greater than
-the costs of an alternative, then we have a good reason to consider the
-alternative.
+more severely or to change the law. We, as a society, have to learn
+how to make that choice more rationally. Whether a law makes sense
+depends, in part, at least, upon whether the costs of the law, both
+intended and collateral, outweigh the benefits. If the costs, intended
+and collateral, do outweigh the benefits, then the law ought to be
+changed. Alternatively, if the costs of the existing system are much
+greater than the costs of an alternative, then we have a good reason
+to consider the alternative.
</para>
<para>
week. A society is right to ban murder always and everywhere.
</para>
<para>
-My point is instead one that democracies understood for
- generations,
-but that we recently have learned to forget. The rule of law
-depends upon people obeying the law. The more often, and more
- repeatedly,
-we as citizens experience violating the law, the less we respect
-the law. Obviously, in most cases, the important issue is the law, not
-respect for the law. I don't care whether the rapist respects the law or
-not; I want to catch and incarcerate the rapist. But I do care whether
-my students respect the law. And I do care if the rules of law sow
- increasing
-disrespect because of the extreme of regulation they impose.
-Twenty million Americans have come of age since the Internet
- introduced
-this different idea of "sharing." We need to be able to call these
-twenty million Americans "citizens," not "felons."
-</para>
-<para>
-When at least forty-three million citizens download content from
-the Internet, and when they use tools to combine that content in ways
-unauthorized by copyright holders, the first question we should be
- asking
-is not how best to involve the FBI. The first question should be
-whether this particular prohibition is really necessary in order to achieve
-the proper ends that copyright law serves. Is there another way to
-assure that artists get paid without transforming forty-three million
-Americans into felons? Does it make sense if there are other ways to
-assure that artists get paid without transforming America into a nation
-of felons?
+My point is instead one that democracies understood for generations,
+but that we recently have learned to forget. The rule of law depends
+upon people obeying the law. The more often, and more repeatedly, we
+as citizens experience violating the law, the less we respect the
+law. Obviously, in most cases, the important issue is the law, not
+respect for the law. I don't care whether the rapist respects the law
+or not; I want to catch and incarcerate the rapist. But I do care
+whether my students respect the law. And I do care if the rules of law
+sow increasing disrespect because of the extreme of regulation they
+impose. Twenty million Americans have come of age since the Internet
+introduced this different idea of "sharing." We need to be able to
+call these twenty million Americans "citizens," not "felons."
+</para>
+<para>
+When at least forty-three million citizens download content from the
+Internet, and when they use tools to combine that content in ways
+unauthorized by copyright holders, the first question we should be
+asking is not how best to involve the FBI. The first question should
+be whether this particular prohibition is really necessary in order to
+achieve the proper ends that copyright law serves. Is there another
+way to assure that artists get paid without transforming forty-three
+million Americans into felons? Does it make sense if there are other
+ways to assure that artists get paid without transforming America into
+a nation of felons?
</para>
<para>
This abstract point can be made more clear with a particular example.
</para>
<para>
-We all own CDs. Many of us still own phonograph records. These
-pieces of plastic encode music that in a certain sense we have bought.
-The law protects our right to buy and sell that plastic: It is not a
- copyright
-infringement for me to sell all my classical records at a used
+We all own CDs. Many of us still own phonograph records. These pieces
+of plastic encode music that in a certain sense we have bought. The
+law protects our right to buy and sell that plastic: It is not a
+copyright infringement for me to sell all my classical records at a
+used
<!-- PAGE BREAK 212 -->
record store and buy jazz records to replace them. That "use" of the
different property systems and the freedoms each allowed.
</para>
<para>
-I believe there is a way to assure that artists are paid without
- turning
-forty-three million Americans into felons. But the salient feature
-of this alternative is that it would lead to a very different market for
-producing and distributing creativity. The dominant few, who today
-control the vast majority of the distribution of content in the world,
-would no longer exercise this extreme of control. Rather, they would go
-the way of the horse-drawn buggy.
-</para>
-<para>
-Except that this generation's buggy manufacturers have already
-saddled Congress, and are riding the law to protect themselves against
-this new form of competition. For them the choice is between
- fortythree
+I believe there is a way to assure that artists are paid without
+turning forty-three million Americans into felons. But the salient
+feature of this alternative is that it would lead to a very different
+market for producing and distributing creativity. The dominant few,
+who today control the vast majority of the distribution of content in
+the world, would no longer exercise this extreme of control. Rather,
+they would go the way of the horse-drawn buggy.
+</para>
+<para>
+Except that this generation's buggy manufacturers have already saddled
+Congress, and are riding the law to protect themselves against this
+new form of competition. For them the choice is between fortythree
million Americans as criminals and their own survival.
</para>
<para>
-It is understandable why they choose as they do. It is not
- understandable
-why we as a democracy continue to choose as we do. Jack
+It is understandable why they choose as they do. It is not
+understandable why we as a democracy continue to choose as we do. Jack
<!-- PAGE BREAK 214 -->
-Valenti is charming; but not so charming as to justify giving up a
- tradition
-as deep and important as our tradition of free culture.
-There's one more aspect to this corruption that is particularly
- important
-to civil liberties, and follows directly from any war of
- prohibition.
-As Electronic Frontier Foundation attorney Fred von Lohmann
-describes, this is the "collateral damage" that "arises whenever you turn
-a very large percentage of the population into criminals." This is the
-collateral damage to civil liberties generally.
+
+Valenti is charming; but not so charming as to justify giving up a
+tradition as deep and important as our tradition of free culture.
+There's one more aspect to this corruption that is particularly
+important to civil liberties, and follows directly from any war of
+prohibition. As Electronic Frontier Foundation attorney Fred von
+Lohmann describes, this is the "collateral damage" that "arises
+whenever you turn a very large percentage of the population into
+criminals." This is the collateral damage to civil liberties
+generally.
</para>
<para>
"If you can treat someone as a putative lawbreaker," von Lohmann
</para>
<blockquote>
<para>
-then all of a sudden a lot of basic civil liberty protections
- evaporate
-to one degree or another. . . . If you're a copyright infringer,
-how can you hope to have any privacy rights? If you're a copyright
-infringer, how can you hope to be secure against seizures of your
-computer? How can you hope to continue to receive Internet
-access? . . . Our sensibilities change as soon as we think, "Oh,
-well, but that person's a criminal, a lawbreaker." Well, what this
-campaign against file sharing has done is turn a remarkable
- percentage
-of the American Internet-using population into
- "lawbreakers."
+then all of a sudden a lot of basic civil liberty protections
+evaporate to one degree or another. . . . If you're a copyright
+infringer, how can you hope to have any privacy rights? If you're a
+copyright infringer, how can you hope to be secure against seizures of
+your computer? How can you hope to continue to receive Internet
+access? . . . Our sensibilities change as soon as we think, "Oh, well,
+but that person's a criminal, a lawbreaker." Well, what this campaign
+against file sharing has done is turn a remarkable percentage of the
+American Internet-using population into "lawbreakers."
</para>
</blockquote>
<para>
effectively erase much of the privacy most would presume.
</para>
<para>
-Users of the Internet began to see this generally in 2003 as the
-RIAA launched its campaign to force Internet service providers to turn
-over the names of customers who the RIAA believed were violating
-copyright law. Verizon fought that demand and lost. With a simple
- request
-to a judge, and without any notice to the customer at all, the
-identity of an Internet user is revealed.
+Users of the Internet began to see this generally in 2003 as the RIAA
+launched its campaign to force Internet service providers to turn over
+the names of customers who the RIAA believed were violating copyright
+law. Verizon fought that demand and lost. With a simple request to a
+judge, and without any notice to the customer at all, the identity of
+an Internet user is revealed.
</para>
<para>
-
<!-- PAGE BREAK 215 -->
-The RIAA then expanded this campaign, by announcing a general
-strategy to sue individual users of the Internet who are alleged to have
+The RIAA then expanded this campaign, by announcing a general strategy
+to sue individual users of the Internet who are alleged to have
downloaded copyrighted music from file-sharing systems. But as we've
-seen, the potential damages from these suits are astronomical: If a
- family's
-computer is used to download a single CD's worth of music, the
-family could be liable for $2 million in damages. That didn't stop the
-RIAA from suing a number of these families, just as they had sued
+seen, the potential damages from these suits are astronomical: If a
+family's computer is used to download a single CD's worth of music,
+the family could be liable for $2 million in damages. That didn't stop
+the RIAA from suing a number of these families, just as they had sued
Jesse Jordan.<footnote><para>
-<!-- f20. --> See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
-Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
- Washington
-Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents Pull
-Plug on File `Stealing'; With the Music Industry Cracking Down on File
-Swapping, Parents are Yanking Software from Home PCs to Avoid Being
-Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham,
-"Recording Industry Sues Parents," USA Today, 15 September 2003, 4D;
-John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either,"
-New York Times, 25 September 2003, C1; Margo Varadi, "Is Brianna a
-Criminal?" Toronto Star, 18 September 2003, P7.
+<!-- f20. -->
+See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
+Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
+Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
+File Swapping, Parents are Yanking Software from Home PCs to Avoid
+Being Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," USA Today, 15 September
+2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
+Fan, Either," New York Times, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" Toronto Star, 18 September 2003, P7.
</para></footnote>
</para>
Even this understates the espionage that is being waged by the
RIAA. A report from CNN late last summer described a strategy the
RIAA had adopted to track Napster users.<footnote><para>
-<!-- f21. --> See "Revealed: How RIAA Tracks Downloaders: Music Industry
- Discloses
-Some Methods Used," CNN.com, available at
+<!-- f21. -->
+See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
+Some Methods Used," CNN.com, available at
<ulink url="http://free-culture.cc/notes/">link #47</ulink>.
</para></footnote>
- Using a sophisticated
-hashing algorithm, the RIAA took what is in effect a fingerprint of
-every song in the Napster catalog. Any copy of one of those MP3s will
-have the same "fingerprint."
-</para>
-<para>
-So imagine the following not-implausible scenario: Imagine a
-friend gives a CD to your daughter—a collection of songs just like the
-cassettes you used to make as a kid. You don't know, and neither does
-your daughter, where these songs came from. But she copies these
-songs onto her computer. She then takes her computer to college and
-connects it to a college network, and if the college network is
- "cooperating"
-with the RIAA's espionage, and she hasn't properly protected
-her content from the network (do you know how to do that yourself ?),
-then the RIAA will be able to identify your daughter as a "criminal."
-And under the rules that universities are beginning to deploy,<footnote><para>
-<!-- f22. --> See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," Boston
-Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued
-over Music Sites; Industry Group Targets File Sharing at Colleges,"
- Washington
-Post, 4 April 2003, E1; Elizabeth Armstrong, "Students `Rip, Mix,
-Burn' at Their Own Risk," Christian Science Monitor, 2 September 2003,
-20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to
- Loyola;
-Two Students Names Are Handed Over; Lawsuit Possible," Chicago
-Tribune, 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on
-Universities," Internet News, 30 January 2003, available at
-<ulink url="http://free-culture.cc/notes/">link #48</ulink>; Benny
-Evangelista, "Download Warning 101: Freshman Orientation This Fall to
-Include Record Industry Warnings Against File Sharing," San Francisco
-Chronicle, 11 August 2003, E11; "Raid, Letters Are Weapons at
- Universities,"
-USA Today, 26 September 2000, 3D.
-</para></footnote>
- your
-daughter can lose the right to use the university's computer network.
-She can, in some cases, be expelled.
+Using a sophisticated hashing algorithm, the RIAA took what is in
+effect a fingerprint of every song in the Napster catalog. Any copy of
+one of those MP3s will have the same "fingerprint."
+</para>
+<para>
+So imagine the following not-implausible scenario: Imagine a
+friend gives a CD to your daughter—a collection of songs just
+like the cassettes you used to make as a kid. You don't know, and
+neither does your daughter, where these songs came from. But she
+copies these songs onto her computer. She then takes her computer to
+college and connects it to a college network, and if the college
+network is "cooperating" with the RIAA's espionage, and she hasn't
+properly protected her content from the network (do you know how to do
+that yourself ?), then the RIAA will be able to identify your daughter
+as a "criminal." And under the rules that universities are beginning
+to deploy,<footnote><para>
+<!-- f22. -->
+See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
+Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+Students Sued over Music Sites; Industry Group Targets File Sharing at
+Colleges," Washington Post, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," Christian Science
+Monitor, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
+Lawsuit Possible," Chicago Tribune, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," Internet News, 30 January
+2003, available at <ulink url="http://free-culture.cc/notes/">link
+#48</ulink>; Benny Evangelista, "Download Warning 101: Freshman
+Orientation This Fall to Include Record Industry Warnings Against File
+Sharing," San Francisco Chronicle, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," USA Today, 26 September 2000, 3D.
+</para></footnote>
+your daughter can lose the right to use the university's computer
+network. She can, in some cases, be expelled.
</para>
<para>
Now, of course, she'll have the right to defend herself. You can hire
-a lawyer for her (at $300 per hour, if you're lucky), and she can plead
-that she didn't know anything about the source of the songs or that
-they came from Napster. And it may well be that the university believes
-her. But the university might not believe her. It might treat this
- "contraband"
-as presumptive of guilt. And as any number of college students
+a lawyer for her (at $300 per hour, if you're lucky), and she can
+plead that she didn't know anything about the source of the songs or
+that they came from Napster. And it may well be that the university
+believes her. But the university might not believe her. It might treat
+this "contraband" as presumptive of guilt. And as any number of
+college students
<!-- PAGE BREAK 216 -->
have already learned, our presumptions about innocence disappear in
So when we're talking about numbers like forty to sixty million
Americans that are essentially copyright infringers, you create a
situation where the civil liberties of those people are very much in
-peril in a general matter. [I don't] think [there is any] analog
-where you could randomly choose any person off the street and be
-confident that they were committing an unlawful act that could
-put them on the hook for potential felony liability or hundreds of
-millions of dollars of civil liability. Certainly we all speed, but
-speeding isn't the kind of an act for which we routinely forfeit
-civil liberties. Some people use drugs, and I think that's the
- closest
-analog, [but] many have noted that the war against drugs has
-eroded all of our civil liberties because it's treated so many
- Americans
-as criminals. Well, I think it's fair to say that file sharing
-is an order of magnitude larger number of Americans than drug
-use. . . . If forty to sixty million Americans have become
- lawbreakers,
-then we're really on a slippery slope to lose a lot of civil
-liberties for all forty to sixty million of them.
+peril in a general matter. [I don't] think [there is any] analog where
+you could randomly choose any person off the street and be confident
+that they were committing an unlawful act that could put them on the
+hook for potential felony liability or hundreds of millions of dollars
+of civil liability. Certainly we all speed, but speeding isn't the
+kind of an act for which we routinely forfeit civil liberties. Some
+people use drugs, and I think that's the closest analog, [but] many
+have noted that the war against drugs has eroded all of our civil
+liberties because it's treated so many Americans as criminals. Well, I
+think it's fair to say that file sharing is an order of magnitude
+larger number of Americans than drug use. . . . If forty to sixty
+million Americans have become lawbreakers, then we're really on a
+slippery slope to lose a lot of civil liberties for all forty to sixty
+million of them.
</para>
</blockquote>
<para>
-When forty to sixty million Americans are considered "criminals"
-under the law, and when the law could achieve the same objective—
-securing rights to authors—without these millions being considered
-"criminals," who is the villain? Americans or the law? Which is
- American,
-a constant war on our own people or a concerted effort through
-our democracy to change our law?
+When forty to sixty million Americans are considered "criminals" under
+the law, and when the law could achieve the same objective—
+securing rights to authors—without these millions being
+considered "criminals," who is the villain? Americans or the law?
+Which is American, a constant war on our own people or a concerted
+effort through our democracy to change our law?
</para>
<!-- PAGE BREAK 217 -->
</para>
<para>
As you ponder the mess, someone else comes along. In a panic, she
-grabs the bucket. Before you have a chance to tell her to stop—or
- before
-she understands just why she should stop—the bucket is in the air.
-The gasoline is about to hit the blazing car. And the fire that gasoline
-will ignite is about to ignite everything around.
+grabs the bucket. Before you have a chance to tell her to
+stop—or before she understands just why she should
+stop—the bucket is in the air. The gasoline is about to hit the
+blazing car. And the fire that gasoline will ignite is about to ignite
+everything around.
</para>
<para>
-A war about copyright rages all around—and we're all focusing on the
-wrong thing. No doubt, current technologies threaten existing
- businesses.
-No doubt they may threaten artists. But technologies change.
-The industry and technologists have plenty of ways to use technology
-to protect themselves against the current threats of the Internet. This
-is a fire that if let alone would burn itself out.
+A war about copyright rages all around—and we're all focusing on
+the wrong thing. No doubt, current technologies threaten existing
+businesses. No doubt they may threaten artists. But technologies
+change. The industry and technologists have plenty of ways to use
+technology to protect themselves against the current threats of the
+Internet. This is a fire that if let alone would burn itself out.
</para>
<para>
<!-- PAGE BREAK 219 -->
Yet policy makers are not willing to leave this fire to itself. Primed
-with plenty of lobbyists' money, they are keen to intervene to eliminate
-the problem they perceive. But the problem they perceive is not the real
-threat this culture faces. For while we watch this small fire in the
- corner,
-there is a massive change in the way culture is made that is
- happening
-all around.
+with plenty of lobbyists' money, they are keen to intervene to
+eliminate the problem they perceive. But the problem they perceive is
+not the real threat this culture faces. For while we watch this small
+fire in the corner, there is a massive change in the way culture is
+made that is happening all around.
</para>
<para>
-Somehow we have to find a way to turn attention to this more
- important
-and fundamental issue. Somehow we have to find a way to
-avoid pouring gasoline onto this fire.
+Somehow we have to find a way to turn attention to this more important
+and fundamental issue. Somehow we have to find a way to avoid pouring
+gasoline onto this fire.
</para>
<para>
-We have not found that way yet. Instead, we seem trapped in a
- simpler,
-binary view. However much many people push to frame this
- debate
-more broadly, it is the simple, binary view that remains. We
-rubberneck to look at the fire when we should be keeping our eyes on
-the road.
+We have not found that way yet. Instead, we seem trapped in a simpler,
+binary view. However much many people push to frame this debate more
+broadly, it is the simple, binary view that remains. We rubberneck to
+look at the fire when we should be keeping our eyes on the road.
</para>
<para>
This challenge has been my life these last few years. It has also been
-my failure. In the two chapters that follow, I describe one small brace
-of efforts, so far failed, to find a way to refocus this debate. We must
-understand these failures if we're to understand what success will
- require.
+my failure. In the two chapters that follow, I describe one small
+brace of efforts, so far failed, to find a way to refocus this
+debate. We must understand these failures if we're to understand what
+success will require.
</para>
<!-- PAGE BREAK 220 -->
<sect1 id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
<para>
-
-In 1995, a father was frustrated that his daughters didn't seem to like
-Hawthorne. No doubt there was more than one such father, but at least
-one did something about it. Eric Eldred, a retired computer
- programmer
-living in New Hampshire, decided to put Hawthorne on the
+In 1995, a father was frustrated that his daughters didn't seem to
+like Hawthorne. No doubt there was more than one such father, but at
+least one did something about it. Eric Eldred, a retired computer
+programmer living in New Hampshire, decided to put Hawthorne on the
Web. An electronic version, Eldred thought, with links to pictures and
explanatory text, would make this nineteenth-century author's work
come alive.
</para>
<para>
-It didn't work—at least for his daughters. They didn't find
- Hawthorne
-any more interesting than before. But Eldred's experiment gave
-birth to a hobby, and his hobby begat a cause: Eldred would build a
-library of public domain works by scanning these works and making
+It didn't work—at least for his daughters. They didn't find
+Hawthorne any more interesting than before. But Eldred's experiment
+gave birth to a hobby, and his hobby begat a cause: Eldred would build
+a library of public domain works by scanning these works and making
them available for free.
</para>
<para>
works. Instead, Eldred was producing derivative works from these
public domain works. Just as Disney turned Grimm into stories more
<!-- PAGE BREAK 221 -->
-accessible to the twentieth century, Eldred transformed Hawthorne,
-and many others, into a form more accessible—technically
- accessible—today.
+accessible to the twentieth century, Eldred transformed Hawthorne, and
+many others, into a form more accessible—technically
+accessible—today.
</para>
<para>
-Eldred's freedom to do this with Hawthorne's work grew from the
-same source as Disney's. Hawthorne's Scarlet Letter had passed into the
-public domain in 1907. It was free for anyone to take without the
- permission
-of the Hawthorne estate or anyone else. Some, such as Dover
+Eldred's freedom to do this with Hawthorne's work grew from the same
+source as Disney's. Hawthorne's Scarlet Letter had passed into the
+public domain in 1907. It was free for anyone to take without the
+permission of the Hawthorne estate or anyone else. Some, such as Dover
Press and Penguin Classics, take works from the public domain and
produce printed editions, which they sell in bookstores across the
country. Others, such as Disney, take these stories and turn them into
animated cartoons, sometimes successfully (Cinderella), sometimes not
-(The Hunchback of Notre Dame, Treasure Planet). These are all
- commercial
-publications of public domain works.
-</para>
-<para>
-The Internet created the possibility of noncommercial publications
-of public domain works. Eldred's is just one example. There are
- literally
-thousands of others. Hundreds of thousands from across the world
-have discovered this platform of expression and now use it to share
-works that are, by law, free for the taking. This has produced what we
-might call the "noncommercial publishing industry," which before the
-Internet was limited to people with large egos or with political or
- social
-causes. But with the Internet, it includes a wide range of
- individuals
-and groups dedicated to spreading culture generally.<footnote><para>
-<!-- f1. --> There's a parallel here with pornography that is a bit hard to describe, but
-it's a strong one. One phenomenon that the Internet created was a world
-of noncommercial pornographers—people who were distributing porn
-but were not making money directly or indirectly from that distribution.
-Such a class didn't exist before the Internet came into being because the
-costs of distributing porn were so high. Yet this new class of distributors
-got special attention in the Supreme Court, when the Court struck down
-the Communications Decency Act of 1996. It was partly because of the
-burden on noncommercial speakers that the statute was found to exceed
-Congress's power. The same point could have been made about
- noncommercial
+(The Hunchback of Notre Dame, Treasure Planet). These are all
+commercial publications of public domain works.
+</para>
+<para>
+The Internet created the possibility of noncommercial publications of
+public domain works. Eldred's is just one example. There are literally
+thousands of others. Hundreds of thousands from across the world have
+discovered this platform of expression and now use it to share works
+that are, by law, free for the taking. This has produced what we might
+call the "noncommercial publishing industry," which before the
+Internet was limited to people with large egos or with political or
+social causes. But with the Internet, it includes a wide range of
+individuals and groups dedicated to spreading culture
+generally.<footnote><para>
+<!-- f1. -->
+There's a parallel here with pornography that is a bit hard to
+describe, but it's a strong one. One phenomenon that the Internet
+created was a world of noncommercial pornographers—people who
+were distributing porn but were not making money directly or
+indirectly from that distribution. Such a class didn't exist before
+the Internet came into being because the costs of distributing porn
+were so high. Yet this new class of distributors got special attention
+in the Supreme Court, when the Court struck down the Communications
+Decency Act of 1996. It was partly because of the burden on
+noncommercial speakers that the statute was found to exceed Congress's
+power. The same point could have been made about noncommercial
publishers after the advent of the Internet. The Eric Eldreds of the
-world before the Internet were extremely few. Yet one would think it at
-least as important to protect the Eldreds of the world as to protect
- noncommercial
-pornographers.
-</para></footnote>
-
+world before the Internet were extremely few. Yet one would think it
+at least as important to protect the Eldreds of the world as to
+protect noncommercial pornographers.</para></footnote>
</para>
<para>
As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
projects / text-free-culture-lessig.git / commitdiff