msgid ""
msgstr ""
"Project-Id-Version: PACKAGE VERSION\n"
-"POT-Creation-Date: 2012-08-07 12:34+0300\n"
+"POT-Creation-Date: 2012-08-07 16:40+0300\n"
"PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n"
"Last-Translator: FULL NAME <EMAIL@ADDRESS>\n"
"Language-Team: LANGUAGE <LL@li.org>\n"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:424 freeculture.xml:12852
+#: freeculture.xml:424 freeculture.xml:12888
msgid "CodePink Women in Peace"
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:435 freeculture.xml:445 freeculture.xml:12865
+#: freeculture.xml:435 freeculture.xml:445 freeculture.xml:12901
msgid "Safire, William"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:530 freeculture.xml:543 freeculture.xml:574 freeculture.xml:593 freeculture.xml:996 freeculture.xml:1013 freeculture.xml:1059 freeculture.xml:8852 freeculture.xml:12247 freeculture.xml:12956
+#: freeculture.xml:530 freeculture.xml:543 freeculture.xml:574 freeculture.xml:593 freeculture.xml:996 freeculture.xml:1013 freeculture.xml:1059 freeculture.xml:8888 freeculture.xml:12283 freeculture.xml:12992
msgid "Causby, Thomas Lee"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:531 freeculture.xml:544 freeculture.xml:575 freeculture.xml:594 freeculture.xml:997 freeculture.xml:1014 freeculture.xml:1060 freeculture.xml:8853 freeculture.xml:12248 freeculture.xml:12957
+#: freeculture.xml:531 freeculture.xml:544 freeculture.xml:575 freeculture.xml:594 freeculture.xml:997 freeculture.xml:1014 freeculture.xml:1060 freeculture.xml:8889 freeculture.xml:12284 freeculture.xml:12993
msgid "Causby, Tinie"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:865 freeculture.xml:9394
+#: freeculture.xml:865 freeculture.xml:9430
msgid "Litman, Jessica"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:960 freeculture.xml:14227
+#: freeculture.xml:960 freeculture.xml:14263
msgid "Netanel, Neil Weinstock"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1639 freeculture.xml:2835 freeculture.xml:4467 freeculture.xml:4688 freeculture.xml:7238 freeculture.xml:8316
+#: freeculture.xml:1639 freeculture.xml:2835 freeculture.xml:4467 freeculture.xml:4688 freeculture.xml:7238 freeculture.xml:8352
msgid "Vaidhyanathan, Siva"
msgstr ""
#. f31
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:2100 freeculture.xml:3837 freeculture.xml:4876 freeculture.xml:8040
+#: freeculture.xml:2100 freeculture.xml:3837 freeculture.xml:4876 freeculture.xml:8076
msgid "Ibid."
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2208 freeculture.xml:7979 freeculture.xml:8215
+#: freeculture.xml:2208 freeculture.xml:8015 freeculture.xml:8251
msgid "ABC"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2885 freeculture.xml:3138 freeculture.xml:4242 freeculture.xml:9587
+#: freeculture.xml:2885 freeculture.xml:3138 freeculture.xml:4242 freeculture.xml:9623
msgid "Picker, Randal C."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:3060 freeculture.xml:13896
+#: freeculture.xml:3060 freeculture.xml:13932
msgid "Grisham, John"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:3155 freeculture.xml:8678 freeculture.xml:9136 freeculture.xml:12062
+#: freeculture.xml:3155 freeculture.xml:8714 freeculture.xml:9172 freeculture.xml:12098
msgid "Lovett, Lyle"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3429 freeculture.xml:12342 freeculture.xml:12776 freeculture.xml:12783
+#: freeculture.xml:3429 freeculture.xml:12378 freeculture.xml:12812 freeculture.xml:12819
msgid "Drahos, Peter"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3449 freeculture.xml:3716 freeculture.xml:14428
+#: freeculture.xml:3449 freeculture.xml:3716 freeculture.xml:14464
msgid "Liebowitz, Stan"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:3495 freeculture.xml:3523 freeculture.xml:11187 freeculture.xml:12657 freeculture.xml:13209
+#: freeculture.xml:3495 freeculture.xml:3523 freeculture.xml:11223 freeculture.xml:12693 freeculture.xml:13245
msgid "GNU/Linux operating system"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:3496 freeculture.xml:3526 freeculture.xml:11189 freeculture.xml:12658 freeculture.xml:13210
+#: freeculture.xml:3496 freeculture.xml:3526 freeculture.xml:11225 freeculture.xml:12694 freeculture.xml:13246
msgid "Linux operating system"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3595 freeculture.xml:8109
+#: freeculture.xml:3595 freeculture.xml:8145
msgid "Christensen, Clayton M."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:4710 freeculture.xml:14519
+#: freeculture.xml:4710 freeculture.xml:14555
msgid "Rose, Mark"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:5110 freeculture.xml:5118 freeculture.xml:5129 freeculture.xml:5144 freeculture.xml:5153 freeculture.xml:5158 freeculture.xml:5210 freeculture.xml:5226 freeculture.xml:5249 freeculture.xml:5312 freeculture.xml:9690
+#: freeculture.xml:5110 freeculture.xml:5118 freeculture.xml:5129 freeculture.xml:5144 freeculture.xml:5153 freeculture.xml:5158 freeculture.xml:5210 freeculture.xml:5226 freeculture.xml:5249 freeculture.xml:5312 freeculture.xml:9726
msgid "Alben, Alex"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:5805 freeculture.xml:9462
+#: freeculture.xml:5805 freeculture.xml:9498
msgid "Kennedy, John F."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:6329 freeculture.xml:12750
+#: freeculture.xml:6329 freeculture.xml:12786
msgid "Gates, Bill"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7469
+#: freeculture.xml:7469 freeculture.xml:7618 freeculture.xml:7689 freeculture.xml:7795
msgid "Aibo robotic dog"
msgstr ""
+#. type: Content of: <book><part><chapter><section><indexterm><primary>
+#: freeculture.xml:7472 freeculture.xml:7621 freeculture.xml:7690 freeculture.xml:7796
+msgid "robotic dog"
+msgstr ""
+
+#. type: Content of: <book><part><chapter><section><indexterm><primary>
+#: freeculture.xml:7475 freeculture.xml:7624 freeculture.xml:7692 freeculture.xml:7798
+msgid "Sony"
+msgstr ""
+
+#. type: Content of: <book><part><chapter><section><indexterm><secondary>
+#: freeculture.xml:7476 freeculture.xml:7625 freeculture.xml:7693 freeculture.xml:7799
+msgid "Aibo robotic dog produced by"
+msgstr ""
+
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7472
+#: freeculture.xml:7479
msgid ""
"Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns "
"tricks, cuddles, and follows you around. It eats only electricity and that "
#. PAGE BREAK 165
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7477
+#: freeculture.xml:7484
msgid ""
"The Aibo is expensive and popular. Fans from around the world have set up "
"clubs to trade stories. One fan in particular set up a Web site to enable "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7486
+#: freeculture.xml:7493
msgid ""
"\"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7494
+#: freeculture.xml:7501
msgid ""
"If you're not a programmer or don't know many programmers, the word "
"<citetitle>hack</citetitle> has a particularly unfriendly "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7506
+#: freeculture.xml:7515
msgid ""
"Some hacks are easy. Some are unbelievably hard. Hackers as a community like "
"to challenge themselves and others with increasingly difficult "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7513
+#: freeculture.xml:7522
msgid ""
"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 "
#. PAGE BREAK 166
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7521
+#: freeculture.xml:7532
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7537
+#: freeculture.xml:7548
msgid ""
"Let's put the dog to sleep for a minute, and turn to a pony show— not "
"literally a pony show, but rather a paper that a Princeton academic named Ed "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7560 freeculture.xml:10005
+#: freeculture.xml:7571 freeculture.xml:10041
msgid "Electronic Frontier Foundation"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7550
+#: freeculture.xml:7561
msgid ""
"See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" "
"<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, \"Play "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7548
+#: freeculture.xml:7559
msgid ""
"But Felten's bravery was really tested in April 2001.<placeholder "
"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7568
+#: freeculture.xml:7579
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7578
+#: freeculture.xml:7589
msgid ""
"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 "
#. PAGE BREAK 167
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7585
+#: freeculture.xml:7596
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7591
+#: freeculture.xml:7602
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7599
+#: freeculture.xml:7610
msgid ""
"What Felten and his colleagues were doing was publishing a paper describing "
"the weakness in a technology. They were not spreading free music, or "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7607
+#: freeculture.xml:7628
msgid ""
"What links these two, aibopet.com and Felten, is the letters they then "
"received. Aibopet.com received a letter from Sony about the aibopet.com "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7614
+#: freeculture.xml:7635
msgid ""
"Your site contains information providing the means to circumvent AIBO-ware's "
"copy protection protocol constituting a violation of the anti-circumvention "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7620
+#: freeculture.xml:7644
msgid ""
"And though an academic paper describing the weakness in a system of "
"encryption should also be perfectly legal, Felten received a letter from an "
#. PAGE BREAK 168
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7626
+#: freeculture.xml:7650
msgid ""
"Any disclosure of information gained from participating in the Public "
"Challenge would be outside the scope of activities permitted by the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7634
+#: freeculture.xml:7658
msgid ""
"In both cases, this weirdly Orwellian law was invoked to control the spread "
"of information. The Digital Millennium Copyright Act made spreading such "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7639
+#: freeculture.xml:7663
msgid ""
"The DMCA was enacted as a response to copyright owners' first fear about "
"cyberspace. The fear was that copyright control was effectively dead; the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7650
+#: freeculture.xml:7674
msgid ""
"The DMCA was a bit of law intended to back up the protection of this code "
"designed to protect copyrighted material. It was, we could say, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7657
+#: freeculture.xml:7681
msgid ""
"But the DMCA was not designed merely to protect copyrighted works to the "
"extent copyright law protected them. Its protection, that is, did not end at "
#. PAGE BREAK 169
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7666
+#: freeculture.xml:7696
msgid ""
"Aibopet.com and Felten make the point. The Aibo hack circumvented a "
"copyright protection system for the purpose of enabling the dog to dance "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7678
+#: freeculture.xml:7708
msgid ""
"The threat against Felten was more attenuated, but it followed the same line "
"of reasoning. By publishing a paper describing how a copyright protection "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:7685 freeculture.xml:7718
+#: freeculture.xml:7715 freeculture.xml:7748
msgid "Rogers, Fred"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7695 freeculture.xml:7731 freeculture.xml:7763
+#: freeculture.xml:7725 freeculture.xml:7761 freeculture.xml:7793
msgid "Conrad, Paul"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7687
+#: freeculture.xml:7717
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:7714
+#: freeculture.xml:7744
msgid ""
"<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal "
"City Studios, Inc</citetitle>., 464 U.S. 417, 455 fn. 27 (1984). Rogers "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7699
+#: freeculture.xml:7729
msgid ""
"Some public stations, as well as commercial stations, program the "
"\"Neighborhood\" at hours when some children cannot use it. I think that "
#. PAGE BREAK 170
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7724
+#: freeculture.xml:7754
msgid ""
"Even though there were uses that were legal, because there were some uses "
"that were illegal, the court held the companies producing the VCR "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7729
+#: freeculture.xml:7759
msgid ""
"This led Conrad to draw the cartoon below, which we can adopt to the DMCA. "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7734
+#: freeculture.xml:7764
msgid "No argument I have can top this picture, but let me try to get close."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7737
+#: freeculture.xml:7767
msgid ""
"The anticircumvention provisions of the DMCA target copyright circumvention "
"technologies. Circumvention technologies can be used for different "
#. PAGE BREAK 171
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7745
+#: freeculture.xml:7775
msgid ""
"A handgun can be used to shoot a police officer or a child. Most would agree "
"such a use is bad. Or a handgun can be used for target practice or to "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7753
+#: freeculture.xml:7783
msgid "VCR/handgun cartoon."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7754
+#: freeculture.xml:7784
msgid "<graphic fileref=\"images/1711.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7757
+#: freeculture.xml:7787
msgid ""
"The obvious point of Conrad's cartoon is the weirdness of a world where guns "
"are legal, despite the harm they can do, while VCRs (and circumvention "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7766
+#: freeculture.xml:7802
msgid ""
"The Aibo and RIAA examples demonstrate how copyright owners are changing the "
"balance that copyright law grants. Using code, copyright owners restrict "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7774
+#: freeculture.xml:7810
msgid ""
"This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. The "
"controls built into the technology of copy and access protection become "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7786
+#: freeculture.xml:7822
msgid ""
"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 "
#. f24
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7805
+#: freeculture.xml:7841
msgid ""
"For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, "
"Copyright, Fan Fiction, and a New Common Law,\" <citetitle>Loyola of Los "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7799
+#: freeculture.xml:7835
msgid ""
"For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan "
"club. You gathered every month to share trivia, and maybe to enact a kind of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7811
+#: freeculture.xml:7847
msgid ""
"Before the Internet, this was, in effect, a totally unregulated activity. "
"No matter what happened inside your club room, you would never be interfered "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7818
+#: freeculture.xml:7854
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7828
+#: freeculture.xml:7864
msgid ""
"This change in the effective force of the law is caused by a change in the "
"ease with which the law can be enforced. That change too shifts the law's "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:7837
+#: freeculture.xml:7873
msgid "Market: Concentration"
msgstr ""
#. PAGE BREAK 173
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7839
+#: freeculture.xml:7875
msgid ""
"So copyright's duration has increased dramatically—tripled in the past "
"thirty years. And copyright's scope has increased as well—from "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7857
+#: freeculture.xml:7893
msgid ""
"Still, in my view, all of these changes would not matter much if it weren't "
"for one more change that we must also consider. This is a change that is in "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7864
+#: freeculture.xml:7900
msgid ""
"This is the change in the concentration and integration of the media. In "
"the past twenty years, the nature of media ownership has undergone a radical "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7875
+#: freeculture.xml:7911
msgid "These changes are of two sorts: the scope of concentration, and its nature."
msgstr ""
#. f25
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7883
+#: freeculture.xml:7919
msgid ""
"FCC Oversight: Hearing Before the Senate Commerce, Science and "
"Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement "
#. f26
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7890
+#: freeculture.xml:7926
msgid ""
"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" "
"<citetitle>New York Times</citetitle>, 23 December 2002."
#. f27
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7896
+#: freeculture.xml:7932
msgid ""
"Molly Ivins, \"Media Consolidation Must Be Stopped,\" <citetitle>Charleston "
"Gazette</citetitle>, 31 May 2003."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7899
+#: freeculture.xml:7935
msgid "BMG"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7900 freeculture.xml:9239
+#: freeculture.xml:7936 freeculture.xml:9275
msgid "EMI"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7901
+#: freeculture.xml:7937
msgid "McCain, John"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7902 freeculture.xml:9240
+#: freeculture.xml:7938 freeculture.xml:9276
msgid "Universal Music Group"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7903
+#: freeculture.xml:7939
msgid "Warner Music Group"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7879
+#: freeculture.xml:7915
msgid ""
"Changes in scope are the easier ones to describe. As Senator John McCain "
"summarized the data produced in the FCC's review of media ownership, \"five "
#. PAGE BREAK 174
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7906
+#: freeculture.xml:7942
msgid ""
"The story with radio is even more dramatic. Before deregulation, the "
"nation's largest radio broadcasting conglomerate owned fewer than "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7917
+#: freeculture.xml:7953
msgid ""
"Newspaper ownership is becoming more concentrated as well. Today, there are "
"six hundred fewer daily newspapers in the United States than there were "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:7931 freeculture.xml:7948
+#: freeculture.xml:7967 freeculture.xml:7984
msgid "Fallows, James"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7928
+#: freeculture.xml:7964
msgid ""
"Concentration in size alone is one thing. The more invidious change is in "
"the nature of that concentration. As author James Fallows put it in a recent "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:7946
+#: freeculture.xml:7982
msgid ""
"James Fallows, \"The Age of Murdoch,\" <citetitle>Atlantic "
"Monthly</citetitle> (September 2003): 89. <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7935
+#: freeculture.xml:7971
msgid ""
"Murdoch's companies now constitute a production system unmatched in its "
"integration. They supply content—Fox movies … Fox TV shows "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7953
+#: freeculture.xml:7989
msgid ""
"The pattern with Murdoch is the pattern of modern media. Not just large "
"companies owning many radio stations, but a few companies owning as many "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7959
+#: freeculture.xml:7995
msgid "Pattern of modern media ownership."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7960
+#: freeculture.xml:7996
msgid "<graphic fileref=\"images/1761.png\"></graphic>"
msgstr ""
#. PAGE BREAK 175
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7964
+#: freeculture.xml:8000
msgid ""
"Does this concentration matter? Will it affect what is made, or what is "
"distributed? Or is it merely a more efficient way to produce and distribute "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7969
+#: freeculture.xml:8005
msgid ""
"My view was that concentration wouldn't matter. I thought it was nothing "
"more than a more efficient financial structure. But now, after reading and "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7975
+#: freeculture.xml:8011
msgid ""
"Here's a representative story that begins to suggest how this integration "
"may matter."
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7978
+#: freeculture.xml:8014
msgid "Lear, Norman"
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7980 freeculture.xml:8043
+#: freeculture.xml:8016 freeculture.xml:8079
msgid "All in the Family"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7982
+#: freeculture.xml:8018
msgid ""
"In 1969, Norman Lear created a pilot for <citetitle>All in the "
"Family</citetitle>. He took the pilot to ABC. The network didn't like it. It "
#. f29
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7994
+#: freeculture.xml:8030
msgid ""
"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center "
"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7989
+#: freeculture.xml:8025
msgid ""
"Rather than comply, Lear simply took the show elsewhere. CBS was happy to "
"have the series; ABC could not stop Lear from walking. The copyrights that "
#. PAGE BREAK 176
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8005
+#: freeculture.xml:8041
msgid ""
"The network did not control those copyrights because the law forbade the "
"networks from controlling the content they syndicated. The law required a "
#. f30
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8024
+#: freeculture.xml:8060
msgid ""
"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
"Ownership Before the Senate Commerce Committee, 108th Cong., 1st "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8014
+#: freeculture.xml:8050
msgid ""
"In 1994, the FCC abandoned the rules that required this independence. After "
"that change, the networks quickly changed the balance. In 1985, there were "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8045
+#: freeculture.xml:8081
msgid ""
"Today, another Norman Lear with another <citetitle>All in the "
"Family</citetitle> would find that he had the choice either to make the show "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:8054
+#: freeculture.xml:8090
msgid "Diller, Barry"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:8055
+#: freeculture.xml:8091
msgid "Moyers, Bill"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8051
+#: freeculture.xml:8087
msgid ""
"While the number of channels has increased dramatically, the ownership of "
"those channels has narrowed to an ever smaller and smaller few. As Barry "
#. f32
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:8068
+#: freeculture.xml:8104
msgid ""
"\"Barry Diller Takes on Media Deregulation,\" <citetitle>Now with Bill "
"Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript available "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:8059
+#: freeculture.xml:8095
msgid ""
"Well, if you have companies that produce, that finance, that air on their "
"channel and then distribute worldwide everything that goes through their "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8075
+#: freeculture.xml:8111
msgid ""
"This narrowing has an effect on what is produced. The product of such large "
"and concentrated networks is increasingly homogenous. Increasingly "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:8086
+#: freeculture.xml:8122
msgid "Clark, Kim B."
msgstr ""
#. f33
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8095
+#: freeculture.xml:8131
msgid ""
"Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
"Revolutionary National Bestseller that Changed the Way We Do "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8088
+#: freeculture.xml:8124
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the \"Innovator's "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8112
+#: freeculture.xml:8148
msgid ""
"I don't think we know enough about the economics of the media market to say "
"with certainty what concentration and integration will do. The efficiencies "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8118
+#: freeculture.xml:8154
msgid ""
"But there is a quintessentially obvious example that does strongly suggest "
"the concern."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8122
+#: freeculture.xml:8158
msgid ""
"In addition to the copyright wars, we're in the middle of the drug "
"wars. Government policy is strongly directed against the drug cartels; "
#. PAGE BREAK 178
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8127
+#: freeculture.xml:8163
msgid ""
"Let me hereby disqualify myself from any possible appointment to any "
"position in government by saying I believe this war is a profound mistake. I "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8146
+#: freeculture.xml:8182
msgid ""
"You may not be convinced. That's fine. We live in a democracy, and it is "
"through votes that we are to choose policy. But to do that, we depend "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8152
+#: freeculture.xml:8188
msgid ""
"Beginning in 1998, the Office of National Drug Control Policy launched a "
"media campaign as part of the \"war on drugs.\" The campaign produced scores "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8164
+#: freeculture.xml:8200
msgid ""
"Fair enough. It's a good ad. Not terribly misleading. It delivers its "
"message well. It's a fair and reasonable message."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8168
+#: freeculture.xml:8204
msgid ""
"But let's say you think it is a wrong message, and you'd like to run a "
"countercommercial. Say you want to run a series of ads that try to "
#. PAGE BREAK 179
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8174
+#: freeculture.xml:8210
msgid ""
"Well, obviously, these ads cost lots of money. Assume you raise the "
"money. Assume a group of concerned citizens donates all the money in the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8216
+#: freeculture.xml:8252
msgid "Comcast"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8217
+#: freeculture.xml:8253
msgid "Marijuana Policy Project"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8218
+#: freeculture.xml:8254
msgid "NBC"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8219
+#: freeculture.xml:8255
msgid "WJOA"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8220
+#: freeculture.xml:8256
msgid "WRC"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8191
+#: freeculture.xml:8227
msgid ""
"The Marijuana Policy Project, in February 2003, sought to place ads that "
"directly responded to the Nick and Norm series on stations within the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8181
+#: freeculture.xml:8217
msgid ""
"No. You cannot. Television stations have a general policy of avoiding "
"\"controversial\" ads. Ads sponsored by the government are deemed "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8224
+#: freeculture.xml:8260
msgid ""
"I'd be happy to defend the networks' rights, as well—if we lived in a "
"media market that was truly diverse. But concentration in the media throws "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:8236
+#: freeculture.xml:8272
msgid "Together"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8238
+#: freeculture.xml:8274
msgid ""
"There is something innocent and obvious about the claim of the copyright "
"warriors that the government should \"protect my property.\" In the "
#. PAGE BREAK 180
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8244
+#: freeculture.xml:8280
msgid ""
"But when we see how dramatically this \"property\" has changed— when "
"we recognize how it might now interact with both technology and markets to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8260
+#: freeculture.xml:8296
msgid ""
"Not starkly. Or absolutely. My point is not that we should abolish copyright "
"or go back to the eighteenth century. That would be a total mistake, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8266
+#: freeculture.xml:8302
msgid ""
"But there is a space between zero and one, Internet culture "
"notwithstanding. And these massive shifts in the effective power of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8278
+#: freeculture.xml:8314
msgid ""
"Copyright law has not been a rock of Gibraltar. It's not a set of constant "
"commitments that, for some mysterious reason, teenagers and geeks now "
#. PAGE BREAK 181
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8290
+#: freeculture.xml:8326
msgid ""
"For the single point that is lost in this war on pirates is a point that we "
"see only after surveying the range of these changes. When you add together "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8314
+#: freeculture.xml:8350
msgid ""
"Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of "
"copyright law in the digital age. See Vaidhyanathan, 159–60. "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8299
+#: freeculture.xml:8335
msgid ""
"Not when copyrights were perpetual, for when copyrights were perpetual, they "
"affected only that precise creative work. Not when only publishers had the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8320
+#: freeculture.xml:8356
msgid "This has been a long chapter. Its point can now be briefly stated."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8323
+#: freeculture.xml:8359
msgid ""
"At the start of this book, I distinguished between commercial and "
"noncommercial culture. In the course of this chapter, I have distinguished "
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:8335 freeculture.xml:8372
+#: freeculture.xml:8371 freeculture.xml:8408
msgid "PUBLISH"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:8336 freeculture.xml:8373 freeculture.xml:8411 freeculture.xml:8443
+#: freeculture.xml:8372 freeculture.xml:8409 freeculture.xml:8447 freeculture.xml:8479
msgid "TRANSFORM"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8341 freeculture.xml:8378 freeculture.xml:8416 freeculture.xml:8448
+#: freeculture.xml:8377 freeculture.xml:8414 freeculture.xml:8452 freeculture.xml:8484
msgid "Commercial"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8342 freeculture.xml:8379 freeculture.xml:8380 freeculture.xml:8417 freeculture.xml:8418 freeculture.xml:8449 freeculture.xml:8450 freeculture.xml:8454 freeculture.xml:8455
+#: freeculture.xml:8378 freeculture.xml:8415 freeculture.xml:8416 freeculture.xml:8453 freeculture.xml:8454 freeculture.xml:8485 freeculture.xml:8486 freeculture.xml:8490 freeculture.xml:8491
msgid "©"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8343 freeculture.xml:8347 freeculture.xml:8348 freeculture.xml:8384 freeculture.xml:8385 freeculture.xml:8423
+#: freeculture.xml:8379 freeculture.xml:8383 freeculture.xml:8384 freeculture.xml:8420 freeculture.xml:8421 freeculture.xml:8459
msgid "Free"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8346 freeculture.xml:8383 freeculture.xml:8421 freeculture.xml:8453
+#: freeculture.xml:8382 freeculture.xml:8419 freeculture.xml:8457 freeculture.xml:8489
msgid "Noncommercial"
msgstr ""
#. PAGE BREAK 182
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8355
+#: freeculture.xml:8391
msgid ""
"The act of publishing a map, chart, and book was regulated by copyright "
"law. Nothing else was. Transformations were free. And as copyright attached "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8364
+#: freeculture.xml:8400
msgid "By the end of the nineteenth century, the law had changed to this:"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8392
+#: freeculture.xml:8428
msgid ""
"Derivative works were now regulated by copyright law—if published, "
"which again, given the economics of publishing at the time, means if offered "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8398
+#: freeculture.xml:8434
msgid ""
"In 1909 the law changed to regulate copies, not publishing, and after this "
"change, the scope of the law was tied to technology. As the technology of "
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:8410 freeculture.xml:8442
+#: freeculture.xml:8446 freeculture.xml:8478
msgid "COPY"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8422
+#: freeculture.xml:8458
msgid "©/Free"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8430
+#: freeculture.xml:8466
msgid ""
"The law was interpreted to reach noncommercial copying through, say, copy "
"machines, but still much of copying outside of the commercial market "
#. PAGE BREAK 183
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8462
+#: freeculture.xml:8498
msgid ""
"Every realm is governed by copyright law, whereas before most creativity was "
"not. The law now regulates the full range of creativity— commercial or "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8470
+#: freeculture.xml:8506
msgid ""
"Obviously, copyright law is not the enemy. The enemy is regulation that does "
"no good. So the question that we should be asking just now is whether "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8476
+#: freeculture.xml:8512
msgid ""
"I have no doubt that it does good in regulating commercial copying. But I "
"also have no doubt that it does more harm than good when regulating (as it "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8500
+#: freeculture.xml:8536
msgid "legal realist movement"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8494
+#: freeculture.xml:8530
msgid ""
"It was the single most important contribution of the legal realist movement "
"to demonstrate that all property rights are always crafted to balance public "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8488
+#: freeculture.xml:8524
msgid ""
"The issue is therefore not simply whether copyright is property. Of course "
"copyright is a kind of \"property,\" and of course, as with any property, "
#. PAGE BREAK 184
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8512
+#: freeculture.xml:8548
msgid ""
"We achieved that free culture because our law respected important limits on "
"the scope of the interests protected by \"property.\" The very birth of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8531
+#: freeculture.xml:8567
msgid ""
"Free culture is increasingly the casualty in this war on piracy. In response "
"to a real, if not yet quantified, threat that the technologies of the "
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:8548
+#: freeculture.xml:8584
msgid "PUZZLES"
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:8552
+#: freeculture.xml:8588
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8554
+#: freeculture.xml:8590
msgid "chimeras"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8557
+#: freeculture.xml:8593
msgid "Wells, H. G."
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8560
+#: freeculture.xml:8596
msgid ""Country of the Blind, The" (Wells)"
msgstr ""
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:8568
+#: freeculture.xml:8604
msgid ""
"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, "
"<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8564
+#: freeculture.xml:8600
msgid ""
"In a well-known short story by H. G. Wells, a mountain climber named Nunez "
"trips (literally, down an ice slope) into an unknown and isolated valley in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8580
+#: freeculture.xml:8616
msgid ""
"Things don't go quite as he planned. He tries to explain the idea of sight "
"to the villagers. They don't understand. He tells them they are \"blind.\" "
#. PAGE BREAK 187
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8592
+#: freeculture.xml:8628
msgid ""
"The villagers don't leave him alone. Nor do they see (so to speak) the "
"virtue of his special power. Not even the ultimate target of his affection, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8603
+#: freeculture.xml:8639
msgid ""
"When Nunez announces his desire to marry his \"mysteriously delighted\" "
"love, the father and the village object. \"You see, my dear,\" her father "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8609
+#: freeculture.xml:8645
msgid ""
"After a careful examination, the doctor gives his opinion. \"His brain is "
"affected,\" he reports."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8613
+#: freeculture.xml:8649
msgid ""
"\"What affects it?\" the father asks. \"Those queer things that are called "
"the eyes … are diseased … in such a way as to affect his "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8618
+#: freeculture.xml:8654
msgid ""
"The doctor continues: \"I think I may say with reasonable certainty that in "
"order to cure him completely, all that we need to do is a simple and easy "
#. PAGE BREAK 188
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8624
+#: freeculture.xml:8660
msgid ""
"\"Thank Heaven for science!\" says the father to the doctor. They inform "
"Nunez of this condition necessary for him to be allowed his bride. (You'll "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8641
+#: freeculture.xml:8677
msgid ""
"Before I had read about chimeras, I would have said they were impossible. A "
"single person can't have two sets of DNA. The very idea of DNA is that it is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8649
+#: freeculture.xml:8685
msgid ""
"The more I work to understand the current struggle over copyright and "
"culture, which I've sometimes called unfairly, and sometimes not unfairly "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8663
+#: freeculture.xml:8699
msgid ""
"But the description is also false in part. For when my p2p server is on a "
"p2p network through which anyone can get access to my music, then sure, my "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8672
+#: freeculture.xml:8708
msgid ""
"Likewise, when the other side says, \"File sharing is just like walking into "
"a Tower Records and taking a CD off the shelf and walking out with it,\" "
#. PAGE BREAK 189
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8683
+#: freeculture.xml:8719
msgid ""
"But it is not quite stealing from Tower. After all, when I take a CD from "
"Tower Records, Tower has one less CD to sell. And when I take a CD from "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8693
+#: freeculture.xml:8729
msgid ""
"The point is not that it is as neither side describes. The point is that it "
"is both—both as the RIAA describes it and as Kazaa describes it. It is "
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8739
+#: freeculture.xml:8775
msgid "Conyers, John, Jr."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8740 freeculture.xml:9444
+#: freeculture.xml:8776 freeculture.xml:9480
msgid "Berman, Howard L."
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:8709
+#: freeculture.xml:8745
msgid ""
"For an excellent summary, see the report prepared by GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School, \"Copyright "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8700
+#: freeculture.xml:8736
msgid ""
"We could respond by simply pretending that it is not a chimera. We could, "
"with the RIAA, decide that every act of file sharing should be a felony. We "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8746
+#: freeculture.xml:8782
msgid ""
"Alternatively, we could respond to file sharing the way many kids act as "
"though we've responded. We could totally legalize it. Let there be no "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8753
+#: freeculture.xml:8789
msgid ""
"Either response is possible. I think either would be a mistake. Rather than "
"embrace one of these two extremes, we should embrace something that "
#. PAGE BREAK 190
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8765
+#: freeculture.xml:8801
msgid ""
"Yet zero tolerance is increasingly our government's policy. In the middle of "
"the chaos that the Internet has created, an extraordinary land grab is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8773
+#: freeculture.xml:8809
msgid ""
"I'm not talking about the opportunities for kids to \"steal\" music. My "
"focus instead is the commercial and cultural innovation that this war will "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8786
+#: freeculture.xml:8822
msgid ""
"eMusic opposes music piracy. We are a distributor of copyrighted material, "
"and we want to protect those rights."
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8790
+#: freeculture.xml:8826
msgid ""
"But building a technology fortress that locks in the clout of the major "
"labels is by no means the only way to protect copyright interests, nor is it "
#. f3.
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:8807
+#: freeculture.xml:8843
msgid ""
"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
"Entertainment on the Internet and Other Media: Hearing Before the "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8797
+#: freeculture.xml:8833
msgid ""
"This is a critical point. The choices that industry sectors make with "
"respect to these systems will in many ways directly shape the market for "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:8821 freeculture.xml:9172
+#: freeculture.xml:8857 freeculture.xml:9208
msgid "Vivendi Universal"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8818
+#: freeculture.xml:8854
msgid ""
"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the "
"major labels.\" Its position on these matters has now changed. <placeholder "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8824
+#: freeculture.xml:8860
msgid ""
"Reversing our tradition of tolerance now will not merely quash piracy. It "
"will sacrifice values that are important to this culture, and will kill "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:8832
+#: freeculture.xml:8868
msgid "CHAPTER TWELVE: Harms"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8834
+#: freeculture.xml:8870
msgid ""
"To fight \"piracy,\" to protect \"property,\" the content industry has "
"launched a war. Lobbying and lots of campaign contributions have now brought "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8841
+#: freeculture.xml:8877
msgid ""
"My aim so far has been to describe the consequences of this war, in "
"particular, the consequences for \"free culture.\" But my aim now is to "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8847
+#: freeculture.xml:8883
msgid ""
"In my view, it is not. There is no good reason why this time, for the first "
"time, the law should defend the old against the new, just when the power of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8855
+#: freeculture.xml:8891
msgid ""
"Yet \"common sense\" does not see it this way. Common sense is still on the "
"side of the Causbys and the content industry. The extreme claims of control "
#. PAGE BREAK 193
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8862
+#: freeculture.xml:8898
msgid ""
"There will be many consequences of continuing this war. I want to describe "
"just three. All three might be said to be unintended. I am quite confident "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:8869
+#: freeculture.xml:8905
msgid "Constraining Creators"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8871
+#: freeculture.xml:8907
msgid ""
"In the next ten years we will see an explosion of digital technologies. "
"These technologies will enable almost anyone to capture and share "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8886
+#: freeculture.xml:8922
msgid ""
"This digital \"capturing and sharing\" is in part an extension of the "
"capturing and sharing that has always been integral to our culture, and in "
#. PAGE BREAK 194
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8897
+#: freeculture.xml:8933
msgid ""
"Technology has thus given us an opportunity to do something with culture "
"that has only ever been possible for individuals in small groups, isolated "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8907
+#: freeculture.xml:8943
msgid ""
"Yet all this is possible only if the activity is presumptively legal. In the "
"current regime of legal regulation, it is not. Forget file sharing for a "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:8935 freeculture.xml:8956
+#: freeculture.xml:8971 freeculture.xml:8992
msgid "Worldcom"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8930
+#: freeculture.xml:8966
msgid ""
"See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at "
"WorldCom</citetitle> (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8951
+#: freeculture.xml:8987
msgid "Bush, George W."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8942
+#: freeculture.xml:8978
msgid ""
"The bill, modeled after California's tort reform model, was passed in the "
"House of Representatives but defeated in a Senate vote in July 2003. For an "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8918
+#: freeculture.xml:8954
msgid ""
"That presumption will increasingly chill creativity, as the examples of "
"extreme penalties for vague infringements continue to proliferate. It is "
#. f3.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8978
+#: freeculture.xml:9014
msgid ""
"See Danit Lidor, \"Artists Just Wanna Be Free,\" "
"<citetitle>Wired</citetitle>, 7 July 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8959
+#: freeculture.xml:8995
msgid ""
"The consequence of this legal uncertainty, tied to these extremely high "
"penalties, is that an extraordinary amount of creativity will either never "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8988
+#: freeculture.xml:9024
msgid ""
"Part of the reason for this fear of illegality has to do with the changing "
"law. I described that change in detail in chapter <xref xrefstyle=\"select: "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9000
+#: freeculture.xml:9036
msgid ""
"Never in our history has a painter had to worry about whether his painting "
"infringed on someone else's work; but the modern-day painter, using the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9011
+#: freeculture.xml:9047
msgid ""
"Lawyers rarely see this because lawyers are rarely empirical. As I described "
"in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/>, "
#. PAGE BREAK 196
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9022
+#: freeculture.xml:9058
msgid ""
"But fair use in America simply means the right to hire a lawyer to defend "
"your right to create. And as lawyers love to forget, our system for "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9032
+#: freeculture.xml:9068
msgid ""
"Judges and lawyers can tell themselves that fair use provides adequate "
"\"breathing room\" between regulation by the law and the access the law "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9043
+#: freeculture.xml:9079
msgid ""
"For in a world that threatens $150,000 for a single willful infringement of "
"a copyright, and which demands tens of thousands of dollars to even defend "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9054
+#: freeculture.xml:9090
msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me,"
msgstr ""
#. PAGE BREAK 197
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9058
+#: freeculture.xml:9094
msgid ""
"We're losing [creative] opportunities right and left. Creative people are "
"being forced not to express themselves. Thoughts are not being "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:9071
+#: freeculture.xml:9107
msgid "Constraining Innovators"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9073
+#: freeculture.xml:9109
msgid ""
"The story of the last section was a crunchy-lefty story—creativity "
"quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9081
+#: freeculture.xml:9117
msgid ""
"But there's an aspect of this story that is not lefty in any sense. Indeed, "
"it is an aspect that could be written by the most extreme promarket "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9090
+#: freeculture.xml:9126
msgid ""
"The charge I've been making about the regulation of culture is the same "
"charge free marketers make about regulating markets. Everyone, of course, "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9102 freeculture.xml:9210
+#: freeculture.xml:9138 freeculture.xml:9246
msgid "Barry, Hank"
msgstr ""
#. PAGE BREAK 198
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9104
+#: freeculture.xml:9140
msgid ""
"This is the single most dramatic effect of the shift in regulatory strategy "
"that I described in chapter <xref xrefstyle=\"select: labelnumber\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9117
+#: freeculture.xml:9153
msgid ""
"Consider one example to make the point, a story whose beginning I told in "
"<citetitle>The Future of Ideas</citetitle> and which has progressed in a way "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9121
+#: freeculture.xml:9157
msgid "Roberts, Michael"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9123
+#: freeculture.xml:9159
msgid ""
"In 1997, Michael Roberts launched a company called MP3.com. MP3.com was "
"keen to remake the music business. Their goal was not just to facilitate new "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9131
+#: freeculture.xml:9167
msgid ""
"To make this system work, however, MP3.com needed a reliable way to "
"recommend music to its users. The idea behind this alternative was to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9139
+#: freeculture.xml:9175
msgid ""
"This idea required a simple way to gather data about user preferences. "
"MP3.com came up with an extraordinarily clever way to gather this preference "
#. PAGE BREAK 199
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9151
+#: freeculture.xml:9187
msgid ""
"No doubt some could use this system to illegally copy content. But that "
"opportunity existed with or without MP3.com. The aim of the my.mp3.com "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9160
+#: freeculture.xml:9196
msgid ""
"To make this system function, however, MP3.com needed to copy 50,000 CDs to "
"a server. (In principle, it could have been the user who uploaded the music, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9175
+#: freeculture.xml:9211
msgid ""
"Nine days after MP3.com launched its service, the five major labels, headed "
"by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9185
+#: freeculture.xml:9221
msgid "That part of the story I have told before. Now consider its conclusion."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9188
+#: freeculture.xml:9224
msgid ""
"After Vivendi purchased MP3.com, Vivendi turned around and filed a "
"malpractice lawsuit against the lawyers who had advised it that they had a "
#. PAGE BREAK 200
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9198
+#: freeculture.xml:9234
msgid ""
"The clear purpose of this lawsuit (which was settled for an unspecified "
"amount shortly after the story was no longer covered in the press) was to "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9209
+#: freeculture.xml:9245
msgid "Hummer, John"
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9211
+#: freeculture.xml:9247
msgid "Hummer Winblad"
msgstr ""
#. f4.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9219
+#: freeculture.xml:9255
msgid ""
"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" <citetitle>Los "
"Angeles Times</citetitle>, 23 April 2003. For a parallel argument about the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9213
+#: freeculture.xml:9249
msgid ""
"This strategy is not just limited to the lawyers. In April 2003, Universal "
"and EMI brought a lawsuit against Hummer Winblad, the venture capital firm "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary>
-#: freeculture.xml:9243
+#: freeculture.xml:9279
msgid "BMW"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9258
+#: freeculture.xml:9294
msgid "Needleman, Rafe"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:9254
+#: freeculture.xml:9290
msgid ""
"Rafe Needleman, \"Driving in Cars with MP3s,\" <citetitle>Business "
"2.0</citetitle>, 16 June 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9245
+#: freeculture.xml:9281
msgid ""
"I asked why, with all the storage capacity and computer power in the car, "
"there was no way to play MP3 files. I was told that BMW engineers in Germany "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9263
+#: freeculture.xml:9299
msgid ""
"This is the world of the mafia—filled with \"your money or your life\" "
"offers, governed in the end not by courts but by the threats that the law "
#. PAGE BREAK 201
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9273
+#: freeculture.xml:9309
msgid ""
"The point is not that businesses should have a right to start illegal "
"enterprises. The point is the definition of \"illegal.\" The law is a mess "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9287
+#: freeculture.xml:9323
msgid ""
"The point is directly parallel to the crunchy-lefty point about fair "
"use. Whatever the \"real\" law is, realism about the effect of law in both "
#. PAGE BREAK 202
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9299
+#: freeculture.xml:9335
msgid ""
"The building of a permission culture, rather than a free culture, is the "
"first important way in which the changes I have described will burden "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9321
+#: freeculture.xml:9357
msgid ""
"The motivation for this response is obvious. The Internet enables the "
"efficient spread of content. That efficiency is a feature of the Internet's "
#. f6.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9335
+#: freeculture.xml:9371
msgid ""
"\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School (2003), "
#. f7.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9348
+#: freeculture.xml:9384
msgid "GartnerG2, 26–27."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9331
+#: freeculture.xml:9367
msgid ""
"The examples of this form of legislation are many. At the urging of the "
"content industry, some in Congress have threatened legislation that would "
#. PAGE BREAK 203
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9352
+#: freeculture.xml:9388
msgid ""
"In one sense, these solutions seem sensible. If the problem is the code, why "
"not regulate the code to remove the problem. But any regulation of technical "
#. f8.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9366
+#: freeculture.xml:9402
msgid ""
"See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, "
"February 2002 (Entertainment)."
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:9372 freeculture.xml:11188
+#: freeculture.xml:9408 freeculture.xml:11224
msgid "Intel"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9362
+#: freeculture.xml:9398
msgid ""
"In March 2002, a broad coalition of technology companies, led by Intel, "
"tried to get Congress to see the harm that such legislation would "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9375
+#: freeculture.xml:9411
msgid ""
"There is one more obvious way in which this war has harmed "
"innovation—again, a story that will be quite familiar to the free "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9380
+#: freeculture.xml:9416
msgid ""
"Copyright may be property, but like all property, it is also a form of "
"regulation. It is a regulation that benefits some and harms others. When "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9392
+#: freeculture.xml:9428
msgid ""
"Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: "
"Prometheus Books, 2001). <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9386
+#: freeculture.xml:9422
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, despite this feature of copyright as regulation, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9403
+#: freeculture.xml:9439
msgid ""
"But that pattern of deference to new technologies has now changed with the "
"rise of the Internet. Rather than striking a balance between the claims of a "
#. f10.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9412
+#: freeculture.xml:9448
msgid ""
"The only circuit court exception is found in <citetitle>Recording Industry "
"Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9445
+#: freeculture.xml:9481
msgid "Hollings, Fritz"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9430
+#: freeculture.xml:9466
msgid ""
"For example, in July 2002, Representative Howard Berman introduced the "
"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9410
+#: freeculture.xml:9446
msgid ""
"The response by the courts has been fairly universal.<placeholder "
"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9453
+#: freeculture.xml:9489
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"pirates\"/>, when a radio station plays a song, the recording "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9465
+#: freeculture.xml:9501
msgid ""
"The reasoning behind this balance struck by Congress makes some sense. The "
"justification was that radio was a kind of advertising. The recording artist "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9476
+#: freeculture.xml:9512
msgid ""
"Enter Internet radio. Like regular radio, Internet radio is a technology to "
"stream content from a broadcaster to a listener. The broadcast travels "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9485
+#: freeculture.xml:9521
msgid ""
"This feature of the architecture of Internet radio means that there are "
"potentially an unlimited number of radio stations that a user could tune in "
#. PAGE BREAK 205
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9500
+#: freeculture.xml:9536
msgid ""
"Internet radio is thus to radio what FM was to AM. It is an improvement "
"potentially vastly more significant than the FM improvement over AM, since "
#. f12.
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:9524
+#: freeculture.xml:9560
msgid "Lessing, 239."
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9510
+#: freeculture.xml:9546
msgid ""
"An almost unlimited number of FM stations was possible in the shortwaves, "
"thus ending the unnatural restrictions imposed on radio in the crowded "
#. f13.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9534
+#: freeculture.xml:9570
msgid "Ibid., 229."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9529
+#: freeculture.xml:9565
msgid ""
"This potential for FM radio was never realized—not because Armstrong "
"was wrong about the technology, but because he underestimated the power of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9539
+#: freeculture.xml:9575
msgid ""
"Now the very same claim could be made about Internet radio. For again, there "
"is no technical limitation that could restrict the number of Internet radio "
#. PAGE BREAK 206
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9547
+#: freeculture.xml:9583
msgid ""
"But here the power of the lobbyists is reversed. Internet radio is a new "
"industry. The recording artists, on the other hand, have a very powerful "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9586
+#: freeculture.xml:9622
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9569
+#: freeculture.xml:9605
msgid ""
"This example was derived from fees set by the original Copyright Arbitration "
"Royalty Panel (CARP) proceedings, and is drawn from an example offered by "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9562
+#: freeculture.xml:9598
msgid ""
"This financial burden is not slight. As Harvard law professor William Fisher "
"estimates, if an Internet radio station distributed adfree popular music to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9593
+#: freeculture.xml:9629
msgid ""
"The burden is not financial only. Under the original rules that were "
"proposed, an Internet radio station (but not a terrestrial radio station) "
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9601
+#: freeculture.xml:9637
msgid "name of the service;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9604
+#: freeculture.xml:9640
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9607
+#: freeculture.xml:9643
msgid "type of program (archived/looped/live);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9610
+#: freeculture.xml:9646
msgid "date of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9613
+#: freeculture.xml:9649
msgid "time of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9616
+#: freeculture.xml:9652
msgid "time zone of origination of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9619
+#: freeculture.xml:9655
msgid "numeric designation of the place of the sound recording within the program;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9622
+#: freeculture.xml:9658
msgid "duration of transmission (to nearest second);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9625
+#: freeculture.xml:9661
msgid "sound recording title;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9628
+#: freeculture.xml:9664
msgid "ISRC code of the recording;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9631
+#: freeculture.xml:9667
msgid ""
"release year of the album per copyright notice and in the case of "
"compilation albums, the release year of the album and copy- right date of "
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9634
+#: freeculture.xml:9670
msgid "featured recording artist;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9637
+#: freeculture.xml:9673
msgid "retail album title;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9640
+#: freeculture.xml:9676
msgid "recording label;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9643
+#: freeculture.xml:9679
msgid "UPC code of the retail album;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9646
+#: freeculture.xml:9682
msgid "catalog number;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9649
+#: freeculture.xml:9685
msgid "copyright owner information;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9652
+#: freeculture.xml:9688
msgid "musical genre of the channel or program (station format);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9655
+#: freeculture.xml:9691
msgid "name of the service or entity;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9658
+#: freeculture.xml:9694
msgid "channel or program;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9661
+#: freeculture.xml:9697
msgid "date and time that the user logged in (in the user's time zone);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9664
+#: freeculture.xml:9700
msgid "date and time that the user logged out (in the user's time zone);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9667
+#: freeculture.xml:9703
msgid "time zone where the signal was received (user);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9670
+#: freeculture.xml:9706
msgid "unique user identifier;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9673
+#: freeculture.xml:9709
msgid "the country in which the user received the transmissions."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9678
+#: freeculture.xml:9714
msgid ""
"The Librarian of Congress eventually suspended these reporting requirements, "
"pending further study. And he also changed the original rates set by the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9686
+#: freeculture.xml:9722
msgid ""
"Why? What justifies this difference? Was there any study of the economic "
"consequences from Internet radio that would justify these differences? Was "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:9691 freeculture.xml:14269
+#: freeculture.xml:9727 freeculture.xml:14305
msgid "Real Networks"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9693
+#: freeculture.xml:9729
msgid ""
"In a rare bit of candor, one RIAA expert admitted what seemed obvious to "
"everyone at the time. As Alex Alben, vice president for Public Policy at "
#. PAGE BREAK 208
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9699
+#: freeculture.xml:9735
msgid ""
"The RIAA, which was representing the record labels, presented some testimony "
"about what they thought a willing buyer would pay to a willing seller, and "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9714
+#: freeculture.xml:9750
msgid ""
"And the RIAA experts said, \"Well, we don't really model this as an industry "
"with thousands of webcasters, <emphasis>we think it should be an industry "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9722
+#: freeculture.xml:9758
msgid ""
"Translation: The aim is to use the law to eliminate competition, so that "
"this platform of potentially immense competition, which would cause the "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:9732
+#: freeculture.xml:9768
msgid "Corrupting Citizens"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9734
+#: freeculture.xml:9770
msgid ""
"Overregulation stifles creativity. It smothers innovation. It gives "
"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9740
+#: freeculture.xml:9776
msgid ""
"In addition to these important harms, there is one more that was important "
"to our forebears, but seems forgotten today. Overregulation corrupts "
#. f15.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9749
+#: freeculture.xml:9785
msgid ""
"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet "
"and American Life Project (24 April 2001), available at <ulink "
#. PAGE BREAK 209
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9745
+#: freeculture.xml:9781
msgid ""
"The war that is being waged today is a war of prohibition. As with every war "
"of prohibition, it is targeted against the behavior of a very large number "
#. f16.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9783
+#: freeculture.xml:9819
msgid ""
"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" "
"<citetitle>Los Angeles Times</citetitle>, 10 September 2003, Business."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9770
+#: freeculture.xml:9806
msgid ""
"The content industry's tactics exploit the failings of the American legal "
"system. When the RIAA brought suit against Jesse Jordan, it knew that in "
#. f17.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9805
+#: freeculture.xml:9841
msgid ""
"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During "
"Prohibition,\" <citetitle>American Economic Review</citetitle> 81, no. 2 "
#. f18.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9813
+#: freeculture.xml:9849
msgid ""
"National Drug Control Policy: Hearing Before the House Government Reform "
"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John "
#. f19.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9823
+#: freeculture.xml:9859
msgid ""
"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" "
"<citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:9830
+#: freeculture.xml:9866
msgid "alcohol prohibition"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9795
+#: freeculture.xml:9831
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:9848
+#: freeculture.xml:9884
msgid "law schools"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9833
+#: freeculture.xml:9869
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9851
+#: freeculture.xml:9887
msgid ""
"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 "
#. PAGE BREAK 211
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9864
+#: freeculture.xml:9900
msgid ""
"My point is not the idiotic one: Just because people violate a law, we "
"should therefore repeal it. Obviously, we could reduce murder statistics "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9871
+#: freeculture.xml:9907
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9885
+#: freeculture.xml:9921
msgid ""
"When at least forty-three million citizens download content from the "
"Internet, and when they use tools to combine that content in ways "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9897
+#: freeculture.xml:9933
msgid "This abstract point can be made more clear with a particular example."
msgstr ""
#. PAGE BREAK 212
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9900
+#: freeculture.xml:9936
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9911
+#: freeculture.xml:9947
msgid ""
"But as the MP3 craze has demonstrated, there is another use of phonograph "
"records that is effectively free. Because these recordings were made without "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9919
+#: freeculture.xml:9955
msgid "Adromeda"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9921
+#: freeculture.xml:9957
msgid ""
"This \"use\" of my records is certainly valuable. I have begun a large "
"process at home of ripping all of my and my wife's CDs, and storing them in "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9932
+#: freeculture.xml:9968
msgid ""
"This use is enabled by unprotected media—either CDs or records. But "
"unprotected media also enable file sharing. File sharing threatens (or so "
#. PAGE BREAK 213
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9942
+#: freeculture.xml:9978
msgid ""
"If these technologies took off, then the building of large archives of your "
"own music would become quite difficult. You might hang in hacker circles, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9956
+#: freeculture.xml:9992
msgid ""
"If the only way to assure that artists get paid were the elimination of the "
"ability to freely move content, then these technologies to interfere with "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9965
+#: freeculture.xml:10001
msgid ""
"My point just now is not to prove that there is such a system. I offer a "
"version of such a system in the last chapter of this book. For now, the only "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9976
+#: freeculture.xml:10012
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9985
+#: freeculture.xml:10021
msgid ""
"Except that this generation's buggy manufacturers have already saddled "
"Congress, and are riding the law to protect themselves against this new form "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9991
+#: freeculture.xml:10027
msgid ""
"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 Valenti is charming; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:10010 freeculture.xml:10119
+#: freeculture.xml:10046 freeculture.xml:10155
msgid "von Lohmann, Fred"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10008
+#: freeculture.xml:10044
msgid ""
"\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains, "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:10014
+#: freeculture.xml:10050
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10026
+#: freeculture.xml:10062
msgid ""
"And the consequence of this transformation of the American public into "
"criminals is that it becomes trivial, as a matter of due process, to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10031
+#: freeculture.xml:10067
msgid ""
"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 "
#. f20.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:10049
+#: freeculture.xml:10085
msgid ""
"See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in "
"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" <citetitle>Washington "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10040
+#: freeculture.xml:10076
msgid ""
"The RIAA then expanded this campaign, by announcing a general strategy to "
"sue individual users of the Internet who are alleged to have downloaded "
#. f21.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:10067
+#: freeculture.xml:10103
msgid ""
"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some "
"Methods Used,\" CNN.com, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10063
+#: freeculture.xml:10099
msgid ""
"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 "
#. f22.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:10088
+#: freeculture.xml:10124
msgid ""
"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" "
"<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10076
+#: freeculture.xml:10112
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10107
+#: freeculture.xml:10143
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:10123
+#: freeculture.xml:10159
msgid ""
"So when we're talking about numbers like forty to sixty million Americans "
"that are essentially copyright infringers, you create a situation where the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10143
+#: freeculture.xml:10179
msgid ""
"When forty to sixty million Americans are considered \"criminals\" under the "
"law, and when the law could achieve the same objective— securing "
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:10156
+#: freeculture.xml:10192
msgid "BALANCES"
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10161
+#: freeculture.xml:10197
msgid ""
"So here's the picture: You're standing at the side of the road. Your car is "
"on fire. You are angry and upset because in part you helped start the "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10167
+#: freeculture.xml:10203
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10175
+#: freeculture.xml:10211
msgid ""
"A war about copyright rages all around—and we're all focusing on the "
"wrong thing. No doubt, current technologies threaten existing businesses. "
#. PAGE BREAK 219
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10184
+#: freeculture.xml:10220
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10192
+#: freeculture.xml:10228
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10197
+#: freeculture.xml:10233
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10203
+#: freeculture.xml:10239
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:10213
+#: freeculture.xml:10249
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10215
+#: freeculture.xml:10251
msgid "Hawthorne, Nathaniel"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10218
+#: freeculture.xml:10254
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10227
+#: freeculture.xml:10263
msgid ""
"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 "
#. PAGE BREAK 221
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10234
+#: freeculture.xml:10270
msgid ""
"Eldred's library was not simply a copy of certain public domain works, "
"though even a copy would have been of great value to people across the world "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10245
+#: freeculture.xml:10281
msgid ""
"Eldred's freedom to do this with Hawthorne's work grew from the same source "
"as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> had passed "
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10269
+#: freeculture.xml:10305
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10258
+#: freeculture.xml:10294
msgid ""
"The Internet created the possibility of noncommercial publications of public "
"domain works. Eldred's is just one example. There are literally thousands of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10286
+#: freeculture.xml:10322
msgid ""
"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection "
"of poems <citetitle>New Hampshire</citetitle> was slated to pass into the "
#. f2.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10307
+#: freeculture.xml:10343
msgid ""
"The full text is: \"Sonny [Bono] wanted the term of copyright protection to "
"last forever. I am informed by staff that such a change would violate the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10302
+#: freeculture.xml:10338
msgid ""
"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in "
"memory of the congressman and former musician Sonny Bono, who, his widow, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10318
+#: freeculture.xml:10354
msgid ""
"Eldred decided to fight this law. He first resolved to fight it through "
"civil disobedience. In a series of interviews, Eldred announced that he "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10327
+#: freeculture.xml:10363
msgid ""
"It was here that I became involved in Eldred's battle. I was a "
"constitutional scholar whose first passion was constitutional "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:10338
+#: freeculture.xml:10374
msgid ""
"Congress has the power to promote the Progress of Science … by "
"securing for limited Times to Authors … exclusive Right to their "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10344
+#: freeculture.xml:10380
msgid ""
"As I've described, this clause is unique within the power-granting clause of "
"Article I, section 8 of our Constitution. Every other clause granting power "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10363 freeculture.xml:11820
+#: freeculture.xml:10399 freeculture.xml:11856
msgid "Jaszi, Peter"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10354
+#: freeculture.xml:10390
msgid ""
"In the past forty years, Congress has gotten into the practice of extending "
"existing terms of copyright protection. What puzzled me about this was, if "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10366
+#: freeculture.xml:10402
msgid ""
"As an academic, my first response was to hit the books. I remember sitting "
"late at the office, scouring on-line databases for any serious consideration "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10377
+#: freeculture.xml:10413
msgid ""
"For this is the core of the corruption in our present system of "
"government. \"Corruption\" not in the sense that representatives are "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10386
+#: freeculture.xml:10422
msgid ""
"If that's not obvious to you, consider the following: Say you're one of the "
"very few lucky copyright owners whose copyright continues to make money one "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10396
+#: freeculture.xml:10432
msgid ""
"So imagine the Robert Frost estate is earning $100,000 a year from three of "
"Frost's poems. And imagine the copyright for those poems is about to "
#. PAGE BREAK 224
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10403
+#: freeculture.xml:10439
msgid ""
"\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C "
"will expire. That means that after next year, we will no longer be receiving "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10411
+#: freeculture.xml:10447
msgid ""
"\"There's a proposal in Congress, however,\" she continues, \"that could "
"change this. A few congressmen are floating a bill to extend the terms of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10417
+#: freeculture.xml:10453
msgid ""
"\"Hope?\" a fellow board member says. \"Can't we be doing something about "
"it?\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10421
+#: freeculture.xml:10457
msgid ""
"\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the "
"campaigns of a number of representatives to try to assure that they support "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10426
+#: freeculture.xml:10462
msgid ""
"You hate politics. You hate contributing to campaigns. So you want to know "
"whether this disgusting practice is worth it. \"How much would we get if "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10432
+#: freeculture.xml:10468
msgid ""
"\"Well,\" the adviser says, \"if you're confident that you will continue to "
"get at least $100,000 a year from these copyrights, and you use the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10438
+#: freeculture.xml:10474
msgid ""
"You're a bit shocked by the number, but you quickly come to the correct "
"conclusion:"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10442
+#: freeculture.xml:10478
msgid ""
"\"So you're saying it would be worth it for us to pay more than $1,000,000 "
"in campaign contributions if we were confident those contributions would "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10448
+#: freeculture.xml:10484
msgid ""
"\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute "
"up to the `present value' of the income you expect from these "
#. PAGE BREAK 225
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10454
+#: freeculture.xml:10490
msgid ""
"You quickly get the point—you as the member of the board and, I trust, "
"you the reader. Each time copyrights are about to expire, every beneficiary "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10465
+#: freeculture.xml:10501
msgid ""
"Thus a congressional perpetual motion machine: So long as legislation can be "
"bought (albeit indirectly), there will be all the incentive in the world to "
#. f3.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10477
+#: freeculture.xml:10513
msgid ""
"Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse "
"Effort; Congress OKs Bill Granting Creators 20 More Years,\" "
#. f4.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10484
+#: freeculture.xml:10520
msgid ""
"See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>."
#. f5.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10492
+#: freeculture.xml:10528
msgid ""
"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" "
"<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10470
+#: freeculture.xml:10506
msgid ""
"In the lobbying that led to the passage of the Sonny Bono Copyright Term "
"Extension Act, this \"theory\" about incentives was proved real. Ten of the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10499
+#: freeculture.xml:10535
msgid ""
"Constitutional law is not oblivious to the obvious. Or at least, it need not "
"be. So when I was considering Eldred's complaint, this reality about the "
#. PAGE BREAK 226
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10512
+#: freeculture.xml:10548
msgid ""
"It was also my judgment that <emphasis>this</emphasis> Supreme Court would "
"not allow Congress to extend existing terms. As anyone close to the Supreme "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10525
+#: freeculture.xml:10561
msgid ""
"Since 1937, the Supreme Court had interpreted Congress's granted powers very "
"broadly; so, while the Constitution grants Congress the power to regulate "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10535
+#: freeculture.xml:10571
msgid ""
"As the economy grew, this standard increasingly meant that there was no "
"limit to Congress's power to regulate, since just about every activity, when "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10541 freeculture.xml:11317
+#: freeculture.xml:10577 freeculture.xml:11353
msgid "Rehnquist, William H."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10543
+#: freeculture.xml:10579
msgid ""
"The Supreme Court, under Chief Justice Rehnquist's command, changed that in "
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The "
#. f6.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10558
+#: freeculture.xml:10594
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 "
"U.S. 549, 564 (1995)."
#. f7.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10565
+#: freeculture.xml:10601
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 "
"U.S. 598 (2000)."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10556
+#: freeculture.xml:10592
msgid ""
"\"We pause to consider the implications of the government's arguments,\" the "
"Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> If anything "
#. f8.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10572
+#: freeculture.xml:10608
msgid ""
"If it is a principle about enumerated powers, then the principle carries "
"from one enumerated power to another. The animating point in the context of "
#. PAGE BREAK 227
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10569
+#: freeculture.xml:10605
msgid ""
"If a principle were at work here, then it should apply to the Progress "
"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10593
+#: freeculture.xml:10629
msgid ""
"<emphasis>If</emphasis>, that is, the principle announced in "
"<citetitle>Lopez</citetitle> stood for a principle. Many believed the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10606
+#: freeculture.xml:10642
msgid ""
"Now let's pause for a moment to make sure we understand what the argument in "
"<citetitle>Eldred</citetitle> was not about. By insisting on the "
#. f9.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10629
+#: freeculture.xml:10665
msgid ""
"Brief of the Nashville Songwriters Association, "
"<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10637
+#: freeculture.xml:10673
msgid "Nashville Songwriters Association"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10623
+#: freeculture.xml:10659
msgid ""
"Some people view the public domain with contempt. In their brief before the "
"Supreme Court, the Nashville Songwriters Association wrote that the public "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10640
+#: freeculture.xml:10676
msgid ""
"As we've seen, our constitutional system requires limits on copyright as a "
"way to assure that copyright holders do not too heavily influence the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10652
+#: freeculture.xml:10688
msgid ""
"It is valuable copyrights that are responsible for terms being extended. "
"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for "
#. f10.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10673
+#: freeculture.xml:10709
msgid ""
"The figure of 2 percent is an extrapolation from the study by the "
"Congressional Research Service, in light of the estimated renewal "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10667
+#: freeculture.xml:10703
msgid ""
"If you look at the work created in the first twenty years (1923 to 1942) "
"affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that "
#. PAGE BREAK 229
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10682
+#: freeculture.xml:10718
msgid ""
"Think practically about the consequence of this extension—practically, "
"as a businessperson, and not as a lawyer eager for more legal work. In 1930, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10694
+#: freeculture.xml:10730
msgid ""
"Well, first, you'd have to determine which of the 9,873 books were still "
"under copyright. That requires going to a library (these data are not "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10702
+#: freeculture.xml:10738
msgid ""
"Then for the books still under copyright, you would need to locate the "
"current copyright owners. How would you do that?"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10706
+#: freeculture.xml:10742
msgid ""
"Most people think that there must be a list of these copyright owners "
"somewhere. Practical people think this way. How could there be thousands and "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10713
+#: freeculture.xml:10749
msgid ""
"But there is no list. There may be a name from 1930, and then in 1959, of "
"the person who registered the copyright. But just think practically about "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10722
+#: freeculture.xml:10758
msgid ""
"\"But there isn't a list of who owns property generally,\" the apologists "
"for the system respond. \"Why should there be a list of copyright owners?\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10727
+#: freeculture.xml:10763
msgid ""
"Well, actually, if you think about it, there <emphasis>are</emphasis> plenty "
"of lists of who owns what property. Think about deeds on houses, or titles "
#. PAGE BREAK 230
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10736
+#: freeculture.xml:10772
msgid ""
"So: You walk down a street and see a house. You can know who owns the house "
"by looking it up in the courthouse registry. If you see a car, there is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10751
+#: freeculture.xml:10787
msgid ""
"Compare this story to intangible property. You go into a library. The "
"library owns the books. But who owns the copyrights? As I've already "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10763
+#: freeculture.xml:10799
msgid ""
"The consequence with respect to old books is that they won't be digitized, "
"and hence will simply rot away on shelves. But the consequence for other "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10768
+#: freeculture.xml:10804
msgid "Agee, Michael"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10769 freeculture.xml:11200
+#: freeculture.xml:10805 freeculture.xml:11236
msgid "Hal Roach Studios"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10770
+#: freeculture.xml:10806
msgid "Laurel and Hardy Films"
msgstr ""
#. f11.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10783
+#: freeculture.xml:10819
msgid ""
"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" "
"<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10789
+#: freeculture.xml:10825
msgid "Lucky Dog, The"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10772
+#: freeculture.xml:10808
msgid ""
"Consider the story of Michael Agee, chairman of Hal Roach Studios, which "
"owns the copyrights for the Laurel and Hardy films. Agee is a direct "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10792
+#: freeculture.xml:10828
msgid ""
"Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this "
"culture: selflessness. He argued in a brief before the Supreme Court that "
#. PAGE BREAK 231
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10798
+#: freeculture.xml:10834
msgid ""
"His argument is straightforward. A tiny fraction of this work has any "
"continuing commercial value. The rest—to the extent it survives at "
#. f12.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10816
+#: freeculture.xml:10852
msgid ""
"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the "
"Petitoners, <citetitle>Eldred</citetitle> "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10809
+#: freeculture.xml:10845
msgid ""
"We can't know the benefits, but we do know a lot about the costs. For most "
"of the history of film, the costs of restoring film were very high; digital "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10826
+#: freeculture.xml:10862
msgid ""
"Restoration technology is not the only cost, nor the most important. "
"Lawyers, too, are a cost, and increasingly, a very important one. In "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10834
+#: freeculture.xml:10870
msgid ""
"Or more accurately, <emphasis>owners</emphasis>. As we've seen, there isn't "
"only a single copyright associated with a film; there are many. There isn't "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10842
+#: freeculture.xml:10878
msgid ""
"\"But can't you just restore the film, distribute it, and then pay the "
"copyright owner when she shows up?\" Sure, if you want to commit a "
#. PAGE BREAK 232
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10853
+#: freeculture.xml:10889
msgid ""
"For some films, the benefit of releasing the film may well exceed these "
"costs. But for the vast majority of them, there is no way the benefit would "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10863
+#: freeculture.xml:10899
msgid ""
"But by the time the copyright for these films expires, the film will have "
"expired. These films were produced on nitrate-based stock, and nitrate stock "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10871
+#: freeculture.xml:10907
msgid ""
"Of all the creative work produced by humans anywhere, a tiny fraction has "
"continuing commercial value. For that tiny fraction, the copyright is a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10880
+#: freeculture.xml:10916
msgid ""
"But even for that tiny fraction, the actual time during which the creative "
"work has a commercial life is extremely short. As I've indicated, most books "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10890
+#: freeculture.xml:10926
msgid ""
"Yet that doesn't mean the life of the creative work ends. We don't keep "
"libraries of books in order to compete with Barnes & Noble, and we don't "
#. PAGE BREAK 233
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10903
+#: freeculture.xml:10939
msgid ""
"Copyrights in this context do not drive an engine of free expression. In "
"this context, there is no need for an exclusive right. Copyrights in this "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10910
+#: freeculture.xml:10946
msgid ""
"Yet, for most of our history, they also did little harm. For most of our "
"history, when a work ended its commercial life, there was no "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10921
+#: freeculture.xml:10957
msgid ""
"The same was effectively true of film. Because the costs of restoring a "
"film—the real economic costs, not the lawyer costs—were so high, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10930
+#: freeculture.xml:10966
msgid ""
"In other words, though copyright has been relatively short for most of our "
"history, long copyrights wouldn't have mattered for the works that lost "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10936
+#: freeculture.xml:10972
msgid "But this situation has now changed."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10939
+#: freeculture.xml:10975
msgid ""
"One crucially important consequence of the emergence of digital technologies "
"is to enable the archive that Brewster Kahle dreams of. Digital "
#. PAGE BREAK 234
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10952
+#: freeculture.xml:10988
msgid ""
"And now copyright law does get in the way. Every step of producing this "
"digital archive of our culture infringes on the exclusive right of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10962
+#: freeculture.xml:10998
msgid ""
"Here is the core of the harm that comes from extending terms: Now that "
"technology enables us to rebuild the library of Alexandria, the law gets in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10973
+#: freeculture.xml:11009
msgid ""
"You may well ask, \"But if digital technologies lower the costs for Brewster "
"Kahle, then they will lower the costs for Random House, too. So won't "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10979
+#: freeculture.xml:11015
msgid ""
"Maybe. Someday. But there is absolutely no evidence to suggest that "
"publishers would be as complete as libraries. If Barnes & Noble offered "
#. f13.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11002
+#: freeculture.xml:11038
msgid ""
"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 "
"December 2002, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10990
+#: freeculture.xml:11026
msgid ""
"I would be the first to agree that it should do as much as it can: We should "
"rely upon the market as much as possible to spread and enable culture. My "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11009
+#: freeculture.xml:11045
msgid ""
"In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal "
"district court in Washington, D.C., asking the court to declare the Sonny "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11017
+#: freeculture.xml:11053
msgid ""
"The district court dismissed our claims without even hearing an argument. A "
"panel of the Court of Appeals for the D.C. Circuit also dismissed our "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11024
+#: freeculture.xml:11060
msgid ""
"Judge David Sentelle said the CTEA violated the requirement that copyrights "
"be for \"limited Times\" only. His argument was as elegant as it was simple: "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11035
+#: freeculture.xml:11071
msgid ""
"We asked the Court of Appeals for the D.C. Circuit as a whole to hear the "
"case. Cases are ordinarily heard in panels of three, except for important "
#. PAGE BREAK 236
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11041
+#: freeculture.xml:11077
msgid ""
"The Court of Appeals rejected our request to hear the case en banc. This "
"time, Judge Sentelle was joined by the most liberal member of the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11050
+#: freeculture.xml:11086
msgid ""
"It was here that most expected Eldred v. Ashcroft would die, for the Supreme "
"Court rarely reviews any decision by a court of appeals. (It hears about one "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11057
+#: freeculture.xml:11093
msgid ""
"But in February 2002, the Supreme Court surprised the world by granting our "
"petition to review the D.C. Circuit opinion. Argument was set for October of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11063
+#: freeculture.xml:11099
msgid ""
"It is over a year later as I write these words. It is still astonishingly "
"hard. If you know anything at all about this story, you know that we lost "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11073
+#: freeculture.xml:11109
msgid ""
"But my client and these friends were wrong. This case could have been "
"won. It should have been won. And no matter how hard I try to retell this "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11078 freeculture.xml:11092
+#: freeculture.xml:11114 freeculture.xml:11128
msgid "Steward, Geoffrey"
msgstr ""
#. PAGE BREAK 237
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11080
+#: freeculture.xml:11116
msgid ""
"The mistake was made early, though it became obvious only at the very "
"end. Our case had been supported from the very beginning by an extraordinary "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11090 freeculture.xml:11440 freeculture.xml:11456 freeculture.xml:11549 freeculture.xml:11763 freeculture.xml:11794 freeculture.xml:11887
+#: freeculture.xml:11126 freeculture.xml:11476 freeculture.xml:11492 freeculture.xml:11585 freeculture.xml:11799 freeculture.xml:11830 freeculture.xml:11923
msgid "Ayer, Don"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11091
+#: freeculture.xml:11127
msgid "Bromberg, Dan"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11094
+#: freeculture.xml:11130
msgid ""
"There were three key lawyers on the case from Jones Day. Geoff Stewart was "
"the first, but then Dan Bromberg and Don Ayer became quite "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11104
+#: freeculture.xml:11140
msgid ""
"I hate this view of the law. Of course I thought the Sonny Bono Act was a "
"dramatic harm to free speech and free culture. Of course I still think it "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11125
+#: freeculture.xml:11161
msgid ""
"In any case, I thought, the Court must already see the danger and the harm "
"caused by this sort of law. Why else would they grant review? There was no "
#. PAGE BREAK 238
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11133
+#: freeculture.xml:11169
msgid ""
"There was one way, however, in which I felt politics would matter and in "
"which I thought a response was appropriate. I was convinced that the Court "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11164 freeculture.xml:11190
+#: freeculture.xml:11200 freeculture.xml:11226
msgid "Eagle Forum"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11165
+#: freeculture.xml:11201
msgid "Schlafly, Phyllis"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11152
+#: freeculture.xml:11188
msgid ""
"The first step happened all by itself. Phyllis Schlafly's organization, "
"Eagle Forum, had been an opponent of the CTEA from the very beginning. "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11168
+#: freeculture.xml:11204
msgid ""
"In the Court of Appeals, Eagle Forum was eager to file a brief supporting "
"our position. Their brief made the argument that became the core claim in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11176
+#: freeculture.xml:11212
msgid ""
"In the Supreme Court, the briefs on our side were about as diverse as it "
"gets. They included an extraordinary historical brief by the Free Software "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11197
+#: freeculture.xml:11233
msgid "American Association of Law Libraries"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11198
+#: freeculture.xml:11234
msgid "National Writers Union"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11193
+#: freeculture.xml:11229
msgid ""
"Those briefs framed a legal argument. Then to support the legal argument, "
"there were a number of powerful briefs by libraries and archives, including "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11202
+#: freeculture.xml:11238
msgid ""
"But two briefs captured the policy argument best. One made the argument I've "
"already described: A brief by Hal Roach Studios argued that unless the law "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11208
+#: freeculture.xml:11244
msgid "Akerlof, George"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11209
+#: freeculture.xml:11245
msgid "Arrow, Kenneth"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11210
+#: freeculture.xml:11246
msgid "Buchanan, James"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11211
+#: freeculture.xml:11247
msgid "Coase, Ronald"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11212
+#: freeculture.xml:11248
msgid "Friedman, Milton"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11214
+#: freeculture.xml:11250
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11237 freeculture.xml:11253 freeculture.xml:11447 freeculture.xml:11799
+#: freeculture.xml:11273 freeculture.xml:11289 freeculture.xml:11483 freeculture.xml:11835
msgid "Fried, Charles"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11238
+#: freeculture.xml:11274
msgid "Morrison, Alan"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11239
+#: freeculture.xml:11275
msgid "Public Citizen"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:11240 freeculture.xml:11441 freeculture.xml:12531
+#: freeculture.xml:11276 freeculture.xml:11477 freeculture.xml:12567
msgid "Reagan, Ronald"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11225
+#: freeculture.xml:11261
msgid ""
"The same effort at balance was reflected in the legal team we gathered to "
"write our briefs in the case. The Jones Day lawyers had been with us from "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11243
+#: freeculture.xml:11279
msgid ""
"Fried was a special victory for our side. Every other former solicitor "
"general was hired by the other side to defend Congress's power to give media "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11256
+#: freeculture.xml:11292
msgid ""
"The government, in defending the statute, had its collection of friends, as "
"well. Significantly, however, none of these \"friends\" included historians "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11263
+#: freeculture.xml:11299
msgid ""
"The media companies were not surprising. They had the most to gain from the "
"law. The congressmen were not surprising either—they were defending "
#. f14.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11279
+#: freeculture.xml:11315
msgid ""
"Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, 537 U.S. (2003) (No. 01-618), 19."
#. f15.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11287
+#: freeculture.xml:11323
msgid ""
"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
"the Fray,\" <citetitle>New York Times</citetitle>, 28 March 1998, B7."
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11294
+#: freeculture.xml:11330
msgid "Gershwin, George"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11272
+#: freeculture.xml:11308
msgid ""
"Dr. Seuss's representatives, for example, argued that it was better for the "
"Dr. Seuss estate to control what happened to Dr. Seuss's work— better "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11297
+#: freeculture.xml:11333
msgid ""
"This argument made clear a theme that is rarely noticed in this debate. "
"When Congress decides to extend the term of existing copyrights, Congress is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11309
+#: freeculture.xml:11345
msgid ""
"We argued as much in a final brief. Not only would upholding the CTEA mean "
"that there was no limit to the power of Congress to extend "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11319
+#: freeculture.xml:11355
msgid ""
"The Supreme Court was divided into two important camps. One camp we called "
"\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11328 freeculture.xml:11352 freeculture.xml:11692 freeculture.xml:11704
+#: freeculture.xml:11364 freeculture.xml:11388 freeculture.xml:11728 freeculture.xml:11740
msgid "Breyer, Stephen"
msgstr ""
#. PAGE BREAK 242
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11330
+#: freeculture.xml:11366
msgid ""
"The Rest were the four Justices who had strongly opposed limits on "
"Congress's power. These four—Justice Stevens, Justice Souter, Justice "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11342
+#: freeculture.xml:11378
msgid ""
"In particular, the least likely was Justice Ginsburg's. In addition to her "
"general view about deference to Congress (except where issues of gender are "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11354
+#: freeculture.xml:11390
msgid ""
"Close behind Justice Ginsburg were two justices whom we also viewed as "
"unlikely allies, though possible surprises. Justice Souter strongly favored "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11362
+#: freeculture.xml:11398
msgid ""
"The only vote we could be confident about was that of Justice "
"Stevens. History will record Justice Stevens as one of the greatest judges "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11370
+#: freeculture.xml:11406
msgid ""
"This analysis of \"the Rest\" showed most clearly where our focus had to be: "
"on the Conservatives. To win this case, we had to crack open these five and "
#. PAGE BREAK 243
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11380
+#: freeculture.xml:11416
msgid ""
"This then was the core of our strategy—a strategy for which I am "
"responsible. We would get the Court to see that just as with the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11394
+#: freeculture.xml:11430
msgid ""
"The argument on the government's side came down to this: Congress has done "
"it before. It should be allowed to do it again. The government claimed that "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11401
+#: freeculture.xml:11437
msgid ""
"There was some truth to the government's claim, but not much. We certainly "
"agreed that Congress had extended existing terms in 1831 and in 1909. And of "
#. PAGE BREAK 244
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11408
+#: freeculture.xml:11444
msgid ""
"But this \"consistency\" should be kept in perspective. Congress extended "
"existing terms once in the first hundred years of the Republic. It then "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11431
+#: freeculture.xml:11467
msgid ""
"I was convinced that to win, I had to keep the Court focused on a single "
"point: that if this extension is permitted, then there is no limit to the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11443
+#: freeculture.xml:11479
msgid ""
"One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He "
"had served in the Reagan Justice Department with Solicitor General Charles "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11450
+#: freeculture.xml:11486
msgid ""
"\"I'm just afraid that unless they really see the harm, they won't be "
"willing to upset this practice that the government says has been a "
#. PAGE BREAK 245
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11458
+#: freeculture.xml:11494
msgid ""
"He may have argued many cases before this Court, I thought, but he didn't "
"understand its soul. As a clerk, I had seen the Justices do the right "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11475
+#: freeculture.xml:11511
msgid ""
"Not everyone has to wait in line. People who know the Justices can ask for "
"seats they control. (I asked Justice Scalia's chambers for seats for my "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11490
+#: freeculture.xml:11526
msgid ""
"When the Chief Justice called me to begin my argument, I began where I "
"intended to stay: on the question of the limits on Congress's power. This "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11496
+#: freeculture.xml:11532
msgid ""
"Justice O'Connor stopped me within one minute of my opening. The history "
"was bothering her."
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11501
+#: freeculture.xml:11537
msgid ""
"justice o'connor: Congress has extended the term so often through the years, "
"and if you are right, don't we run the risk of upsetting previous extensions "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11508
+#: freeculture.xml:11544
msgid ""
"She was quite willing to concede \"that this flies directly in the face of "
"what the framers had in mind.\" But my response again and again was to "
#. PAGE BREAK 246
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11514
+#: freeculture.xml:11550
msgid ""
"mr. lessig: Well, if it flies in the face of what the framers had in mind, "
"then the question is, is there a way of interpreting their words that gives "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11522
+#: freeculture.xml:11558
msgid ""
"There were two points in this argument when I should have seen where the "
"Court was going. The first was a question by Justice Kennedy, who observed,"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11528
+#: freeculture.xml:11564
msgid ""
"justice kennedy: Well, I suppose implicit in the argument that the '76 act, "
"too, should have been declared void, and that we might leave it alone "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11536
+#: freeculture.xml:11572
msgid ""
"Here follows my clear mistake. Like a professor correcting a student, I "
"answered,"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11542
+#: freeculture.xml:11578
msgid ""
"mr. lessig: Justice, we are not making an empirical claim at all. Nothing "
"in our Copyright Clause claim hangs upon the empirical assertion about "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11551
+#: freeculture.xml:11587
msgid ""
"That was a correct answer, but it wasn't the right answer. The right answer "
"was instead that there was an obvious and profound harm. Any number of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11558
+#: freeculture.xml:11594
msgid ""
"The second came from the Chief, for whom the whole case had been "
"crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> "
#. PAGE BREAK 247
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11563
+#: freeculture.xml:11599
msgid ""
"It was clear a second into his question that he wasn't at all sympathetic. "
"To him, we were a bunch of anarchists. As he asked:"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11570
+#: freeculture.xml:11606
msgid ""
"chief justice: Well, but you want more than that. You want the right to copy "
"verbatim other people's books, don't you?"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11574
+#: freeculture.xml:11610
msgid ""
"mr. lessig: We want the right to copy verbatim works that should be in the "
"public domain and would be in the public domain but for a statute that "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11583
+#: freeculture.xml:11619
msgid ""
"Things went better for us when the government gave its argument; for now the "
"Court picked up on the core of our claim. As Justice Scalia asked Solicitor "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11589
+#: freeculture.xml:11625
msgid ""
"justice scalia: You say that the functional equivalent of an unlimited time "
"would be a violation [of the Constitution], but that's precisely the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11597
+#: freeculture.xml:11633
msgid ""
"When Olson was finished, it was my turn to give a closing rebuttal. Olson's "
"flailing had revived my anger. But my anger still was directed to the "
#. PAGE BREAK 248
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11610
+#: freeculture.xml:11646
msgid ""
"As I left the court that day, I knew there were a hundred points I wished I "
"could remake. There were a hundred questions I wished I had answered "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11618
+#: freeculture.xml:11654
msgid ""
"The government had been asked over and over again, what is the limit? Over "
"and over again, it had answered there is no limit. This was precisely the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11633
+#: freeculture.xml:11669
msgid ""
"The morning of January 15, 2003, I was five minutes late to the office and "
"missed the 7:00 A.M. call from the Supreme Court clerk. Listening to the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11640
+#: freeculture.xml:11676
msgid ""
"A few seconds later, the opinions arrived by e-mail. I took the phone off "
"the hook, posted an announcement to our blog, and sat down to see where I "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11645
+#: freeculture.xml:11681
msgid ""
"My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money "
"in the world against <emphasis>reasoning</emphasis>. And here was the last "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11651
+#: freeculture.xml:11687
msgid ""
"I first scoured the opinion, looking for how the Court would distinguish the "
"principle in this case from the principle in "
#. PAGE BREAK 249
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11660
+#: freeculture.xml:11696
msgid ""
"Justice Ginsburg simply ignored the enumerated powers argument. Consistent "
"with her view that Congress's power was not limited generally, she had found "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11665
+#: freeculture.xml:11701
msgid ""
"Her opinion was perfectly reasonable—for her, and for Justice "
"Souter. Neither believes in <citetitle>Lopez</citetitle>. It would be too "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11671
+#: freeculture.xml:11707
msgid ""
"But as I realized what had happened, I couldn't quite believe what I was "
"reading. I had said there was no way this Court could reconcile limited "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11682
+#: freeculture.xml:11718
msgid ""
"Yet by what right did they get to choose which of the framers' values they "
"would respect? By what right did they—the silent five—get to "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11694
+#: freeculture.xml:11730
msgid ""
"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
"was crafted internal to the law: He argued that the tradition of "
#. PAGE BREAK 250
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11707
+#: freeculture.xml:11743
msgid ""
"Justice Breyer's opinion, perhaps the best opinion he has ever written, was "
"external to the Constitution. He argued that the term of copyrights has "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11718
+#: freeculture.xml:11754
msgid ""
"These two justices understood all the arguments we had made. But because "
"neither believed in the <citetitle>Lopez</citetitle> case, neither was "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11725
+#: freeculture.xml:11761
msgid ""
"Defeat brings depression. They say it is a sign of health when depression "
"gives way to anger. My anger came quickly, but it didn't cure the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11730
+#: freeculture.xml:11766
msgid ""
"It was first anger with the five \"Conservatives.\" It would have been one "
"thing for them to have explained why the principle of "
#. PAGE BREAK 251
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11743
+#: freeculture.xml:11779
msgid ""
"Here, they had joined an opinion that never once tried to explain what the "
"framers had meant by crafting the Progress Clause as they did; they joined "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11758
+#: freeculture.xml:11794
msgid ""
"My anger with the Conservatives quickly yielded to anger with myself. For I "
"had let a view of the law that I liked interfere with a view of the law as "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11765
+#: freeculture.xml:11801
msgid ""
"Most lawyers, and most law professors, have little patience for idealism "
"about courts in general and this Supreme Court in particular. Most have a "
#. PAGE BREAK 252
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11776
+#: freeculture.xml:11812
msgid ""
"As I read back over the transcript from that argument in October, I can see "
"a hundred places where the answers could have taken the conversation in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11796
+#: freeculture.xml:11832
msgid ""
"Would it have been different if I had argued it differently? Would it have "
"been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11802
+#: freeculture.xml:11838
msgid ""
"My friends huddled around me to insist it would not. The Court was not "
"ready, my friends insisted. This was a loss that was destined. It would take "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11808
+#: freeculture.xml:11844
msgid ""
"Maybe, but I doubt it. These Justices have no financial interest in doing "
"anything except the right thing. They are not lobbied. They have little "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11815
+#: freeculture.xml:11851
msgid ""
"And even if I couldn't, then that doesn't excuse what happened in "
"January. For at the start of this case, one of America's leading "
#. PAGE BREAK 253
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11823
+#: freeculture.xml:11859
msgid ""
"After the argument and after the decision, Peter said to me, and publicly, "
"that he was wrong. But if indeed that Court could not have been persuaded, "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11844
+#: freeculture.xml:11880
msgid ""
"In effect, the Supreme Court's decision makes it likely that we are seeing "
"the beginning of the end of public domain and the birth of copyright "
msgstr ""
#. type: Content of: <book><part><chapter><figure><indexterm><primary>
-#: freeculture.xml:11858 freeculture.xml:11863
+#: freeculture.xml:11894 freeculture.xml:11899
msgid "Bolling, Ruben"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11853
+#: freeculture.xml:11889
msgid ""
"The best responses were in the cartoons. There was a gaggle of hilarious "
"images—of Mickey in jail and the like. The best, from my view of the "
msgstr ""
#. type: Content of: <book><part><chapter><figure><title>
-#: freeculture.xml:11861
+#: freeculture.xml:11897
msgid "Tom the Dancing Bug cartoon"
msgstr ""
#. type: Content of: <book><part><chapter><figure>
-#: freeculture.xml:11862
+#: freeculture.xml:11898
msgid ""
"<graphic fileref=\"images/18.png\"></graphic> <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11866
+#: freeculture.xml:11902
msgid ""
"The image that will always stick in my head is that evoked by the quote from "
"<citetitle>The New York Times</citetitle>. That \"grand experiment\" we call "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:11877
+#: freeculture.xml:11913
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11879
+#: freeculture.xml:11915
msgid ""
"The day <citetitle>Eldred</citetitle> was decided, fate would have it that I "
"was to travel to Washington, D.C. (The day the rehearing petition in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11889
+#: freeculture.xml:11925
msgid ""
"It was an act of contrition. During the whole of the flight from San "
"Francisco to Washington, I had heard over and over again in my head the same "
#. PAGE BREAK 256
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11899
+#: freeculture.xml:11935
msgid ""
"<citetitle>The New York Times</citetitle> published the piece. In it, I "
"proposed a simple fix: Fifty years after a work has been published, the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11907
+#: freeculture.xml:11943
msgid ""
"We called this the Eldred Act, but that was just to give it a name. Eric "
"Eldred was kind enough to let his name be used once again, but as he said "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11912
+#: freeculture.xml:11948
msgid ""
"Or another two names. For depending upon your perspective, this is either "
"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11920 freeculture.xml:12120
+#: freeculture.xml:11956 freeculture.xml:12156
msgid "Forbes, Steve"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11922
+#: freeculture.xml:11958
msgid ""
"The reaction to this idea was amazingly strong. Steve Forbes endorsed it in "
"an editorial. I received an avalanche of e-mail and letters expressing "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11934
+#: freeculture.xml:11970
msgid ""
"Indeed, many recognized the obvious benefit of the registration "
"requirement. For one of the hardest things about the current system for "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11944
+#: freeculture.xml:11980
msgid "Berlin Act (1908)"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11945 freeculture.xml:11985
+#: freeculture.xml:11981 freeculture.xml:12021
msgid "Berne Convention (1908)"
msgstr ""
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11953
+#: freeculture.xml:11989
msgid ""
"Until the 1908 Berlin Act of the Berne Convention, national copyright "
"legislation sometimes made protection depend upon compliance with "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11948
+#: freeculture.xml:11984
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, formalities in copyright law were removed in 1976, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11979
+#: freeculture.xml:12015
msgid ""
"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
"copyright policy. It is absurd especially for authors, because a world "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11987
+#: freeculture.xml:12023
msgid ""
"The fight against formalities achieved its first real victory in Berlin in "
"1908. International copyright lawyers amended the Berne Convention in 1908, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11997
+#: freeculture.xml:12033
msgid ""
"These complaints were real and sensible. And the strictness of the "
"formalities, especially in the United States, was absurd. The law should "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12005
+#: freeculture.xml:12041
msgid ""
"Even that would have been resisted, however, because registration in the "
"nineteenth and twentieth centuries was still expensive. It was also a "
#. PAGE BREAK 258
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12013
+#: freeculture.xml:12049
msgid ""
"In addition to the practical complaint of authors in 1908, there was a moral "
"claim as well. There was no reason that creative property should be a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12025
+#: freeculture.xml:12061
msgid ""
"This argument is correct, but its implications are misleading. For the "
"argument in favor of formalities does not depend upon creative property "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12034
+#: freeculture.xml:12070
msgid ""
"No one thinks, for example, that land is second-class property just because "
"you have to register a deed with a court if your sale of land is to be "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12050
+#: freeculture.xml:12086
msgid ""
"It is similarly special physics that makes formalities important in "
"copyright law. Unlike a carpenter's table, there's nothing in nature that "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12065
+#: freeculture.xml:12101
msgid ""
"This was the understanding of the problem with the Sonny Bono Act that we "
"tried to demonstrate to the Court. This was the part it didn't \"get.\" "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12075
+#: freeculture.xml:12111
msgid ""
"But now that copyrights can be just about a century long, the inability to "
"know what is protected and what is not protected becomes a huge and obvious "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12084
+#: freeculture.xml:12120
msgid ""
"The Eldred Act was designed to respond to exactly this problem. If it is "
"worth $1 to you, then register your work and you can get the longer "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12091
+#: freeculture.xml:12127
msgid ""
"If it isn't worth it to you to register to get the benefit of an extended "
"term, then it shouldn't be worth it for the government to defend your "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12098
+#: freeculture.xml:12134
msgid ""
"Some worry about the burden on authors. Won't the burden of registering the "
"work mean that the $1 is really misleading? Isn't the hassle worth more than "
#. PAGE BREAK 260
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12104
+#: freeculture.xml:12140
msgid ""
"It is. The hassle is terrible. The system that exists now is awful. I "
"completely agree that the Copyright Office has done a terrible job (no doubt "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12122
+#: freeculture.xml:12158
msgid ""
"When Steve Forbes endorsed the idea, some in Washington began to pay "
"attention. Many people contacted me pointing to representatives who might be "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:12135
+#: freeculture.xml:12171
msgid "Lofgren, Zoe"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12128
+#: freeculture.xml:12164
msgid ""
"One representative, Zoe Lofgren of California, went so far as to get the "
"bill drafted. The draft solved any problem with international law. It "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12138
+#: freeculture.xml:12174
msgid ""
"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 "
#. PAGE BREAK 261
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12146
+#: freeculture.xml:12182
msgid ""
"The MPAA argued first that Congress had \"firmly rejected the central "
"concept in the proposed bill\"—that copyrights be renewed. That was "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12167
+#: freeculture.xml:12203
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12175
+#: freeculture.xml:12211
msgid ""
"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, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12185
+#: freeculture.xml:12221
msgid ""
"I used these two cases as a way to frame the war that this book has been "
"about. For here, too, a new technology is forcing the law to react. And "
#. PAGE BREAK 262
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12194
+#: freeculture.xml:12230
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:12213
+#: freeculture.xml:12249
msgid "Kelly, Kevin"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12205
+#: freeculture.xml:12241
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12216
+#: freeculture.xml:12252
msgid "What does this industry really want?"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12219
+#: freeculture.xml:12255
msgid ""
"With very little effort, the warriors could protect their content. So the "
"effort to block something like the Eldred Act is not really about protecting "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12230
+#: freeculture.xml:12266
msgid ""
"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 "
#. PAGE BREAK 263
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12238
+#: freeculture.xml:12274
msgid ""
"It is not hard to understand why the warriors take this view. It is not hard "
"to see why it would benefit them if the competition of the public domain "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12250
+#: freeculture.xml:12286
msgid ""
"What is hard to understand is why the public takes this view. It is as if "
"the law made airplanes trespassers. The MPAA stands with the Causbys and "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12257
+#: freeculture.xml:12293
msgid ""
"All this seems to follow easily from this untroubled acceptance of the "
"\"property\" in intellectual property. Common sense supports it, and so long "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:12269
+#: freeculture.xml:12305
msgid "CONCLUSION"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12271
+#: freeculture.xml:12307
msgid ""
"There are more than 35 million people with the AIDS virus "
"worldwide. Twenty-five million of them live in sub-Saharan Africa. "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12278
+#: freeculture.xml:12314
msgid ""
"There is no cure for AIDS, but there are drugs to slow its progression. "
"These antiretroviral therapies are still experimental, but they have already "
#. f1.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12293
+#: freeculture.xml:12329
msgid ""
"Commission on Intellectual Property Rights, \"Final Report: Integrating "
"Intellectual Property Rights and Development Policy\" (London, 2002), "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12286
+#: freeculture.xml:12322
msgid ""
"These drugs are expensive. When they were first introduced in the United "
"States, they cost between $10,000 and $15,000 per person per year. Today, "
#. PAGE BREAK 265
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12304
+#: freeculture.xml:12340
msgid ""
"These prices are not high because the ingredients of the drugs are "
"expensive. These prices are high because the drugs are protected by "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12312
+#: freeculture.xml:12348
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12323
+#: freeculture.xml:12359
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12341 freeculture.xml:12777
+#: freeculture.xml:12377 freeculture.xml:12813
msgid "Braithwaite, John"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12339
+#: freeculture.xml:12375
msgid ""
"See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: "
"Who Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12330
+#: freeculture.xml:12366
msgid ""
"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 "
#. f3.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12352
+#: freeculture.xml:12388
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
#. f4.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12379
+#: freeculture.xml:12415
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12346
+#: freeculture.xml:12382
msgid ""
"However, the United States government opposed the bill. Indeed, more than "
"opposed. As the International Intellectual Property Association "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12385
+#: freeculture.xml:12421
msgid ""
"We should place the intervention by the United States in context. No doubt "
"patents are not the most important reason that Africans don't have access to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12395
+#: freeculture.xml:12431
msgid ""
"By stopping the flow of HIV treatment into Africa, the United States "
"government was not saving drugs for United States citizens. This is not "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12403
+#: freeculture.xml:12439
msgid ""
"Nor was the intervention by the United States going to protect the profits "
"of United States drug companies—at least, not substantially. It was "
#. f5.
#. PAGE BREAK 333
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12418
+#: freeculture.xml:12454
msgid ""
"See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at "
"Odds with Firms' Profit Motive,\" <citetitle>San Francisco "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12412
+#: freeculture.xml:12448
msgid ""
"Instead, the argument in favor of restricting this flow of information, "
"which was needed to save the lives of millions, was an argument about the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12439
+#: freeculture.xml:12475
msgid ""
"Now just step back for a moment. There will be a time thirty years from now "
"when our children look back at us and ask, how could we have let this "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12449
+#: freeculture.xml:12485
msgid ""
"Some blame the drug companies. I don't. They are corporations. Their "
"managers are ordered by law to make money for the corporation. They push a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12457
+#: freeculture.xml:12493
msgid ""
"The corruption is our own politicians' failure of integrity. For the drug "
"companies would love—they say, and I believe them—to sell their "
#. PAGE BREAK 268
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12465
+#: freeculture.xml:12501
msgid ""
"A different problem, however, could not be overcome. This is the fear of the "
"grandstanding politician who would call the presidents of the drug companies "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12480
+#: freeculture.xml:12516
msgid ""
"So when the common sense of your child confronts you, what will you say? "
"When the common sense of a generation finally revolts against what we have "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12486
+#: freeculture.xml:12522
msgid ""
"A sensible patent policy could endorse and strongly support the patent "
"system without having to reach everyone everywhere in exactly the same "
#. PAGE BREAK 269
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12498
+#: freeculture.xml:12534
msgid ""
"But we as a culture have lost this sense of balance. We have lost the "
"critical eye that helps us see the difference between truth and extremism. "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12518
+#: freeculture.xml:12554
msgid ""
"So far, common sense sleeps. There is no revolt. Common sense does not yet "
"see what there could be to revolt about. The extremism that now dominates "
#. f6.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12536
+#: freeculture.xml:12572
msgid ""
"Jonathan Krim, \"The Quiet War over Open-Source,\" <citetitle>Washington "
"Post</citetitle>, August 2003, E1, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:12564 freeculture.xml:13237
+#: freeculture.xml:12600 freeculture.xml:13273
msgid "academic journals"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:12565 freeculture.xml:12655 freeculture.xml:13163
+#: freeculture.xml:12601 freeculture.xml:12691 freeculture.xml:13199
msgid "IBM"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:12566 freeculture.xml:13301
+#: freeculture.xml:12602 freeculture.xml:13337
msgid "PLoS (Public Library of Science)"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12533
+#: freeculture.xml:12569
msgid ""
"In August 2003, a fight broke out in the United States about a decision by "
"the World Intellectual Property Organization to cancel a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12569
+#: freeculture.xml:12605
msgid ""
"The aim of the meeting was to consider this wide range of projects from one "
"common perspective: that none of these projects relied upon intellectual "
#. f7.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12577
+#: freeculture.xml:12613
msgid ""
"I should disclose that I was one of the people who asked WIPO for the "
"meeting."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12576
+#: freeculture.xml:12612
msgid ""
"From the perspective of this book, then, the conference was "
"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its "
#. PAGE BREAK 271
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12587
+#: freeculture.xml:12623
msgid ""
"Indeed, I was once publicly scolded for not recognizing this fact about "
"WIPO. In February 2003, I delivered a keynote address to a preparatory "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12611
+#: freeculture.xml:12647
msgid ""
"So whether or not WSIS can discuss balance in intellectual property, I had "
"thought it was taken for granted that WIPO could and should. And thus the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12617
+#: freeculture.xml:12653
msgid ""
"But there is one project within that list that is highly controversial, at "
"least among lobbyists. That project is \"open source and free software.\" "
#. f8.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12639
+#: freeculture.xml:12675
msgid ""
"Microsoft's position about free and open source software is more "
"sophisticated. As it has repeatedly asserted, it has no problem with \"open "
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:12656
+#: freeculture.xml:12692
msgid "\"copyleft\" licenses"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12628
+#: freeculture.xml:12664
msgid ""
"I don't mean to enter that debate here. It is important only to make clear "
"that the distinction is not between commercial and noncommercial "
#. PAGE BREAK 272
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12661
+#: freeculture.xml:12697
msgid ""
"More important for our purposes, to support \"open source and free "
"software\" is not to oppose copyright. \"Open source and free software\" is "
#. f9.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12687
+#: freeculture.xml:12723
msgid ""
"Krim, \"The Quiet War over Open-Source,\" available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #64</ulink>."
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:12691
+#: freeculture.xml:12727
msgid "Krim, Jonathan"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12679
+#: freeculture.xml:12715
msgid ""
"It is therefore understandable that as a proprietary software developer, "
"Microsoft would oppose this WIPO meeting, and understandable that it would "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12694
+#: freeculture.xml:12730
msgid ""
"I don't blame Microsoft for doing what it can to advance its own interests, "
"consistent with the law. And lobbying governments is plainly consistent with "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12702
+#: freeculture.xml:12738
msgid ""
"What was surprising was the United States government's reason for opposing "
"the meeting. Again, as reported by Krim, Lois Boland, acting director of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12712
+#: freeculture.xml:12748
msgid "These statements are astonishing on a number of levels."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12716
+#: freeculture.xml:12752
msgid ""
"First, they are just flat wrong. As I described, most open source and free "
"software relies fundamentally upon the intellectual property right called "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12726
+#: freeculture.xml:12762
msgid ""
"Second, who ever said that WIPO's exclusive aim was to \"promote\" "
"intellectual property maximally? As I had been scolded at the preparatory "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12739
+#: freeculture.xml:12775
msgid ""
"Third, even if one believed that the purpose of WIPO was to maximize "
"intellectual property rights, in our tradition, intellectual property rights "
#. PAGE BREAK 274
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12753
+#: freeculture.xml:12789
msgid ""
"When Ms. Boland says that there is something wrong with a meeting \"which "
"has as its purpose to disclaim or waive such rights,\" she's saying that "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12765
+#: freeculture.xml:12801
msgid ""
"There is a history of just such a property system that is well known in the "
"Anglo-American tradition. It is called \"feudalism.\" Under feudalism, not "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12782
+#: freeculture.xml:12818
msgid ""
"See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, "
"210–20. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12779
+#: freeculture.xml:12815
msgid ""
"As Peter Drahos and John Braithwaite relate, this is precisely the choice we "
"are now making about intellectual property.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12791
+#: freeculture.xml:12827
msgid ""
"When this battle broke, I blogged it. A spirited debate within the comment "
"section ensued. Ms. Boland had a number of supporters who tried to show why "
#. PAGE BREAK 275
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:12798
+#: freeculture.xml:12834
msgid ""
"George, you misunderstand Lessig: He's only talking about the world as it "
"should be (\"the goal of WIPO, and the goal of any government, should be to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12810
+#: freeculture.xml:12846
msgid ""
"I missed the irony the first time I read it. I read it quickly and thought "
"the poster was supporting the idea that seeking balance was what our "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12820
+#: freeculture.xml:12856
msgid ""
"Obviously, however, the poster was not supporting that idea. Instead, the "
"poster was ridiculing the very idea that in the real world, the \"goal\" of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12828
+#: freeculture.xml:12864
msgid ""
"I understand criticism of academic utopianism. I think utopianism is silly, "
"too, and I'd be the first to poke fun at the absurdly unrealistic ideals of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12834
+#: freeculture.xml:12870
msgid ""
"But when it has become silly to suppose that the role of our government "
"should be to \"seek balance,\" then count me with the silly, for that means "
#. PAGE BREAK 276
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12845
+#: freeculture.xml:12881
msgid ""
"It might be crazy to expect a high government official to speak the "
"truth. It might be crazy to believe that government policy will be something "
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:12864
+#: freeculture.xml:12900
msgid "Turner, Ted"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12854
+#: freeculture.xml:12890
msgid ""
"If this is crazy, then let there be more crazies. Soon. There are moments "
"of hope in this struggle. And moments that surprise. When the FCC was "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12868
+#: freeculture.xml:12904
msgid ""
"This activism did not stop the FCC, but soon after, a broad coalition in the "
"Senate voted to reverse the FCC decision. The hostile hearings leading up to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12876
+#: freeculture.xml:12912
msgid ""
"But even this movement misses an important piece of the puzzle. Largeness "
"as such is not bad. Freedom is not threatened just because some become very "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12883
+#: freeculture.xml:12919
msgid ""
"The danger in media concentration comes not from the concentration, but "
"instead from the feudalism that this concentration, tied to the change in "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12893
+#: freeculture.xml:12929
msgid ""
"It is therefore significant that so many would rally to demand competition "
"and increased diversity. Still, if the rally is understood as being about "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12900
+#: freeculture.xml:12936
msgid ""
"It would be something new, and something very important, if an equal number "
"could be rallied to fight the increasing extremism built within the idea of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12908
+#: freeculture.xml:12944
msgid ""
"If we were Achilles, this would be our heel. This would be the place of our "
"tragedy."
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12911
+#: freeculture.xml:12947
msgid "Dylan, Bob"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12916
+#: freeculture.xml:12952
msgid ""
"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. f12.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12934
+#: freeculture.xml:12970
msgid ""
"Jon Wiederhorn, \"Eminem Gets Sued … by a Little Old Lady,\" mtv.com, "
"17 September 2003, available at <ulink "
#. f13.
#. PAGE BREAK 334
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12941
+#: freeculture.xml:12977
msgid ""
"Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan "
"Songs,\" Kansascity.com, 9 July 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12913
+#: freeculture.xml:12949
msgid ""
"As I write these final words, the news is filled with stories about the RIAA "
"lawsuits against almost three hundred individuals.<placeholder "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:12958 freeculture.xml:13318
+#: freeculture.xml:12994 freeculture.xml:13354
msgid "Creative Commons"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12959
+#: freeculture.xml:12995
msgid "Gil, Gilberto"
msgstr ""
#. f14.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12964
+#: freeculture.xml:13000
msgid ""
"\"BBC Plans to Open Up Its Archive to the Public,\" BBC press release, 24 "
"August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. f15.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12973
+#: freeculture.xml:13009
msgid ""
"\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>."
#. PAGE BREAK 278
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12961
+#: freeculture.xml:12997
msgid ""
"Yet on the other side of the Atlantic, the BBC has just announced that it "
"will build a \"Creative Archive,\" from which British citizens can download "
#. PAGE BREAK 279
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12987
+#: freeculture.xml:13023
msgid ""
"Common sense must revolt. It must act to free culture. Soon, if this "
"potential is ever to be realized."
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:12995
+#: freeculture.xml:13031
msgid "AFTERWORD"
msgstr ""
#. PAGE BREAK 280
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12999
+#: freeculture.xml:13035
msgid ""
"At least some who have read this far will agree with me that something must "
"be done to change where we are heading. The balance of this book maps what "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:13004
+#: freeculture.xml:13040
msgid ""
"I divide this map into two parts: that which anyone can do now, and that "
"which requires the help of lawmakers. If there is one lesson that we can "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:13010
+#: freeculture.xml:13046
msgid ""
"That means this movement must begin in the streets. It must recruit a "
"significant number of parents, teachers, librarians, creators, authors, "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:13017
+#: freeculture.xml:13053
msgid ""
"Once this movement has its effect in the streets, it has some hope of having "
"an effect in Washington. We are still a democracy. What people think "
msgstr ""
#. type: Content of: <book><chapter><section><title>
-#: freeculture.xml:13026
+#: freeculture.xml:13062
msgid "US, NOW"
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13028
+#: freeculture.xml:13064
msgid ""
"Common sense is with the copyright warriors because the debate so far has "
"been framed at the extremes—as a grand either/or: either property or "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13034
+#: freeculture.xml:13070
msgid ""
"The mistake here is the error of the excluded middle. There are extremes in "
"this debate, but the extremes are not all that there is. There are those who "
#. PAGE BREAK 282
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13044
+#: freeculture.xml:13080
msgid ""
"When the Internet was first born, its initial architecture effectively "
"tilted in the \"no rights reserved\" direction. Content could be copied "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13056
+#: freeculture.xml:13092
msgid ""
"This initial character produced a reaction (opposite, but not quite equal) "
"by copyright owners. That reaction has been the topic of this book. Through "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13070
+#: freeculture.xml:13106
msgid ""
"What's needed is a way to say something in the middle—neither \"all "
"rights reserved\" nor \"no rights reserved\" but \"some rights "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13079
+#: freeculture.xml:13115
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13081
+#: freeculture.xml:13117
msgid ""
"If you step back from the battle I've been describing here, you will "
"recognize this problem from other contexts. Think about privacy. Before the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13091
+#: freeculture.xml:13127
msgid "What made it assured?"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13095
+#: freeculture.xml:13131
msgid ""
"Well, if we think in terms of the modalities I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, your privacy was "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:13110
+#: freeculture.xml:13146
msgid "Amazon"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13120
+#: freeculture.xml:13156
msgid "cookies, Internet"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13112
+#: freeculture.xml:13148
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13123
+#: freeculture.xml:13159
msgid ""
"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 "
#. f1.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13139
+#: freeculture.xml:13175
msgid ""
"See, for example, Marc Rotenberg, \"Fair Information Practices and the "
"Architecture of Privacy (What Larry Doesn't Get),\" <citetitle>Stanford "
#. PAGE BREAK 284
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13133
+#: freeculture.xml:13169
msgid ""
"It is this reality that explains the push of many to define \"privacy\" on "
"the Internet. It is the recognition that technology can remove what friction "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13157
+#: freeculture.xml:13193
msgid ""
"A similar story could be told about the birth of the free software "
"movement. When computers with software were first made available "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:13165
+#: freeculture.xml:13201
msgid "Stallman, Richard"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13167
+#: freeculture.xml:13203
msgid ""
"That was the world Richard Stallman was born into, and while he was a "
"researcher at MIT, he grew to love the community that developed when one was "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13175
+#: freeculture.xml:13211
msgid ""
"In an academic setting, at least, that's not a terribly radical idea. In a "
"math department, anyone would be free to tinker with a proof that someone "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13187
+#: freeculture.xml:13223
msgid ""
"No one answered that question. Instead, the architecture of revenue for "
"computing changed. As it became possible to import programs from one system "
#. PAGE BREAK 285
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13196
+#: freeculture.xml:13232
msgid ""
"Thus, the practice of proprietary code began to spread, and by the early "
"1980s, Stallman found himself surrounded by proprietary code. The world of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13205
+#: freeculture.xml:13241
msgid ""
"Therefore, in 1984, Stallman began a project to build a free operating "
"system, so that at least a strain of free software would survive. That was "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13213
+#: freeculture.xml:13249
msgid ""
"Stallman's technique was to use copyright law to build a world of software "
"that must be kept free. Software licensed under the Free Software "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13224
+#: freeculture.xml:13260
msgid ""
"Stallman was thus doing for software what privacy advocates now do for "
"privacy. He was seeking a way to rebuild a kind of freedom that was taken "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13232
+#: freeculture.xml:13268
msgid ""
"Finally, consider a very recent example that more directly resonates with "
"the story of this book. This is the shift in the way academic and scientific "
#. PAGE BREAK 286
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13240
+#: freeculture.xml:13276
msgid ""
"As digital technologies develop, it is becoming obvious to many that "
"printing thousands of copies of journals every month and sending them to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13256
+#: freeculture.xml:13292
msgid ""
"There's nothing wrong in general with this, and indeed, the ability to "
"charge for access to even public domain materials is a good incentive for "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13265
+#: freeculture.xml:13301
msgid ""
"But what if the only way to get access to social and scientific data was "
"through proprietary services? What if no one had the ability to browse this "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13270
+#: freeculture.xml:13306
msgid ""
"As many are beginning to notice, this is increasingly the reality with "
"scientific journals. When these journals were distributed in paper form, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13282
+#: freeculture.xml:13318
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13290
+#: freeculture.xml:13326
msgid ""
"This shrinking freedom has led many to take affirmative steps to restore the "
"freedom that has been lost. The Public Library of Science (PLoS), for "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13304
+#: freeculture.xml:13340
msgid ""
"This is one of many such efforts to restore a freedom taken for granted "
"before, but now threatened by changing technology and markets. There's no "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13316
+#: freeculture.xml:13352
msgid "Rebuilding Free Culture: One Idea"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13321
+#: freeculture.xml:13357
msgid ""
"The same strategy could be applied to culture, as a response to the "
"increasing control effected through law and technology."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13325
+#: freeculture.xml:13361
msgid ""
"Enter the Creative Commons. The Creative Commons is a nonprofit corporation "
"established in Massachusetts, but with its home at Stanford University. Its "
#. PAGE BREAK 288
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13336
+#: freeculture.xml:13372
msgid ""
"<emphasis>Simple</emphasis>—which means without a middleman, or "
"without a lawyer. By developing a free set of licenses that people can "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13354
+#: freeculture.xml:13390
msgid ""
"These freedoms are beyond the freedoms promised by fair use. Their precise "
"contours depend upon the choices the creator makes. The creator can choose a "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13365
+#: freeculture.xml:13401
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13386
+#: freeculture.xml:13422
msgid "Garlick, Mia"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13376
+#: freeculture.xml:13412
msgid ""
"This is just one project among many within the Creative Commons. And of "
"course, Creative Commons is not the only organization pursuing such "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13389
+#: freeculture.xml:13425
msgid ""
"The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to "
"complement them. The problems that the law creates for us as a culture are "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13401
+#: freeculture.xml:13437
msgid ""
"Why would creators participate in giving up total control? Some participate "
"to better spread their content. Cory Doctorow, for example, is a science "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13408
+#: freeculture.xml:13444
msgid ""
"Why would a publisher ever agree to this? I suspect his publisher reasoned "
"like this: There are two groups of people out there: (1) those who will buy "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13420
+#: freeculture.xml:13456
msgid ""
"Indeed, the experience of his publisher clearly supports that conclusion. "
"The book's first printing was exhausted months before the publisher had "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13435
+#: freeculture.xml:13471
msgid "Free for All (Wayner)"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13436
+#: freeculture.xml:13472
msgid "Wayner, Peter"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13426
+#: freeculture.xml:13462
msgid ""
"The idea that free content might increase the value of nonfree content was "
"confirmed by the experience of another author. Peter Wayner, who wrote a "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:13438
+#: freeculture.xml:13474
msgid "Public Enemy"
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:13439
+#: freeculture.xml:13475
msgid "rap music"
msgstr ""
#. f2.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13456
+#: freeculture.xml:13492
msgid ""
"<citetitle>Willful Infringement: A Report from the Front Lines of the Real "
"Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13463
+#: freeculture.xml:13499
msgid "Leaphart, Walter"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13441
+#: freeculture.xml:13477
msgid ""
"These are examples of using the Commons to better spread proprietary "
"content. I believe that is a wonderful and common use of the Commons. There "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13466
+#: freeculture.xml:13502
msgid ""
"Finally, there are many who mark their content with a Creative Commons "
"license just because they want to express to others the importance of "
#. PAGE BREAK 291
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13478
+#: freeculture.xml:13514
msgid ""
"In the first six months of the Creative Commons experiment, over 1 million "
"objects were licensed with these free-culture licenses. The next step is "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13488
+#: freeculture.xml:13524
msgid ""
"These are first steps to rebuilding a public domain. They are not mere "
"arguments; they are action. Building a public domain is the first step to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13496
+#: freeculture.xml:13532
msgid ""
"Creative Commons is just one example of voluntary efforts by individuals and "
"creators to change the mix of rights that now govern the creative field. The "
msgstr ""
#. type: Content of: <book><chapter><section><title>
-#: freeculture.xml:13510
+#: freeculture.xml:13546
msgid "THEM, SOON"
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13512
+#: freeculture.xml:13548
msgid ""
"We will not reclaim a free culture by individual action alone. It will also "
"take important reforms of laws. We have a long way to go before the "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13519
+#: freeculture.xml:13555
msgid ""
"In this chapter, I outline five kinds of changes: four that are general, and "
"one that's specific to the most heated battle of the day, music. Each is a "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13526
+#: freeculture.xml:13562
msgid "1. More Formalities"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13528
+#: freeculture.xml:13564
msgid ""
"If you buy a house, you have to record the sale in a deed. If you buy land "
"upon which to build a house, you have to record the purchase in a deed. If "
#. PAGE BREAK 293
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13535
+#: freeculture.xml:13571
msgid ""
"These are all formalities associated with property. They are requirements "
"that we all must bear if we want our property to be protected."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13540
+#: freeculture.xml:13576
msgid ""
"In contrast, under current copyright law, you automatically get a copyright, "
"regardless of whether you comply with any formality. You don't have to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13546
+#: freeculture.xml:13582
msgid "Why?"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13549
+#: freeculture.xml:13585
msgid ""
"As I suggested in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, the motivation to abolish formalities was a good "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13558
+#: freeculture.xml:13594
msgid ""
"But the Internet changes all this. Formalities today need not be a "
"burden. Rather, the world without formalities is the world that burdens "
#. f1.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13572
+#: freeculture.xml:13608
msgid ""
"The proposal I am advancing here would apply to American works only. "
"Obviously, I believe it would be beneficial for the same idea to be adopted "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13570
+#: freeculture.xml:13606
msgid ""
"The law should therefore change this requirement<placeholder "
"type=\"footnote\" id=\"0\"/>—but it should not change it by going back "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13580
+#: freeculture.xml:13616
msgid ""
"The important formalities are three: marking copyrighted work, registering "
"copyrights, and renewing the claim to copyright. Traditionally, the first of "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><title>
-#: freeculture.xml:13592
+#: freeculture.xml:13628
msgid "REGISTRATION AND RENEWAL"
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13594
+#: freeculture.xml:13630
msgid ""
"Under the old system, a copyright owner had to file a registration with the "
"Copyright Office to register or renew a copyright. When filing that "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13607
+#: freeculture.xml:13643
msgid ""
"Yet it is always astonishing to me that we, who come from a tradition of "
"extraordinary innovation in governmental design, can no longer think "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13616
+#: freeculture.xml:13652
msgid ""
"In the context of registration, one obvious model is the Internet. There "
"are at least 32 million Web sites registered around the world. Domain name "
#. PAGE BREAK 295
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13626
+#: freeculture.xml:13662
msgid ""
"We should adopt a similar model for the registration and renewal of "
"copyrights. The Copyright Office may well serve as the central registry, but "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><title>
-#: freeculture.xml:13641
+#: freeculture.xml:13677
msgid "MARKING"
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13643
+#: freeculture.xml:13679
msgid ""
"It used to be that the failure to include a copyright notice on a creative "
"work meant that the copyright was forfeited. That was a harsh punishment for "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13653
+#: freeculture.xml:13689
msgid ""
"The aim of marking is to signal to the public that this work is copyrighted "
"and that the author wants to enforce his rights. The mark also makes it easy "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13659
+#: freeculture.xml:13695
msgid ""
"One of the problems the copyright system confronted early on was that "
"different copyrighted works had to be differently marked. It wasn't clear "
#. f2.
#. type: Content of: <book><chapter><section><section><section><para><footnote><para>
-#: freeculture.xml:13676
+#: freeculture.xml:13712
msgid ""
"There would be a complication with derivative works that I have not solved "
"here. In my view, the law of derivatives creates a more complicated system "
#. PAGE BREAK 296
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13669
+#: freeculture.xml:13705
msgid ""
"Let's start with the last point. If a copyright owner allows his work to be "
"published without a copyright notice, the consequence of that failure need "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13689
+#: freeculture.xml:13725
msgid ""
"That in turn raises the question about how work should best be marked. Here "
"again, the system needs to adjust as the technologies evolve. The best way "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13696
+#: freeculture.xml:13732
msgid ""
"For example, if a recording industry association devises a method for "
"marking CDs, it would propose that to the Copyright Office. The Copyright "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13708
+#: freeculture.xml:13744
msgid ""
"Finally, marking content clearly would simplify registration requirements. "
"If photographs were marked by author and year, there would be little reason "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13716
+#: freeculture.xml:13752
msgid ""
"The objective of formalities is to make things clear. The existing system "
"does nothing to make things clear. Indeed, it seems designed to make things "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13721
+#: freeculture.xml:13757
msgid ""
"If formalities such as registration were reinstated, one of the most "
"difficult aspects of relying upon the public domain would be removed. It "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13733
+#: freeculture.xml:13769
msgid "2. Shorter Terms"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13735
+#: freeculture.xml:13771
msgid ""
"The term of copyright has gone from fourteen years to ninety-five years for "
"corporate authors, and life of the author plus seventy years for natural "
#. f3.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13748
+#: freeculture.xml:13784
msgid ""
"\"A Radical Rethink,\" <citetitle>Economist</citetitle>, 366:8308 (25 "
"January 2003): 15, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13740
+#: freeculture.xml:13776
msgid ""
"In <citetitle>The Future of Ideas</citetitle>, I proposed a "
"seventy-five-year term, granted in five-year increments with a requirement "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13755
+#: freeculture.xml:13791
msgid ""
"I agree with those who believe that we need a radical change in copyright's "
"term. But whether fourteen years or seventy-five, there are four principles "
#. (1)
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13763
+#: freeculture.xml:13799
msgid ""
"<emphasis>Keep it short:</emphasis> The term should be as long as necessary "
"to give incentives to create, but no longer. If it were tied to very strong "
#. (2)
#. PAGE BREAK 298
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13772
+#: freeculture.xml:13808
msgid ""
"<emphasis>Keep it simple:</emphasis> The line between the public domain and "
"protected content must be kept clear. Lawyers like the fuzziness of \"fair "
#. f4.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><footnote><para>
-#: freeculture.xml:13793
+#: freeculture.xml:13829
msgid ""
"Department of Veterans Affairs, Veteran's Application for Compensation "
"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
msgstr ""
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><indexterm><primary>
-#: freeculture.xml:13801
+#: freeculture.xml:13837
msgid "veterans' pensions"
msgstr ""
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13785
+#: freeculture.xml:13821
msgid ""
"<emphasis>Keep it alive:</emphasis> Copyright should have to be renewed. "
"Especially if the maximum term is long, the copyright owner should be "
#. (4)
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13805
+#: freeculture.xml:13841
msgid ""
"<emphasis>Keep it prospective:</emphasis> Whatever the term of copyright "
"should be, the clearest lesson that economists teach is that a term once "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13821
+#: freeculture.xml:13857
msgid ""
"These changes together should produce an <emphasis>average</emphasis> "
"copyright term that is much shorter than the current term. Until 1976, the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13827
+#: freeculture.xml:13863
msgid ""
"No doubt the extremists will call these ideas \"radical.\" (After all, I "
"call them \"extremists.\") But again, the term I recommended was longer than "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13837
+#: freeculture.xml:13873
msgid "3. Free Use Vs. Fair Use"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13839
+#: freeculture.xml:13875
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13847
+#: freeculture.xml:13883
msgid ""
"Our Constitution gives Congress the power to give authors \"exclusive "
"right\" to \"their writings.\" Congress has given authors an exclusive right "
#. f5.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13860
+#: freeculture.xml:13896
msgid ""
"Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New "
"York: Columbia University Press, 1967), 32."
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13866
+#: freeculture.xml:13902
msgid "Kaplan, Benjamin"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13856
+#: freeculture.xml:13892
msgid ""
"Congress granted the beginnings of this right in 1870, when it expanded the "
"exclusive right of copyright to include a right to control translations and "
#. f6.
#. type: Content of: <book><chapter><section><section><blockquote><para><footnote><para>
-#: freeculture.xml:13874
+#: freeculture.xml:13910
msgid "Ibid., 56."
msgstr ""
#. type: Content of: <book><chapter><section><section><blockquote><para>
-#: freeculture.xml:13870
+#: freeculture.xml:13906
msgid ""
"So inured have we become to the extension of the monopoly to a large range "
"of so-called derivative works, that we no longer sense the oddity of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13879
+#: freeculture.xml:13915
msgid ""
"I think it's time to recognize that there are airplanes in this field and "
"the expansiveness of these rights of derivative use no longer make "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13886
+#: freeculture.xml:13922
msgid ""
"<emphasis>Term:</emphasis> If Congress wants to grant a derivative right, "
"then that right should be for a much shorter term. It makes sense to protect "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13899
+#: freeculture.xml:13935
msgid ""
"<emphasis>Scope:</emphasis> Likewise should the scope of derivative rights "
"be narrowed. Again, there are some cases in which derivative rights are "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13912
+#: freeculture.xml:13948
msgid ""
"This was the point that Alben made when describing the making of the Clint "
"Eastwood CD. While it makes sense to require negotiation for foreseeable "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:13928
+#: freeculture.xml:13964
msgid "Goldstein, Paul"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13926
+#: freeculture.xml:13962
msgid ""
"Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the "
"Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13920
+#: freeculture.xml:13956
msgid ""
"In each of these cases, the law should mark the uses that are protected, and "
"the presumption should be that other uses are not protected. This is the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13934
+#: freeculture.xml:13970
msgid ""
"Goldstein's analysis would make perfect sense if the cost of the legal "
"system were small. But as we are currently seeing in the context of the "
#. PAGE BREAK 301
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13941
+#: freeculture.xml:13977
msgid ""
"The law could remedy this problem either by removing protection beyond the "
"part explicitly drawn or by granting reuse rights upon certain statutory "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13951
+#: freeculture.xml:13987
msgid "4. Liberate the Music—Again"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13953
+#: freeculture.xml:13989
msgid ""
"The battle that got this whole war going was about music, so it wouldn't be "
"fair to end this book without addressing the issue that is, to most people, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13960
+#: freeculture.xml:13996
msgid ""
"The appeal of file-sharing music was the crack cocaine of the Internet's "
"growth. It drove demand for access to the Internet more powerfully than any "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13969
+#: freeculture.xml:14005
msgid ""
"The aim of copyright, with respect to content in general and music in "
"particular, is to create the incentives for music to be composed, performed, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13976
+#: freeculture.xml:14012
msgid ""
"File-sharing networks complicate this model by enabling the spread of "
"content for which the performer has not been paid. But of course, that's not "
#. A.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13985
+#: freeculture.xml:14021
msgid ""
"There are some who are using sharing networks as substitutes for purchasing "
"CDs."
#. B.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13990
+#: freeculture.xml:14026
msgid ""
"There are also some who are using sharing networks to sample, on the way to "
"purchasing CDs."
#. PAGE BREAK 302
#. C.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13996
+#: freeculture.xml:14032
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is no longer sold but is still under copyright or that would have been "
#. D.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14002
+#: freeculture.xml:14038
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is not copyrighted or to get access that the copyright owner plainly "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14008
+#: freeculture.xml:14044
msgid ""
"Any reform of the law needs to keep these different uses in focus. It must "
"avoid burdening type D even if it aims to eliminate type A. The eagerness "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14016
+#: freeculture.xml:14052
msgid ""
"As I said in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"piracy\"/>, the actual harm caused by sharing is controversial. "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14024
+#: freeculture.xml:14060
msgid ""
"Nonetheless, there is a crucial fact about the current technological context "
"that we must keep in mind if we are to understand how the law should "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14029
+#: freeculture.xml:14065
msgid ""
"Today, file sharing is addictive. In ten years, it won't be. It is addictive "
"today because it is the easiest way to gain access to a broad range of "
#. PAGE BREAK 303
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14041
+#: freeculture.xml:14077
msgid ""
"But it will become a reality, and that means the way we get access to the "
"Internet today is a technology in transition. Policy makers should not make "
#. f8.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14074
+#: freeculture.xml:14110
msgid ""
"See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April "
"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14056
+#: freeculture.xml:14092
msgid ""
"In that world, it will be extremely easy to connect to services that give "
"you access to content on the fly—such as Internet radio, content that "
#. PAGE BREAK 304
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14081
+#: freeculture.xml:14117
msgid ""
"This point about the future is meant to suggest a perspective on the "
"present: It is emphatically temporary. The \"problem\" with file "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14097
+#: freeculture.xml:14133
msgid ""
"The answer begins with recognizing that there are different \"problems\" "
"here to solve. Let's start with type D content—uncopyrighted content "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14108
+#: freeculture.xml:14144
msgid ""
"Type C content raises a different \"problem.\" This is content that was, at "
"one time, published and is no longer available. It may be unavailable "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14117
+#: freeculture.xml:14153
msgid ""
"Again, the model here is the used book store. Once a book goes out of print, "
"it may still be available in libraries and used book stores. But libraries "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14127
+#: freeculture.xml:14163
msgid ""
"The model of used book stores suggests that the law could simply deem "
"out-of-print music fair game. If the publisher does not make copies of the "
#. PAGE BREAK 305
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14138
+#: freeculture.xml:14174
msgid ""
"Alternatively, the law could create a statutory license that would ensure "
"that artists get something from the trade of their work. For example, if the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14148
+#: freeculture.xml:14184
msgid ""
"This system would also create an incentive for publishers to keep works "
"available commercially. Works that are available commercially would not be "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14158
+#: freeculture.xml:14194
msgid ""
"The hard case is content of types A and B, and again, this case is hard only "
"because the extent of the problem will change over time, as the technologies "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14166
+#: freeculture.xml:14202
msgid ""
"So here's a solution that will at first seem very strange to both sides in "
"this war, but which upon reflection, I suggest, should make some sense."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14170
+#: freeculture.xml:14206
msgid ""
"Stripped of the rhetoric about the sanctity of property, the basic claim of "
"the content industry is this: A new technology (the Internet) has harmed a "
#. PAGE BREAK 306
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14181
+#: freeculture.xml:14217
msgid ""
"I love the Internet, and so I don't like likening it to tobacco or "
"asbestos. But the analogy is a fair one from the perspective of the law. "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:14226
+#: freeculture.xml:14262
msgid "Fisher, William"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:14228 freeculture.xml:14254
+#: freeculture.xml:14264 freeculture.xml:14290
msgid "Promises to Keep (Fisher)"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14193
+#: freeculture.xml:14229
msgid ""
"William Fisher, <citetitle>Digital Music: Problems and "
"Possibilities</citetitle> (last revised: 10 October 2000), available at "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14189
+#: freeculture.xml:14225
msgid ""
"The idea would be a modification of a proposal that has been floated by "
"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14241
+#: freeculture.xml:14277
msgid ""
"Fisher's proposal is careful and comprehensive. It raises a million "
"questions, most of which he answers well in his upcoming book, "
#. PAGE BREAK 307
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14257
+#: freeculture.xml:14293
msgid ""
"Fisher would balk at the idea of allowing the system to lapse. His aim is "
"not just to ensure that artists are paid, but also to ensure that the system "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14271
+#: freeculture.xml:14307
msgid ""
"No doubt it would be difficult to calculate the proper measure of \"harm\" "
"to an industry. But the difficulty of making that calculation would be "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14286
+#: freeculture.xml:14322
msgid ""
"This competition has already occurred against the background of \"free\" "
"music from p2p systems. As the sellers of cable television have known for "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14298
+#: freeculture.xml:14334
msgid ""
"This regime of competition, with a backstop to assure that artists don't "
"lose, would facilitate a great deal of innovation in the delivery of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14307
+#: freeculture.xml:14343
msgid "In summary, then, my proposal is this:"
msgstr ""
#. PAGE BREAK 308
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14312
+#: freeculture.xml:14348
msgid ""
"The Internet is in transition. We should not be regulating a technology in "
"transition. We should instead be regulating to minimize the harm to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14319
+#: freeculture.xml:14355
msgid "We can minimize that harm while maximizing the benefit to innovation by"
msgstr ""
#. 1.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14325
+#: freeculture.xml:14361
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""
#. 2.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14329
+#: freeculture.xml:14365
msgid ""
"permitting noncommercial type C sharing without liability, and commercial "
"type C sharing at a low and fixed rate set by statute;"
#. 3.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14335
+#: freeculture.xml:14371
msgid ""
"while in this transition, taxing and compensating for type A sharing, to the "
"extent actual harm is demonstrated."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14340
+#: freeculture.xml:14376
msgid ""
"But what if \"piracy\" doesn't disappear? What if there is a competitive "
"market providing content at a low cost, but a significant number of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14346
+#: freeculture.xml:14382
msgid ""
"Yes, it should. But, again, what it should do depends upon how the facts "
"develop. These changes may not eliminate type A sharing. But the real issue "
#. PAGE BREAK 309
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14360
+#: freeculture.xml:14396
msgid ""
"But we're a long way away from whittling the problem down to this subset of "
"type A sharers. And our focus until we're there should not be on finding "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:14371
+#: freeculture.xml:14407
msgid "5. Fire Lots of Lawyers"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14373
+#: freeculture.xml:14409
msgid ""
"I'm a lawyer. I make lawyers for a living. I believe in the law. I believe "
"in the law of copyright. Indeed, I have devoted my life to working in law, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14379
+#: freeculture.xml:14415
msgid ""
"Yet much of this book has been a criticism of lawyers, or the role lawyers "
"have played in this debate. The law speaks to ideals, but it is my view that "
#. f10.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14396
+#: freeculture.xml:14432
msgid ""
"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer "
"Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14387
+#: freeculture.xml:14423
msgid ""
"The evidence of this bending is compelling. I'm attacked as a \"radical\" by "
"many within the profession, yet the positions that I am advocating are "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14402
+#: freeculture.xml:14438
msgid ""
"However, my criticism of the role that lawyers have played in this debate is "
"not just about a professional bias. It is more importantly about our failure "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14412
+#: freeculture.xml:14448
msgid ""
"A good example is the work of Professor Stan Liebowitz. Liebowitz is to be "
"commended for his careful review of data about infringement, leading him to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14407
+#: freeculture.xml:14443
msgid ""
"Economists are supposed to be good at reckoning costs and benefits. But "
"more often than not, economists, with no clue about how the legal system "
#. PAGE BREAK 310
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14436
+#: freeculture.xml:14472
msgid ""
"But the legal system doesn't work. Or more accurately, it doesn't work for "
"anyone except those with the most resources. Not because the system is "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14444
+#: freeculture.xml:14480
msgid ""
"These costs distort free culture in many ways. A lawyer's time is billed at "
"the largest firms at more than $400 per hour. How much time should such a "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14454
+#: freeculture.xml:14490
msgid ""
"The costliness and clumsiness and randomness of this system mock our "
"tradition. And lawyers, as well as academics, should consider it their duty "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14462
+#: freeculture.xml:14498
msgid ""
"But until that reform is complete, we as a society should keep the law away "
"from areas that we know it will only harm. And that is precisely what the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14468
+#: freeculture.xml:14504
msgid ""
"Think about the amazing things your kid could do or make with digital "
"technology—the film, the music, the Web page, the blog. Or think about "
#. PAGE BREAK 311
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14477
+#: freeculture.xml:14513
msgid ""
"The law should regulate in certain areas of culture—but it should "
"regulate culture only where that regulation does good. Yet lawyers rarely "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14486
+#: freeculture.xml:14522
msgid ""
"We should ask, \"Why?\" Show me why your regulation of culture is "
"needed. Show me how it does good. And until you can show me both, keep your "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14495
+#: freeculture.xml:14531
msgid "NOTES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14497
+#: freeculture.xml:14533
msgid ""
"Throughout this text, there are references to links on the World Wide "
"Web. As anyone who has tried to use the Web knows, these links can be highly "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14512
+#: freeculture.xml:14548
msgid "ACKNOWLEDGMENTS"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14514
+#: freeculture.xml:14550
msgid ""
"This book is the product of a long and as yet unsuccessful struggle that "
"began when I read of Eric Eldred's war to keep books free. Eldred's work "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14521
+#: freeculture.xml:14557
msgid ""
"I received guidance in various places from friends and academics, including "
"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and "
#. PAGE BREAK 337
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14534
+#: freeculture.xml:14570
msgid ""
"Yuko Noguchi helped me to understand the laws of Japan as well as its "
"culture. I am thankful to her, and to the many in Japan who helped me "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14545
+#: freeculture.xml:14581
msgid ""
"These are the traditional sorts of help that academics regularly draw "
"upon. But in addition to them, the Internet has made it possible to receive "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14565
+#: freeculture.xml:14601
msgid ""
"Richard Stallman and Michael Carroll each read the whole book in draft, and "
"each provided extremely helpful correction and advice. Michael helped me to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14574
+#: freeculture.xml:14610
msgid ""
"Finally, and forever, I am thankful to Bettina, who has always insisted that "
"there would be unending happiness away from these battles, and who has "
projects / text-free-culture-lessig.git / commitdiff