+# SOME DESCRIPTIVE TITLE
+# Copyright (C) YEAR Free Software Foundation, Inc.
+# This file is distributed under the same license as the PACKAGE package.
+# FIRST AUTHOR <EMAIL@ADDRESS>, YEAR.
+#
+#, fuzzy
+msgid ""
+msgstr ""
+"Project-Id-Version: PACKAGE VERSION\n"
+"POT-Creation-Date: 2012-07-19 21:43+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"
+"Language: \n"
+"MIME-Version: 1.0\n"
+"Content-Type: text/plain; charset=UTF-8\n"
+"Content-Transfer-Encoding: 8bit\n"
+
+#. type: Content of the copy entity
+#: freeculture.xml:13
+msgid "©"
+msgstr ""
+
+#. type: Attribute 'lang' of: <book>
+#: freeculture.xml:19
+msgid "en"
+msgstr ""
+
+#. type: Content of: <book><bookinfo><title>
+#: freeculture.xml:21
+msgid "Free Culture"
+msgstr ""
+
+#. type: Content of: <book><bookinfo>
+#: freeculture.xml:23
+msgid "<abbrev>\"freeculture\"</abbrev>"
+msgstr ""
+
+#. type: Content of: <book><bookinfo><subtitle>
+#: freeculture.xml:25
+msgid "Version 2004-02-10"
+msgstr ""
+
+#. type: Content of: <book><bookinfo><authorgroup><author><firstname>
+#: freeculture.xml:29
+msgid "Lawrence"
+msgstr ""
+
+#. type: Content of: <book><bookinfo><authorgroup><author><surname>
+#: freeculture.xml:30
+msgid "Lessig"
+msgstr ""
+
+#. type: Content of: <book><bookinfo>
+#: freeculture.xml:34
+msgid ""
+"<copyright> <year>2004</year> <holder> Lawrence Lessig. This version of "
+"Free Culture is licensed under a Creative Commons license. This license "
+"permits non-commercial use of this work, so long as attribution is given. "
+"For more information about the license, click the icon above, or visit "
+"<ulink "
+"url=\"http://creativecommons.org/licenses/by-nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink> "
+"</holder> </copyright>"
+msgstr ""
+
+#. type: Content of: <book><bookinfo><abstract><title>
+#: freeculture.xml:49
+msgid "ABOUT THE AUTHOR"
+msgstr ""
+
+#. type: Content of: <book><bookinfo><abstract><para>
+#: freeculture.xml:51
+msgid ""
+"LAWRENCE LESSIG (<ulink "
+"url=\"http://www.lessig.org/\">http://www.lessig.org</ulink>), professor of "
+"law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law "
+"School, is founder of the Stanford Center for Internet and Society and is "
+"chairman of the Creative Commons (<ulink "
+"url=\"http://creativecommons.org/\">http://creativecommons.org</ulink>). "
+"The author of The Future of Ideas (Random House, 2001) and Code: And Other "
+"Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of "
+"the Public Library of Science, the Electronic Frontier Foundation, and "
+"Public Knowledge. He was the winner of the Free Software Foundation's Award "
+"for the Advancement of Free Software, twice listed in BusinessWeek's \"e.biz "
+"25,\" and named one of Scientific American's \"50 visionaries.\" A graduate "
+"of the University of Pennsylvania, Cambridge University, and Yale Law "
+"School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit "
+"Court of Appeals."
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:72
+msgid "Info"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:76
+msgid "You can buy a copy of this book by clicking on one of the links below:"
+msgstr ""
+
+#. type: Content of: <book><chapter><itemizedlist><listitem><para>
+#: freeculture.xml:79
+msgid "<ulink url=\"http://www.amazon.com/\">Amazon</ulink>"
+msgstr ""
+
+#. type: Content of: <book><chapter><itemizedlist><listitem><para>
+#: freeculture.xml:80
+msgid "<ulink url=\"http://www.barnesandnoble.com/\">B&N</ulink>"
+msgstr ""
+
+#. type: Content of: <book><chapter><itemizedlist><listitem><para>
+#: freeculture.xml:81
+msgid "<ulink url=\"http://www.penguin.com/\">Penguin</ulink>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:88
+msgid "ALSO BY LAWRENCE LESSIG"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:91
+msgid "The Future of Ideas: The Fate of the Commons in a Connected World"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:95
+msgid "Code: And Other Laws of Cyberspace"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:100 freeculture.xml:123
+msgid "THE PENGUIN PRESS"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:103
+msgid "NEW YORK"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:108
+msgid "FREE CULTURE"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:112
+msgid ""
+"HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL "
+"CREATIVITY"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:118
+msgid "LAWRENCE LESSIG"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:126
+msgid "a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New York"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:130
+msgid "Copyright © Lawrence Lessig,"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:133
+msgid "All rights reserved"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:136
+msgid ""
+"Excerpt from an editorial titled \"The Coming of Copyright Perpetuity,\" The "
+"New York Times, January 16, 2003. Copyright © 2003 by The New York "
+"Times Co. Reprinted with permission."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:141
+msgid "Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:144
+msgid "All rights reserved. Reprinted with permission."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:147
+msgid ""
+"Diagram on page 164 courtesy of the office of FCC Commissioner, Michael "
+"J. Copps."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:150
+msgid "Library of Congress Cataloging-in-Publication Data"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:153
+msgid ""
+"Lessig, Lawrence. Free culture : how big media uses technology and the law "
+"to lock down culture and control creativity / Lawrence Lessig."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:158
+msgid "p. cm."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:161
+msgid "Includes index."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:164
+msgid "ISBN 1-59420-006-8 (hardcover)"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:167
+msgid ""
+"1. Intellectual property—United States. 2. Mass media—United "
+"States."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:170
+msgid ""
+"3. Technological innovations—United States. 4. Art—United "
+"States. I. Title."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:173
+msgid "KF2979.L47"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:176
+msgid "343.7309'9—dc22"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:179
+msgid "This book is printed on acid-free paper."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:182
+msgid "Printed in the United States of America"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:185
+msgid "1 3 5 7 9 10 8 6 4"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:188
+msgid "Designed by Marysarah Quinn"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:192
+msgid "&translationblock;"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:196
+msgid ""
+"Without limiting the rights under copyright reserved above, no part of this "
+"publication may be reproduced, stored in or introduced into a retrieval "
+"system, or transmitted, in any form or by any means (electronic, mechanical, "
+"photocopying, recording or otherwise), without the prior written permission "
+"of both the copyright owner and the above publisher of this book. The "
+"scanning, uploading, and distribution of this book via the Internet or via "
+"any other means without the permission of the publisher is illegal and "
+"punishable by law. Please purchase only authorized electronic editions and "
+"do not participate in or encourage electronic piracy of copyrighted "
+"materials. Your support of the author's rights is appreciated."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:211
+msgid ""
+"To Eric Eldred—whose work first drew me to this cause, and for whom it "
+"continues still."
+msgstr ""
+
+#. type: Content of: <book><chapter><figure><title>
+#: freeculture.xml:216
+msgid "Creative Commons, Some rights reserved"
+msgstr ""
+
+#. type: Content of: <book><chapter><figure>
+#: freeculture.xml:217
+msgid "<graphic fileref=\"images/cc.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><lot><title>
+#: freeculture.xml:223
+msgid "List of figures"
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:286
+msgid "PREFACE"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:288
+msgid ""
+"At the end of his review of my first book, Code: And Other Laws of "
+"Cyberspace, David Pogue, a brilliant writer and author of countless "
+"technical and computer-related texts, wrote this:"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:298
+msgid ""
+"David Pogue, \"Don't Just Chat, Do Something,\" New York Times, 30 January "
+"2000."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:294
+msgid ""
+"Unlike actual law, Internet software has no capacity to punish. It doesn't "
+"affect people who aren't online (and only a tiny minority of the world "
+"population is). And if you don't like the Internet's system, you can always "
+"flip off the modem.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:303
+msgid ""
+"Pogue was skeptical of the core argument of the book—that software, or "
+"\"code,\" functioned as a kind of law—and his review suggested the "
+"happy thought that if life in cyberspace got bad, we could always \"drizzle, "
+"drazzle, druzzle, drome\"-like simply flip a switch and be back home. Turn "
+"off the modem, unplug the computer, and any troubles that exist in that "
+"space wouldn't \"affect\" us anymore."
+msgstr ""
+
+#. PAGE BREAK 12
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:311
+msgid ""
+"Pogue might have been right in 1999—I'm skeptical, but maybe. But "
+"even if he was right then, the point is not right now: Free Culture is about "
+"the troubles the Internet causes even after the modem is turned off. It is "
+"an argument about how the battles that now rage regarding life on-line have "
+"fundamentally affected \"people who aren't online.\" There is no switch that "
+"will insulate us from the Internet's effect."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:320
+msgid ""
+"But unlike Code, the argument here is not much about the Internet itself. It "
+"is instead about the consequence of the Internet to a part of our tradition "
+"that is much more fundamental, and, as hard as this is for a geek-wanna-be "
+"to admit, much more important."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:331
+msgid ""
+"Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, "
+"ed. 2002)."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:326
+msgid ""
+"That tradition is the way our culture gets made. As I explain in the pages "
+"that follow, we come from a tradition of \"free culture\"—not \"free\" "
+"as in \"free beer\" (to borrow a phrase from the founder of the free "
+"software movement<placeholder type=\"footnote\" id=\"0\"/>), but \"free\" as "
+"in \"free speech,\" \"free markets,\" \"free trade,\" \"free enterprise,\" "
+"\"free will,\" and \"free elections.\" A free culture supports and protects "
+"creators and innovators. It does this directly by granting intellectual "
+"property rights. But it does so indirectly by limiting the reach of those "
+"rights, to guarantee that follow-on creators and innovators remain as free "
+"as possible from the control of the past. A free culture is not a culture "
+"without property, just as a free market is not a market in which everything "
+"is free. The opposite of a free culture is a \"permission culture\"—a "
+"culture in which creators get to create only with the permission of the "
+"powerful, or of creators from the past."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:345
+msgid ""
+"If we understood this change, I believe we would resist it. Not \"we\" on "
+"the Left or \"you\" on the Right, but we who have no stake in the particular "
+"industries of culture that defined the twentieth century. Whether you are "
+"on the Left or the Right, if you are in this sense disinterested, then the "
+"story I tell here will trouble you. For the changes I describe affect values "
+"that both sides of our political culture deem fundamental."
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:353 freeculture.xml:12745
+msgid "CodePink Women in Peace"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:355
+msgid ""
+"We saw a glimpse of this bipartisan outrage in the early summer of 2003. As "
+"the FCC considered changes in media ownership rules that would relax limits "
+"on media concentration, an extraordinary coalition generated more than "
+"700,000 letters to the FCC opposing the change. As William Safire described "
+"marching \"uncomfortably alongside CodePink Women for Peace and the National "
+"Rifle Association, between liberal Olympia Snowe and conservative Ted "
+"Stevens,\" he formulated perhaps most simply just what was at stake: the "
+"concentration of power. And as he asked,"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:371
+msgid "William Safire, \"The Great Media Gulp,\" New York Times, 22 May 2003."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:367
+msgid ""
+"Does that sound unconservative? Not to me. The concentration of "
+"power—political, corporate, media, cultural—should be anathema "
+"to conservatives. The diffusion of power through local control, thereby "
+"encouraging individual participation, is the essence of federalism and the "
+"greatest expression of democracy.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:377
+msgid ""
+"This idea is an element of the argument of Free Culture, though my focus is "
+"not just on the concentration of power produced by concentrations in "
+"ownership, but more importantly, if because less visibly, on the "
+"concentration of power produced by a radical change in the effective scope "
+"of the law. The law is changing; that change is altering the way our culture "
+"gets made; that change should worry you—whether or not you care about "
+"the Internet, and whether you're on Safire's left or on his right. The "
+"inspiration for the title and for much of the argument of this book comes "
+"from the work of Richard Stallman and the Free Software Foundation. Indeed, "
+"as I reread Stallman's own work, especially the essays in Free Software, "
+"Free Society, I realize that all of the theoretical insights I develop here "
+"are insights Stallman described decades ago. One could thus well argue that "
+"this work is \"merely\" derivative."
+msgstr ""
+
+#. PAGE BREAK 14
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:393
+msgid ""
+"I accept that criticism, if indeed it is a criticism. The work of a lawyer "
+"is always derivative, and I mean to do nothing more in this book than to "
+"remind a culture about a tradition that has always been its own. Like "
+"Stallman, I defend that tradition on the basis of values. Like Stallman, I "
+"believe those are the values of freedom. And like Stallman, I believe those "
+"are values of our past that will need to be defended in our future. A free "
+"culture has been our past, but it will only be our future if we change the "
+"path we are on right now. Like Stallman's arguments for free software, an "
+"argument for free culture stumbles on a confusion that is hard to avoid, and "
+"even harder to understand. A free culture is not a culture without property; "
+"it is not a culture in which artists don't get paid. A culture without "
+"property, or in which creators can't get paid, is anarchy, not "
+"freedom. Anarchy is not what I advance here."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:411
+msgid ""
+"Instead, the free culture that I defend in this book is a balance between "
+"anarchy and control. A free culture, like a free market, is filled with "
+"property. It is filled with rules of property and contract that get enforced "
+"by the state. But just as a free market is perverted if its property becomes "
+"feudal, so too can a free culture be queered by extremism in the property "
+"rights that define it. That is what I fear about our culture today. It is "
+"against that extremism that this book is written."
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:426
+msgid "INTRODUCTION"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:428
+msgid ""
+"On December 17, 1903, on a windy North Carolina beach for just shy of one "
+"hundred seconds, the Wright brothers demonstrated that a heavier-than-air, "
+"self-propelled vehicle could fly. The moment was electric and its importance "
+"widely understood. Almost immediately, there was an explosion of interest in "
+"this newfound technology of manned flight, and a gaggle of innovators began "
+"to build upon it."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:440
+msgid ""
+"St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: "
+"Rothman Reprints, 1969), 18."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:436
+msgid ""
+"At the time the Wright brothers invented the airplane, American law held "
+"that a property owner presumptively owned not just the surface of his land, "
+"but all the land below, down to the center of the earth, and all the space "
+"above, to \"an indefinite extent, upwards.\"<placeholder type=\"footnote\" "
+"id=\"0\"/> For many years, scholars had puzzled about how best to interpret "
+"the idea that rights in land ran to the heavens. Did that mean that you "
+"owned the stars? Could you prosecute geese for their willful and regular "
+"trespass?"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:449
+msgid ""
+"Then came airplanes, and for the first time, this principle of American "
+"law—deep within the foundations of our tradition, and acknowledged by "
+"the most important legal thinkers of our past—mattered. If my land "
+"reaches to the heavens, what happens when United flies over my field? Do I "
+"have the right to banish it from my property? Am I allowed to enter into an "
+"exclusive license with Delta Airlines? Could we set up an auction to decide "
+"how much these rights are worth?"
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:457 freeculture.xml:470 freeculture.xml:501 freeculture.xml:520 freeculture.xml:920 freeculture.xml:937 freeculture.xml:987 freeculture.xml:8769 freeculture.xml:12143 freeculture.xml:12847
+msgid "Causby, Thomas Lee"
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:458 freeculture.xml:471 freeculture.xml:502 freeculture.xml:521 freeculture.xml:921 freeculture.xml:938 freeculture.xml:988 freeculture.xml:8770 freeculture.xml:12144 freeculture.xml:12848
+msgid "Causby, Tinie"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:460
+msgid ""
+"In 1945, these questions became a federal case. When North Carolina farmers "
+"Thomas Lee and Tinie Causby started losing chickens because of low-flying "
+"military aircraft (the terrified chickens apparently flew into the barn "
+"walls and died), the Causbys filed a lawsuit saying that the government was "
+"trespassing on their land. The airplanes, of course, never touched the "
+"surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had "
+"said, their land reached to \"an indefinite extent, upwards,\" then the "
+"government was trespassing on their property, and the Causbys wanted it to "
+"stop."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:473
+msgid ""
+"The Supreme Court agreed to hear the Causbys' case. Congress had declared "
+"the airways public, but if one's property really extended to the heavens, "
+"then Congress's declaration could well have been an unconstitutional "
+"\"taking\" of property without compensation. The Court acknowledged that "
+"\"it is ancient doctrine that common law ownership of the land extended to "
+"the periphery of the universe.\" But Justice Douglas had no patience for "
+"ancient doctrine. In a single paragraph, hundreds of years of property law "
+"were erased. As he wrote for the Court,"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:493
+msgid ""
+"United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that "
+"there could be a \"taking\" if the government's use of its land effectively "
+"destroyed the value of the Causbys' land. This example was suggested to me "
+"by Keith Aoki's wonderful piece, \"(Intellectual) Property and Sovereignty: "
+"Notes Toward a Cultural Geography of Authorship,\" Stanford Law Review 48 "
+"(1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: "
+"Foundation Press, 1984), 1112–13. <placeholder type=\"indexterm\" "
+"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:484
+msgid ""
+"[The] doctrine has no place in the modern world. The air is a public "
+"highway, as Congress has declared. Were that not true, every "
+"transcontinental flight would subject the operator to countless trespass "
+"suits. Common sense revolts at the idea. To recognize such private claims to "
+"the airspace would clog these highways, seriously interfere with their "
+"control and development in the public interest, and transfer into private "
+"ownership that to which only the public has a just claim.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:507
+msgid "\"Common sense revolts at the idea.\""
+msgstr ""
+
+#. PAGE BREAK 18
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:510
+msgid ""
+"This is how the law usually works. Not often this abruptly or impatiently, "
+"but eventually, this is how it works. It was Douglas's style not to "
+"dither. Other justices would have blathered on for pages to reach the "
+"conclusion that Douglas holds in a single line: \"Common sense revolts at "
+"the idea.\" But whether it takes pages or a few words, it is the special "
+"genius of a common law system, as ours is, that the law adjusts to the "
+"technologies of the time. And as it adjusts, it changes. Ideas that were as "
+"solid as rock in one age crumble in another."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:523
+msgid ""
+"Or at least, this is how things happen when there's no one powerful on the "
+"other side of the change. The Causbys were just farmers. And though there "
+"were no doubt many like them who were upset by the growing traffic in the "
+"air (though one hopes not many chickens flew themselves into walls), the "
+"Causbys of the world would find it very hard to unite and stop the idea, and "
+"the technology, that the Wright brothers had birthed. The Wright brothers "
+"spat airplanes into the technological meme pool; the idea then spread like a "
+"virus in a chicken coop; farmers like the Causbys found themselves "
+"surrounded by \"what seemed reasonable\" given the technology that the "
+"Wrights had produced. They could stand on their farms, dead chickens in "
+"hand, and shake their fists at these newfangled technologies all they "
+"wanted. They could call their representatives or even file a lawsuit. But "
+"in the end, the force of what seems \"obvious\" to everyone else—the "
+"power of \"common sense\"—would prevail. Their \"private interest\" "
+"would not be allowed to defeat an obvious public gain."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><indexterm><primary>
+#: freeculture.xml:552
+msgid "Faraday, Michael"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:541
+msgid ""
+"Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He "
+"came to the great American inventor scene just after the titans Thomas "
+"Edison and Alexander Graham Bell. But his work in the area of radio "
+"technology was perhaps the most important of any single inventor in the "
+"first fifty years of radio. He was better educated than Michael Faraday, who "
+"as a bookbinder's apprentice had discovered electric induction in 1831. But "
+"he had the same intuition about how the world of radio worked, and on at "
+"least three occasions, Armstrong invented profoundly important technologies "
+"that advanced our understanding of radio. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:555
+msgid ""
+"On the day after Christmas, 1933, four patents were issued to Armstrong for "
+"his most significant invention—FM radio. Until then, consumer radio "
+"had been amplitude-modulated (AM) radio. The theorists of the day had said "
+"that frequency-modulated (FM) radio could never work. They were right about "
+"FM radio in a narrow band of spectrum. But Armstrong discovered that "
+"frequency-modulated radio in a wide band of spectrum would deliver an "
+"astonishing fidelity of sound, with much less transmitter power and static."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:565
+msgid ""
+"On November 5, 1935, he demonstrated the technology at a meeting of the "
+"Institute of Radio Engineers at the Empire State Building in New York "
+"City. He tuned his radio dial across a range of AM stations, until the radio "
+"locked on a broadcast that he had arranged from seventeen miles away. The "
+"radio fell totally silent, as if dead, and then with a clarity no one else "
+"in that room had ever heard from an electrical device, it produced the sound "
+"of an announcer's voice: \"This is amateur station W2AG at Yonkers, New "
+"York, operating on frequency modulation at two and a half meters.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:576
+msgid "The audience was hearing something no one had thought possible:"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:587
+msgid ""
+"Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong "
+"(Philadelphia: J. B. Lipincott Company, 1956), 209."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:580
+msgid ""
+"A glass of water was poured before the microphone in Yonkers; it sounded "
+"like a glass of water being poured. . . . A paper was crumpled and torn; it "
+"sounded like paper and not like a crackling forest fire. . . . Sousa marches "
+"were played from records and a piano solo and guitar number were "
+"performed. . . . The music was projected with a live-ness rarely if ever "
+"heard before from a radio \"music box.\"<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 20
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:593
+msgid ""
+"As our own common sense tells us, Armstrong had discovered a vastly superior "
+"radio technology. But at the time of his invention, Armstrong was working "
+"for RCA. RCA was the dominant player in the then dominant AM radio "
+"market. By 1935, there were a thousand radio stations across the United "
+"States, but the stations in large cities were all owned by a handful of "
+"networks."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:602
+msgid ""
+"RCA's president, David Sarnoff, a friend of Armstrong's, was eager that "
+"Armstrong discover a way to remove static from AM radio. So Sarnoff was "
+"quite excited when Armstrong told him he had a device that removed static "
+"from \"radio.\" But when Armstrong demonstrated his invention, Sarnoff was "
+"not pleased."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:613
+msgid ""
+"See \"Saints: The Heroes and Geniuses of the Electronic Era,\" First "
+"Electronic Church of America, at www.webstationone.com/fecha, available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #1</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:610
+msgid ""
+"I thought Armstrong would invent some kind of a filter to remove static from "
+"our AM radio. I didn't think he'd start a revolution— start up a whole "
+"damn new industry to compete with RCA.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:622
+msgid ""
+"Armstrong's invention threatened RCA's AM empire, so the company launched a "
+"campaign to smother FM radio. While FM may have been a superior technology, "
+"Sarnoff was a superior tactician. As one author described,"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:634
+msgid "Lessing, 226."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:629
+msgid ""
+"The forces for FM, largely engineering, could not overcome the weight of "
+"strategy devised by the sales, patent, and legal offices to subdue this "
+"threat to corporate position. For FM, if allowed to develop unrestrained, "
+"posed . . . a complete reordering of radio power . . . and the eventual "
+"overthrow of the carefully restricted AM system on which RCA had grown to "
+"power.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:639
+msgid ""
+"RCA at first kept the technology in house, insisting that further tests were "
+"needed. When, after two years of testing, Armstrong grew impatient, RCA "
+"began to use its power with the government to stall FM radio's deployment "
+"generally. In 1936, RCA hired the former head of the FCC and assigned him "
+"the task of assuring that the FCC assign spectrum in a way that would "
+"castrate FM—principally by moving FM radio to a different band of "
+"spectrum. At first, these efforts failed. But when Armstrong and the nation "
+"were distracted by World War II, RCA's work began to be more "
+"successful. Soon after the war ended, the FCC announced a set of policies "
+"that would have one clear effect: FM radio would be crippled. As Lawrence "
+"Lessing described it,"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:658
+msgid "Lessing, 256."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:654
+msgid ""
+"The series of body blows that FM radio received right after the war, in a "
+"series of rulings manipulated through the FCC by the big radio interests, "
+"were almost incredible in their force and deviousness.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:662
+msgid "AT&T"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:664
+msgid ""
+"To make room in the spectrum for RCA's latest gamble, television, FM radio "
+"users were to be moved to a totally new spectrum band. The power of FM radio "
+"stations was also cut, meaning FM could no longer be used to beam programs "
+"from one part of the country to another. (This change was strongly "
+"supported by AT&T, because the loss of FM relaying stations would mean "
+"radio stations would have to buy wired links from AT&T.) The spread of "
+"FM radio was thus choked, at least temporarily."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:674
+msgid ""
+"Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's "
+"patents. After incorporating FM technology into the emerging standard for "
+"television, RCA declared the patents invalid—baselessly, and almost "
+"fifteen years after they were issued. It thus refused to pay him "
+"royalties. For six years, Armstrong fought an expensive war of litigation to "
+"defend the patents. Finally, just as the patents expired, RCA offered a "
+"settlement so low that it would not even cover Armstrong's lawyers' "
+"fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note "
+"to his wife and then stepped out of a thirteenth-story window to his death."
+msgstr ""
+
+#. PAGE BREAK 22
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:686
+msgid ""
+"This is how the law sometimes works. Not often this tragically, and rarely "
+"with heroic drama, but sometimes, this is how it works. From the beginning, "
+"government and government agencies have been subject to capture. They are "
+"more likely captured when a powerful interest is threatened by either a "
+"legal or technical change. That powerful interest too often exerts its "
+"influence within the government to get the government to protect it. The "
+"rhetoric of this protection is of course always public spirited; the reality "
+"is something different. Ideas that were as solid as rock in one age, but "
+"that, left to themselves, would crumble in another, are sustained through "
+"this subtle corruption of our political process. RCA had what the Causbys "
+"did not: the power to stifle the effect of technological change."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:708
+msgid ""
+"Amanda Lenhart, \"The Ever-Shifting Internet Population: A New Look at "
+"Internet Access and the Digital Divide,\" Pew Internet and American Life "
+"Project, 15 April 2003: 6, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #2</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:702
+msgid ""
+"There's no single inventor of the Internet. Nor is there any good date upon "
+"which to mark its birth. Yet in a very short time, the Internet has become "
+"part of ordinary American life. According to the Pew Internet and American "
+"Life Project, 58 percent of Americans had access to the Internet in 2002, up "
+"from 49 percent two years before.<placeholder type=\"footnote\" id=\"0\"/> "
+"That number could well exceed two thirds of the nation by the end of 2004."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:717
+msgid ""
+"As the Internet has been integrated into ordinary life, it has changed "
+"things. Some of these changes are technical—the Internet has made "
+"communication faster, it has lowered the cost of gathering data, and so "
+"on. These technical changes are not the focus of this book. They are "
+"important. They are not well understood. But they are the sort of thing that "
+"would simply go away if we all just switched the Internet off. They don't "
+"affect people who don't use the Internet, or at least they don't affect them "
+"directly. They are the proper subject of a book about the Internet. But this "
+"is not a book about the Internet."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:728
+msgid ""
+"Instead, this book is about an effect of the Internet beyond the Internet "
+"itself: an effect upon how culture is made. My claim is that the Internet "
+"has induced an important and unrecognized change in that process. That "
+"change will radically transform a tradition that is as old as the Republic "
+"itself. Most, if they recognized this change, would reject it. Yet most "
+"don't even see the change that the Internet has introduced."
+msgstr ""
+
+#. PAGE BREAK 23
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:737
+msgid ""
+"We can glimpse a sense of this change by distinguishing between commercial "
+"and noncommercial culture, and by mapping the law's regulation of each. By "
+"\"commercial culture\" I mean that part of our culture that is produced and "
+"sold or produced to be sold. By \"noncommercial culture\" I mean all the "
+"rest. When old men sat around parks or on street corners telling stories "
+"that kids and others consumed, that was noncommercial culture. When Noah "
+"Webster published his \"Reader,\" or Joel Barlow his poetry, that was "
+"commercial culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:749
+msgid ""
+"At the beginning of our history, and for just about the whole of our "
+"tradition, noncommercial culture was essentially unregulated. Of course, if "
+"your stories were lewd, or if your song disturbed the peace, then the law "
+"might intervene. But the law was never directly concerned with the creation "
+"or spread of this form of culture, and it left this culture \"free.\" The "
+"ordinary ways in which ordinary individuals shared and transformed their "
+"culture—telling stories, reenacting scenes from plays or TV, "
+"participating in fan clubs, sharing music, making tapes—were left "
+"alone by the law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
+#: freeculture.xml:774 freeculture.xml:1786 freeculture.xml:1797
+msgid "Brandeis, Louis D."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:766
+msgid ""
+"This is not the only purpose of copyright, though it is the overwhelmingly "
+"primary purpose of the copyright established in the federal constitution. "
+"State copyright law historically protected not just the commercial interest "
+"in publication, but also a privacy interest. By granting authors the "
+"exclusive right to first publication, state copyright law gave authors the "
+"power to control the spread of facts about them. See Samuel D. Warren and "
+"Louis D. Brandeis, \"The Right to Privacy,\" Harvard Law Review 4 (1890): "
+"193, 198–200. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:760
+msgid ""
+"The focus of the law was on commercial creativity. At first slightly, then "
+"quite extensively, the law protected the incentives of creators by granting "
+"them exclusive rights to their creative work, so that they could sell those "
+"exclusive rights in a commercial marketplace.<placeholder type=\"footnote\" "
+"id=\"0\"/> This is also, of course, an important part of creativity and "
+"culture, and it has become an increasingly important part in America. But in "
+"no sense was it dominant within our tradition. It was instead just one part, "
+"a controlled part, balanced with the free."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:784
+msgid ""
+"See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), "
+"ch. 13."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:782
+msgid ""
+"This rough divide between the free and the controlled has now been "
+"erased.<placeholder type=\"footnote\" id=\"0\"/> The Internet has set the "
+"stage for this erasure and, pushed by big media, the law has now affected "
+"it. For the first time in our tradition, the ordinary ways in which "
+"individuals create and share culture fall within the reach of the regulation "
+"of the law, which has expanded to draw within its control a vast amount of "
+"culture and creativity that it never reached before. The technology that "
+"preserved the balance of our history—between uses of our culture that "
+"were free and uses of our culture that were only upon permission—has "
+"been undone. The consequence is that we are less and less a free culture, "
+"more and more a permission culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:800
+msgid ""
+"This change gets justified as necessary to protect commercial creativity. "
+"And indeed, protectionism is precisely its motivation. But the protectionism "
+"that justifies the changes that I will describe below is not the limited and "
+"balanced sort that has defined the law in the past. This is not a "
+"protectionism to protect artists. It is instead a protectionism to protect "
+"certain forms of business. Corporations threatened by the potential of the "
+"Internet to change the way both commercial and noncommercial culture are "
+"made and shared have united to induce lawmakers to use the law to protect "
+"them. It is the story of RCA and Armstrong; it is the dream of the Causbys."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:813
+msgid ""
+"For the Internet has unleashed an extraordinary possibility for many to "
+"participate in the process of building and cultivating a culture that "
+"reaches far beyond local boundaries. That power has changed the marketplace "
+"for making and cultivating culture generally, and that change in turn "
+"threatens established content industries. The Internet is thus to the "
+"industries that built and distributed content in the twentieth century what "
+"FM radio was to AM radio, or what the truck was to the railroad industry of "
+"the nineteenth century: the beginning of the end, or at least a substantial "
+"transformation. Digital technologies, tied to the Internet, could produce a "
+"vastly more competitive and vibrant market for building and cultivating "
+"culture; that market could include a much wider and more diverse range of "
+"creators; those creators could produce and distribute a much more vibrant "
+"range of creativity; and depending upon a few important factors, those "
+"creators could earn more on average from this system than creators do "
+"today—all so long as the RCAs of our day don't use the law to protect "
+"themselves against this competition."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:832
+msgid ""
+"Yet, as I argue in the pages that follow, that is precisely what is "
+"happening in our culture today. These modern-day equivalents of the early "
+"twentieth-century radio or nineteenth-century railroads are using their "
+"power to get the law to protect them against this new, more efficient, more "
+"vibrant technology for building culture. They are succeeding in their plan "
+"to remake the Internet before the Internet remakes them."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:849
+msgid ""
+"Amy Harmon, \"Black Hawk Download: Moving Beyond Music, Pirates Use New "
+"Tools to Turn the Net into an Illicit Video Club,\" New York Times, 17 "
+"January 2002."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:841
+msgid ""
+"It doesn't seem this way to many. The battles over copyright and the "
+"Internet seem remote to most. To the few who follow them, they seem mainly "
+"about a much simpler brace of questions—whether \"piracy\" will be "
+"permitted, and whether \"property\" will be protected. The \"war\" that has "
+"been waged against the technologies of the Internet—what Motion "
+"Picture Association of America (MPAA) president Jack Valenti calls his \"own "
+"terrorist war\"<placeholder type=\"footnote\" id=\"0\"/>—has been "
+"framed as a battle about the rule of law and respect for property. To know "
+"which side to take in this war, most think that we need only decide whether "
+"we're for property or against it."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:858
+msgid ""
+"If those really were the choices, then I would be with Jack Valenti and the "
+"content industry. I, too, am a believer in property, and especially in the "
+"importance of what Mr. Valenti nicely calls \"creative property.\" I believe "
+"that \"piracy\" is wrong, and that the law, properly tuned, should punish "
+"\"piracy,\" whether on or off the Internet."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:866
+msgid ""
+"But those simple beliefs mask a much more fundamental question and a much "
+"more dramatic change. My fear is that unless we come to see this change, the "
+"war to rid the world of Internet \"pirates\" will also rid our culture of "
+"values that have been integral to our tradition from the start."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:880 freeculture.xml:14083
+msgid "Netanel, Neil Weinstock"
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:878
+msgid ""
+"Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" Yale Law "
+"Journal 106 (1996): 283. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:872
+msgid ""
+"These values built a tradition that, for at least the first 180 years of our "
+"Republic, guaranteed creators the right to build freely upon their past, and "
+"protected creators and innovators from either state or private control. The "
+"First Amendment protected creators against state control. And as Professor "
+"Neil Netanel powerfully argues,<placeholder type=\"footnote\" id=\"0\"/> "
+"copyright law, properly balanced, protected creators against private "
+"control. Our tradition was thus neither Soviet nor the tradition of "
+"patrons. It instead carved out a wide berth within which creators could "
+"cultivate and extend our culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:888
+msgid ""
+"Yet the law's response to the Internet, when tied to changes in the "
+"technology of the Internet itself, has massively increased the effective "
+"regulation of creativity in America. To build upon or critique the culture "
+"around us one must ask, Oliver Twist–like, for permission first. "
+"Permission is, of course, often granted—but it is not often granted to "
+"the critical or the independent. We have built a kind of cultural nobility; "
+"those within the noble class live easily; those outside it don't. But it is "
+"nobility of any form that is alien to our tradition."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:900
+msgid ""
+"The story that follows is about this war. Is it not about the \"centrality "
+"of technology\" to ordinary life. I don't believe in gods, digital or "
+"otherwise. Nor is it an effort to demonize any individual or group, for "
+"neither do I believe in a devil, corporate or otherwise. It is not a "
+"morality tale. Nor is it a call to jihad against an industry."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:909
+msgid ""
+"It is instead an effort to understand a hopelessly destructive war inspired "
+"by the technologies of the Internet but reaching far beyond its code. And by "
+"understanding this battle, it is an effort to map peace. There is no good "
+"reason for the current struggle around Internet technologies to "
+"continue. There will be great harm to our tradition and culture if it is "
+"allowed to continue unchecked. We must come to understand the source of this "
+"war. We must resolve it soon."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:923
+msgid ""
+"Like the Causbys' battle, this war is, in part, about \"property.\" The "
+"property of this war is not as tangible as the Causbys', and no innocent "
+"chicken has yet to lose its life. Yet the ideas surrounding this "
+"\"property\" are as obvious to most as the Causbys' claim about the "
+"sacredness of their farm was to them. We are the Causbys. Most of us take "
+"for granted the extraordinarily powerful claims that the owners of "
+"\"intellectual property\" now assert. Most of us, like the Causbys, treat "
+"these claims as obvious. And hence we, like the Causbys, object when a new "
+"technology interferes with this property. It is as plain to us as it was to "
+"them that the new technologies of the Internet are \"trespassing\" upon "
+"legitimate claims of \"property.\" It is as plain to us as it was to them "
+"that the law should intervene to stop this trespass."
+msgstr ""
+
+#. PAGE BREAK 27
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:940
+msgid ""
+"And thus, when geeks and technologists defend their Armstrong or Wright "
+"brothers technology, most of us are simply unsympathetic. Common sense does "
+"not revolt. Unlike in the case of the unlucky Causbys, common sense is on "
+"the side of the property owners in this war. Unlike the lucky Wright "
+"brothers, the Internet has not inspired a revolution on its side."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:950
+msgid ""
+"My hope is to push this common sense along. I have become increasingly "
+"amazed by the power of this idea of intellectual property and, more "
+"importantly, its power to disable critical thought by policy makers and "
+"citizens. There has never been a time in our history when more of our "
+"\"culture\" was as \"owned\" as it is now. And yet there has never been a "
+"time when the concentration of power to control the uses of culture has been "
+"as unquestioningly accepted as it is now."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:960
+msgid ""
+"The puzzle is, Why? Is it because we have come to understand a truth about "
+"the value and importance of absolute property over ideas and culture? Is it "
+"because we have discovered that our tradition of rejecting such an absolute "
+"claim was wrong?"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:969
+msgid ""
+"Or is it because the idea of absolute property over ideas and culture "
+"benefits the RCAs of our time and fits our own unreflective intuitions?"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:973
+msgid ""
+"Is the radical shift away from our tradition of free culture an instance of "
+"America correcting a mistake from its past, as we did after a bloody war "
+"with slavery, and as we are slowly doing with inequality? Or is the radical "
+"shift away from our tradition of free culture yet another example of a "
+"political system captured by a few powerful special interests?"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:980
+msgid ""
+"Does common sense lead to the extremes on this question because common sense "
+"actually believes in these extremes? Or does common sense stand silent in "
+"the face of these extremes because, as with Armstrong versus RCA, the more "
+"powerful side has ensured that it has the more powerful view?"
+msgstr ""
+
+#. PAGE BREAK 28
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:990
+msgid ""
+"I don't mean to be mysterious. My own views are resolved. I believe it was "
+"right for common sense to revolt against the extremism of the Causbys. I "
+"believe it would be right for common sense to revolt against the extreme "
+"claims made today on behalf of \"intellectual property.\" What the law "
+"demands today is increasingly as silly as a sheriff arresting an airplane "
+"for trespass. But the consequences of this silliness will be much more "
+"profound."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1000
+msgid ""
+"The struggle that rages just now centers on two ideas: \"piracy\" and "
+"\"property.\" My aim in this book's next two parts is to explore these two "
+"ideas."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1005
+msgid ""
+"My method is not the usual method of an academic. I don't want to plunge you "
+"into a complex argument, buttressed with references to obscure French "
+"theorists—however natural that is for the weird sort we academics have "
+"become. Instead I begin in each part with a collection of stories that set a "
+"context within which these apparently simple ideas can be more fully "
+"understood."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1014
+msgid ""
+"The two sections set up the core claim of this book: that while the Internet "
+"has indeed produced something fantastic and new, our government, pushed by "
+"big media to respond to this \"something new,\" is destroying something very "
+"old. Rather than understanding the changes the Internet might permit, and "
+"rather than taking time to let \"common sense\" resolve how best to respond, "
+"we are allowing those most threatened by the changes to use their power to "
+"change the law—and more importantly, to use their power to change "
+"something fundamental about who we have always been."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1027
+msgid ""
+"We allow this, I believe, not because it is right, and not because most of "
+"us really believe in these changes. We allow it because the interests most "
+"threatened are among the most powerful players in our depressingly "
+"compromised process of making law. This book is the story of one more "
+"consequence of this form of corruption—a consequence to which most of "
+"us remain oblivious."
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:1037
+msgid "\"PIRACY\""
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1041
+msgid ""
+"Since the inception of the law regulating creative property, there has been "
+"a war against \"piracy.\" The precise contours of this concept, \"piracy,\" "
+"are hard to sketch, but the animating injustice is easy to capture. As Lord "
+"Mansfield wrote in a case that extended the reach of English copyright law "
+"to include sheet music,"
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><blockquote><para><footnote><para>
+#: freeculture.xml:1054
+msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield)."
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:1050
+msgid ""
+"A person may use the copy by playing it, but he has no right to rob the "
+"author of the profit, by multiplying copies and disposing of them for his "
+"own use.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 31
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1059
+msgid ""
+"Today we are in the middle of another \"war\" against \"piracy.\" The "
+"Internet has provoked this war. The Internet makes possible the efficient "
+"spread of content. Peer-to-peer (p2p) file sharing is among the most "
+"efficient of the efficient technologies the Internet enables. Using "
+"distributed intelligence, p2p systems facilitate the easy spread of content "
+"in a way unimagined a generation ago."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1070
+msgid ""
+"This efficiency does not respect the traditional lines of copyright. The "
+"network doesn't discriminate between the sharing of copyrighted and "
+"uncopyrighted content. Thus has there been a vast amount of sharing of "
+"copyrighted content. That sharing in turn has excited the war, as copyright "
+"owners fear the sharing will \"rob the author of the profit.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1078
+msgid ""
+"The warriors have turned to the courts, to the legislatures, and "
+"increasingly to technology to defend their \"property\" against this "
+"\"piracy.\" A generation of Americans, the warriors warn, is being raised to "
+"believe that \"property\" should be \"free.\" Forget tattoos, never mind "
+"body piercing—our kids are becoming thieves!"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1087
+msgid ""
+"There's no doubt that \"piracy\" is wrong, and that pirates should be "
+"punished. But before we summon the executioners, we should put this notion "
+"of \"piracy\" in some context. For as the concept is increasingly used, at "
+"its core is an extraordinary idea that is almost certainly wrong."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1093
+msgid "The idea goes something like this:"
+msgstr ""
+
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:1097
+msgid ""
+"Creative work has value; whenever I use, or take, or build upon the creative "
+"work of others, I am taking from them something of value. Whenever I take "
+"something of value from someone else, I should have their permission. The "
+"taking of something of value from someone else without permission is "
+"wrong. It is a form of piracy."
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:1105
+msgid "Dreyfuss, Rochelle"
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:1111
+msgid ""
+"See Rochelle Dreyfuss, \"Expressive Genericity: Trademarks as Language in "
+"the Pepsi Generation,\" Notre Dame Law Review 65 (1990): 397."
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:1119
+msgid ""
+"Lisa Bannon, \"The Birds May Sing, but Campers Can't Unless They Pay Up,\" "
+"Wall Street Journal, 21 August 1996, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #3</ulink>; Jonathan Zittrain, "
+"\"Calling Off the Copyright War: In Battle of Property vs. Free Speech, No "
+"One Wins,\" Boston Globe, 24 November 2002."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1107
+msgid ""
+"This view runs deep within the current debates. It is what NYU law professor "
+"Rochelle Dreyfuss criticizes as the \"if value, then right\" theory of "
+"creative property<placeholder type=\"footnote\" id=\"0\"/> —if there "
+"is value, then someone must have a right to that value. It is the "
+"perspective that led a composers' rights organization, ASCAP, to sue the "
+"Girl Scouts for failing to pay for the songs that girls sang around Girl "
+"Scout campfires.<placeholder type=\"footnote\" id=\"1\"/> There was "
+"\"value\" (the songs) so there must have been a \"right\"—even against "
+"the Girl Scouts."
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:1128
+msgid "ASCAP"
+msgstr ""
+
+#. PAGE BREAK 32
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1130
+msgid ""
+"This idea is certainly a possible understanding of how creative property "
+"should work. It might well be a possible design for a system of law "
+"protecting creative property. But the \"if value, then right\" theory of "
+"creative property has never been America's theory of creative property. It "
+"has never taken hold within our law."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1139
+msgid ""
+"Instead, in our tradition, intellectual property is an instrument. It sets "
+"the groundwork for a richly creative society but remains subservient to the "
+"value of creativity. The current debate has this turned around. We have "
+"become so concerned with protecting the instrument that we are losing sight "
+"of the value."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1146
+msgid ""
+"The source of this confusion is a distinction that the law no longer takes "
+"care to draw—the distinction between republishing someone's work on "
+"the one hand and building upon or transforming that work on the "
+"other. Copyright law at its birth had only publishing as its concern; "
+"copyright law today regulates both."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1153
+msgid ""
+"Before the technologies of the Internet, this conflation didn't matter all "
+"that much. The technologies of publishing were expensive; that meant the "
+"vast majority of publishing was commercial. Commercial entities could bear "
+"the burden of the law—even the burden of the Byzantine complexity that "
+"copyright law has become. It was just one more expense of doing business."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
+#: freeculture.xml:1160 freeculture.xml:1188
+msgid "Florida, Richard"
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:1181
+msgid ""
+"In The Rise of the Creative Class (New York: Basic Books, 2002), Richard "
+"Florida documents a shift in the nature of labor toward a labor of "
+"creativity. His work, however, doesn't directly address the legal "
+"conditions under which that creativity is enabled or stifled. I certainly "
+"agree with him about the importance and significance of this change, but I "
+"also believe the conditions under which it will be enabled are much more "
+"tenuous. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1162
+msgid ""
+"But with the birth of the Internet, this natural limit to the reach of the "
+"law has disappeared. The law controls not just the creativity of commercial "
+"creators but effectively that of anyone. Although that expansion would not "
+"matter much if copyright law regulated only \"copying,\" when the law "
+"regulates as broadly and obscurely as it does, the extension matters a "
+"lot. The burden of this law now vastly outweighs any original "
+"benefit—certainly as it affects noncommercial creativity, and "
+"increasingly as it affects commercial creativity as well. Thus, as we'll see "
+"more clearly in the chapters below, the law's role is less and less to "
+"support creativity, and more and more to protect certain industries against "
+"competition. Just at the time digital technology could unleash an "
+"extraordinary range of commercial and noncommercial creativity, the law "
+"burdens this creativity with insanely complex and vague rules and with the "
+"threat of obscenely severe penalties. We may be seeing, as Richard Florida "
+"writes, the \"Rise of the Creative Class.\"<placeholder type=\"footnote\" "
+"id=\"0\"/> Unfortunately, we are also seeing an extraordinary rise of "
+"regulation of this creative class."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:1194
+msgid ""
+"These burdens make no sense in our tradition. We should begin by "
+"understanding that tradition a bit more and by placing in their proper "
+"context the current battles about behavior labeled \"piracy.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:1201
+msgid "CHAPTER ONE: Creators"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1203
+msgid ""
+"In 1928, a cartoon character was born. An early Mickey Mouse made his debut "
+"in May of that year, in a silent flop called Plane Crazy. In November, in "
+"New York City's Colony Theater, in the first widely distributed cartoon "
+"synchronized with sound, Steamboat Willie brought to life the character that "
+"would become Mickey Mouse."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1210
+msgid ""
+"Synchronized sound had been introduced to film a year earlier in the movie "
+"The Jazz Singer. That success led Walt Disney to copy the technique and mix "
+"sound with cartoons. No one knew whether it would work or, if it did work, "
+"whether it would win an audience. But when Disney ran a test in the summer "
+"of 1928, the results were unambiguous. As Disney describes that first "
+"experiment,"
+msgstr ""
+
+#. PAGE BREAK 35
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:1219
+msgid ""
+"A couple of my boys could read music, and one of them could play a mouth "
+"organ. We put them in a room where they could not see the screen and "
+"arranged to pipe their sound into the room where our wives and friends were "
+"going to see the picture."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:1226
+msgid ""
+"The boys worked from a music and sound-effects score. After several false "
+"starts, sound and action got off with the gun. The mouth organist played the "
+"tune, the rest of us in the sound department bammed tin pans and blew slide "
+"whistles on the beat. The synchronization was pretty close."
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
+#: freeculture.xml:1240
+msgid ""
+"Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons "
+"(New York: Penguin Books, 1987), 34–35."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:1233
+msgid ""
+"The effect on our little audience was nothing less than electric. They "
+"responded almost instinctively to this union of sound and motion. I thought "
+"they were kidding me. So they put me in the audience and ran the action "
+"again. It was terrible, but it was wonderful! And it was something "
+"new!<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:1250
+msgid "Iwerks, Ub"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1247
+msgid ""
+"Disney's then partner, and one of animation's most extraordinary talents, Ub "
+"Iwerks, put it more strongly: \"I have never been so thrilled in my "
+"life. Nothing since has ever equaled it.\" <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1253
+msgid ""
+"Disney had created something very new, based upon something relatively "
+"new. Synchronized sound brought life to a form of creativity that had "
+"rarely—except in Disney's hands—been anything more than filler "
+"for other films. Throughout animation's early history, it was Disney's "
+"invention that set the standard that others struggled to match. And quite "
+"often, Disney's great genius, his spark of creativity, was built upon the "
+"work of others."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1262
+msgid ""
+"This much is familiar. What you might not know is that 1928 also marks "
+"another important transition. In that year, a comic (as opposed to cartoon) "
+"genius created his last independently produced silent film. That genius was "
+"Buster Keaton. The film was Steamboat Bill, Jr."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1268
+msgid ""
+"Keaton was born into a vaudeville family in 1895. In the era of silent film, "
+"he had mastered using broad physical comedy as a way to spark uncontrollable "
+"laughter from his audience. Steamboat Bill, Jr. was a classic of this form, "
+"famous among film buffs for its incredible stunts. The film was classic "
+"Keaton—wildly popular and among the best of its genre."
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1281
+msgid ""
+"I am grateful to David Gerstein and his careful history, described at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #4</ulink>. According to Dave "
+"Smith of the Disney Archives, Disney paid royalties to use the music for "
+"five songs in Steamboat Willie: \"Steamboat Bill,\" \"The Simpleton\" "
+"(Delille), \"Mischief Makers\" (Carbonara), \"Joyful Hurry No. 1\" (Baron), "
+"and \"Gawky Rube\" (Lakay). A sixth song, \"The Turkey in the Straw,\" was "
+"already in the public domain. Letter from David Smith to Harry Surden, 10 "
+"July 2003, on file with author."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1276
+msgid ""
+"Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The "
+"coincidence of titles is not coincidental. Steamboat Willie is a direct "
+"cartoon parody of Steamboat Bill,<placeholder type=\"footnote\" id=\"0\"/> "
+"and both are built upon a common song as a source. It is not just from the "
+"invention of synchronized sound in The Jazz Singer that we get Steamboat "
+"Willie. It is also from Buster Keaton's invention of Steamboat Bill, Jr., "
+"itself inspired by the song \"Steamboat Bill,\" that we get Steamboat "
+"Willie, and then from Steamboat Willie, Mickey Mouse."
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1302
+msgid ""
+"He was also a fan of the public domain. See Chris Sprigman, \"The Mouse that "
+"Ate the Public Domain,\" Findlaw, 5 March 2002, at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #5</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1298
+msgid ""
+"This \"borrowing\" was nothing unique, either for Disney or for the "
+"industry. Disney was always parroting the feature-length mainstream films of "
+"his day.<placeholder type=\"footnote\" id=\"0\"/> So did many others. Early "
+"cartoons are filled with knockoffs—slight variations on winning "
+"themes; retellings of ancient stories. The key to success was the brilliance "
+"of the differences. With Disney, it was sound that gave his animation its "
+"spark. Later, it was the quality of his work relative to the production-line "
+"cartoons with which he competed. Yet these additions were built upon a base "
+"that was borrowed. Disney added to the work of others before him, creating "
+"something new out of something just barely old."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1317
+msgid ""
+"Sometimes this borrowing was slight. Sometimes it was significant. Think "
+"about the fairy tales of the Brothers Grimm. If you're as oblivious as I "
+"was, you're likely to think that these tales are happy, sweet stories, "
+"appropriate for any child at bedtime. In fact, the Grimm fairy tales are, "
+"well, for us, grim. It is a rare and perhaps overly ambitious parent who "
+"would dare to read these bloody, moralistic stories to his or her child, at "
+"bedtime or anytime."
+msgstr ""
+
+#. PAGE BREAK 37
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1326
+msgid ""
+"Disney took these stories and retold them in a way that carried them into a "
+"new age. He animated the stories, with both characters and light. Without "
+"removing the elements of fear and danger altogether, he made funny what was "
+"dark and injected a genuine emotion of compassion where before there was "
+"fear. And not just with the work of the Brothers Grimm. Indeed, the catalog "
+"of Disney work drawing upon the work of others is astonishing when set "
+"together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo "
+"(1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in "
+"Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp "
+"(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The "
+"Sword in the Stone (1963), and The Jungle Book (1967)—not to mention a "
+"recent example that we should perhaps quickly forget, Treasure Planet "
+"(2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity "
+"from the culture around him, mixed that creativity with his own "
+"extraordinary talent, and then burned that mix into the soul of his "
+"culture. Rip, mix, and burn."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1346
+msgid ""
+"This is a kind of creativity. It is a creativity that we should remember and "
+"celebrate. There are some who would say that there is no creativity except "
+"this kind. We don't need to go that far to recognize its importance. We "
+"could call this \"Disney creativity,\" though that would be a bit "
+"misleading. It is, more precisely, \"Walt Disney creativity\"—a form "
+"of expression and genius that builds upon the culture around us and makes it "
+"something different."
+msgstr ""
+
+#. f4
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1360
+msgid ""
+"Until 1976, copyright law granted an author the possibility of two terms: an "
+"initial term and a renewal term. I have calculated the \"average\" term by "
+"determining the weighted average of total registrations for any particular "
+"year, and the proportion renewing. Thus, if 100 copyrights are registered in "
+"year 1, and only 15 are renewed, and the renewal term is 28 years, then the "
+"average term is 32.2 years. For the renewal data and other relevant data, "
+"see the Web site associated with this book, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #6</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1354
+msgid ""
+"In 1928, the culture that Disney was free to draw upon was relatively "
+"fresh. The public domain in 1928 was not very old and was therefore quite "
+"vibrant. The average term of copyright was just around thirty "
+"years—for that minority of creative work that was in fact "
+"copyrighted.<placeholder type=\"footnote\" id=\"0\"/> That means that for "
+"thirty years, on average, the authors or copyright holders of a creative "
+"work had an \"exclusive right\" to control certain uses of the work. To use "
+"this copyrighted work in limited ways required the permission of the "
+"copyright owner."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1377
+msgid ""
+"At the end of a copyright term, a work passes into the public domain. No "
+"permission is then needed to draw upon or use that work. No permission and, "
+"hence, no lawyers. The public domain is a \"lawyer-free zone.\" Thus, most "
+"of the content from the nineteenth century was free for Disney to use and "
+"build upon in 1928. It was free for anyone— whether connected or not, "
+"whether rich or not, whether approved or not—to use and build upon."
+msgstr ""
+
+#. PAGE BREAK 38
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1386
+msgid ""
+"This is the ways things always were—until quite recently. For most of "
+"our history, the public domain was just over the horizon. From until 1978, "
+"the average copyright term was never more than thirty-two years, meaning "
+"that most culture just a generation and a half old was free for anyone to "
+"build upon without the permission of anyone else. Today's equivalent would "
+"be for creative work from the 1960s and 1970s to now be free for the next "
+"Walt Disney to build upon without permission. Yet today, the public domain "
+"is presumptive only for content from before the Great Depression."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1399
+msgid ""
+"Of course, Walt Disney had no monopoly on \"Walt Disney creativity.\" Nor "
+"does America. The norm of free culture has, until recently, and except "
+"within totalitarian nations, been broadly exploited and quite universal."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1405
+msgid ""
+"Consider, for example, a form of creativity that seems strange to many "
+"Americans but that is inescapable within Japanese culture: manga, or "
+"comics. The Japanese are fanatics about comics. Some 40 percent of "
+"publications are comics, and 30 percent of publication revenue derives from "
+"comics. They are everywhere in Japanese society, at every magazine stand, "
+"carried by a large proportion of commuters on Japan's extraordinary system "
+"of public transportation."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1414
+msgid ""
+"Americans tend to look down upon this form of culture. That's an "
+"unattractive characteristic of ours. We're likely to misunderstand much "
+"about manga, because few of us have ever read anything close to the stories "
+"that these \"graphic novels\" tell. For the Japanese, manga cover every "
+"aspect of social life. For us, comics are \"men in tights.\" And anyway, "
+"it's not as if the New York subways are filled with readers of Joyce or even "
+"Hemingway. People of different cultures distract themselves in different "
+"ways, the Japanese in this interestingly different way."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1425
+msgid ""
+"But my purpose here is not to understand manga. It is to describe a variant "
+"on manga that from a lawyer's perspective is quite odd, but from a Disney "
+"perspective is quite familiar."
+msgstr ""
+
+#. PAGE BREAK 39
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1430
+msgid ""
+"This is the phenomenon of doujinshi. Doujinshi are also comics, but they are "
+"a kind of copycat comic. A rich ethic governs the creation of doujinshi. It "
+"is not doujinshi if it is just a copy; the artist must make a contribution "
+"to the art he copies, by transforming it either subtly or significantly. A "
+"doujinshi comic can thus take a mainstream comic and develop it "
+"differently—with a different story line. Or the comic can keep the "
+"character in character but change its look slightly. There is no formula for "
+"what makes the doujinshi sufficiently \"different.\" But they must be "
+"different if they are to be considered true doujinshi. Indeed, there are "
+"committees that review doujinshi for inclusion within shows and reject any "
+"copycat comic that is merely a copy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1444
+msgid ""
+"These copycat comics are not a tiny part of the manga market. They are "
+"huge. More than 33,000 \"circles\" of creators from across Japan produce "
+"these bits of Walt Disney creativity. More than 450,000 Japanese come "
+"together twice a year, in the largest public gathering in the country, to "
+"exchange and sell them. This market exists in parallel to the mainstream "
+"commercial manga market. In some ways, it obviously competes with that "
+"market, but there is no sustained effort by those who control the commercial "
+"manga market to shut the doujinshi market down. It flourishes, despite the "
+"competition and despite the law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1455
+msgid ""
+"The most puzzling feature of the doujinshi market, for those trained in the "
+"law, at least, is that it is allowed to exist at all. Under Japanese "
+"copyright law, which in this respect (on paper) mirrors American copyright "
+"law, the doujinshi market is an illegal one. Doujinshi are plainly "
+"\"derivative works.\" There is no general practice by doujinshi artists of "
+"securing the permission of the manga creators. Instead, the practice is "
+"simply to take and modify the creations of others, as Walt Disney did with "
+"Steamboat Bill, Jr. Under both Japanese and American law, that \"taking\" "
+"without the permission of the original copyright owner is illegal. It is an "
+"infringement of the original copyright to make a copy or a derivative work "
+"without the original copyright owner's permission."
+msgstr ""
+
+#. f5
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1480
+msgid ""
+"For an excellent history, see Scott McCloud, Reinventing Comics (New York: "
+"Perennial, 2000)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1469
+msgid ""
+"Yet this illegal market exists and indeed flourishes in Japan, and in the "
+"view of many, it is precisely because it exists that Japanese manga "
+"flourish. As American graphic novelist Judd Winick said to me, \"The early "
+"days of comics in America are very much like what's going on in Japan "
+"now. . . . American comics were born out of copying each other. . . . That's "
+"how [the artists] learn to draw—by going into comic books and not "
+"tracing them, but looking at them and copying them\" and building from "
+"them.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1485
+msgid ""
+"American comics now are quite different, Winick explains, in part because of "
+"the legal difficulty of adapting comics the way doujinshi are "
+"allowed. Speaking of Superman, Winick told me, \"there are these rules and "
+"you have to stick to them.\" There are things Superman \"cannot\" do. \"As a "
+"creator, it's frustrating having to stick to some parameters which are fifty "
+"years old.\""
+msgstr ""
+
+#. f6
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1501
+msgid ""
+"See Salil K. Mehra, \"Copyright and Comics in Japan: Does Law Explain Why "
+"All the Comics My Kid Watches Are Japanese Imports?\" Rutgers Law Review 55 "
+"(2002): 155, 182. \"[T]here might be a collective economic rationality that "
+"would lead manga and anime artists to forgo bringing legal actions for "
+"infringement. One hypothesis is that all manga artists may be better off "
+"collectively if they set aside their individual self-interest and decide not "
+"to press their legal rights. This is essentially a prisoner's dilemma "
+"solved.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1493
+msgid ""
+"The norm in Japan mitigates this legal difficulty. Some say it is precisely "
+"the benefit accruing to the Japanese manga market that explains the "
+"mitigation. Temple University law professor Salil Mehra, for example, "
+"hypothesizes that the manga market accepts these technical violations "
+"because they spur the manga market to be more wealthy and "
+"productive. Everyone would be worse off if doujinshi were banned, so the law "
+"does not ban doujinshi.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1512
+msgid ""
+"The problem with this story, however, as Mehra plainly acknowledges, is that "
+"the mechanism producing this laissez faire response is not clear. It may "
+"well be that the market as a whole is better off if doujinshi are permitted "
+"rather than banned, but that doesn't explain why individual copyright owners "
+"don't sue nonetheless. If the law has no general exception for doujinshi, "
+"and indeed in some cases individual manga artists have sued doujinshi "
+"artists, why is there not a more general pattern of blocking this \"free "
+"taking\" by the doujinshi culture?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1523
+msgid ""
+"I spent four wonderful months in Japan, and I asked this question as often "
+"as I could. Perhaps the best account in the end was offered by a friend from "
+"a major Japanese law firm. \"We don't have enough lawyers,\" he told me one "
+"afternoon. There \"just aren't enough resources to prosecute cases like "
+"this.\""
+msgstr ""
+
+#. PAGE BREAK 41
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1530
+msgid ""
+"This is a theme to which we will return: that regulation by law is a "
+"function of both the words on the books and the costs of making those words "
+"have effect. For now, focus on the obvious question that is begged: Would "
+"Japan be better off with more lawyers? Would manga be richer if doujinshi "
+"artists were regularly prosecuted? Would the Japanese gain something "
+"important if they could end this practice of uncompensated sharing? Does "
+"piracy here hurt the victims of the piracy, or does it help them? Would "
+"lawyers fighting this piracy help their clients or hurt them? Let's pause "
+"for a moment."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1543
+msgid ""
+"If you're like I was a decade ago, or like most people are when they first "
+"start thinking about these issues, then just about now you should be puzzled "
+"about something you hadn't thought through before."
+msgstr ""
+
+#. f7
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1553
+msgid ""
+"The term intellectual property is of relatively recent origin. See Siva "
+"Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University "
+"Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: "
+"Random House, 2001), 293 n. 26. The term accurately describes a set of "
+"\"property\" rights—copyright, patents, trademark, and "
+"trade-secret—but the nature of those rights is very different."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1548
+msgid ""
+"We live in a world that celebrates \"property.\" I am one of those "
+"celebrants. I believe in the value of property in general, and I also "
+"believe in the value of that weird form of property that lawyers call "
+"\"intellectual property.\"<placeholder type=\"footnote\" id=\"0\"/> A large, "
+"diverse society cannot survive without property; a large, diverse, and "
+"modern society cannot flourish without intellectual property."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1568
+msgid ""
+"But it takes just a second's reflection to realize that there is plenty of "
+"value out there that \"property\" doesn't capture. I don't mean \"money "
+"can't buy you love,\" but rather, value that is plainly part of a process of "
+"production, including commercial as well as noncommercial production. If "
+"Disney animators had stolen a set of pencils to draw Steamboat Willie, we'd "
+"have no hesitation in condemning that taking as wrong— even though "
+"trivial, even if unnoticed. Yet there was nothing wrong, at least under the "
+"law of the day, with Disney's taking from Buster Keaton or from the Brothers "
+"Grimm. There was nothing wrong with the taking from Keaton because Disney's "
+"use would have been considered \"fair.\" There was nothing wrong with the "
+"taking from the Grimms because the Grimms' work was in the public domain."
+msgstr ""
+
+#. PAGE BREAK 42
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1583
+msgid ""
+"Thus, even though the things that Disney took—or more generally, the "
+"things taken by anyone exercising Walt Disney creativity—are valuable, "
+"our tradition does not treat those takings as wrong. Some things remain free "
+"for the taking within a free culture, and that freedom is good."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1592
+msgid ""
+"The same with the doujinshi culture. If a doujinshi artist broke into a "
+"publisher's office and ran off with a thousand copies of his latest "
+"work—or even one copy—without paying, we'd have no hesitation in "
+"saying the artist was wrong. In addition to having trespassed, he would have "
+"stolen something of value. The law bans that stealing in whatever form, "
+"whether large or small."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1600
+msgid ""
+"Yet there is an obvious reluctance, even among Japanese lawyers, to say that "
+"the copycat comic artists are \"stealing.\" This form of Walt Disney "
+"creativity is seen as fair and right, even if lawyers in particular find it "
+"hard to say why."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1606
+msgid ""
+"It's the same with a thousand examples that appear everywhere once you begin "
+"to look. Scientists build upon the work of other scientists without asking "
+"or paying for the privilege. (\"Excuse me, Professor Einstein, but may I "
+"have permission to use your theory of relativity to show that you were wrong "
+"about quantum physics?\") Acting companies perform adaptations of the works "
+"of Shakespeare without securing permission from anyone. (Does anyone believe "
+"Shakespeare would be better spread within our culture if there were a "
+"central Shakespeare rights clearinghouse that all productions of Shakespeare "
+"must appeal to first?) And Hollywood goes through cycles with a certain kind "
+"of movie: five asteroid films in the late 1990s; two volcano disaster films "
+"in 1997."
+msgstr ""
+
+#. PAGE BREAK 43
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1620
+msgid ""
+"Creators here and everywhere are always and at all times building upon the "
+"creativity that went before and that surrounds them now. That building is "
+"always and everywhere at least partially done without permission and without "
+"compensating the original creator. No society, free or controlled, has ever "
+"demanded that every use be paid for or that permission for Walt Disney "
+"creativity must always be sought. Instead, every society has left a certain "
+"bit of its culture free for the taking—free societies more fully than "
+"unfree, perhaps, but all societies to some degree."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1631
+msgid ""
+"The hard question is therefore not whether a culture is free. All cultures "
+"are free to some degree. The hard question instead is \"How free is this "
+"culture?\" How much, and how broadly, is the culture free for others to take "
+"and build upon? Is that freedom limited to party members? To members of the "
+"royal family? To the top ten corporations on the New York Stock Exchange? Or "
+"is that freedom spread broadly? To artists generally, whether affiliated "
+"with the Met or not? To musicians generally, whether white or not? To "
+"filmmakers generally, whether affiliated with a studio or not?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1642
+msgid ""
+"Free cultures are cultures that leave a great deal open for others to build "
+"upon; unfree, or permission, cultures leave much less. Ours was a free "
+"culture. It is becoming much less so."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:1650
+msgid "CHAPTER TWO: \"Mere Copyists\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:1651
+msgid "Daguerre, Louis"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1653
+msgid ""
+"In 1839, Louis Daguerre invented the first practical technology for "
+"producing what we would call \"photographs.\" Appropriately enough, they "
+"were called \"daguerreotypes.\" The process was complicated and expensive, "
+"and the field was thus limited to professionals and a few zealous and "
+"wealthy amateurs. (There was even an American Daguerre Association that "
+"helped regulate the industry, as do all such associations, by keeping "
+"competition down so as to keep prices up.)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1662
+msgid ""
+"Yet despite high prices, the demand for daguerreotypes was strong. This "
+"pushed inventors to find simpler and cheaper ways to make \"automatic "
+"pictures.\" William Talbot soon discovered a process for making "
+"\"negatives.\" But because the negatives were glass, and had to be kept wet, "
+"the process still remained expensive and cumbersome. In the 1870s, dry "
+"plates were developed, making it easier to separate the taking of a picture "
+"from its developing. These were still plates of glass, and thus it was still "
+"not a process within reach of most amateurs."
+msgstr ""
+
+#. PAGE BREAK 45
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1673
+msgid ""
+"The technological change that made mass photography possible didn't happen "
+"until 1888, and was the creation of a single man. George Eastman, himself an "
+"amateur photographer, was frustrated by the technology of photographs made "
+"with plates. In a flash of insight (so to speak), Eastman saw that if the "
+"film could be made to be flexible, it could be held on a single "
+"spindle. That roll could then be sent to a developer, driving the costs of "
+"photography down substantially. By lowering the costs, Eastman expected he "
+"could dramatically broaden the population of photographers."
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1690
+msgid ""
+"Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University "
+"Press, 1975), 112."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1685
+msgid ""
+"Eastman developed flexible, emulsion-coated paper film and placed rolls of "
+"it in small, simple cameras: the Kodak. The device was marketed on the basis "
+"of its simplicity. \"You press the button and we do the rest.\"<placeholder "
+"type=\"footnote\" id=\"0\"/> As he described in The Kodak Primer:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:1708 freeculture.xml:1731
+msgid "Coe, Brian"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
+#: freeculture.xml:1706
+msgid ""
+"Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), "
+"53. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:1695
+msgid ""
+"The principle of the Kodak system is the separation of the work that any "
+"person whomsoever can do in making a photograph, from the work that only an "
+"expert can do. . . . We furnish anybody, man, woman or child, who has "
+"sufficient intelligence to point a box straight and press a button, with an "
+"instrument which altogether removes from the practice of photography the "
+"necessity for exceptional facilities or, in fact, any special knowledge of "
+"the art. It can be employed without preliminary study, without a darkroom "
+"and without chemicals.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1724
+msgid "Jenkins, 177."
+msgstr ""
+
+#. f4
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1728
+msgid "Based on a chart in Jenkins, p. 178."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1713
+msgid ""
+"For $25, anyone could make pictures. The camera came preloaded with film, "
+"and when it had been used, the camera was returned to an Eastman factory, "
+"where the film was developed. Over time, of course, the cost of the camera "
+"and the ease with which it could be used both improved. Roll film thus "
+"became the basis for the explosive growth of popular photography. Eastman's "
+"camera first went on sale in 1888; one year later, Kodak was printing more "
+"than six thousand negatives a day. From 1888 through 1909, while industrial "
+"production was rising by 4.7 percent, photographic equipment and material "
+"sales increased by percent.<placeholder type=\"footnote\" id=\"0\"/> Eastman "
+"Kodak's sales during the same period experienced an average annual increase "
+"of over 17 percent.<placeholder type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. f5
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1746
+msgid "Coe, 58."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1735
+msgid ""
+"The real significance of Eastman's invention, however, was not economic. It "
+"was social. Professional photography gave individuals a glimpse of places "
+"they would never otherwise see. Amateur photography gave them the ability to "
+"record their own lives in a way they had never been able to do before. As "
+"author Brian Coe notes, \"For the first time the snapshot album provided the "
+"man on the street with a permanent record of his family and its "
+"activities. . . . For the first time in history there exists an authentic "
+"visual record of the appearance and activities of the common man made "
+"without [literary] interpretation or bias.\"<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1750
+msgid ""
+"In this way, the Kodak camera and film were technologies of expression. The "
+"pencil or paintbrush was also a technology of expression, of course. But it "
+"took years of training before they could be deployed by amateurs in any "
+"useful or effective way. With the Kodak, expression was possible much sooner "
+"and more simply. The barrier to expression was lowered. Snobs would sneer at "
+"its \"quality\"; professionals would discount it as irrelevant. But watch a "
+"child study how best to frame a picture and you get a sense of the "
+"experience of creativity that the Kodak enabled. Democratic tools gave "
+"ordinary people a way to express themselves more easily than any tools could "
+"have before."
+msgstr ""
+
+#. f6
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1772
+msgid ""
+"For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 "
+"S.E."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1763
+msgid ""
+"What was required for this technology to flourish? Obviously, Eastman's "
+"genius was an important part. But also important was the legal environment "
+"within which Eastman's invention grew. For early in the history of "
+"photography, there was a series of judicial decisions that could well have "
+"changed the course of photography substantially. Courts were asked whether "
+"the photographer, amateur or professional, required permission before he "
+"could capture and print whatever image he wanted. Their answer was "
+"no.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 47
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1776
+msgid ""
+"The arguments in favor of requiring permission will sound surprisingly "
+"familiar. The photographer was \"taking\" something from the person or "
+"building whose photograph he shot—pirating something of value. Some "
+"even thought he was taking the target's soul. Just as Disney was not free to "
+"take the pencils that his animators used to draw Mickey, so, too, should "
+"these photographers not be free to take images that they thought valuable."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
+#: freeculture.xml:1798
+msgid "Warren, Samuel D."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1795
+msgid ""
+"Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" Harvard "
+"Law Review 4 (1890): 193. <placeholder type=\"indexterm\" id=\"0\"/> "
+"<placeholder type=\"indexterm\" id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1788
+msgid ""
+"On the other side was an argument that should be familiar, as well. Sure, "
+"there may be something of value being used. But citizens should have the "
+"right to capture at least those images that stand in public view. (Louis "
+"Brandeis, who would become a Supreme Court Justice, thought the rule should "
+"be different for images from private spaces.<placeholder type=\"footnote\" "
+"id=\"0\"/>) It may be that this means that the photographer gets something "
+"for nothing. Just as Disney could take inspiration from Steamboat Bill, "
+"Jr. or the Brothers Grimm, the photographer should be free to capture an "
+"image without compensating the source."
+msgstr ""
+
+#. f8
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1815
+msgid ""
+"See Melville B. Nimmer, \"The Right of Publicity,\" Law and Contemporary "
+"Problems 19 (1954): 203; William L. Prosser, \"Privacy,\" California Law "
+"Review 48 (1960) 398–407; White v. Samsung Electronics America, Inc., "
+"971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1805
+msgid ""
+"Fortunately for Mr. Eastman, and for photography in general, these early "
+"decisions went in favor of the pirates. In general, no permission would be "
+"required before an image could be captured and shared with others. Instead, "
+"permission was presumed. Freedom was the default. (The law would eventually "
+"craft an exception for famous people: commercial photographers who snap "
+"pictures of famous people for commercial purposes have more restrictions "
+"than the rest of us. But in the ordinary case, the image can be captured "
+"without clearing the rights to do the capturing.<placeholder "
+"type=\"footnote\" id=\"0\"/>)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1823
+msgid ""
+"We can only speculate about how photography would have developed had the law "
+"gone the other way. If the presumption had been against the photographer, "
+"then the photographer would have had to demonstrate permission. Perhaps "
+"Eastman Kodak would have had to demonstrate permission, too, before it "
+"developed the film upon which images were captured. After all, if permission "
+"were not granted, then Eastman Kodak would be benefiting from the \"theft\" "
+"committed by the photographer. Just as Napster benefited from the copyright "
+"infringements committed by Napster users, Kodak would be benefiting from the "
+"\"image-right\" infringement of its photographers. We could imagine the law "
+"then requiring that some form of permission be demonstrated before a company "
+"developed pictures. We could imagine a system developing to demonstrate that "
+"permission."
+msgstr ""
+
+#. PAGE BREAK 48
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1840
+msgid ""
+"But though we could imagine this system of permission, it would be very hard "
+"to see how photography could have flourished as it did if the requirement "
+"for permission had been built into the rules that govern it. Photography "
+"would have existed. It would have grown in importance over "
+"time. Professionals would have continued to use the technology as they "
+"did—since professionals could have more easily borne the burdens of "
+"the permission system. But the spread of photography to ordinary people "
+"would not have occurred. Nothing like that growth would have been "
+"realized. And certainly, nothing like that growth in a democratic technology "
+"of expression would have been realized. If you drive through San "
+"Francisco's Presidio, you might see two gaudy yellow school buses painted "
+"over with colorful and striking images, and the logo \"Just Think!\" in "
+"place of the name of a school. But there's little that's \"just\" cerebral "
+"in the projects that these busses enable. These buses are filled with "
+"technologies that teach kids to tinker with film. Not the film of "
+"Eastman. Not even the film of your VCR. Rather the \"film\" of digital "
+"cameras. Just Think! is a project that enables kids to make films, as a way "
+"to understand and critique the filmed culture that they find all around "
+"them. Each year, these busses travel to more than thirty schools and enable "
+"three hundred to five hundred children to learn something about media by "
+"doing something with media. By doing, they think. By tinkering, they learn."
+msgstr ""
+
+#. f9
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1871
+msgid ""
+"H. Edward Goldberg, \"Essential Presentation Tools: Hardware and Software "
+"You Need to Create Digital Multimedia Presentations,\" cadalyst, February "
+"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#7</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1865
+msgid ""
+"These buses are not cheap, but the technology they carry is increasingly "
+"so. The cost of a high-quality digital video system has fallen "
+"dramatically. As one analyst puts it, \"Five years ago, a good real-time "
+"digital video editing system cost $25,000. Today you can get professional "
+"quality for $595.\"<placeholder type=\"footnote\" id=\"0\"/> These buses are "
+"filled with technology that would have cost hundreds of thousands just ten "
+"years ago. And it is now feasible to imagine not just buses like this, but "
+"classrooms across the country where kids are learning more and more of "
+"something teachers call \"media literacy.\""
+msgstr ""
+
+#. PAGE BREAK 49
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1885
+msgid ""
+"\"Media literacy,\" as Dave Yanofsky, the executive director of Just Think!, "
+"puts it, \"is the ability . . . to understand, analyze, and deconstruct "
+"media images. Its aim is to make [kids] literate about the way media works, "
+"the way it's constructed, the way it's delivered, and the way people access "
+"it.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1892
+msgid ""
+"This may seem like an odd way to think about \"literacy.\" For most people, "
+"literacy is about reading and writing. Faulkner and Hemingway and noticing "
+"split infinitives are the things that \"literate\" people know about."
+msgstr ""
+
+#. f10
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1902
+msgid ""
+"Judith Van Evra, Television and Child Development (Hillsdale, N.J.: Lawrence "
+"Erlbaum Associates, 1990); \"Findings on Family and TV Study,\" Denver Post, "
+"25 May 1997, B6."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1898
+msgid ""
+"Maybe. But in a world where children see on average 390 hours of television "
+"commercials per year, or between 20,000 and 45,000 commercials "
+"generally,<placeholder type=\"footnote\" id=\"0\"/> it is increasingly "
+"important to understand the \"grammar\" of media. For just as there is a "
+"grammar for the written word, so, too, is there one for media. And just as "
+"kids learn how to write by writing lots of terrible prose, kids learn how to "
+"write media by constructing lots of (at least at first) terrible media."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1914
+msgid ""
+"A growing field of academics and activists sees this form of literacy as "
+"crucial to the next generation of culture. For though anyone who has written "
+"understands how difficult writing is—how difficult it is to sequence "
+"the story, to keep a reader's attention, to craft language to be "
+"understandable—few of us have any real sense of how difficult media "
+"is. Or more fundamentally, few of us have a sense of how media works, how it "
+"holds an audience or leads it through a story, how it triggers emotion or "
+"builds suspense."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1925
+msgid ""
+"It took filmmaking a generation before it could do these things well. But "
+"even then, the knowledge was in the filming, not in writing about the "
+"film. The skill came from experiencing the making of a film, not from "
+"reading a book about it. One learns to write by writing and then reflecting "
+"upon what one has written. One learns to write with images by making them "
+"and then reflecting upon what one has created."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:1932
+msgid "Crichton, Michael"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:1946 freeculture.xml:2006 freeculture.xml:2013 freeculture.xml:2459
+msgid "Barish, Stephanie"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
+#: freeculture.xml:1947
+msgid "Daley, Elizabeth"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1944
+msgid ""
+"Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. "
+"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
+"id=\"1\"/>"
+msgstr ""
+
+#. f12
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:1958
+msgid ""
+"See Scott Steinberg, \"Crichton Gets Medieval on PCs,\" E!online, 4 November "
+"2000, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#8</ulink>; \"Timeline,\" 22 November 2000, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #9</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1934
+msgid ""
+"This grammar has changed as media has changed. When it was just film, as "
+"Elizabeth Daley, executive director of the University of Southern "
+"California's Annenberg Center for Communication and dean of the USC School "
+"of Cinema-Television, explained to me, the grammar was about \"the placement "
+"of objects, color, . . . rhythm, pacing, and texture.\"<placeholder "
+"type=\"footnote\" id=\"0\"/> But as computers open up an interactive space "
+"where a story is \"played\" as well as experienced, that grammar "
+"changes. The simple control of narrative is lost, and so other techniques "
+"are necessary. Author Michael Crichton had mastered the narrative of science "
+"fiction. But when he tried to design a computer game based on one of his "
+"works, it was a new craft he had to learn. How to lead people through a game "
+"without their feeling they have been led was not obvious, even to a wildly "
+"successful author.<placeholder type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:1965
+msgid "computer games"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1967
+msgid ""
+"This skill is precisely the craft a filmmaker learns. As Daley describes, "
+"\"people are very surprised about how they are led through a film. [I]t is "
+"perfectly constructed to keep you from seeing it, so you have no idea. If a "
+"filmmaker succeeds you do not know how you were led.\" If you know you were "
+"led through a film, the film has failed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1974
+msgid ""
+"Yet the push for an expanded literacy—one that goes beyond text to "
+"include audio and visual elements—is not about making better film "
+"directors. The aim is not to improve the profession of filmmaking at all. "
+"Instead, as Daley explained,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:1981
+msgid ""
+"From my perspective, probably the most important digital divide is not "
+"access to a box. It's the ability to be empowered with the language that "
+"that box works in. Otherwise only a very few people can write with this "
+"language, and all the rest of us are reduced to being read-only."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1989
+msgid ""
+"\"Read-only.\" Passive recipients of culture produced elsewhere. Couch "
+"potatoes. Consumers. This is the world of media from the twentieth century."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2005
+msgid "Interview with Daley and Barish. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. f31
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2010 freeculture.xml:3760 freeculture.xml:4834 freeculture.xml:7964
+msgid "Ibid."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:1994
+msgid ""
+"The twenty-first century could be different. This is the crucial point: It "
+"could be both read and write. Or at least reading and better understanding "
+"the craft of writing. Or best, reading and understanding the tools that "
+"enable the writing to lead or mislead. The aim of any literacy, and this "
+"literacy in particular, is to \"empower people to choose the appropriate "
+"language for what they need to create or express.\"<placeholder "
+"type=\"footnote\" id=\"0\"/> It is to enable students \"to communicate in "
+"the language of the twenty-first century.\"<placeholder type=\"footnote\" "
+"id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2015
+msgid ""
+"As with any language, this language comes more easily to some than to "
+"others. It doesn't necessarily come more easily to those who excel in "
+"written language. Daley and Stephanie Barish, director of the Institute for "
+"Multimedia Literacy at the Annenberg Center, describe one particularly "
+"poignant example of a project they ran in a high school. The high school "
+"was a very poor inner-city Los Angeles school. In all the traditional "
+"measures of success, this school was a failure. But Daley and Barish ran a "
+"program that gave kids an opportunity to use film to express meaning about "
+"something the students know something about—gun violence."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2027
+msgid ""
+"The class was held on Friday afternoons, and it created a relatively new "
+"problem for the school. While the challenge in most classes was getting the "
+"kids to come, the challenge in this class was keeping them away. The \"kids "
+"were showing up at 6 A.M. and leaving at 5 at night,\" said Barish. They "
+"were working harder than in any other class to do what education should be "
+"about—learning how to express themselves."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2035
+msgid ""
+"Using whatever \"free web stuff they could find,\" and relatively simple "
+"tools to enable the kids to mix \"image, sound, and text,\" Barish said this "
+"class produced a series of projects that showed something about gun violence "
+"that few would otherwise understand. This was an issue close to the lives of "
+"these students. The project \"gave them a tool and empowered them to be able "
+"to both understand it and talk about it,\" Barish explained. That tool "
+"succeeded in creating expression—far more successfully and powerfully "
+"than could have been created using only text. \"If you had said to these "
+"students, `you have to do it in text,' they would've just thrown their hands "
+"up and gone and done something else,\" Barish described, in part, no doubt, "
+"because expressing themselves in text is not something these students can do "
+"well. Yet neither is text a form in which these ideas can be expressed "
+"well. The power of this message depended upon its connection to this form of "
+"expression."
+msgstr ""
+
+#. PAGE BREAK 52
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2054
+msgid ""
+"\"But isn't education about teaching kids to write?\" I asked. In part, of "
+"course, it is. But why are we teaching kids to write? Education, Daley "
+"explained, is about giving students a way of \"constructing meaning.\" To "
+"say that that means just writing is like saying teaching writing is only "
+"about teaching kids how to spell. Text is one part—and increasingly, "
+"not the most powerful part—of constructing meaning. As Daley explained "
+"in the most moving part of our interview,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:2067
+msgid ""
+"What you want is to give these students ways of constructing meaning. If all "
+"you give them is text, they're not going to do it. Because they can't. You "
+"know, you've got Johnny who can look at a video, he can play a video game, "
+"he can do graffiti all over your walls, he can take your car apart, and he "
+"can do all sorts of other things. He just can't read your text. So Johnny "
+"comes to school and you say, \"Johnny, you're illiterate. Nothing you can do "
+"matters.\" Well, Johnny then has two choices: He can dismiss you or he [can] "
+"dismiss himself. If his ego is healthy at all, he's going to dismiss "
+"you. [But i]nstead, if you say, \"Well, with all these things that you can "
+"do, let's talk about this issue. Play for me music that you think reflects "
+"that, or show me images that you think reflect that, or draw for me "
+"something that reflects that.\" Not by giving a kid a video camera and "
+". . . saying, \"Let's go have fun with the video camera and make a little "
+"movie.\" But instead, really help you take these elements that you "
+"understand, that are your language, and construct meaning about the "
+"topic. . . ."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:2086
+msgid ""
+"That empowers enormously. And then what happens, of course, is eventually, "
+"as it has happened in all these classes, they bump up against the fact, \"I "
+"need to explain this and I really need to write something.\" And as one of "
+"the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 "
+"times, till they got it right."
+msgstr ""
+
+#. PAGE BREAK 53
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:2093
+msgid ""
+"Because they needed to. There was a reason for doing it. They needed to say "
+"something, as opposed to just jumping through your hoops. They actually "
+"needed to use a language that they didn't speak very well. But they had come "
+"to understand that they had a lot of power with this language.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2102
+msgid ""
+"When two planes crashed into the World Trade Center, another into the "
+"Pentagon, and a fourth into a Pennsylvania field, all media around the world "
+"shifted to this news. Every moment of just about every day for that week, "
+"and for weeks after, television in particular, and media generally, retold "
+"the story of the events we had just witnessed. The telling was a retelling, "
+"because we had seen the events that were described. The genius of this awful "
+"act of terrorism was that the delayed second attack was perfectly timed to "
+"assure that the whole world would be watching."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2113
+msgid ""
+"These retellings had an increasingly familiar feel. There was music scored "
+"for the intermissions, and fancy graphics that flashed across the "
+"screen. There was a formula to interviews. There was \"balance,\" and "
+"seriousness. This was news choreographed in the way we have increasingly "
+"come to expect it, \"news as entertainment,\" even if the entertainment is "
+"tragedy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:2120 freeculture.xml:7902
+msgid "ABC"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:2121
+msgid "CBS"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2123
+msgid ""
+"But in addition to this produced news about the \"tragedy of September 11,\" "
+"those of us tied to the Internet came to see a very different production as "
+"well. The Internet was filled with accounts of the same events. Yet these "
+"Internet accounts had a very different flavor. Some people constructed photo "
+"pages that captured images from around the world and presented them as slide "
+"shows with text. Some offered open letters. There were sound "
+"recordings. There was anger and frustration. There were attempts to provide "
+"context. There was, in short, an extraordinary worldwide barn raising, in "
+"the sense Mike Godwin uses the term in his book Cyber Rights, around a news "
+"event that had captured the attention of the world. There was ABC and CBS, "
+"but there was also the Internet."
+msgstr ""
+
+#. PAGE BREAK 54
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2137
+msgid ""
+"I don't mean simply to praise the Internet—though I do think the "
+"people who supported this form of speech should be praised. I mean instead "
+"to point to a significance in this form of speech. For like a Kodak, the "
+"Internet enables people to capture images. And like in a movie by a student "
+"on the \"Just Think!\" bus, the visual images could be mixed with sound or "
+"text."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2147
+msgid ""
+"But unlike any technology for simply capturing images, the Internet allows "
+"these creations to be shared with an extraordinary number of people, "
+"practically instantaneously. This is something new in our "
+"tradition—not just that culture can be captured mechanically, and "
+"obviously not just that events are commented upon critically, but that this "
+"mix of captured images, sound, and commentary can be widely spread "
+"practically instantaneously."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2156
+msgid ""
+"September 11 was not an aberration. It was a beginning. Around the same "
+"time, a form of communication that has grown dramatically was just beginning "
+"to come into public consciousness: the Web-log, or blog. The blog is a kind "
+"of public diary, and within some cultures, such as in Japan, it functions "
+"very much like a diary. In those cultures, it records private facts in a "
+"public way—it's a kind of electronic Jerry Springer, available "
+"anywhere in the world."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2165
+msgid ""
+"But in the United States, blogs have taken on a very different character. "
+"There are some who use the space simply to talk about their private "
+"life. But there are many who use the space to engage in public "
+"discourse. Discussing matters of public import, criticizing others who are "
+"mistaken in their views, criticizing politicians about the decisions they "
+"make, offering solutions to problems we all see: blogs create the sense of a "
+"virtual public meeting, but one in which we don't all hope to be there at "
+"the same time and in which conversations are not necessarily linked. The "
+"best of the blog entries are relatively short; they point directly to words "
+"used by others, criticizing with or adding to them. They are arguably the "
+"most important form of unchoreographed public discourse that we have."
+msgstr ""
+
+#. PAGE BREAK 55
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2179
+msgid ""
+"That's a strong statement. Yet it says as much about our democracy as it "
+"does about blogs. This is the part of America that is most difficult for "
+"those of us who love America to accept: Our democracy has atrophied. Of "
+"course we have elections, and most of the time the courts allow those "
+"elections to count. A relatively small number of people vote in those "
+"elections. The cycle of these elections has become totally professionalized "
+"and routinized. Most of us think this is democracy."
+msgstr ""
+
+#. f15
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2205
+msgid ""
+"See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, "
+"trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2190
+msgid ""
+"But democracy has never just been about elections. Democracy means rule by "
+"the people, but rule means something more than mere elections. In our "
+"tradition, it also means control through reasoned discourse. This was the "
+"idea that captured the imagination of Alexis de Tocqueville, the "
+"nineteenth-century French lawyer who wrote the most important account of "
+"early \"Democracy in America.\" It wasn't popular elections that fascinated "
+"him—it was the jury, an institution that gave ordinary people the "
+"right to choose life or death for other citizens. And most fascinating for "
+"him was that the jury didn't just vote about the outcome they would "
+"impose. They deliberated. Members argued about the \"right\" result; they "
+"tried to persuade each other of the \"right\" result, and in criminal cases "
+"at least, they had to agree upon a unanimous result for the process to come "
+"to an end.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f16
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2214
+msgid ""
+"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" Journal of Political "
+"Philosophy 10 (2) (2002): 129."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2210
+msgid ""
+"Yet even this institution flags in American life today. And in its place, "
+"there is no systematic effort to enable citizen deliberation. Some are "
+"pushing to create just such an institution.<placeholder type=\"footnote\" "
+"id=\"0\"/> And in some towns in New England, something close to deliberation "
+"remains. But for most of us for most of the time, there is no time or place "
+"for \"democratic deliberation\" to occur."
+msgstr ""
+
+#. f17
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2234
+msgid ""
+"Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), "
+"65–80, 175, 182, 183, 192."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2225
+msgid ""
+"More bizarrely, there is generally not even permission for it to occur. We, "
+"the most powerful democracy in the world, have developed a strong norm "
+"against talking about politics. It's fine to talk about politics with people "
+"you agree with. But it is rude to argue about politics with people you "
+"disagree with. Political discourse becomes isolated, and isolated discourse "
+"becomes more extreme.<placeholder type=\"footnote\" id=\"0\"/> We say what "
+"our friends want to hear, and hear very little beyond what our friends say."
+msgstr ""
+
+#. PAGE BREAK 56
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2240
+msgid ""
+"Enter the blog. The blog's very architecture solves one part of this "
+"problem. People post when they want to post, and people read when they want "
+"to read. The most difficult time is synchronous time. Technologies that "
+"enable asynchronous communication, such as e-mail, increase the opportunity "
+"for communication. Blogs allow for public discourse without the public ever "
+"needing to gather in a single public place."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2252
+msgid ""
+"But beyond architecture, blogs also have solved the problem of "
+"norms. There's no norm (yet) in blog space not to talk about politics. "
+"Indeed, the space is filled with political speech, on both the right and the "
+"left. Some of the most popular sites are conservative or libertarian, but "
+"there are many of all political stripes. And even blogs that are not "
+"political cover political issues when the occasion merits."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2260
+msgid ""
+"The significance of these blogs is tiny now, though not so tiny. The name "
+"Howard Dean may well have faded from the 2004 presidential race but for "
+"blogs. Yet even if the number of readers is small, the reading is having an "
+"effect."
+msgstr ""
+
+#. f18
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2280
+msgid ""
+"Noah Shachtman, \"With Incessant Postings, a Pundit Stirs the Pot,\" New "
+"York Times, 16 January 2003, G5."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2267
+msgid ""
+"One direct effect is on stories that had a different life cycle in the "
+"mainstream media. The Trent Lott affair is an example. When Lott "
+"\"misspoke\" at a party for Senator Strom Thurmond, essentially praising "
+"Thurmond's segregationist policies, he calculated correctly that this story "
+"would disappear from the mainstream press within forty-eight hours. It "
+"did. But he didn't calculate its life cycle in blog space. The bloggers kept "
+"researching the story. Over time, more and more instances of the same "
+"\"misspeaking\" emerged. Finally, the story broke back into the mainstream "
+"press. In the end, Lott was forced to resign as senate majority "
+"leader.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2285
+msgid ""
+"This different cycle is possible because the same commercial pressures don't "
+"exist with blogs as with other ventures. Television and newspapers are "
+"commercial entities. They must work to keep attention. If they lose "
+"readers, they lose revenue. Like sharks, they must move on."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2292
+msgid ""
+"But bloggers don't have a similar constraint. They can obsess, they can "
+"focus, they can get serious. If a particular blogger writes a particularly "
+"interesting story, more and more people link to that story. And as the "
+"number of links to a particular story increases, it rises in the ranks of "
+"stories. People read what is popular; what is popular has been selected by a "
+"very democratic process of peer-generated rankings."
+msgstr ""
+
+#. PAGE BREAK 57
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2301
+msgid ""
+"There's a second way, as well, in which blogs have a different cycle from "
+"the mainstream press. As Dave Winer, one of the fathers of this movement and "
+"a software author for many decades, told me, another difference is the "
+"absence of a financial \"conflict of interest.\" \"I think you have to take "
+"the conflict of interest\" out of journalism, Winer told me. \"An amateur "
+"journalist simply doesn't have a conflict of interest, or the conflict of "
+"interest is so easily disclosed that you know you can sort of get it out of "
+"the way.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
+#: freeculture.xml:2311 freeculture.xml:2364
+msgid "CNN"
+msgstr ""
+
+#. f19
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2319
+msgid "Telephone interview with David Winer, 16 April 2003."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2313
+msgid ""
+"These conflicts become more important as media becomes more concentrated "
+"(more on this below). A concentrated media can hide more from the public "
+"than an unconcentrated media can—as CNN admitted it did after the Iraq "
+"war because it was afraid of the consequences to its own "
+"employees.<placeholder type=\"footnote\" id=\"0\"/> It also needs to sustain "
+"a more coherent account. (In the middle of the Iraq war, I read a post on "
+"the Internet from someone who was at that time listening to a satellite "
+"uplink with a reporter in Iraq. The New York headquarters was telling the "
+"reporter over and over that her account of the war was too bleak: She needed "
+"to offer a more optimistic story. When she told New York that wasn't "
+"warranted, they told her that they were writing \"the story.\")"
+msgstr ""
+
+#. f20
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2337
+msgid ""
+"John Schwartz, \"Loss of the Shuttle: The Internet; A Wealth of Information "
+"Online,\" New York Times, 2 February 2003, A28; Staci D. Kramer, \"Shuttle "
+"Disaster Coverage Mixed, but Strong Overall,\" Online Journalism Review, 2 "
+"February 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #10</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2329
+msgid ""
+"Blog space gives amateurs a way to enter the debate—\"amateur\" not in "
+"the sense of inexperienced, but in the sense of an Olympic athlete, meaning "
+"not paid by anyone to give their reports. It allows for a much broader range "
+"of input into a story, as reporting on the Columbia disaster revealed, when "
+"hundreds from across the southwest United States turned to the Internet to "
+"retell what they had seen.<placeholder type=\"footnote\" id=\"0\"/> And it "
+"drives readers to read across the range of accounts and \"triangulate,\" as "
+"Winer puts it, the truth. Blogs, Winer says, are \"communicating directly "
+"with our constituency, and the middle man is out of it\"—with all the "
+"benefits, and costs, that might entail."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2356
+msgid ""
+"See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" New York "
+"Times, 29 September 2003, C4. (\"Not all news organizations have been as "
+"accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq "
+"who started a blog about his reporting of the war on March 9, stopped "
+"posting 12 days later at his bosses' request. Last year Steve Olafson, a "
+"Houston Chronicle reporter, was fired for keeping a personal Web log, "
+"published under a pseudonym, that dealt with some of the issues and people "
+"he was covering.\") <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 58
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2349
+msgid ""
+"Winer is optimistic about the future of journalism infected with "
+"blogs. \"It's going to become an essential skill,\" Winer predicts, for "
+"public figures and increasingly for private figures as well. It's not clear "
+"that \"journalism\" is happy about this—some journalists have been "
+"told to curtail their blogging.<placeholder type=\"footnote\" id=\"0\"/> But "
+"it is clear that we are still in transition. \"A lot of what we are doing "
+"now is warm-up exercises,\" Winer told me. There is a lot that must mature "
+"before this space has its mature effect. And as the inclusion of content in "
+"this space is the least infringing use of the Internet (meaning infringing "
+"on copyright), Winer said, \"we will be the last thing that gets shut "
+"down.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2376
+msgid ""
+"This speech affects democracy. Winer thinks that happens because \"you don't "
+"have to work for somebody who controls, [for] a gatekeeper.\" That is "
+"true. But it affects democracy in another way as well. As more and more "
+"citizens express what they think, and defend it in writing, that will change "
+"the way people understand public issues. It is easy to be wrong and "
+"misguided in your head. It is harder when the product of your mind can be "
+"criticized by others. Of course, it is a rare human who admits that he has "
+"been persuaded that he is wrong. But it is even rarer for a human to ignore "
+"when he has been proven wrong. The writing of ideas, arguments, and "
+"criticism improves democracy. Today there are probably a couple of million "
+"blogs where such writing happens. When there are ten million, there will be "
+"something extraordinary to report."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2393
+msgid ""
+"John Seely Brown is the chief scientist of the Xerox Corporation. His work, "
+"as his Web site describes it, is \"human learning and . . . the creation of "
+"knowledge ecologies for creating . . . innovation.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2398
+msgid ""
+"Brown thus looks at these technologies of digital creativity a bit "
+"differently from the perspectives I've sketched so far. I'm sure he would be "
+"excited about any technology that might improve democracy. But his real "
+"excitement comes from how these technologies affect learning."
+msgstr ""
+
+#. PAGE BREAK 59
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2405
+msgid ""
+"As Brown believes, we learn by tinkering. When \"a lot of us grew up,\" he "
+"explains, that tinkering was done \"on motorcycle engines, lawnmower "
+"engines, automobiles, radios, and so on.\" But digital technologies enable a "
+"different kind of tinkering—with abstract ideas though in concrete "
+"form. The kids at Just Think! not only think about how a commercial portrays "
+"a politician; using digital technology, they can take the commercial apart "
+"and manipulate it, tinker with it to see how it does what it does. Digital "
+"technologies launch a kind of bricolage, or \"free collage,\" as Brown calls "
+"it. Many get to add to or transform the tinkering of many others."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2420
+msgid ""
+"The best large-scale example of this kind of tinkering so far is free "
+"software or open-source software (FS/OSS). FS/OSS is software whose source "
+"code is shared. Anyone can download the technology that makes a FS/OSS "
+"program run. And anyone eager to learn how a particular bit of FS/OSS "
+"technology works can tinker with the code."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2427
+msgid ""
+"This opportunity creates a \"completely new kind of learning platform,\" as "
+"Brown describes. \"As soon as you start doing that, you . . . unleash a "
+"free collage on the community, so that other people can start looking at "
+"your code, tinkering with it, trying it out, seeing if they can improve "
+"it.\" Each effort is a kind of apprenticeship. \"Open source becomes a major "
+"apprenticeship platform.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2437
+msgid ""
+"In this process, \"the concrete things you tinker with are abstract. They "
+"are code.\" Kids are \"shifting to the ability to tinker in the abstract, "
+"and this tinkering is no longer an isolated activity that you're doing in "
+"your garage. You are tinkering with a community platform. . . . You are "
+"tinkering with other people's stuff. The more you tinker the more you "
+"improve.\" The more you improve, the more you learn."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2447
+msgid ""
+"This same thing happens with content, too. And it happens in the same "
+"collaborative way when that content is part of the Web. As Brown puts it, "
+"\"the Web [is] the first medium that truly honors multiple forms of "
+"intelligence.\" Earlier technologies, such as the typewriter or word "
+"processors, helped amplify text. But the Web amplifies much more than "
+"text. \"The Web . . . says if you are musical, if you are artistic, if you "
+"are visual, if you are interested in film . . . [then] there is a lot you "
+"can start to do on this medium. [It] can now amplify and honor these "
+"multiple forms of intelligence.\""
+msgstr ""
+
+#. PAGE BREAK 60
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2461
+msgid ""
+"Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just "
+"Think! teach: that this tinkering with culture teaches as well as "
+"creates. It develops talents differently, and it builds a different kind of "
+"recognition."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2469
+msgid ""
+"Yet the freedom to tinker with these objects is not guaranteed. Indeed, as "
+"we'll see through the course of this book, that freedom is increasingly "
+"highly contested. While there's no doubt that your father had the right to "
+"tinker with the car engine, there's great doubt that your child will have "
+"the right to tinker with the images she finds all around. The law and, "
+"increasingly, technology interfere with a freedom that technology, and "
+"curiosity, would otherwise ensure."
+msgstr ""
+
+#. f22
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2484
+msgid ""
+"See, for example, Edward Felten and Andrew Appel, \"Technological Access "
+"Control Interferes with Noninfringing Scholarship,\" Communications of the "
+"Association for Computer Machinery 43 (2000): 9."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2478
+msgid ""
+"These restrictions have become the focus of researchers and scholars. "
+"Professor Ed Felten of Princeton (whom we'll see more of in chapter 10) has "
+"developed a powerful argument in favor of the \"right to tinker\" as it "
+"applies to computer science and to knowledge in general.<placeholder "
+"type=\"footnote\" id=\"0\"/> But Brown's concern is earlier, or younger, or "
+"more fundamental. It is about the learning that kids can do, or can't do, "
+"because of the law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2492
+msgid ""
+"\"This is where education in the twenty-first century is going,\" Brown "
+"explains. We need to \"understand how kids who grow up digital think and "
+"want to learn.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2497
+msgid ""
+"\"Yet,\" as Brown continued, and as the balance of this book will evince, "
+"\"we are building a legal system that completely suppresses the natural "
+"tendencies of today's digital kids. . . . We're building an architecture "
+"that unleashes 60 percent of the brain [and] a legal system that closes down "
+"that part of the brain.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2504
+msgid ""
+"We're building a technology that takes the magic of Kodak, mixes moving "
+"images and sound, and adds a space for commentary and an opportunity to "
+"spread that creativity everywhere. But we're building the law to close down "
+"that technology."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2510
+msgid ""
+"\"No way to run a culture,\" as Brewster Kahle, whom we'll meet in chapter "
+"9, quipped to me in a rare moment of despondence."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:2516
+msgid "CHAPTER THREE: Catalogs"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2518
+msgid ""
+"In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a "
+"freshman at Rensselaer Polytechnic Institute, in Troy, New York. His major "
+"at RPI was information technology. Though he is not a programmer, in October "
+"Jesse decided to begin to tinker with search engine technology that was "
+"available on the RPI network."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2525
+msgid ""
+"RPI is one of America's foremost technological research institutions. It "
+"offers degrees in fields ranging from architecture and engineering to "
+"information sciences. More than 65 percent of its five thousand "
+"undergraduates finished in the top 10 percent of their high school "
+"class. The school is thus a perfect mix of talent and experience to imagine "
+"and then build, a generation for the network age."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2533
+msgid ""
+"RPI's computer network links students, faculty, and administration to one "
+"another. It also links RPI to the Internet. Not everything available on the "
+"RPI network is available on the Internet. But the network is designed to "
+"enable students to get access to the Internet, as well as more intimate "
+"access to other members of the RPI community."
+msgstr ""
+
+#. PAGE BREAK 62
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2540
+msgid ""
+"Search engines are a measure of a network's intimacy. Google brought the "
+"Internet much closer to all of us by fantastically improving the quality of "
+"search on the network. Specialty search engines can do this even better. The "
+"idea of \"intranet\" search engines, search engines that search within the "
+"network of a particular institution, is to provide users of that institution "
+"with better access to material from that institution. Businesses do this "
+"all the time, enabling employees to have access to material that people "
+"outside the business can't get. Universities do it as well."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2552
+msgid ""
+"These engines are enabled by the network technology itself. Microsoft, for "
+"example, has a network file system that makes it very easy for search "
+"engines tuned to that network to query the system for information about the "
+"publicly (within that network) available content. Jesse's search engine was "
+"built to take advantage of this technology. It used Microsoft's network file "
+"system to build an index of all the files available within the RPI network."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2561
+msgid ""
+"Jesse's wasn't the first search engine built for the RPI network. Indeed, "
+"his engine was a simple modification of engines that others had built. His "
+"single most important improvement over those engines was to fix a bug within "
+"the Microsoft file-sharing system that could cause a user's computer to "
+"crash. With the engines that existed before, if you tried to access a file "
+"through a Windows browser that was on a computer that was off-line, your "
+"computer could crash. Jesse modified the system a bit to fix that problem, "
+"by adding a button that a user could click to see if the machine holding the "
+"file was still on-line."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2573
+msgid ""
+"Jesse's engine went on-line in late October. Over the following six months, "
+"he continued to tweak it to improve its functionality. By March, the system "
+"was functioning quite well. Jesse had more than one million files in his "
+"directory, including every type of content that might be on users' "
+"computers."
+msgstr ""
+
+#. PAGE BREAK 63
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2580
+msgid ""
+"Thus the index his search engine produced included pictures, which students "
+"could use to put on their own Web sites; copies of notes or research; copies "
+"of information pamphlets; movie clips that students might have created; "
+"university brochures—basically anything that users of the RPI network "
+"made available in a public folder of their computer."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2590
+msgid ""
+"But the index also included music files. In fact, one quarter of the files "
+"that Jesse's search engine listed were music files. But that means, of "
+"course, that three quarters were not, and—so that this point is "
+"absolutely clear—Jesse did nothing to induce people to put music files "
+"in their public folders. He did nothing to target the search engine to these "
+"files. He was a kid tinkering with a Google-like technology at a university "
+"where he was studying information science, and hence, tinkering was the "
+"aim. Unlike Google, or Microsoft, for that matter, he made no money from "
+"this tinkering; he was not connected to any business that would make any "
+"money from this experiment. He was a kid tinkering with technology in an "
+"environment where tinkering with technology was precisely what he was "
+"supposed to do."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2605
+msgid ""
+"On April 3, 2003, Jesse was contacted by the dean of students at RPI. The "
+"dean informed Jesse that the Recording Industry Association of America, the "
+"RIAA, would be filing a lawsuit against him and three other students whom he "
+"didn't even know, two of them at other universities. A few hours later, "
+"Jesse was served with papers from the suit. As he read these papers and "
+"watched the news reports about them, he was increasingly astonished."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2614
+msgid ""
+"\"It was absurd,\" he told me. \"I don't think I did anything wrong. . . . "
+"I don't think there's anything wrong with the search engine that I ran or "
+". . . what I had done to it. I mean, I hadn't modified it in any way that "
+"promoted or enhanced the work of pirates. I just modified the search engine "
+"in a way that would make it easier to use\"—again, a search engine, "
+"which Jesse had not himself built, using the Windows filesharing system, "
+"which Jesse had not himself built, to enable members of the RPI community to "
+"get access to content, which Jesse had not himself created or posted, and "
+"the vast majority of which had nothing to do with music."
+msgstr ""
+
+#. PAGE BREAK 64
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2626
+msgid ""
+"But the RIAA branded Jesse a pirate. They claimed he operated a network and "
+"had therefore \"willfully\" violated copyright laws. They demanded that he "
+"pay them the damages for his wrong. For cases of \"willful infringement,\" "
+"the Copyright Act specifies something lawyers call \"statutory damages.\" "
+"These damages permit a copyright owner to claim $150,000 per "
+"infringement. As the RIAA alleged more than one hundred specific copyright "
+"infringements, they therefore demanded that Jesse pay them at least "
+"$15,000,000."
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2647
+msgid ""
+"Tim Goral, \"Recording Industry Goes After Campus P-2-P Networks: Suit "
+"Alleges $97.8 Billion in Damages,\" Professional Media Group LCC 6 (2003): "
+"5, available at 2003 WL 55179443."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2638
+msgid ""
+"Similar lawsuits were brought against three other students: one other "
+"student at RPI, one at Michigan Technical University, and one at "
+"Princeton. Their situations were similar to Jesse's. Though each case was "
+"different in detail, the bottom line in each was exactly the same: huge "
+"demands for \"damages\" that the RIAA claimed it was entitled to. If you "
+"added up the claims, these four lawsuits were asking courts in the United "
+"States to award the plaintiffs close to $100 billion—six times the "
+"total profit of the film industry in 2001.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2653
+msgid ""
+"Jesse called his parents. They were supportive but a bit frightened. An "
+"uncle was a lawyer. He began negotiations with the RIAA. They demanded to "
+"know how much money Jesse had. Jesse had saved $12,000 from summer jobs and "
+"other employment. They demanded $12,000 to dismiss the case."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2660
+msgid ""
+"The RIAA wanted Jesse to admit to doing something wrong. He refused. They "
+"wanted him to agree to an injunction that would essentially make it "
+"impossible for him to work in many fields of technology for the rest of his "
+"life. He refused. They made him understand that this process of being sued "
+"was not going to be pleasant. (As Jesse's father recounted to me, the chief "
+"lawyer on the case, Matt Oppenheimer, told Jesse, \"You don't want to pay "
+"another visit to a dentist like me.\") And throughout, the RIAA insisted it "
+"would not settle the case until it took every penny Jesse had saved."
+msgstr ""
+
+#. PAGE BREAK 65
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2671
+msgid ""
+"Jesse's family was outraged at these claims. They wanted to fight. But "
+"Jesse's uncle worked to educate the family about the nature of the American "
+"legal system. Jesse could fight the RIAA. He might even win. But the cost of "
+"fighting a lawsuit like this, Jesse was told, would be at least $250,000. If "
+"he won, he would not recover that money. If he won, he would have a piece of "
+"paper saying he had won, and a piece of paper saying he and his family were "
+"bankrupt."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2681
+msgid ""
+"So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or "
+"$12,000 and a settlement."
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2693
+msgid ""
+"Occupational Employment Survey, U.S. Dept. of Labor (2001) "
+"(27–2042—Musicians and Singers). See also National Endowment for "
+"the Arts, More Than One in a Blue Moon (2000)."
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:2701
+msgid ""
+"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" Wall "
+"Street Journal, 10 September 2003, A24."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2685
+msgid ""
+"The recording industry insists this is a matter of law and morality. Let's "
+"put the law aside for a moment and think about the morality. Where is the "
+"morality in a lawsuit like this? What is the virtue in scapegoatism? The "
+"RIAA is an extraordinarily powerful lobby. The president of the RIAA is "
+"reported to make more than $1 million a year. Artists, on the other hand, "
+"are not well paid. The average recording artist makes $45,900.<placeholder "
+"type=\"footnote\" id=\"0\"/> There are plenty of ways for the RIAA to affect "
+"and direct policy. So where is the morality in taking money from a student "
+"for running a search engine?<placeholder type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2706
+msgid ""
+"On June 23, Jesse wired his savings to the lawyer working for the RIAA. The "
+"case against him was then dismissed. And with this, this kid who had "
+"tinkered a computer into a $15 million lawsuit became an activist:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:2713
+msgid ""
+"I was definitely not an activist [before]. I never really meant to be an "
+"activist. . . . [But] I've been pushed into this. In no way did I ever "
+"foresee anything like this, but I think it's just completely absurd what the "
+"RIAA has done."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2720
+msgid ""
+"Jesse's parents betray a certain pride in their reluctant activist. As his "
+"father told me, Jesse \"considers himself very conservative, and so do "
+"I. . . . He's not a tree hugger. . . . I think it's bizarre that they would "
+"pick on him. But he wants to let people know that they're sending the wrong "
+"message. And he wants to correct the record.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:2729
+msgid "CHAPTER FOUR: \"Pirates\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:2731
+msgid ""
+"If \"piracy\" means using the creative property of others without their "
+"permission—if \"if value, then right\" is true—then the history "
+"of the content industry is a history of piracy. Every important sector of "
+"\"big media\" today—film, records, radio, and cable TV—was born "
+"of a kind of piracy so defined. The consistent story is how last "
+"generation's pirates join this generation's country club—until now."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:2739
+msgid "Film"
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2743
+msgid ""
+"I am grateful to Peter DiMauro for pointing me to this extraordinary "
+"history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, "
+"87–93, which details Edison's \"adventures\" with copyright and "
+"patent."
+msgstr ""
+
+#. PAGE BREAK 67
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2741
+msgid ""
+"The film industry of Hollywood was built by fleeing pirates.<placeholder "
+"type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East "
+"Coast to California in the early twentieth century in part to escape "
+"controls that patents granted the inventor of filmmaking, Thomas "
+"Edison. These controls were exercised through a monopoly \"trust,\" the "
+"Motion Pictures Patents Company, and were based on Thomas Edison's creative "
+"property—patents. Edison formed the MPPC to exercise the rights this "
+"creative property gave him, and the MPPC was serious about the control it "
+"demanded."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2758
+msgid "As one commentator tells one part of the story,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:2762
+msgid ""
+"A January 1909 deadline was set for all companies to comply with the "
+"license. By February, unlicensed outlaws, who referred to themselves as "
+"independents protested the trust and carried on business without submitting "
+"to the Edison monopoly. In the summer of 1909 the independent movement was "
+"in full-swing, with producers and theater owners using illegal equipment and "
+"imported film stock to create their own underground market."
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:2782
+msgid ""
+"J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion "
+"Picture Producers (Cobblestone Entertainment, 2000) and expanded texts "
+"posted at \"The Edison Movie Monopoly: The Motion Picture Patents Company "
+"vs. the Independent Outlaws,\" available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #11</ulink>. For a discussion of "
+"the economic motive behind both these limits and the limits imposed by "
+"Victor on phonographs, see Randal C. Picker, \"From Edison to the Broadcast "
+"Flag: Mechanisms of Consent and Refusal and the Propertization of "
+"Copyright\" (September 2002), University of Chicago Law School, James "
+"M. Olin Program in Law and Economics, Working Paper No. 159."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:2771
+msgid ""
+"With the country experiencing a tremendous expansion in the number of "
+"nickelodeons, the Patents Company reacted to the independent movement by "
+"forming a strong-arm subsidiary known as the General Film Company to block "
+"the entry of non-licensed independents. With coercive tactics that have "
+"become legendary, General Film confiscated unlicensed equipment, "
+"discontinued product supply to theaters which showed unlicensed films, and "
+"effectively monopolized distribution with the acquisition of all U.S. film "
+"exchanges, except for the one owned by the independent William Fox who "
+"defied the Trust even after his license was revoked.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2802
+msgid ""
+"Marc Wanamaker, \"The First Studios,\" The Silents Majority, archived at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #12</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2796
+msgid ""
+"The Napsters of those days, the \"independents,\" were companies like "
+"Fox. And no less than today, these independents were vigorously resisted. "
+"\"Shooting was disrupted by machinery stolen, and `accidents' resulting in "
+"loss of negatives, equipment, buildings and sometimes life and limb "
+"frequently occurred.\"<placeholder type=\"footnote\" id=\"0\"/> That led the "
+"independents to flee the East Coast. California was remote enough from "
+"Edison's reach that filmmakers there could pirate his inventions without "
+"fear of the law. And the leaders of Hollywood filmmaking, Fox most "
+"prominently, did just that."
+msgstr ""
+
+#. PAGE BREAK 68
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2812
+msgid ""
+"Of course, California grew quickly, and the effective enforcement of federal "
+"law eventually spread west. But because patents grant the patent holder a "
+"truly \"limited\" monopoly (just seventeen years at that time), by the time "
+"enough federal marshals appeared, the patents had expired. A new industry "
+"had been born, in part from the piracy of Edison's creative property."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:2823
+msgid "Recorded Music"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2825
+msgid ""
+"The record industry was born of another kind of piracy, though to see how "
+"requires a bit of detail about the way the law regulates music."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2829
+msgid ""
+"At the time that Edison and Henri Fourneaux invented machines for "
+"reproducing music (Edison the phonograph, Fourneaux the player piano), the "
+"law gave composers the exclusive right to control copies of their music and "
+"the exclusive right to control public performances of their music. In other "
+"words, in 1900, if I wanted a copy of Phil Russel's 1899 hit \"Happy Mose,\" "
+"the law said I would have to pay for the right to get a copy of the musical "
+"score, and I would also have to pay for the right to perform it publicly."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:2838 freeculture.xml:2963
+msgid "Beatles"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2840
+msgid ""
+"But what if I wanted to record \"Happy Mose,\" using Edison's phonograph or "
+"Fourneaux's player piano? Here the law stumbled. It was clear enough that I "
+"would have to buy any copy of the musical score that I performed in making "
+"this recording. And it was clear enough that I would have to pay for any "
+"public performance of the work I was recording. But it wasn't totally clear "
+"that I would have to pay for a \"public performance\" if I recorded the song "
+"in my own house (even today, you don't owe the Beatles anything if you sing "
+"their songs in the shower), or if I recorded the song from memory (copies in "
+"your brain are not—yet— regulated by copyright law). So if I "
+"simply sang the song into a recording device in the privacy of my own home, "
+"it wasn't clear that I owed the composer anything. And more importantly, it "
+"wasn't clear whether I owed the composer anything if I then made copies of "
+"those recordings. Because of this gap in the law, then, I could effectively "
+"pirate someone else's song without paying its composer anything."
+msgstr ""
+
+#. PAGE BREAK 69
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2858
+msgid ""
+"The composers (and publishers) were none too happy about this capacity to "
+"pirate. As South Dakota senator Alfred Kittredge put it,"
+msgstr ""
+
+#. f4
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:2872
+msgid ""
+"To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 "
+"and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st "
+"sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, "
+"chairman), reprinted in Legislative History of the Copyright Act, E. Fulton "
+"Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, "
+"1976)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:2865
+msgid ""
+"Imagine the injustice of the thing. A composer writes a song or an opera. A "
+"publisher buys at great expense the rights to the same and copyrights "
+"it. Along come the phonographic companies and companies who cut music rolls "
+"and deliberately steal the work of the brain of the composer and publisher "
+"without any regard for [their] rights.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. f5
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2886
+msgid ""
+"To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of "
+"Nathan Burkan, attorney for the Music Publishers Association)."
+msgstr ""
+
+#. f6
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2892
+msgid ""
+"To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of "
+"Nathan Burkan, attorney for the Music Publishers Association)."
+msgstr ""
+
+#. f7
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2899
+msgid ""
+"To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of "
+"John Philip Sousa, composer)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2882
+msgid ""
+"The innovators who developed the technology to record other people's works "
+"were \"sponging upon the toil, the work, the talent, and genius of American "
+"composers,\"<placeholder type=\"footnote\" id=\"0\"/> and the \"music "
+"publishing industry\" was thereby \"at the complete mercy of this one "
+"pirate.\"<placeholder type=\"footnote\" id=\"1\"/> As John Philip Sousa put "
+"it, in as direct a way as possible, \"When they make money out of my pieces, "
+"I want a share of it.\"<placeholder type=\"footnote\" id=\"2\"/>"
+msgstr ""
+
+#. f8
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2911
+msgid ""
+"To Amend and Consolidate the Acts Respecting Copyright, 283–84 "
+"(statement of Albert Walker, representative of the Auto-Music Perforating "
+"Company of New York)."
+msgstr ""
+
+#. f9
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2922
+msgid ""
+"To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared "
+"memorandum of Philip Mauro, general patent counsel of the American "
+"Graphophone Company Association)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2904
+msgid ""
+"These arguments have familiar echoes in the wars of our day. So, too, do the "
+"arguments on the other side. The innovators who developed the player piano "
+"argued that \"it is perfectly demonstrable that the introduction of "
+"automatic music players has not deprived any composer of anything he had "
+"before their introduction.\" Rather, the machines increased the sales of "
+"sheet music.<placeholder type=\"footnote\" id=\"0\"/> In any case, the "
+"innovators argued, the job of Congress was \"to consider first the interest "
+"of [the public], whom they represent, and whose servants they are.\" \"All "
+"talk about `theft,'\" the general counsel of the American Graphophone "
+"Company wrote, \"is the merest claptrap, for there exists no property in "
+"ideas musical, literary or artistic, except as defined by "
+"statute.\"<placeholder type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. PAGE BREAK 70
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2930
+msgid ""
+"The law soon resolved this battle in favor of the composer and the recording "
+"artist. Congress amended the law to make sure that composers would be paid "
+"for the \"mechanical reproductions\" of their music. But rather than simply "
+"granting the composer complete control over the right to make mechanical "
+"reproductions, Congress gave recording artists a right to record the music, "
+"at a price set by Congress, once the composer allowed it to be recorded "
+"once. This is the part of copyright law that makes cover songs "
+"possible. Once a composer authorizes a recording of his song, others are "
+"free to record the same song, so long as they pay the original composer a "
+"fee set by the law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2946
+msgid ""
+"American law ordinarily calls this a \"compulsory license,\" but I will "
+"refer to it as a \"statutory license.\" A statutory license is a license "
+"whose key terms are set by law. After Congress's amendment of the Copyright "
+"Act in 1909, record companies were free to distribute copies of recordings "
+"so long as they paid the composer (or copyright holder) the fee set by the "
+"statute."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2955
+msgid ""
+"This is an exception within the law of copyright. When John Grisham writes a "
+"novel, a publisher is free to publish that novel only if Grisham gives the "
+"publisher permission. Grisham, in turn, is free to charge whatever he wants "
+"for that permission. The price to publish Grisham is thus set by Grisham, "
+"and copyright law ordinarily says you have no permission to use Grisham's "
+"work except with permission of Grisham."
+msgstr ""
+
+#. f10
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:2978
+msgid ""
+"Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and "
+"H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., "
+"217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in "
+"Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe "
+"Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2965
+msgid ""
+"But the law governing recordings gives recording artists less. And thus, in "
+"effect, the law subsidizes the recording industry through a kind of "
+"piracy—by giving recording artists a weaker right than it otherwise "
+"gives creative authors. The Beatles have less control over their creative "
+"work than Grisham does. And the beneficiaries of this less control are the "
+"recording industry and the public. The recording industry gets something of "
+"value for less than it otherwise would pay; the public gets access to a much "
+"wider range of musical creativity. Indeed, Congress was quite explicit about "
+"its reasons for granting this right. Its fear was the monopoly power of "
+"rights holders, and that that power would stifle follow-on "
+"creativity.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:2986
+msgid ""
+"While the recording industry has been quite coy about this recently, "
+"historically it has been quite a supporter of the statutory license for "
+"records. As a 1967 report from the House Committee on the Judiciary relates,"
+msgstr ""
+
+#. f11
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:3012
+msgid ""
+"Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on "
+"the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8 March "
+"1967). I am grateful to Glenn Brown for drawing my attention to this report."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:2993
+msgid ""
+"the record producers argued vigorously that the compulsory license system "
+"must be retained. They asserted that the record industry is a "
+"half-billion-dollar business of great economic importance in the United "
+"States and throughout the world; records today are the principal means of "
+"disseminating music, and this creates special problems, since performers "
+"need unhampered access to musical material on nondiscriminatory "
+"terms. Historically, the record producers pointed out, there were no "
+"recording rights before 1909 and the 1909 statute adopted the compulsory "
+"license as a deliberate anti-monopoly condition on the grant of these "
+"rights. They argue that the result has been an outpouring of recorded music, "
+"with the public being given lower prices, improved quality, and a greater "
+"choice.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3019
+msgid ""
+"By limiting the rights musicians have, by partially pirating their creative "
+"work, the record producers, and the public, benefit."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:3025 freeculture.xml:4145
+msgid "Radio"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3027
+msgid "Radio was also born of piracy."
+msgstr ""
+
+#. f12
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3033
+msgid ""
+"See 17 United States Code, sections 106 and 110. At the beginning, record "
+"companies printed \"Not Licensed for Radio Broadcast\" and other messages "
+"purporting to restrict the ability to play a record on a radio station. "
+"Judge Learned Hand rejected the argument that a warning attached to a record "
+"might restrict the rights of the radio station. See RCA Manufacturing "
+"Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, "
+"\"From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and "
+"the Propertization of Copyright,\" University of Chicago Law Review 70 "
+"(2003): 281."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3030
+msgid ""
+"When a radio station plays a record on the air, that constitutes a \"public "
+"performance\" of the composer's work.<placeholder type=\"footnote\" "
+"id=\"0\"/> As I described above, the law gives the composer (or copyright "
+"holder) an exclusive right to public performances of his work. The radio "
+"station thus owes the composer money for that performance."
+msgstr ""
+
+#. PAGE BREAK 72
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3052
+msgid ""
+"But when the radio station plays a record, it is not only performing a copy "
+"of the composer's work. The radio station is also performing a copy of the "
+"recording artist's work. It's one thing to have \"Happy Birthday\" sung on "
+"the radio by the local children's choir; it's quite another to have it sung "
+"by the Rolling Stones or Lyle Lovett. The recording artist is adding to the "
+"value of the composition performed on the radio station. And if the law "
+"were perfectly consistent, the radio station would have to pay the recording "
+"artist for his work, just as it pays the composer of the music for his work."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3068
+msgid ""
+"But it doesn't. Under the law governing radio performances, the radio "
+"station does not have to pay the recording artist. The radio station need "
+"only pay the composer. The radio station thus gets a bit of something for "
+"nothing. It gets to perform the recording artist's work for free, even if it "
+"must pay the composer something for the privilege of playing the song."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3078
+msgid ""
+"This difference can be huge. Imagine you compose a piece of music. Imagine "
+"it is your first. You own the exclusive right to authorize public "
+"performances of that music. So if Madonna wants to sing your song in public, "
+"she has to get your permission."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3085
+msgid ""
+"Imagine she does sing your song, and imagine she likes it a lot. She then "
+"decides to make a recording of your song, and it becomes a top hit. Under "
+"our law, every time a radio station plays your song, you get some money. But "
+"Madonna gets nothing, save the indirect effect on the sale of her CDs. The "
+"public performance of her recording is not a \"protected\" right. The radio "
+"station thus gets to pirate the value of Madonna's work without paying her "
+"anything."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3094
+msgid ""
+"No doubt, one might argue that, on balance, the recording artists "
+"benefit. On average, the promotion they get is worth more than the "
+"performance rights they give up. Maybe. But even if so, the law ordinarily "
+"gives the creator the right to make this choice. By making the choice for "
+"him or her, the law gives the radio station the right to take something for "
+"nothing."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:3104 freeculture.xml:4151
+msgid "Cable TV"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3107
+msgid "Cable TV was also born of a kind of piracy."
+msgstr ""
+
+#. PAGE BREAK 73
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3110
+msgid ""
+"When cable entrepreneurs first started wiring communities with cable "
+"television in 1948, most refused to pay broadcasters for the content that "
+"they echoed to their customers. Even when the cable companies started "
+"selling access to television broadcasts, they refused to pay for what they "
+"sold. Cable companies were thus Napsterizing broadcasters' content, but more "
+"egregiously than anything Napster ever did— Napster never charged for "
+"the content it enabled others to give away."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:3120
+msgid "Anello, Douglas"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:3121
+msgid "Burdick, Quentin"
+msgstr ""
+
+#. f13
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3127
+msgid ""
+"Copyright Law Revision—CATV: Hearing on S. 1006 Before the "
+"Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee "
+"on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel "
+"H. Hyde, chairman of the Federal Communications Commission)."
+msgstr ""
+
+#. f14
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3138
+msgid ""
+"Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, "
+"general counsel of the National Association of Broadcasters)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3123
+msgid ""
+"Broadcasters and copyright owners were quick to attack this theft. Rosel "
+"Hyde, chairman of the FCC, viewed the practice as a kind of \"unfair and "
+"potentially destructive competition.\"<placeholder type=\"footnote\" "
+"id=\"0\"/> There may have been a \"public interest\" in spreading the reach "
+"of cable TV, but as Douglas Anello, general counsel to the National "
+"Association of Broadcasters, asked Senator Quentin Burdick during testimony, "
+"\"Does public interest dictate that you use somebody else's "
+"property?\"<placeholder type=\"footnote\" id=\"1\"/> As another broadcaster "
+"put it,"
+msgstr ""
+
+#. f15
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:3149
+msgid ""
+"Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes, "
+"general counsel of the Association of Maximum Service Telecasters, Inc.)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:3145
+msgid ""
+"The extraordinary thing about the CATV business is that it is the only "
+"business I know of where the product that is being sold is not paid "
+"for.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3155
+msgid "Again, the demand of the copyright holders seemed reasonable enough:"
+msgstr ""
+
+#. f16
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:3164
+msgid ""
+"Copyright Law Revision—CATV, 169 (joint statement of Arthur B. Krim, "
+"president of United Artists Corp., and John Sinn, president of United "
+"Artists Television, Inc.)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:3159
+msgid ""
+"All we are asking for is a very simple thing, that people who now take our "
+"property for nothing pay for it. We are trying to stop piracy and I don't "
+"think there is any lesser word to describe it. I think there are harsher "
+"words which would fit it.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f17
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3175
+msgid ""
+"Copyright Law Revision—CATV, 209 (statement of Charlton Heston, "
+"president of the Screen Actors Guild)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3171
+msgid ""
+"These were \"free-ride[rs],\" Screen Actor's Guild president Charlton Heston "
+"said, who were \"depriving actors of compensation.\"<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3180
+msgid ""
+"But again, there was another side to the debate. As Assistant Attorney "
+"General Edwin Zimmerman put it,"
+msgstr ""
+
+#. f18
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:3194
+msgid ""
+"Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, "
+"acting assistant attorney general)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:3185
+msgid ""
+"Our point here is that unlike the problem of whether you have any copyright "
+"protection at all, the problem here is whether copyright holders who are "
+"already compensated, who already have a monopoly, should be permitted to "
+"extend that monopoly. . . . The question here is how much compensation they "
+"should have and how far back they should carry their right to "
+"compensation.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3200
+msgid ""
+"Copyright owners took the cable companies to court. Twice the Supreme Court "
+"held that the cable companies owed the copyright owners nothing."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3204
+msgid ""
+"It took Congress almost thirty years before it resolved the question of "
+"whether cable companies had to pay for the content they \"pirated.\" In the "
+"end, Congress resolved this question in the same way that it resolved the "
+"question about record players and player pianos. Yes, cable companies would "
+"have to pay for the content that they broadcast; but the price they would "
+"have to pay was not set by the copyright owner. The price was set by law, "
+"so that the broadcasters couldn't exercise veto power over the emerging "
+"technologies of cable. Cable companies thus built their empire in part upon "
+"a \"piracy\" of the value created by broadcasters' content."
+msgstr ""
+
+#. f19
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3221
+msgid ""
+"See, for example, National Music Publisher's Association, The Engine of Free "
+"Expression: Copyright on the Internet—The Myth of Free Information, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#13</ulink>. \"The threat of piracy—the use of someone else's creative "
+"work without permission or compensation—has grown with the Internet.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3216
+msgid ""
+"These separate stories sing a common theme. If \"piracy\" means using value "
+"from someone else's creative property without permission from that "
+"creator—as it is increasingly described today<placeholder "
+"type=\"footnote\" id=\"0\"/> — then every industry affected by "
+"copyright today is the product and beneficiary of a certain kind of "
+"piracy. Film, records, radio, cable TV. . . . The list is long and could "
+"well be expanded. Every generation welcomes the pirates from the last. Every "
+"generation—until now."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:3238
+msgid "CHAPTER FIVE: \"Piracy\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:3240
+msgid ""
+"There is piracy of copyrighted material. Lots of it. This piracy comes in "
+"many forms. The most significant is commercial piracy, the unauthorized "
+"taking of other people's content within a commercial context. Despite the "
+"many justifications that are offered in its defense, this taking is "
+"wrong. No one should condone it, and the law should stop it."
+msgstr ""
+
+#. PAGE BREAK 76
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:3248
+msgid ""
+"But as well as copy-shop piracy, there is another kind of \"taking\" that is "
+"more directly related to the Internet. That taking, too, seems wrong to "
+"many, and it is wrong much of the time. Before we paint this taking "
+"\"piracy,\" however, we should understand its nature a bit more. For the "
+"harm of this taking is significantly more ambiguous than outright copying, "
+"and the law should account for that ambiguity, as it has so often done in "
+"the past."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:3258
+msgid "Piracy I"
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3266
+msgid ""
+"See IFPI (International Federation of the Phonographic Industry), The "
+"Recording Industry Commercial Piracy Report 2003, July 2003, available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #14</ulink>. See also Ben "
+"Hunt, \"Companies Warned on Music Piracy Risk,\" Financial Times, 14 "
+"February 2003, 11."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3260
+msgid ""
+"All across the world, but especially in Asia and Eastern Europe, there are "
+"businesses that do nothing but take others people's copyrighted content, "
+"copy it, and sell it—all without the permission of a copyright "
+"owner. The recording industry estimates that it loses about $4.6 billion "
+"every year to physical piracy<placeholder type=\"footnote\" id=\"0\"/> (that "
+"works out to one in three CDs sold worldwide). The MPAA estimates that it "
+"loses $3 billion annually worldwide to piracy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3277
+msgid ""
+"This is piracy plain and simple. Nothing in the argument of this book, nor "
+"in the argument that most people make when talking about the subject of this "
+"book, should draw into doubt this simple point: This piracy is wrong."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3283
+msgid ""
+"Which is not to say that excuses and justifications couldn't be made for "
+"it. We could, for example, remind ourselves that for the first one hundred "
+"years of the American Republic, America did not honor foreign copyrights. We "
+"were born, in this sense, a pirate nation. It might therefore seem "
+"hypocritical for us to insist so strongly that other developing nations "
+"treat as wrong what we, for the first hundred years of our existence, "
+"treated as right."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3294
+msgid ""
+"That excuse isn't terribly strong. Technically, our law did not ban the "
+"taking of foreign works. It explicitly limited itself to American "
+"works. Thus the American publishers who published foreign works without the "
+"permission of foreign authors were not violating any rule. The copy shops "
+"in Asia, by contrast, are violating Asian law. Asian law does protect "
+"foreign copyrights, and the actions of the copy shops violate that law. So "
+"the wrong of piracy that they engage in is not just a moral wrong, but a "
+"legal wrong, and not just an internationally legal wrong, but a locally "
+"legal wrong as well."
+msgstr ""
+
+#. PAGE BREAK 77
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3306
+msgid ""
+"True, these local rules have, in effect, been imposed upon these "
+"countries. No country can be part of the world economy and choose not to "
+"protect copyright internationally. We may have been born a pirate nation, "
+"but we will not allow any other nation to have a similar childhood."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
+#: freeculture.xml:3334 freeculture.xml:12238 freeculture.xml:12670 freeculture.xml:12677
+msgid "Drahos, Peter"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3320
+msgid ""
+"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the "
+"Knowledge Economy? (New York: The New Press, 2003), 10–13, 209. The "
+"Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement "
+"obligates member nations to create administrative and enforcement mechanisms "
+"for intellectual property rights, a costly proposition for developing "
+"countries. Additionally, patent rights may lead to higher prices for staple "
+"industries such as agriculture. Critics of TRIPS question the disparity "
+"between burdens imposed upon developing countries and benefits conferred to "
+"industrialized nations. TRIPS does permit governments to use patents for "
+"public, noncommercial uses without first obtaining the patent holder's "
+"permission. Developing nations may be able to use this to gain the benefits "
+"of foreign patents at lower prices. This is a promising strategy for "
+"developing nations within the TRIPS framework. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3315
+msgid ""
+"If a country is to be treated as a sovereign, however, then its laws are its "
+"laws regardless of their source. The international law under which these "
+"nations live gives them some opportunities to escape the burden of "
+"intellectual property law.<placeholder type=\"footnote\" id=\"0\"/> In my "
+"view, more developing nations should take advantage of that opportunity, but "
+"when they don't, then their laws should be respected. And under the laws of "
+"these nations, this piracy is wrong."
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3347
+msgid ""
+"For an analysis of the economic impact of copying technology, see Stan "
+"Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), "
+"144–90. \"In some instances . . . the impact of piracy on the "
+"copyright holder's ability to appropriate the value of the work will be "
+"negligible. One obvious instance is the case where the individual engaging "
+"in pirating would not have purchased an original even if pirating were not "
+"an option.\" Ibid., 149."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3341
+msgid ""
+"Alternatively, we could try to excuse this piracy by noting that in any "
+"case, it does no harm to the industry. The Chinese who get access to "
+"American CDs at 50 cents a copy are not people who would have bought those "
+"American CDs at $15 a copy. So no one really has any less money than they "
+"otherwise would have had.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3357
+msgid ""
+"This is often true (though I have friends who have purchased many thousands "
+"of pirated DVDs who certainly have enough money to pay for the content they "
+"have taken), and it does mitigate to some degree the harm caused by such "
+"taking. Extremists in this debate love to say, \"You wouldn't go into Barnes "
+"& Noble and take a book off of the shelf without paying; why should it "
+"be any different with on-line music?\" The difference is, of course, that "
+"when you take a book from Barnes & Noble, it has one less book to "
+"sell. By contrast, when you take an MP3 from a computer network, there is "
+"not one less CD that can be sold. The physics of piracy of the intangible "
+"are different from the physics of piracy of the tangible."
+msgstr ""
+
+#. PAGE BREAK 78
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3370
+msgid ""
+"This argument is still very weak. However, although copyright is a property "
+"right of a very special sort, it is a property right. Like all property "
+"rights, the copyright gives the owner the right to decide the terms under "
+"which content is shared. If the copyright owner doesn't want to sell, she "
+"doesn't have to. There are exceptions: important statutory licenses that "
+"apply to copyrighted content regardless of the wish of the copyright "
+"owner. Those licenses give people the right to \"take\" copyrighted content "
+"whether or not the copyright owner wants to sell. But where the law does not "
+"give people the right to take content, it is wrong to take that content even "
+"if the wrong does no harm. If we have a property system, and that system is "
+"properly balanced to the technology of a time, then it is wrong to take "
+"property without the permission of a property owner. That is exactly what "
+"\"property\" means."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3391
+msgid ""
+"Finally, we could try to excuse this piracy with the argument that the "
+"piracy actually helps the copyright owner. When the Chinese \"steal\" "
+"Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the "
+"value of the software that was taken. But it gains users who are used to "
+"life in the Microsoft world. Over time, as the nation grows more wealthy, "
+"more and more people will buy software rather than steal it. And hence over "
+"time, because that buying will benefit Microsoft, Microsoft benefits from "
+"the piracy. If instead of pirating Microsoft Windows, the Chinese used the "
+"free GNU/Linux operating system, then these Chinese users would not "
+"eventually be buying Microsoft. Without piracy, then, Microsoft would lose."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3407
+msgid ""
+"This argument, too, is somewhat true. The addiction strategy is a good "
+"one. Many businesses practice it. Some thrive because of it. Law students, "
+"for example, are given free access to the two largest legal databases. The "
+"companies marketing both hope the students will become so used to their "
+"service that they will want to use it and not the other when they become "
+"lawyers (and must pay high subscription fees)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3416
+msgid ""
+"Still, the argument is not terribly persuasive. We don't give the alcoholic "
+"a defense when he steals his first beer, merely because that will make it "
+"more likely that he will buy the next three. Instead, we ordinarily allow "
+"businesses to decide for themselves when it is best to give their product "
+"away. If Microsoft fears the competition of GNU/Linux, then Microsoft can "
+"give its product away, as it did, for example, with Internet Explorer to "
+"fight Netscape. A property right means giving the property owner the right "
+"to say who gets access to what—at least ordinarily. And if the law "
+"properly balances the rights of the copyright owner with the rights of "
+"access, then violating the law is still wrong."
+msgstr ""
+
+#. PAGE BREAK 79
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3434
+msgid ""
+"Thus, while I understand the pull of these justifications for piracy, and I "
+"certainly see the motivation, in my view, in the end, these efforts at "
+"justifying commercial piracy simply don't cut it. This kind of piracy is "
+"rampant and just plain wrong. It doesn't transform the content it steals; it "
+"doesn't transform the market it competes in. It merely gives someone access "
+"to something that the law says he should not have. Nothing has changed to "
+"draw that law into doubt. This form of piracy is flat out wrong."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3444
+msgid ""
+"But as the examples from the four chapters that introduced this part "
+"suggest, even if some piracy is plainly wrong, not all \"piracy\" is. Or at "
+"least, not all \"piracy\" is wrong if that term is understood in the way it "
+"is increasingly used today. Many kinds of \"piracy\" are useful and "
+"productive, to produce either new content or new ways of doing business. "
+"Neither our tradition nor any tradition has ever banned all \"piracy\" in "
+"that sense of the term."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3453
+msgid ""
+"This doesn't mean that there are no questions raised by the latest piracy "
+"concern, peer-to-peer file sharing. But it does mean that we need to "
+"understand the harm in peer-to-peer sharing a bit more before we condemn it "
+"to the gallows with the charge of piracy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3459
+msgid ""
+"For (1) like the original Hollywood, p2p sharing escapes an overly "
+"controlling industry; and (2) like the original recording industry, it "
+"simply exploits a new way to distribute content; but (3) unlike cable TV, no "
+"one is selling the content that is shared on p2p services."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3465
+msgid ""
+"These differences distinguish p2p sharing from true piracy. They should push "
+"us to find a way to protect artists while enabling this sharing to survive."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:3472
+msgid "Piracy II"
+msgstr ""
+
+#. f4
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3477
+msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777)."
+msgstr ""
+
+#. PAGE BREAK 80
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3474
+msgid ""
+"The key to the \"piracy\" that the law aims to quash is a use that \"rob[s] "
+"the author of [his] profit.\"<placeholder type=\"footnote\" id=\"0\"/> This "
+"means we must determine whether and how much p2p sharing harms before we "
+"know how strongly the law should seek to either prevent it or find an "
+"alternative to assure the author of his profit."
+msgstr ""
+
+#. f5
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3493
+msgid ""
+"See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary "
+"National Bestseller That Changed the Way We Do Business (New York: "
+"HarperBusiness, 2000). Professor Christensen examines why companies that "
+"give rise to and dominate a product area are frequently unable to come up "
+"with the most creative, paradigm-shifting uses for their own products. This "
+"job usually falls to outside innovators, who reassemble existing technology "
+"in inventive ways. For a discussion of Christensen's ideas, see Lawrence "
+"Lessig, Future, 89–92, 139."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
+#: freeculture.xml:3504
+msgid "Fanning, Shawn"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3486
+msgid ""
+"Peer-to-peer sharing was made famous by Napster. But the inventors of the "
+"Napster technology had not made any major technological innovations. Like "
+"every great advance in innovation on the Internet (and, arguably, off the "
+"Internet as well<placeholder type=\"footnote\" id=\"0\"/>), Shawn Fanning "
+"and crew had simply put together components that had been developed "
+"independently. <placeholder type=\"indexterm\" id=\"1\"/>"
+msgstr ""
+
+#. f6
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3512
+msgid ""
+"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" San "
+"Francisco Chronicle, 24 September 2002, A1; \"Rock 'n' Roll Suicide,\" New "
+"Scientist, 6 July 2002, 42; Benny Evangelista, \"Napster Names CEO, Secures "
+"New Financing,\" San Francisco Chronicle, 23 May 2003, C1; \"Napster's "
+"Wake-Up Call,\" Economist, 24 June 2000, 23; John Naughton, \"Hollywood at "
+"War with the Internet\" (London) Times, 26 July 2002, 18."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3507
+msgid ""
+"The result was spontaneous combustion. Launched in July 1999, Napster "
+"amassed over 10 million users within nine months. After eighteen months, "
+"there were close to 80 million registered users of the system.<placeholder "
+"type=\"footnote\" id=\"0\"/> Courts quickly shut Napster down, but other "
+"services emerged to take its place. (Kazaa is currently the most popular p2p "
+"service. It boasts over 100 million members.) These services' systems are "
+"different architecturally, though not very different in function: Each "
+"enables users to make content available to any number of other users. With a "
+"p2p system, you can share your favorite songs with your best friend— "
+"or your 20,000 best friends."
+msgstr ""
+
+#. f7
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3536
+msgid ""
+"See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution "
+"(September 2002), reporting that 28 percent of Americans aged twelve and "
+"older have downloaded music off of the Internet and 30 percent have listened "
+"to digital music files stored on their computers."
+msgstr ""
+
+#. f8
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3545
+msgid ""
+"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" New York "
+"Times, 6 June 2003, A1."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3530
+msgid ""
+"According to a number of estimates, a huge proportion of Americans have "
+"tasted file-sharing technology. A study by Ipsos-Insight in September 2002 "
+"estimated that 60 million Americans had downloaded music—28 percent of "
+"Americans older than 12.<placeholder type=\"footnote\" id=\"0\"/> A survey "
+"by the NPD group quoted in The New York Times estimated that 43 million "
+"citizens used file-sharing networks to exchange content in May "
+"2003.<placeholder type=\"footnote\" id=\"1\"/> The vast majority of these "
+"are not kids. Whatever the actual figure, a massive quantity of content is "
+"being \"taken\" on these networks. The ease and inexpensiveness of "
+"file-sharing networks have inspired millions to enjoy music in a way that "
+"they hadn't before."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3556
+msgid ""
+"Some of this enjoying involves copyright infringement. Some of it does "
+"not. And even among the part that is technically copyright infringement, "
+"calculating the actual harm to copyright owners is more complicated than one "
+"might think. So consider—a bit more carefully than the polarized "
+"voices around this debate usually do—the kinds of sharing that file "
+"sharing enables, and the kinds of harm it entails."
+msgstr ""
+
+#. PAGE BREAK 81
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3566
+msgid ""
+"File sharers share different kinds of content. We can divide these different "
+"kinds into four types."
+msgstr ""
+
+#. A.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:3572
+msgid ""
+"There are some who use sharing networks as substitutes for purchasing "
+"content. Thus, when a new Madonna CD is released, rather than buying the CD, "
+"these users simply take it. We might quibble about whether everyone who "
+"takes it would actually have bought it if sharing didn't make it available "
+"for free. Most probably wouldn't have, but clearly there are some who "
+"would. The latter are the target of category A: users who download instead "
+"of purchasing."
+msgstr ""
+
+#. B.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:3585
+msgid ""
+"There are some who use sharing networks to sample music before purchasing "
+"it. Thus, a friend sends another friend an MP3 of an artist he's not heard "
+"of. The other friend then buys CDs by that artist. This is a kind of "
+"targeted advertising, quite likely to succeed. If the friend recommending "
+"the album gains nothing from a bad recommendation, then one could expect "
+"that the recommendations will actually be quite good. The net effect of this "
+"sharing could increase the quantity of music purchased."
+msgstr ""
+
+#. C.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:3598
+msgid ""
+"There are many who use sharing networks to get access to copyrighted content "
+"that is no longer sold or that they would not have purchased because the "
+"transaction costs off the Net are too high. This use of sharing networks is "
+"among the most rewarding for many. Songs that were part of your childhood "
+"but have long vanished from the marketplace magically appear again on the "
+"network. (One friend told me that when she discovered Napster, she spent a "
+"solid weekend \"recalling\" old songs. She was astonished at the range and "
+"mix of content that was available.) For content not sold, this is still "
+"technically a violation of copyright, though because the copyright owner is "
+"not selling the content anymore, the economic harm is zero—the same "
+"harm that occurs when I sell my collection of 1960s 45-rpm records to a "
+"local collector."
+msgstr ""
+
+#. PAGE BREAK 82
+#. D.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:3619
+msgid ""
+"Finally, there are many who use sharing networks to get access to content "
+"that is not copyrighted or that the copyright owner wants to give away."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3625
+msgid "How do these different types of sharing balance out?"
+msgstr ""
+
+#. f9
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3633
+msgid "See Liebowitz, Rethinking the Network Economy,148–49."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3628
+msgid ""
+"Let's start with some simple but important points. From the perspective of "
+"the law, only type D sharing is clearly legal. From the perspective of "
+"economics, only type A sharing is clearly harmful.<placeholder "
+"type=\"footnote\" id=\"0\"/> Type B sharing is illegal but plainly "
+"beneficial. Type C sharing is illegal, yet good for society (since more "
+"exposure to music is good) and harmless to the artist (since the work is not "
+"otherwise available). So how sharing matters on balance is a hard question "
+"to answer—and certainly much more difficult than the current rhetoric "
+"around the issue suggests."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3645
+msgid ""
+"Whether on balance sharing is harmful depends importantly on how harmful "
+"type A sharing is. Just as Edison complained about Hollywood, composers "
+"complained about piano rolls, recording artists complained about radio, and "
+"broadcasters complained about cable TV, the music industry complains that "
+"type A sharing is a kind of \"theft\" that is \"devastating\" the industry."
+msgstr ""
+
+#. f10
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3663
+msgid ""
+"See Cap Gemini Ernst & Young, Technology Evolution and the Music "
+"Industry's Business Model Crisis (2003), 3. This report describes the music "
+"industry's effort to stigmatize the budding practice of cassette taping in "
+"the 1970s, including an advertising campaign featuring a cassette-shape "
+"skull and the caption \"Home taping is killing music.\" At the time digital "
+"audio tape became a threat, the Office of Technical Assessment conducted a "
+"survey of consumer behavior. In 1988, 40 percent of consumers older than ten "
+"had taped music to a cassette format. U.S. Congress, Office of Technology "
+"Assessment, Copyright and Home Copying: Technology Challenges the Law, "
+"OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October "
+"1989), 145–56."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3654
+msgid ""
+"While the numbers do suggest that sharing is harmful, how harmful is harder "
+"to reckon. It has long been the recording industry's practice to blame "
+"technology for any drop in sales. The history of cassette recording is a "
+"good example. As a study by Cap Gemini Ernst & Young put it, \"Rather "
+"than exploiting this new, popular technology, the labels fought "
+"it.\"<placeholder type=\"footnote\" id=\"0\"/> The labels claimed that every "
+"album taped was an album unsold, and when record sales fell by 11.4 percent "
+"in 1981, the industry claimed that its point was proved. Technology was the "
+"problem, and banning or regulating technology was the answer."
+msgstr ""
+
+#. f11
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3692
+msgid "U.S. Congress, Copyright and Home Copying, 4."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3684
+msgid ""
+"Yet soon thereafter, and before Congress was given an opportunity to enact "
+"regulation, MTV was launched, and the industry had a record turnaround. \"In "
+"the end,\" Cap Gemini concludes, \"the `crisis' . . . was not the fault of "
+"the tapers—who did not [stop after MTV came into being]—but had "
+"to a large extent resulted from stagnation in musical innovation at the "
+"major labels.\"<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3696
+msgid ""
+"But just because the industry was wrong before does not mean it is wrong "
+"today. To evaluate the real threat that p2p sharing presents to the industry "
+"in particular, and society in general—or at least the society that "
+"inherits the tradition that gave us the film industry, the record industry, "
+"the radio industry, cable TV, and the VCR—the question is not simply "
+"whether type A sharing is harmful. The question is also how harmful type A "
+"sharing is, and how beneficial the other types of sharing are."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3706
+msgid ""
+"We start to answer this question by focusing on the net harm, from the "
+"standpoint of the industry as a whole, that sharing networks cause. The "
+"\"net harm\" to the industry as a whole is the amount by which type A "
+"sharing exceeds type B. If the record companies sold more records through "
+"sampling than they lost through substitution, then sharing networks would "
+"actually benefit music companies on balance. They would therefore have "
+"little static reason to resist them."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3715
+msgid ""
+"Could that be true? Could the industry as a whole be gaining because of file "
+"sharing? Odd as that might sound, the data about CD sales actually suggest "
+"it might be close."
+msgstr ""
+
+#. f12
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3725
+msgid ""
+"See Recording Industry Association of America, 2002 Yearend Statistics, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#15</ulink>. A later report indicates even greater losses. See Recording "
+"Industry Association of America, Some Facts About Music Piracy, 25 June "
+"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#16</ulink>: \"In the past four years, unit shipments of recorded music have "
+"fallen by 26 percent from 1.16 billion units in to 860 million units in 2002 "
+"in the United States (based on units shipped). In terms of sales, revenues "
+"are down 14 percent, from $14.6 billion in to $12.6 billion last year (based "
+"on U.S. dollar value of shipments). The music industry worldwide has gone "
+"from a $39 billion industry in 2000 down to a $32 billion industry in 2002 "
+"(based on U.S. dollar value of shipments).\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:3752
+msgid "Black, Jane"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3749
+msgid ""
+"Jane Black, \"Big Music's Broken Record,\" BusinessWeek online, 13 February "
+"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#17</ulink>. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3721
+msgid ""
+"In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 "
+"million to 803 million units; revenues fell 6.7 percent.<placeholder "
+"type=\"footnote\" id=\"0\"/> This confirms a trend over the past few "
+"years. The RIAA blames Internet piracy for the trend, though there are many "
+"other causes that could account for this drop. SoundScan, for example, "
+"reports a more than 20 percent drop in the number of CDs released since "
+"1999. That no doubt accounts for some of the decrease in sales. Rising "
+"prices could account for at least some of the loss. \"From 1999 to 2001, the "
+"average price of a CD rose 7.2 percent, from $13.04 to $14.19.\"<placeholder "
+"type=\"footnote\" id=\"1\"/> Competition from other forms of media could "
+"also account for some of the decline. As Jane Black of BusinessWeek notes, "
+"\"The soundtrack to the film High Fidelity has a list price of $18.98. You "
+"could get the whole movie [on DVD] for $19.99.\"<placeholder "
+"type=\"footnote\" id=\"2\"/>"
+msgstr ""
+
+#. PAGE BREAK 84
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3766
+msgid ""
+"But let's assume the RIAA is right, and all of the decline in CD sales is "
+"because of Internet sharing. Here's the rub: In the same period that the "
+"RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 "
+"billion CDs were downloaded for free. Thus, although 2.6 times the total "
+"number of CDs sold were downloaded for free, sales revenue fell by just 6.7 "
+"percent."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3775
+msgid ""
+"There are too many different things happening at the same time to explain "
+"these numbers definitively, but one conclusion is unavoidable: The recording "
+"industry constantly asks, \"What's the difference between downloading a song "
+"and stealing a CD?\"—but their own numbers reveal the difference. If I "
+"steal a CD, then there is one less CD to sell. Every taking is a lost "
+"sale. But on the basis of the numbers the RIAA provides, it is absolutely "
+"clear that the same is not true of downloads. If every download were a lost "
+"sale—if every use of Kazaa \"rob[bed] the author of [his] "
+"profit\"—then the industry would have suffered a 100 percent drop in "
+"sales last year, not a 7 percent drop. If 2.6 times the number of CDs sold "
+"were downloaded for free, and yet sales revenue dropped by just 6.7 percent, "
+"then there is a huge difference between \"downloading a song and stealing a "
+"CD.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3793
+msgid ""
+"These are the harms—alleged and perhaps exaggerated but, let's assume, "
+"real. What of the benefits? File sharing may impose costs on the recording "
+"industry. What value does it produce in addition to these costs?"
+msgstr ""
+
+#. f15
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3806
+msgid ""
+"By one estimate, 75 percent of the music released by the major labels is no "
+"longer in print. See Online Entertainment and Copyright Law—Coming "
+"Soon to a Digital Device Near You: Hearing Before the Senate Committee on "
+"the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared statement of "
+"the Future of Music Coalition), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #18</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3800
+msgid ""
+"One benefit is type C sharing—making available content that is "
+"technically still under copyright but is no longer commercially available. "
+"This is not a small category of content. There are millions of tracks that "
+"are no longer commercially available.<placeholder type=\"footnote\" "
+"id=\"0\"/> And while it's conceivable that some of this content is not "
+"available because the artist producing the content doesn't want it to be "
+"made available, the vast majority of it is unavailable solely because the "
+"publisher or the distributor has decided it no longer makes economic sense "
+"to the company to make it available."
+msgstr ""
+
+#. f16
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3831
+msgid ""
+"While there are not good estimates of the number of used record stores in "
+"existence, in 2002, there were 7,198 used book dealers in the United States, "
+"an increase of 20 percent since 1993. See Book Hunter Press, The Quiet "
+"Revolution: The Expansion of the Used Book Market (2002), available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #19</ulink>. Used records "
+"accounted for $260 million in sales in 2002. See National Association of "
+"Recording Merchandisers, \"2002 Annual Survey Results,\" available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #20</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3825
+msgid ""
+"In real space—long before the Internet—the market had a simple "
+"response to this problem: used book and record stores. There are thousands "
+"of used book and used record stores in America today.<placeholder "
+"type=\"footnote\" id=\"0\"/> These stores buy content from owners, then sell "
+"the content they buy. And under American copyright law, when they buy and "
+"sell this content, even if the content is still under copyright, the "
+"copyright owner doesn't get a dime. Used book and record stores are "
+"commercial entities; their owners make money from the content they sell; but "
+"as with cable companies before statutory licensing, they don't have to pay "
+"the copyright owner for the content they sell."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:3852
+msgid "Bernstein, Leonard"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3854
+msgid ""
+"Type C sharing, then, is very much like used book stores or used record "
+"stores. It is different, of course, because the person making the content "
+"available isn't making money from making the content available. It is also "
+"different, of course, because in real space, when I sell a record, I don't "
+"have it anymore, while in cyberspace, when someone shares my 1949 recording "
+"of Bernstein's \"Two Love Songs,\" I still have it. That difference would "
+"matter economically if the owner of the copyright were selling the record in "
+"competition to my sharing. But we're talking about the class of content that "
+"is not currently commercially available. The Internet is making it "
+"available, through cooperative sharing, without competing with the market."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3867
+msgid ""
+"It may well be, all things considered, that it would be better if the "
+"copyright owner got something from this trade. But just because it may well "
+"be better, it doesn't follow that it would be good to ban used book "
+"stores. Or put differently, if you think that type C sharing should be "
+"stopped, do you think that libraries and used book stores should be shut as "
+"well?"
+msgstr ""
+
+#. PAGE BREAK 86
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3875
+msgid ""
+"Finally, and perhaps most importantly, file-sharing networks enable type D "
+"sharing to occur—the sharing of content that copyright owners want to "
+"have shared or for which there is no continuing copyright. This sharing "
+"clearly benefits authors and society. Science fiction author Cory Doctorow, "
+"for example, released his first novel, Down and Out in the Magic Kingdom, "
+"both free on-line and in bookstores on the same day. His (and his "
+"publisher's) thinking was that the on-line distribution would be a great "
+"advertisement for the \"real\" book. People would read part on-line, and "
+"then decide whether they liked the book or not. If they liked it, they would "
+"be more likely to buy it. Doctorow's content is type D content. If sharing "
+"networks enable his work to be spread, then both he and society are better "
+"off. (Actually, much better off: It is a great book!)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3892
+msgid ""
+"Likewise for work in the public domain: This sharing benefits society with "
+"no legal harm to authors at all. If efforts to solve the problem of type A "
+"sharing destroy the opportunity for type D sharing, then we lose something "
+"important in order to protect type A content."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3898
+msgid ""
+"The point throughout is this: While the recording industry understandably "
+"says, \"This is how much we've lost,\" we must also ask, \"How much has "
+"society gained from p2p sharing? What are the efficiencies? What is the "
+"content that otherwise would be unavailable?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3905
+msgid ""
+"For unlike the piracy I described in the first section of this chapter, much "
+"of the \"piracy\" that file sharing enables is plainly legal and good. And "
+"like the piracy I described in chapter 4, much of this piracy is motivated "
+"by a new way of spreading content caused by changes in the technology of "
+"distribution. Thus, consistent with the tradition that gave us Hollywood, "
+"radio, the recording industry, and cable TV, the question we should be "
+"asking about file sharing is how best to preserve its benefits while "
+"minimizing (to the extent possible) the wrongful harm it causes artists. The "
+"question is one of balance. The law should seek that balance, and that "
+"balance will be found only with time."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3918
+msgid ""
+"\"But isn't the war just a war against illegal sharing? Isn't the target "
+"just what you call type A sharing?\""
+msgstr ""
+
+#. f17
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:3935
+msgid ""
+"See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 "
+"(N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #21</ulink>. For an "
+"account of the litigation and its toll on Napster, see Joseph Menn, All the "
+"Rave: The Rise and Fall of Shawn Fanning's Napster (New York: Crown "
+"Business, 2003), 269–82."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3922
+msgid ""
+"You would think. And we should hope. But so far, it is not. The effect of "
+"the war purportedly on type A sharing alone has been felt far beyond that "
+"one class of sharing. That much is obvious from the Napster case "
+"itself. When Napster told the district court that it had developed a "
+"technology to block the transfer of 99.4 percent of identified infringing "
+"material, the district court told counsel for Napster 99.4 percent was not "
+"good enough. Napster had to push the infringements \"down to "
+"zero.\"<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3945
+msgid ""
+"If 99.4 percent is not good enough, then this is a war on file-sharing "
+"technologies, not a war on copyright infringement. There is no way to assure "
+"that a p2p system is used 100 percent of the time in compliance with the "
+"law, any more than there is a way to assure that 100 percent of VCRs or 100 "
+"percent of Xerox machines or 100 percent of handguns are used in compliance "
+"with the law. Zero tolerance means zero p2p. The court's ruling means that "
+"we as a society must lose the benefits of p2p, even for the totally legal "
+"and beneficial uses they serve, simply to assure that there are zero "
+"copyright infringements caused by p2p."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3956
+msgid ""
+"Zero tolerance has not been our history. It has not produced the content "
+"industry that we know today. The history of American law has been a process "
+"of balance. As new technologies changed the way content was distributed, the "
+"law adjusted, after some time, to the new technology. In this adjustment, "
+"the law sought to ensure the legitimate rights of creators while protecting "
+"innovation. Sometimes this has meant more rights for creators. Sometimes "
+"less."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3967
+msgid ""
+"So, as we've seen, when \"mechanical reproduction\" threatened the interests "
+"of composers, Congress balanced the rights of composers against the "
+"interests of the recording industry. It granted rights to composers, but "
+"also to the recording artists: Composers were to be paid, but at a price set "
+"by Congress. But when radio started broadcasting the recordings made by "
+"these recording artists, and they complained to Congress that their "
+"\"creative property\" was not being respected (since the radio station did "
+"not have to pay them for the creativity it broadcast), Congress rejected "
+"their claim. An indirect benefit was enough."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3980
+msgid ""
+"Cable TV followed the pattern of record albums. When the courts rejected the "
+"claim that cable broadcasters had to pay for the content they rebroadcast, "
+"Congress responded by giving broadcasters a right to compensation, but at a "
+"level set by the law. It likewise gave cable companies the right to the "
+"content, so long as they paid the statutory price."
+msgstr ""
+
+#. PAGE BREAK 88
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:3990
+msgid ""
+"This compromise, like the compromise affecting records and player pianos, "
+"served two important goals—indeed, the two central goals of any "
+"copyright legislation. First, the law assured that new innovators would have "
+"the freedom to develop new ways to deliver content. Second, the law assured "
+"that copyright holders would be paid for the content that was "
+"distributed. One fear was that if Congress simply required cable TV to pay "
+"copyright holders whatever they demanded for their content, then copyright "
+"holders associated with broadcasters would use their power to stifle this "
+"new technology, cable. But if Congress had permitted cable to use "
+"broadcasters' content for free, then it would have unfairly subsidized "
+"cable. Thus Congress chose a path that would assure compensation without "
+"giving the past (broadcasters) control over the future (cable)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:4008
+msgid "Betamax"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4010
+msgid ""
+"In the same year that Congress struck this balance, two major producers and "
+"distributors of film content filed a lawsuit against another technology, the "
+"video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had "
+"produced, the Betamax. Disney's and Universal's claim against Sony was "
+"relatively simple: Sony produced a device, Disney and Universal claimed, "
+"that enabled consumers to engage in copyright infringement. Because the "
+"device that Sony built had a \"record\" button, the device could be used to "
+"record copyrighted movies and shows. Sony was therefore benefiting from the "
+"copyright infringement of its customers. It should therefore, Disney and "
+"Universal claimed, be partially liable for that infringement."
+msgstr ""
+
+#. PAGE BREAK 89
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4023
+msgid ""
+"There was something to Disney's and Universal's claim. Sony did decide to "
+"design its machine to make it very simple to record television shows. It "
+"could have built the machine to block or inhibit any direct copying from a "
+"television broadcast. Or possibly, it could have built the machine to copy "
+"only if there were a special \"copy me\" signal on the line. It was clear "
+"that there were many television shows that did not grant anyone permission "
+"to copy. Indeed, if anyone had asked, no doubt the majority of shows would "
+"not have authorized copying. And in the face of this obvious preference, "
+"Sony could have designed its system to minimize the opportunity for "
+"copyright infringement. It did not, and for that, Disney and Universal "
+"wanted to hold it responsible for the architecture it chose."
+msgstr ""
+
+#. f18
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4045
+msgid ""
+"Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 "
+"Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., "
+"459 (1982) (testimony of Jack Valenti, president, Motion Picture Association "
+"of America, Inc.)."
+msgstr ""
+
+#. f19
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4057
+msgid "Copyright Infringements (Audio and Video Recorders), 475."
+msgstr ""
+
+#. f20
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4062
+msgid ""
+"Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, "
+"(C.D. Cal., 1979)."
+msgstr ""
+
+#. f21
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4073
+msgid ""
+"Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack "
+"Valenti)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4038
+msgid ""
+"MPAA president Jack Valenti became the studios' most vocal champion. Valenti "
+"called VCRs \"tapeworms.\" He warned, \"When there are 20, 30, 40 million of "
+"these VCRs in the land, we will be invaded by millions of `tapeworms,' "
+"eating away at the very heart and essence of the most precious asset the "
+"copyright owner has, his copyright.\"<placeholder type=\"footnote\" "
+"id=\"0\"/> \"One does not have to be trained in sophisticated marketing and "
+"creative judgment,\" he told Congress, \"to understand the devastation on "
+"the after-theater marketplace caused by the hundreds of millions of tapings "
+"that will adversely impact on the future of the creative community in this "
+"country. It is simply a question of basic economics and plain common "
+"sense.\"<placeholder type=\"footnote\" id=\"1\"/> Indeed, as surveys would "
+"later show, percent of VCR owners had movie libraries of ten videos or "
+"more<placeholder type=\"footnote\" id=\"2\"/> — a use the Court would "
+"later hold was not \"fair.\" By \"allowing VCR owners to copy freely by the "
+"means of an exemption from copyright infringementwithout creating a "
+"mechanism to compensate copyrightowners,\" Valenti testified, Congress would "
+"\"take from the owners the very essence of their property: the exclusive "
+"right to control who may use their work, that is, who may copy it and "
+"thereby profit from its reproduction.\"<placeholder type=\"footnote\" "
+"id=\"3\"/>"
+msgstr ""
+
+#. f22
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4089
+msgid ""
+"Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th "
+"Cir. 1981)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4078
+msgid ""
+"It took eight years for this case to be resolved by the Supreme Court. In "
+"the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in "
+"its jurisdiction—leading Judge Alex Kozinski, who sits on that court, "
+"refers to it as the \"Hollywood Circuit\"—held that Sony would be "
+"liable for the copyright infringement made possible by its machines. Under "
+"the Ninth Circuit's rule, this totally familiar technology—which Jack "
+"Valenti had called \"the Boston Strangler of the American film industry\" "
+"(worse yet, it was a Japanese Boston Strangler of the American film "
+"industry)—was an illegal technology.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 90
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4094
+msgid ""
+"But the Supreme Court reversed the decision of the Ninth Circuit. And in "
+"its reversal, the Court clearly articulated its understanding of when and "
+"whether courts should intervene in such disputes. As the Court wrote,"
+msgstr ""
+
+#. f23
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:4113
+msgid ""
+"Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 "
+"(1984)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:4103
+msgid ""
+"Sound policy, as well as history, supports our consistent deference to "
+"Congress when major technological innovations alter the market for "
+"copyrighted materials. Congress has the constitutional authority and the "
+"institutional ability to accommodate fully the varied permutations of "
+"competing interests that are inevitably implicated by such new "
+"technology.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4118
+msgid ""
+"Congress was asked to respond to the Supreme Court's decision. But as with "
+"the plea of recording artists about radio broadcasts, Congress ignored the "
+"request. Congress was convinced that American film got enough, this "
+"\"taking\" notwithstanding. If we put these cases together, a pattern is "
+"clear:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><title>
+#: freeculture.xml:4127
+msgid "Table"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
+#: freeculture.xml:4131
+msgid "CASE"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
+#: freeculture.xml:4132
+msgid "WHOSE VALUE WAS \"PIRATED\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
+#: freeculture.xml:4133
+msgid "RESPONSE OF THE COURTS"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
+#: freeculture.xml:4134
+msgid "RESPONSE OF CONGRESS"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4139
+msgid "Recordings"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4140
+msgid "Composers"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4141 freeculture.xml:4153 freeculture.xml:4159
+msgid "No protection"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4142 freeculture.xml:4154
+msgid "Statutory license"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4146
+msgid "Recording artists"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4147
+msgid "N/A"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4148 freeculture.xml:4160
+msgid "Nothing"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4152
+msgid "Broadcasters"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4157
+msgid "VCR"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:4158
+msgid "Film creators"
+msgstr ""
+
+#. f24
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4170
+msgid ""
+"These are the most important instances in our history, but there are other "
+"cases as well. The technology of digital audio tape (DAT), for example, was "
+"regulated by Congress to minimize the risk of piracy. The remedy Congress "
+"imposed did burden DAT producers, by taxing tape sales and controlling the "
+"technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the "
+"United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 "
+"U.S.C. §1001. Again, however, this regulation did not eliminate the "
+"opportunity for free riding in the sense I've described. See Lessig, Future, "
+"71. See also Picker, \"From Edison to the Broadcast Flag,\" University of "
+"Chicago Law Review 70 (2003): 293–96."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4167
+msgid ""
+"In each case throughout our history, a new technology changed the way "
+"content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each "
+"case, throughout our history, that change meant that someone got a \"free "
+"ride\" on someone else's work."
+msgstr ""
+
+#. PAGE BREAK 91
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4186
+msgid ""
+"In none of these cases did either the courts or Congress eliminate all free "
+"riding. In none of these cases did the courts or Congress insist that the "
+"law should assure that the copyright holder get all the value that his "
+"copyright created. In every case, the copyright owners complained of "
+"\"piracy.\" In every case, Congress acted to recognize some of the "
+"legitimacy in the behavior of the \"pirates.\" In each case, Congress "
+"allowed some new technology to benefit from content made before. It balanced "
+"the interests at stake."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4198
+msgid ""
+"When you think across these examples, and the other examples that make up "
+"the first four chapters of this section, this balance makes sense. Was Walt "
+"Disney a pirate? Would doujinshi be better if creators had to ask "
+"permission? Should tools that enable others to capture and spread images as "
+"a way to cultivate or criticize our culture be better regulated? Is it "
+"really right that building a search engine should expose you to $15 million "
+"in damages? Would it have been better if Edison had controlled film? Should "
+"every cover band have to hire a lawyer to get permission to record a song?"
+msgstr ""
+
+#. f25
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4215
+msgid "Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4210
+msgid ""
+"We could answer yes to each of these questions, but our tradition has "
+"answered no. In our tradition, as the Supreme Court has stated, copyright "
+"\"has never accorded the copyright owner complete control over all possible "
+"uses of his work.\"<placeholder type=\"footnote\" id=\"0\"/> Instead, the "
+"particular uses that the law regulates have been defined by balancing the "
+"good that comes from granting an exclusive right against the burdens such an "
+"exclusive right creates. And this balancing has historically been done after "
+"a technology has matured, or settled into the mix of technologies that "
+"facilitate the distribution of content."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4227
+msgid ""
+"We should be doing the same thing today. The technology of the Internet is "
+"changing quickly. The way people connect to the Internet (wires "
+"vs. wireless) is changing very quickly. No doubt the network should not "
+"become a tool for \"stealing\" from artists. But neither should the law "
+"become a tool to entrench one particular way in which artists (or more "
+"accurately, distributors) get paid. As I describe in some detail in the last "
+"chapter of this book, we should be securing income to artists while we allow "
+"the market to secure the most efficient way to promote and distribute "
+"content. This will require changes in the law, at least in the "
+"interim. These changes should be designed to balance the protection of the "
+"law against the strong public interest that innovation continue."
+msgstr ""
+
+#. f26
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:4254
+msgid ""
+"John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes "
+"Past Efforts,\" New York Times, 22 September 2003, C3."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4244
+msgid ""
+"This is especially true when a new technology enables a vastly superior mode "
+"of distribution. And this p2p has done. P2p technologies can be ideally "
+"efficient in moving content across a widely diverse network. Left to "
+"develop, they could make the network vastly more efficient. Yet these "
+"\"potential public benefits,\" as John Schwartz writes in The New York "
+"Times, \"could be delayed in the P2P fight.\"<placeholder type=\"footnote\" "
+"id=\"0\"/> Yet when anyone begins to talk about \"balance,\" the copyright "
+"warriors raise a different argument. \"All this hand waving about balance "
+"and incentives,\" they say, \"misses a fundamental point. Our content,\" the "
+"warriors insist, \"is our property. Why should we wait for Congress to "
+"`rebalance' our property rights? Do you have to wait before calling the "
+"police when your car has been stolen? And why should Congress deliberate at "
+"all about the merits of this theft? Do we ask whether the car thief had a "
+"good use for the car before we arrest him?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:4268
+msgid ""
+"\"It is our property,\" the warriors insist. \"And it should be protected "
+"just as any other property is protected.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:4276
+msgid "\"PROPERTY\""
+msgstr ""
+
+#. PAGE BREAK 94
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:4280
+msgid ""
+"The copyright warriors are right: A copyright is a kind of property. It can "
+"be owned and sold, and the law protects against its theft. Ordinarily, the "
+"copyright owner gets to hold out for any price he wants. Markets reckon the "
+"supply and demand that partially determine the price she can get."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:4287
+msgid ""
+"But in ordinary language, to call a copyright a \"property\" right is a bit "
+"misleading, for the property of copyright is an odd kind of property. "
+"Indeed, the very idea of property in any idea or any expression is very "
+"odd. I understand what I am taking when I take the picnic table you put in "
+"your backyard. I am taking a thing, the picnic table, and after I take it, "
+"you don't have it. But what am I taking when I take the good idea you had to "
+"put a picnic table in the backyard—by, for example, going to Sears, "
+"buying a table, and putting it in my backyard? What is the thing I am taking "
+"then?"
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:4312
+msgid ""
+"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The "
+"Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery "
+"Bergh, eds., 1903), 330, 333–34."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:4299
+msgid ""
+"The point is not just about the thingness of picnic tables versus ideas, "
+"though that's an important difference. The point instead is that in the "
+"ordinary case—indeed, in practically every case except for a narrow "
+"range of exceptions—ideas released to the world are free. I don't take "
+"anything from you when I copy the way you dress—though I might seem "
+"weird if I did it every day, and especially weird if you are a "
+"woman. Instead, as Thomas Jefferson said (and as is especially true when I "
+"copy the way someone else dresses), \"He who receives an idea from me, "
+"receives instruction himself without lessening mine; as he who lights his "
+"taper at mine, receives light without darkening me.\"<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:4318
+msgid ""
+"The exceptions to free use are ideas and expressions within the reach of the "
+"law of patent and copyright, and a few other domains that I won't discuss "
+"here. Here the law says you can't take my idea or expression without my "
+"permission: The law turns the intangible into property."
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:4333
+msgid ""
+"As the legal realists taught American law, all property rights are "
+"intangible. A property right is simply a right that an individual has "
+"against the world to do or not do certain things that may or may not attach "
+"to a physical object. The right itself is intangible, even if the object to "
+"which it is (metaphorically) attached is tangible. See Adam Mossoff, \"What "
+"Is Property? Putting the Pieces Back Together,\" Arizona Law Review 45 "
+"(2003): 373, 429 n. 241."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:4326
+msgid ""
+"But how, and to what extent, and in what form—the details, in other "
+"words—matter. To get a good sense of how this practice of turning the "
+"intangible into property emerged, we need to place this \"property\" in its "
+"proper context.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:4346
+msgid ""
+"My strategy in doing this will be the same as my strategy in the preceding "
+"part. I offer four stories to help put the idea of \"copyright material is "
+"property\" in context. Where did the idea come from? What are its limits? "
+"How does it function in practice? After these stories, the significance of "
+"this true statement—\"copyright material is property\"— will be "
+"a bit more clear, and its implications will be revealed as quite different "
+"from the implications that the copyright warriors would have us draw."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:4360
+msgid "CHAPTER SIX: Founders"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4362
+msgid ""
+"William Shakespeare wrote Romeo and Juliet in 1595. The play was first "
+"published in 1597. It was the eleventh major play that Shakespeare had "
+"written. He would continue to write plays through 1613, and the plays that "
+"he wrote have continued to define Anglo-American culture ever since. So "
+"deeply have the works of a sixteenth-century writer seeped into our culture "
+"that we often don't even recognize their source. I once overheard someone "
+"commenting on Kenneth Branagh's adaptation of Henry V: \"I liked it, but "
+"Shakespeare is so full of clichés.\""
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4378
+msgid ""
+"Jacob Tonson is typically remembered for his associations with prominent "
+"eighteenth-century literary figures, especially John Dryden, and for his "
+"handsome \"definitive editions\" of classic works. In addition to Romeo and "
+"Juliet, he published an astonishing array of works that still remain at the "
+"heart of the English canon, including collected works of Shakespeare, Ben "
+"Jonson, John Milton, and John Dryden. See Keith Walker, \"Jacob Tonson, "
+"Bookseller,\" American Scholar 61:3 (1992): 424–31."
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4389
+msgid ""
+"Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: "
+"Vanderbilt University Press, 1968), 151–52."
+msgstr ""
+
+#. PAGE BREAK 97
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4374
+msgid ""
+"In 1774, almost 180 years after Romeo and Juliet was written, the "
+"\"copy-right\" for the work was still thought by many to be the exclusive "
+"right of a single London publisher, Jacob Tonson.<placeholder "
+"type=\"footnote\" id=\"0\"/> Tonson was the most prominent of a small group "
+"of publishers called the Conger<placeholder type=\"footnote\" id=\"1\"/> who "
+"controlled bookselling in England during the eighteenth century. The Conger "
+"claimed a perpetual right to control the \"copy\" of books that they had "
+"acquired from authors. That perpetual right meant that no one else could "
+"publish copies of a book to which they held the copyright. Prices of the "
+"classics were thus kept high; competition to produce better or cheaper "
+"editions was eliminated."
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4415
+msgid ""
+"As Siva Vaidhyanathan nicely argues, it is erroneous to call this a "
+"\"copyright law.\" See Vaidhyanathan, Copyrights and Copywrongs, 40."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4405
+msgid ""
+"Now, there's something puzzling about the year 1774 to anyone who knows a "
+"little about copyright law. The better-known year in the history of "
+"copyright is 1710, the year that the British Parliament adopted the first "
+"\"copyright\" act. Known as the Statute of Anne, the act stated that all "
+"published works would get a copyright term of fourteen years, renewable once "
+"if the author was alive, and that all works already published by 1710 would "
+"get a single term of twenty-one additional years.<placeholder "
+"type=\"footnote\" id=\"0\"/> Under this law, Romeo and Juliet should have "
+"been free in 1731. So why was there any issue about it still being under "
+"Tonson's control in 1774?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4423
+msgid ""
+"The reason is that the English hadn't yet agreed on what a \"copyright\" "
+"was—indeed, no one had. At the time the English passed the Statute of "
+"Anne, there was no other legislation governing copyrights. The last law "
+"regulating publishers, the Licensing Act of 1662, had expired in 1695. That "
+"law gave publishers a monopoly over publishing, as a way to make it easier "
+"for the Crown to control what was published. But after it expired, there "
+"was no positive law that said that the publishers, or \"Stationers,\" had an "
+"exclusive right to print books."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4436
+msgid ""
+"There was no positive law, but that didn't mean that there was no law. The "
+"Anglo-American legal tradition looks to both the words of legislatures and "
+"the words of judges to know the rules that are to govern how people are to "
+"behave. We call the words from legislatures \"positive law.\" We call the "
+"words from judges \"common law.\" The common law sets the background against "
+"which legislatures legislate; the legislature, ordinarily, can trump that "
+"background only if it passes a law to displace it. And so the real question "
+"after the licensing statutes had expired was whether the common law "
+"protected a copyright, independent of any positive law."
+msgstr ""
+
+#. PAGE BREAK 98
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4453
+msgid ""
+"This question was important to the publishers, or \"booksellers,\" as they "
+"were called, because there was growing competition from foreign "
+"publishers. The Scottish, in particular, were increasingly publishing and "
+"exporting books to England. That competition reduced the profits of the "
+"Conger, which reacted by demanding that Parliament pass a law to again give "
+"them exclusive control over publishing. That demand ultimately resulted in "
+"the Statute of Anne."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4465
+msgid ""
+"The Statute of Anne granted the author or \"proprietor\" of a book an "
+"exclusive right to print that book. In an important limitation, however, and "
+"to the horror of the booksellers, the law gave the bookseller that right for "
+"a limited term. At the end of that term, the copyright \"expired,\" and the "
+"work would then be free and could be published by anyone. Or so the "
+"legislature is thought to have believed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4475
+msgid ""
+"Now, the thing to puzzle about for a moment is this: Why would Parliament "
+"limit the exclusive right? Not why would they limit it to the particular "
+"limit they set, but why would they limit the right at all?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4480
+msgid ""
+"For the booksellers, and the authors whom they represented, had a very "
+"strong claim. Take Romeo and Juliet as an example: That play was written by "
+"Shakespeare. It was his genius that brought it into the world. He didn't "
+"take anybody's property when he created this play (that's a controversial "
+"claim, but never mind), and by his creating this play, he didn't make it any "
+"harder for others to craft a play. So why is it that the law would ever "
+"allow someone else to come along and take Shakespeare's play without his, or "
+"his estate's, permission? What reason is there to allow someone else to "
+"\"steal\" Shakespeare's work?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4492
+msgid ""
+"The answer comes in two parts. We first need to see something special about "
+"the notion of \"copyright\" that existed at the time of the Statute of "
+"Anne. Second, we have to see something important about \"booksellers.\""
+msgstr ""
+
+#. PAGE BREAK 99
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4499
+msgid ""
+"First, about copyright. In the last three hundred years, we have come to "
+"apply the concept of \"copyright\" ever more broadly. But in 1710, it wasn't "
+"so much a concept as it was a very particular right. The copyright was born "
+"as a very specific set of restrictions: It forbade others from reprinting a "
+"book. In 1710, the \"copy-right\" was a right to use a particular machine to "
+"replicate a particular work. It did not go beyond that very narrow right. It "
+"did not control any more generally how a work could be used. Today the right "
+"includes a large collection of restrictions on the freedom of others: It "
+"grants the author the exclusive right to copy, the exclusive right to "
+"distribute, the exclusive right to perform, and so on."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4516
+msgid ""
+"So, for example, even if the copyright to Shakespeare's works were "
+"perpetual, all that would have meant under the original meaning of the term "
+"was that no one could reprint Shakespeare's work without the permission of "
+"the Shakespeare estate. It would not have controlled anything, for example, "
+"about how the work could be performed, whether the work could be translated, "
+"or whether Kenneth Branagh would be allowed to make his films. The "
+"\"copy-right\" was only an exclusive right to print—no less, of "
+"course, but also no more."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4528
+msgid ""
+"Even that limited right was viewed with skepticism by the British. They had "
+"had a long and ugly experience with \"exclusive rights,\" especially "
+"\"exclusive rights\" granted by the Crown. The English had fought a civil "
+"war in part about the Crown's practice of handing out "
+"monopolies—especially monopolies for works that already existed. King "
+"Henry VIII granted a patent to print the Bible and a monopoly to Darcy to "
+"print playing cards. The English Parliament began to fight back against this "
+"power of the Crown. In 1656, it passed the Statute of Monopolies, limiting "
+"monopolies to patents for new inventions. And by 1710, Parliament was eager "
+"to deal with the growing monopoly in publishing."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4544
+msgid ""
+"Thus the \"copy-right,\" when viewed as a monopoly right, was naturally "
+"viewed as a right that should be limited. (However convincing the claim that "
+"\"it's my property, and I should have it forever,\" try sounding convincing "
+"when uttering, \"It's my monopoly, and I should have it forever.\") The "
+"state would protect the exclusive right, but only so long as it benefited "
+"society. The British saw the harms from specialinterest favors; they passed "
+"a law to stop them."
+msgstr ""
+
+#. f4
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4568
+msgid ""
+"Philip Wittenberg, The Protection and Marketing of Literary Property (New "
+"York: J. Messner, Inc., 1937), 31."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4555
+msgid ""
+"Second, about booksellers. It wasn't just that the copyright was a "
+"monopoly. It was also that it was a monopoly held by the booksellers. "
+"Booksellers sound quaint and harmless to us. They were not viewed as "
+"harmless in seventeenth-century England. Members of the Conger were "
+"increasingly seen as monopolists of the worst kind—tools of the "
+"Crown's repression, selling the liberty of England to guarantee themselves a "
+"monopoly profit. The attacks against these monopolists were harsh: Milton "
+"described them as \"old patentees and monopolizers in the trade of "
+"book-selling\"; they were \"men who do not therefore labour in an honest "
+"profession to which learning is indetted.\"<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4573
+msgid ""
+"Many believed the power the booksellers exercised over the spread of "
+"knowledge was harming that spread, just at the time the Enlightenment was "
+"teaching the importance of education and knowledge spread generally. The "
+"idea that knowledge should be free was a hallmark of the time, and these "
+"powerful commercial interests were interfering with that idea."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4582
+msgid ""
+"To balance this power, Parliament decided to increase competition among "
+"booksellers, and the simplest way to do that was to spread the wealth of "
+"valuable books. Parliament therefore limited the term of copyrights, and "
+"thereby guaranteed that valuable books would become open to any publisher to "
+"publish after a limited time. Thus the setting of the term for existing "
+"works to just twenty-one years was a compromise to fight the power of the "
+"booksellers. The limitation on terms was an indirect way to assure "
+"competition among publishers, and thus the construction and spread of "
+"culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4594
+msgid ""
+"When 1731 (1710 + 21) came along, however, the booksellers were getting "
+"anxious. They saw the consequences of more competition, and like every "
+"competitor, they didn't like them. At first booksellers simply ignored the "
+"Statute of Anne, continuing to insist on the perpetual right to control "
+"publication. But in 1735 and 1737, they tried to persuade Parliament to "
+"extend their terms. Twenty-one years was not enough, they said; they needed "
+"more time."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4603
+msgid ""
+"Parliament rejected their requests. As one pamphleteer put it, in words that "
+"echo today,"
+msgstr ""
+
+#. f5
+#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
+#: freeculture.xml:4618
+msgid ""
+"A Letter to a Member of Parliament concerning the Bill now depending in the "
+"House of Commons, for making more effectual an Act in the Eighth Year of the "
+"Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by "
+"Vesting the Copies of Printed Books in the Authors or Purchasers of such "
+"Copies, during the Times therein mentioned (London, 1735), in Brief Amici "
+"Curiae of Tyler T. Ochoa et al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) "
+"(No. 01-618)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:4608
+msgid ""
+"I see no Reason for granting a further Term now, which will not hold as well "
+"for granting it again and again, as often as the Old ones Expire; so that "
+"should this Bill pass, it will in Effect be establishing a perpetual "
+"Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a "
+"great Cramp to Trade, a Discouragement to Learning, no Benefit to the "
+"Authors, but a general Tax on the Publick; and all this only to increase the "
+"private Gain of the Booksellers.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4629
+msgid ""
+"Having failed in Parliament, the publishers turned to the courts in a series "
+"of cases. Their argument was simple and direct: The Statute of Anne gave "
+"authors certain protections through positive law, but those protections were "
+"not intended as replacements for the common law. Instead, they were "
+"intended simply to supplement the common law. Under common law, it was "
+"already wrong to take another person's creative \"property\" and use it "
+"without his permission. The Statute of Anne, the booksellers argued, didn't "
+"change that. Therefore, just because the protections of the Statute of Anne "
+"expired, that didn't mean the protections of the common law expired: Under "
+"the common law they had the right to ban the publication of a book, even if "
+"its Statute of Anne copyright had expired. This, they argued, was the only "
+"way to protect authors."
+msgstr ""
+
+#. f6
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4650
+msgid ""
+"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" Vanderbilt "
+"Law Review 40 (1987): 28. For a wonderfully compelling account, see "
+"Vaidhyanathan, 37–48."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4644
+msgid ""
+"This was a clever argument, and one that had the support of some of the "
+"leading jurists of the day. It also displayed extraordinary chutzpah. Until "
+"then, as law professor Raymond Patterson has put it, \"The publishers "
+". . . had as much concern for authors as a cattle rancher has for "
+"cattle.\"<placeholder type=\"footnote\" id=\"0\"/> The bookseller didn't "
+"care squat for the rights of the author. His concern was the monopoly "
+"profit that the author's work gave."
+msgstr ""
+
+#. f7
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4662
+msgid ""
+"For a compelling account, see David Saunders, Authorship and Copyright "
+"(London: Routledge, 1992), 62–69."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4658
+msgid ""
+"The booksellers' argument was not accepted without a fight. The hero of "
+"this fight was a Scottish bookseller named Alexander Donaldson.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f8
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4672
+msgid ""
+"Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), "
+"92."
+msgstr ""
+
+#. f9
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4682
+msgid "Ibid., 93."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:4684
+msgid "Erskine, Andrew"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4667
+msgid ""
+"Donaldson was an outsider to the London Conger. He began his career in "
+"Edinburgh in 1750. The focus of his business was inexpensive reprints \"of "
+"standard works whose copyright term had expired,\" at least under the "
+"Statute of Anne.<placeholder type=\"footnote\" id=\"0\"/> Donaldson's "
+"publishing house prospered and became \"something of a center for literary "
+"Scotsmen.\" \"[A]mong them,\" Professor Mark Rose writes, was \"the young "
+"James Boswell who, together with his friend Andrew Erskine, published an "
+"anthology of contemporary Scottish poems with Donaldson.\"<placeholder "
+"type=\"footnote\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>"
+msgstr ""
+
+#. f10
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4693
+msgid ""
+"Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting "
+"Borwell)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4687
+msgid ""
+"When the London booksellers tried to shut down Donaldson's shop in Scotland, "
+"he responded by moving his shop to London, where he sold inexpensive "
+"editions \"of the most popular English books, in defiance of the supposed "
+"common law right of Literary Property.\"<placeholder type=\"footnote\" "
+"id=\"0\"/> His books undercut the Conger prices by 30 to 50 percent, and he "
+"rested his right to compete upon the ground that, under the Statute of Anne, "
+"the works he was selling had passed out of protection."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4701
+msgid ""
+"The London booksellers quickly brought suit to block \"piracy\" like "
+"Donaldson's. A number of actions were successful against the \"pirates,\" "
+"the most important early victory being Millar v. Taylor."
+msgstr ""
+
+#. f11
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4713
+msgid ""
+"Howard B. Abrams, \"The Historic Foundation of American Copyright Law: "
+"Exploding the Myth of Common Law Copyright,\" Wayne Law Review 29 (1983): "
+"1152."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4706
+msgid ""
+"Millar was a bookseller who in 1729 had purchased the rights to James "
+"Thomson's poem \"The Seasons.\" Millar complied with the requirements of the "
+"Statute of Anne, and therefore received the full protection of the "
+"statute. After the term of copyright ended, Robert Taylor began printing a "
+"competing volume. Millar sued, claiming a perpetual common law right, the "
+"Statute of Anne notwithstanding.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4719
+msgid ""
+"Astonishingly to modern lawyers, one of the greatest judges in English "
+"history, Lord Mansfield, agreed with the booksellers. Whatever protection "
+"the Statute of Anne gave booksellers, it did not, he held, extinguish any "
+"common law right. The question was whether the common law would protect the "
+"author against subsequent \"pirates.\" Mansfield's answer was yes: The "
+"common law would bar Taylor from reprinting Thomson's poem without Millar's "
+"permission. That common law rule thus effectively gave the booksellers a "
+"perpetual right to control the publication of any book assigned to them."
+msgstr ""
+
+#. PAGE BREAK 103
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4730
+msgid ""
+"Considered as a matter of abstract justice—reasoning as if justice "
+"were just a matter of logical deduction from first "
+"principles—Mansfield's conclusion might make some sense. But what it "
+"ignored was the larger issue that Parliament had struggled with in 1710: How "
+"best to limit the monopoly power of publishers? Parliament's strategy was to "
+"offer a term for existing works that was long enough to buy peace in 1710, "
+"but short enough to assure that culture would pass into competition within a "
+"reasonable period of time. Within twenty-one years, Parliament believed, "
+"Britain would mature from the controlled culture that the Crown coveted to "
+"the free culture that we inherited."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4744
+msgid ""
+"The fight to defend the limits of the Statute of Anne was not to end there, "
+"however, and it is here that Donaldson enters the mix."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:4747
+msgid "Beckett, Thomas"
+msgstr ""
+
+#. f12
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4753
+msgid "Ibid., 1156."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4749
+msgid ""
+"Millar died soon after his victory, so his case was not appealed. His estate "
+"sold Thomson's poems to a syndicate of printers that included Thomas "
+"Beckett.<placeholder type=\"footnote\" id=\"0\"/> Donaldson then released an "
+"unauthorized edition of Thomson's works. Beckett, on the strength of the "
+"decision in Millar, got an injunction against Donaldson. Donaldson appealed "
+"the case to the House of Lords, which functioned much like our own Supreme "
+"Court. In February of 1774, that body had the chance to interpret the "
+"meaning of Parliament's limits from sixty years before."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4763
+msgid ""
+"As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of "
+"attention throughout Britain. Donaldson's lawyers argued that whatever "
+"rights may have existed under the common law, the Statute of Anne terminated "
+"those rights. After passage of the Statute of Anne, the only legal "
+"protection for an exclusive right to control publication came from that "
+"statute. Thus, they argued, after the term specified in the Statute of Anne "
+"expired, works that had been protected by the statute were no longer "
+"protected."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4773
+msgid ""
+"The House of Lords was an odd institution. Legal questions were presented to "
+"the House and voted upon first by the \"law lords,\" members of special "
+"legal distinction who functioned much like the Justices in our Supreme "
+"Court. Then, after the law lords voted, the House of Lords generally voted."
+msgstr ""
+
+#. PAGE BREAK 104
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4780
+msgid ""
+"The reports about the law lords' votes are mixed. On some counts, it looks "
+"as if perpetual copyright prevailed. But there is no ambiguity about how the "
+"House of Lords voted as whole. By a two-to-one majority (22 to 11) they "
+"voted to reject the idea of perpetual copyrights. Whatever one's "
+"understanding of the common law, now a copyright was fixed for a limited "
+"time, after which the work protected by copyright passed into the public "
+"domain."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:4798
+msgid "Bacon, Francis"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:4799
+msgid "Bunyan, John"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:4800
+msgid "Johnson, Samuel"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:4801
+msgid "Milton, John"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:4802
+msgid "Shakespeare, William"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4790
+msgid ""
+"\"The public domain.\" Before the case of Donaldson v. Beckett, there was no "
+"clear idea of a public domain in England. Before 1774, there was a strong "
+"argument that common law copyrights were perpetual. After 1774, the public "
+"domain was born. For the first time in Anglo-American history, the legal "
+"control over creative works expired, and the greatest works in English "
+"history—including those of Shakespeare, Bacon, Milton, Johnson, and "
+"Bunyan—were free of legal restraint. <placeholder type=\"indexterm\" "
+"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder "
+"type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/> "
+"<placeholder type=\"indexterm\" id=\"4\"/>"
+msgstr ""
+
+#. f13
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4815
+msgid "Rose, 97."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4805
+msgid ""
+"It is hard for us to imagine, but this decision by the House of Lords fueled "
+"an extraordinarily popular and political reaction. In Scotland, where most "
+"of the \"pirate publishers\" did their work, people celebrated the decision "
+"in the streets. As the Edinburgh Advertiser reported, \"No private cause has "
+"so much engrossed the attention of the public, and none has been tried "
+"before the House of Lords in the decision of which so many individuals were "
+"interested.\" \"Great rejoicing in Edinburgh upon victory over literary "
+"property: bonfires and illuminations.\"<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4819
+msgid ""
+"In London, however, at least among publishers, the reaction was equally "
+"strong in the opposite direction. The Morning Chronicle reported:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:4825
+msgid ""
+"By the above decision . . . near 200,000 pounds worth of what was honestly "
+"purchased at public sale, and which was yesterday thought property is now "
+"reduced to nothing. The Booksellers of London and Westminster, many of whom "
+"sold estates and houses to purchase Copy-right, are in a manner ruined, and "
+"those who after many years industry thought they had acquired a competency "
+"to provide for their families now find themselves without a shilling to "
+"devise to their successors.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 105
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4840
+msgid ""
+"\"Ruined\" is a bit of an exaggeration. But it is not an exaggeration to say "
+"that the change was profound. The decision of the House of Lords meant that "
+"the booksellers could no longer control how culture in England would grow "
+"and develop. Culture in England was thereafter free. Not in the sense that "
+"copyrights would not be respected, for of course, for a limited time after a "
+"work was published, the bookseller had an exclusive right to control the "
+"publication of that book. And not in the sense that books could be stolen, "
+"for even after a copyright expired, you still had to buy the book from "
+"someone. But free in the sense that the culture and its growth would no "
+"longer be controlled by a small group of publishers. As every free market "
+"does, this free market of free culture would grow as the consumers and "
+"producers chose. English culture would develop as the many English readers "
+"chose to let it develop— chose in the books they bought and wrote; "
+"chose in the memes they repeated and endorsed. Chose in a competitive "
+"context, not a context in which the choices about what culture is available "
+"to people and how they get access to it are made by the few despite the "
+"wishes of the many."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4860
+msgid ""
+"At least, this was the rule in a world where the Parliament is antimonopoly, "
+"resistant to the protectionist pleas of publishers. In a world where the "
+"Parliament is more pliant, free culture would be less protected."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:4868
+msgid "CHAPTER SEVEN: Recorders"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4870
+msgid ""
+"Jon Else is a filmmaker. He is best known for his documentaries and has been "
+"very successful in spreading his art. He is also a teacher, and as a teacher "
+"myself, I envy the loyalty and admiration that his students feel for him. (I "
+"met, by accident, two of his students at a dinner party. He was their god.)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4877
+msgid ""
+"Else worked on a documentary that I was involved in. At a break, he told me "
+"a story about the freedom to create with film in America today."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4882
+msgid ""
+"In 1990, Else was working on a documentary about Wagner's Ring Cycle. The "
+"focus was stagehands at the San Francisco Opera. Stagehands are a "
+"particularly funny and colorful element of an opera. During a show, they "
+"hang out below the stage in the grips' lounge and in the lighting loft. They "
+"make a perfect contrast to the art on the stage."
+msgstr ""
+
+#. PAGE BREAK 107
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4890
+msgid ""
+"During one of the performances, Else was shooting some stagehands playing "
+"checkers. In one corner of the room was a television set. Playing on the "
+"television set, while the stagehands played checkers and the opera company "
+"played Wagner, was The Simpsons. As Else judged it, this touch of cartoon "
+"helped capture the flavor of what was special about the scene."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4899
+msgid ""
+"Years later, when he finally got funding to complete the film, Else "
+"attempted to clear the rights for those few seconds of The Simpsons. For of "
+"course, those few seconds are copyrighted; and of course, to use copyrighted "
+"material you need the permission of the copyright owner, unless \"fair use\" "
+"or some other privilege applies."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4906
+msgid ""
+"Else called Simpsons creator Matt Groening's office to get permission. "
+"Groening approved the shot. The shot was a four-and-a-halfsecond image on a "
+"tiny television set in the corner of the room. How could it hurt? Groening "
+"was happy to have it in the film, but he told Else to contact Gracie Films, "
+"the company that produces the program."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4913
+msgid ""
+"Gracie Films was okay with it, too, but they, like Groening, wanted to be "
+"careful. So they told Else to contact Fox, Gracie's parent company. Else "
+"called Fox and told them about the clip in the corner of the one room shot "
+"of the film. Matt Groening had already given permission, Else said. He was "
+"just confirming the permission with Fox."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4920
+msgid ""
+"Then, as Else told me, \"two things happened. First we discovered . . . that "
+"Matt Groening doesn't own his own creation—or at least that someone "
+"[at Fox] believes he doesn't own his own creation.\" And second, Fox "
+"\"wanted ten thousand dollars as a licensing fee for us to use this "
+"four-point-five seconds of . . . entirely unsolicited Simpsons which was in "
+"the corner of the shot.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4928
+msgid ""
+"Else was certain there was a mistake. He worked his way up to someone he "
+"thought was a vice president for licensing, Rebecca Herrera. He explained "
+"to her, \"There must be some mistake here. . . . We're asking for your "
+"educational rate on this.\" That was the educational rate, Herrera told "
+"Else. A day or so later, Else called again to confirm what he had been told."
+msgstr ""
+
+#. PAGE BREAK 108
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4936
+msgid ""
+"\"I wanted to make sure I had my facts straight,\" he told me. \"Yes, you "
+"have your facts straight,\" she said. It would cost $10,000 to use the clip "
+"of The Simpsons in the corner of a shot in a documentary film about Wagner's "
+"Ring Cycle. And then, astonishingly, Herrera told Else, \"And if you quote "
+"me, I'll turn you over to our attorneys.\" As an assistant to Herrera told "
+"Else later on, \"They don't give a shit. They just want the money.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4948
+msgid ""
+"Else didn't have the money to buy the right to replay what was playing on "
+"the television backstage at the San Francisco Opera. To reproduce this "
+"reality was beyond the documentary filmmaker's budget. At the very last "
+"minute before the film was to be released, Else digitally replaced the shot "
+"with a clip from another film that he had worked on, The Day After Trinity, "
+"from ten years before."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4956
+msgid ""
+"There's no doubt that someone, whether Matt Groening or Fox, owns the "
+"copyright to The Simpsons. That copyright is their property. To use that "
+"copyrighted material thus sometimes requires the permission of the copyright "
+"owner. If the use that Else wanted to make of the Simpsons copyright were "
+"one of the uses restricted by the law, then he would need to get the "
+"permission of the copyright owner before he could use the work in that "
+"way. And in a free market, it is the owner of the copyright who gets to set "
+"the price for any use that the law says the owner gets to control."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4967
+msgid ""
+"For example, \"public performance\" is a use of The Simpsons that the "
+"copyright owner gets to control. If you take a selection of favorite "
+"episodes, rent a movie theater, and charge for tickets to come see \"My "
+"Favorite Simpsons,\" then you need to get permission from the copyright "
+"owner. And the copyright owner (rightly, in my view) can charge whatever she "
+"wants—$10 or $1,000,000. That's her right, as set by the law."
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:4979
+msgid ""
+"For an excellent argument that such use is \"fair use,\" but that lawyers "
+"don't permit recognition that it is \"fair use,\" see Richard A. Posner with "
+"William F. Patry, \"Fair Use and Statutory Reform in the Wake of Eldred \" "
+"(draft on file with author), University of Chicago Law School, 5 August "
+"2003."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4976
+msgid ""
+"But when lawyers hear this story about Jon Else and Fox, their first thought "
+"is \"fair use.\"<placeholder type=\"footnote\" id=\"0\"/> Else's use of just "
+"4.5 seconds of an indirect shot of a Simpsons episode is clearly a fair use "
+"of The Simpsons—and fair use does not require the permission of "
+"anyone."
+msgstr ""
+
+#. PAGE BREAK 109
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:4991
+msgid "So I asked Else why he didn't just rely upon \"fair use.\" Here's his reply:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:4995
+msgid ""
+"The Simpsons fiasco was for me a great lesson in the gulf between what "
+"lawyers find irrelevant in some abstract sense, and what is crushingly "
+"relevant in practice to those of us actually trying to make and broadcast "
+"documentaries. I never had any doubt that it was \"clearly fair use\" in an "
+"absolute legal sense. But I couldn't rely on the concept in any concrete "
+"way. Here's why:"
+msgstr ""
+
+#. 1.
+#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
+#: freeculture.xml:5005
+msgid ""
+"Before our films can be broadcast, the network requires that we buy Errors "
+"and Omissions insurance. The carriers require a detailed \"visual cue "
+"sheet\" listing the source and licensing status of each shot in the "
+"film. They take a dim view of \"fair use,\" and a claim of \"fair use\" can "
+"grind the application process to a halt."
+msgstr ""
+
+#. 2.
+#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
+#: freeculture.xml:5013
+msgid ""
+"I probably never should have asked Matt Groening in the first place. But I "
+"knew (at least from folklore) that Fox had a history of tracking down and "
+"stopping unlicensed Simpsons usage, just as George Lucas had a very high "
+"profile litigating Star Wars usage. So I decided to play by the book, "
+"thinking that we would be granted free or cheap license to four seconds of "
+"Simpsons. As a documentary producer working to exhaustion on a shoestring, "
+"the last thing I wanted was to risk legal trouble, even nuisance legal "
+"trouble, and even to defend a principle."
+msgstr ""
+
+#. 3.
+#. PAGE BREAK 110
+#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
+#: freeculture.xml:5025
+msgid ""
+"I did, in fact, speak with one of your colleagues at Stanford Law School "
+". . . who confirmed that it was fair use. He also confirmed that Fox would "
+"\"depose and litigate you to within an inch of your life,\" regardless of "
+"the merits of my claim. He made clear that it would boil down to who had the "
+"bigger legal department and the deeper pockets, me or them."
+msgstr ""
+
+#. 4.
+#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
+#: freeculture.xml:5035
+msgid ""
+"The question of fair use usually comes up at the end of the project, when we "
+"are up against a release deadline and out of money."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5042
+msgid ""
+"In theory, fair use means you need no permission. The theory therefore "
+"supports free culture and insulates against a permission culture. But in "
+"practice, fair use functions very differently. The fuzzy lines of the law, "
+"tied to the extraordinary liability if lines are crossed, means that the "
+"effective fair use for many types of creators is slight. The law has the "
+"right aim; practice has defeated the aim."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5050
+msgid ""
+"This practice shows just how far the law has come from its "
+"eighteenth-century roots. The law was born as a shield to protect "
+"publishers' profits against the unfair competition of a pirate. It has "
+"matured into a sword that interferes with any use, transformative or not."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:5059
+msgid "CHAPTER EIGHT: Transformers"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:5060
+msgid "Allen, Paul"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:5061 freeculture.xml:5069 freeculture.xml:5080 freeculture.xml:5095 freeculture.xml:5104 freeculture.xml:5109 freeculture.xml:5161 freeculture.xml:5177 freeculture.xml:5200 freeculture.xml:5262 freeculture.xml:9613
+msgid "Alben, Alex"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5063
+msgid ""
+"In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an "
+"innovative company founded by Microsoft cofounder Paul Allen to develop "
+"digital entertainment. Long before the Internet became popular, Starwave "
+"began investing in new technology for delivering entertainment in "
+"anticipation of the power of networks."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5071
+msgid ""
+"Alben had a special interest in new technology. He was intrigued by the "
+"emerging market for CD-ROM technology—not to distribute film, but to "
+"do things with film that otherwise would be very difficult. In 1993, he "
+"launched an initiative to develop a product to build retrospectives on the "
+"work of particular actors. The first actor chosen was Clint Eastwood. The "
+"idea was to showcase all of the work of Eastwood, with clips from his films "
+"and interviews with figures important to his career."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5082
+msgid ""
+"At that time, Eastwood had made more than fifty films, as an actor and as a "
+"director. Alben began with a series of interviews with Eastwood, asking him "
+"about his career. Because Starwave produced those interviews, it was free to "
+"include them on the CD."
+msgstr ""
+
+#. PAGE BREAK 112
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5089
+msgid ""
+"That alone would not have made a very interesting product, so Starwave "
+"wanted to add content from the movies in Eastwood's career: posters, "
+"scripts, and other material relating to the films Eastwood made. Most of his "
+"career was spent at Warner Brothers, and so it was relatively easy to get "
+"permission for that content."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5097
+msgid ""
+"Then Alben and his team decided to include actual film clips. \"Our goal was "
+"that we were going to have a clip from every one of Eastwood's films,\" "
+"Alben told me. It was here that the problem arose. \"No one had ever really "
+"done this before,\" Alben explained. \"No one had ever tried to do this in "
+"the context of an artistic look at an actor's career.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5106
+msgid ""
+"Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, "
+"\"Well, what will it take?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
+#: freeculture.xml:5122
+msgid "artists"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><secondary>
+#: freeculture.xml:5123
+msgid "publicity rights on images of"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:5117
+msgid ""
+"Technically, the rights that Alben had to clear were mainly those of "
+"publicity—rights an artist has to control the commercial exploitation "
+"of his image. But these rights, too, burden \"Rip, Mix, Burn\" creativity, "
+"as this chapter evinces. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5111
+msgid ""
+"Alben replied, \"Well, we're going to have to clear rights from everyone who "
+"appears in these films, and the music and everything else that we want to "
+"use in these film clips.\" Slade said, \"Great! Go for it.\"<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5128
+msgid ""
+"The problem was that neither Alben nor Slade had any idea what clearing "
+"those rights would mean. Every actor in each of the films could have a claim "
+"to royalties for the reuse of that film. But CD- ROMs had not been specified "
+"in the contracts for the actors, so there was no clear way to know just what "
+"Starwave was to do."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5135
+msgid ""
+"I asked Alben how he dealt with the problem. With an obvious pride in his "
+"resourcefulness that obscured the obvious bizarreness of his tale, Alben "
+"recounted just what they did:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5141
+msgid ""
+"So we very mechanically went about looking up the film clips. We made some "
+"artistic decisions about what film clips to include—of course we were "
+"going to use the \"Make my day\" clip from Dirty Harry. But you then need to "
+"get the guy on the ground who's wiggling under the gun and you need to get "
+"his permission. And then you have to decide what you are going to pay him."
+msgstr ""
+
+#. PAGE BREAK 113
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5150
+msgid ""
+"We decided that it would be fair if we offered them the dayplayer rate for "
+"the right to reuse that performance. We're talking about a clip of less than "
+"a minute, but to reuse that performance in the CD-ROM the rate at the time "
+"was about $600. So we had to identify the people—some of them were "
+"hard to identify because in Eastwood movies you can't tell who's the guy "
+"crashing through the glass—is it the actor or is it the stuntman? And "
+"then we just, we put together a team, my assistant and some others, and we "
+"just started calling people."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5163
+msgid ""
+"Some actors were glad to help—Donald Sutherland, for example, followed "
+"up himself to be sure that the rights had been cleared. Others were "
+"dumbfounded at their good fortune. Alben would ask, \"Hey, can I pay you "
+"$600 or maybe if you were in two films, you know, $1,200?\" And they would "
+"say, \"Are you for real? Hey, I'd love to get $1,200.\" And some of course "
+"were a bit difficult (estranged ex-wives, in particular). But eventually, "
+"Alben and his team had cleared the rights to this retrospective CD-ROM on "
+"Clint Eastwood's career."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5174
+msgid ""
+"It was one year later—\"and even then we weren't sure whether we were "
+"totally in the clear.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5179
+msgid ""
+"Alben is proud of his work. The project was the first of its kind and the "
+"only time he knew of that a team had undertaken such a massive project for "
+"the purpose of releasing a retrospective."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5185
+msgid ""
+"Everyone thought it would be too hard. Everyone just threw up their hands "
+"and said, \"Oh, my gosh, a film, it's so many copyrights, there's the music, "
+"there's the screenplay, there's the director, there's the actors.\" But we "
+"just broke it down. We just put it into its constituent parts and said, "
+"\"Okay, there's this many actors, this many directors, . . . this many "
+"musicians,\" and we just went at it very systematically and cleared the "
+"rights."
+msgstr ""
+
+#. PAGE BREAK 114
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5197
+msgid ""
+"And no doubt, the product itself was exceptionally good. Eastwood loved it, "
+"and it sold very well."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:5201
+msgid "Drucker, Peter"
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:5209
+msgid ""
+"U.S. Department of Commerce Office of Acquisition Management, Seven Steps to "
+"Performance-Based Services Acquisition, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #22</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5203
+msgid ""
+"But I pressed Alben about how weird it seems that it would have to take a "
+"year's work simply to clear rights. No doubt Alben had done this "
+"efficiently, but as Peter Drucker has famously quipped, \"There is nothing "
+"so useless as doing efficiently that which should not be done at "
+"all.\"<placeholder type=\"footnote\" id=\"0\"/> Did it make sense, I asked "
+"Alben, that this is the way a new work has to be made?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5217
+msgid ""
+"For, as he acknowledged, \"very few . . . have the time and resources, and "
+"the will to do this,\" and thus, very few such works would ever be "
+"made. Does it make sense, I asked him, from the standpoint of what anybody "
+"really thought they were ever giving rights for originally, that you would "
+"have to go clear rights for these kinds of clips?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5225
+msgid ""
+"I don't think so. When an actor renders a performance in a movie, he or she "
+"gets paid very well. . . . And then when 30 seconds of that performance is "
+"used in a new product that is a retrospective of somebody's career, I don't "
+"think that that person . . . should be compensated for that."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5233
+msgid ""
+"Or at least, is this how the artist should be compensated? Would it make "
+"sense, I asked, for there to be some kind of statutory license that someone "
+"could pay and be free to make derivative use of clips like this? Did it "
+"really make sense that a follow-on creator would have to track down every "
+"artist, actor, director, musician, and get explicit permission from each? "
+"Wouldn't a lot more be created if the legal part of the creative process "
+"could be made to be more clean?"
+msgstr ""
+
+#. PAGE BREAK 115
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5243
+msgid ""
+"Absolutely. I think that if there were some fair-licensing "
+"mechanism—where you weren't subject to hold-ups and you weren't "
+"subject to estranged former spouses—you'd see a lot more of this work, "
+"because it wouldn't be so daunting to try to put together a retrospective of "
+"someone's career and meaningfully illustrate it with lots of media from that "
+"person's career. You'd build in a cost as the producer of one of these "
+"things. You'd build in a cost of paying X dollars to the talent that "
+"performed. But it would be a known cost. That's the thing that trips "
+"everybody up and makes this kind of product hard to get off the ground. If "
+"you knew I have a hundred minutes of film in this product and it's going to "
+"cost me X, then you build your budget around it, and you can get investments "
+"and everything else that you need to produce it. But if you say, \"Oh, I "
+"want a hundred minutes of something and I have no idea what it's going to "
+"cost me, and a certain number of people are going to hold me up for money,\" "
+"then it becomes difficult to put one of these things together."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5264
+msgid ""
+"Alben worked for a big company. His company was backed by some of the "
+"richest investors in the world. He therefore had authority and access that "
+"the average Web designer would not have. So if it took him a year, how long "
+"would it take someone else? And how much creativity is never made just "
+"because the costs of clearing the rights are so high? These costs are the "
+"burdens of a kind of regulation. Put on a Republican hat for a moment, and "
+"get angry for a bit. The government defines the scope of these rights, and "
+"the scope defined determines how much it's going to cost to negotiate "
+"them. (Remember the idea that land runs to the heavens, and imagine the "
+"pilot purchasing flythrough rights as he negotiates to fly from Los Angeles "
+"to San Francisco.) These rights might well have once made sense; but as "
+"circumstances change, they make no sense at all. Or at least, a "
+"well-trained, regulationminimizing Republican should look at the rights and "
+"ask, \"Does this still make sense?\""
+msgstr ""
+
+#. PAGE BREAK 116
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5281
+msgid ""
+"I've seen the flash of recognition when people get this point, but only a "
+"few times. The first was at a conference of federal judges in California. "
+"The judges were gathered to discuss the emerging topic of cyber-law. I was "
+"asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an "
+"L.A. firm, introduced the panel with a video that he and a friend, Robert "
+"Fairbank, had produced."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5291
+msgid ""
+"The video was a brilliant collage of film from every period in the twentieth "
+"century, all framed around the idea of a 60 Minutes episode. The execution "
+"was perfect, down to the sixty-minute stopwatch. The judges loved every "
+"minute of it."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:5296
+msgid "Nimmer, David"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5298
+msgid ""
+"When the lights came up, I looked over to my copanelist, David Nimmer, "
+"perhaps the leading copyright scholar and practitioner in the nation. He had "
+"an astonished look on his face, as he peered across the room of over 250 "
+"well-entertained judges. Taking an ominous tone, he began his talk with a "
+"question: \"Do you know how many federal laws were just violated in this "
+"room?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:5305
+msgid "Boies, David"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5307
+msgid ""
+"For of course, the two brilliantly talented creators who made this film "
+"hadn't done what Alben did. They hadn't spent a year clearing the rights to "
+"these clips; technically, what they had done violated the law. Of course, "
+"it wasn't as if they or anyone were going to be prosecuted for this "
+"violation (the presence of 250 judges and a gaggle of federal marshals "
+"notwithstanding). But Nimmer was making an important point: A year before "
+"anyone would have heard of the word Napster, and two years before another "
+"member of our panel, David Boies, would defend Napster before the Ninth "
+"Circuit Court of Appeals, Nimmer was trying to get the judges to see that "
+"the law would not be friendly to the capacities that this technology would "
+"enable. Technology means you can now do amazing things easily; but you "
+"couldn't easily do them legally."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5322
+msgid ""
+"We live in a \"cut and paste\" culture enabled by technology. Anyone "
+"building a presentation knows the extraordinary freedom that the cut and "
+"paste architecture of the Internet created—in a second you can find "
+"just about any image you want; in another second, you can have it planted in "
+"your presentation."
+msgstr ""
+
+#. PAGE BREAK 117
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5329
+msgid ""
+"But presentations are just a tiny beginning. Using the Internet and its "
+"archives, musicians are able to string together mixes of sound never before "
+"imagined; filmmakers are able to build movies out of clips on computers "
+"around the world. An extraordinary site in Sweden takes images of "
+"politicians and blends them with music to create biting political "
+"commentary. A site called Camp Chaos has produced some of the most biting "
+"criticism of the record industry that there is through the mixing of Flash! "
+"and music."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5340
+msgid ""
+"All of these creations are technically illegal. Even if the creators wanted "
+"to be \"legal,\" the cost of complying with the law is impossibly "
+"high. Therefore, for the law-abiding sorts, a wealth of creativity is never "
+"made. And for that part that is made, if it doesn't follow the clearance "
+"rules, it doesn't get released."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5347
+msgid ""
+"To some, these stories suggest a solution: Let's alter the mix of rights so "
+"that people are free to build upon our culture. Free to add or mix as they "
+"see fit. We could even make this change without necessarily requiring that "
+"the \"free\" use be free as in \"free beer.\" Instead, the system could "
+"simply make it easy for follow-on creators to compensate artists without "
+"requiring an army of lawyers to come along: a rule, for example, that says "
+"\"the royalty owed the copyright owner of an unregistered work for the "
+"derivative reuse of his work will be a flat 1 percent of net revenues, to be "
+"held in escrow for the copyright owner.\" Under this rule, the copyright "
+"owner could benefit from some royalty, but he would not have the benefit of "
+"a full property right (meaning the right to name his own price) unless he "
+"registers the work."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5362
+msgid ""
+"Who could possibly object to this? And what reason would there be for "
+"objecting? We're talking about work that is not now being made; which if "
+"made, under this plan, would produce new income for artists. What reason "
+"would anyone have to oppose it?"
+msgstr ""
+
+#. PAGE BREAK 118
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5368
+msgid ""
+"In February 2003, DreamWorks studios announced an agreement with Mike Myers, "
+"the comic genius of Saturday Night Live and Austin Powers. According to the "
+"announcement, Myers and Dream-Works would work together to form a \"unique "
+"filmmaking pact.\" Under the agreement, DreamWorks \"will acquire the rights "
+"to existing motion picture hits and classics, write new storylines "
+"and—with the use of stateof-the-art digital technology—insert "
+"Myers and other actors into the film, thereby creating an entirely new piece "
+"of entertainment.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5380
+msgid ""
+"The announcement called this \"film sampling.\" As Myers explained, \"Film "
+"Sampling is an exciting way to put an original spin on existing films and "
+"allow audiences to see old movies in a new light. Rap artists have been "
+"doing this for years with music and now we are able to take that same "
+"concept and apply it to film.\" Steven Spielberg is quoted as saying, \"If "
+"anyone can create a way to bring old films to new audiences, it is Mike.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5389
+msgid ""
+"Spielberg is right. Film sampling by Myers will be brilliant. But if you "
+"don't think about it, you might miss the truly astonishing point about this "
+"announcement. As the vast majority of our film heritage remains under "
+"copyright, the real meaning of the DreamWorks announcement is just this: It "
+"is Mike Myers and only Mike Myers who is free to sample. Any general freedom "
+"to build upon the film archive of our culture, a freedom in other contexts "
+"presumed for us all, is now a privilege reserved for the funny and "
+"famous—and presumably rich."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5399
+msgid ""
+"This privilege becomes reserved for two sorts of reasons. The first "
+"continues the story of the last chapter: the vagueness of \"fair use.\" Much "
+"of \"sampling\" should be considered \"fair use.\" But few would rely upon "
+"so weak a doctrine to create. That leads to the second reason that the "
+"privilege is reserved for the few: The costs of negotiating the legal rights "
+"for the creative reuse of content are astronomically high. These costs "
+"mirror the costs with fair use: You either pay a lawyer to defend your fair "
+"use rights or pay a lawyer to track down permissions so you don't have to "
+"rely upon fair use rights. Either way, the creative process is a process of "
+"paying lawyers—again a privilege, or perhaps a curse, reserved for the "
+"few."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:5414
+msgid "CHAPTER NINE: Collectors"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5416
+msgid ""
+"In April 1996, millions of \"bots\"—computer codes designed to "
+"\"spider,\" or automatically search the Internet and copy "
+"content—began running across the Net. Page by page, these bots copied "
+"Internet-based information onto a small set of computers located in a "
+"basement in San Francisco's Presidio. Once the bots finished the whole of "
+"the Internet, they started again. Over and over again, once every two "
+"months, these bits of code took copies of the Internet and stored them."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5425
+msgid ""
+"By October 2001, the bots had collected more than five years of copies. And "
+"at a small announcement in Berkeley, California, the archive that these "
+"copies created, the Internet Archive, was opened to the world. Using a "
+"technology called \"the Way Back Machine,\" you could enter a Web page, and "
+"see all of its copies going back to 1996, as well as when those pages "
+"changed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5433
+msgid ""
+"This is the thing about the Internet that Orwell would have appreciated. In "
+"the dystopia described in 1984, old newspapers were constantly updated to "
+"assure that the current view of the world, approved of by the government, "
+"was not contradicted by previous news reports."
+msgstr ""
+
+#. PAGE BREAK 120
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5441
+msgid ""
+"Thousands of workers constantly reedited the past, meaning there was no way "
+"ever to know whether the story you were reading today was the story that was "
+"printed on the date published on the paper."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5446
+msgid ""
+"It's the same with the Internet. If you go to a Web page today, there's no "
+"way for you to know whether the content you are reading is the same as the "
+"content you read before. The page may seem the same, but the content could "
+"easily be different. The Internet is Orwell's library—constantly "
+"updated, without any reliable memory."
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:5459
+msgid ""
+"The temptations remain, however. Brewster Kahle reports that the White House "
+"changes its own press releases without notice. A May 13, 2003, press release "
+"stated, \"Combat Operations in Iraq Have Ended.\" That was later changed, "
+"without notice, to \"Major Combat Operations in Iraq Have Ended.\" E-mail "
+"from Brewster Kahle, 1 December 2003."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5453
+msgid ""
+"Until the Way Back Machine, at least. With the Way Back Machine, and the "
+"Internet Archive underlying it, you can see what the Internet was. You have "
+"the power to see what you remember. More importantly, perhaps, you also have "
+"the power to find what you don't remember and what others might prefer you "
+"forget.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5467
+msgid ""
+"We take it for granted that we can go back to see what we remember "
+"reading. Think about newspapers. If you wanted to study the reaction of your "
+"hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's "
+"water cannon in 1963, you could go to your public library and look at the "
+"newspapers. Those papers probably exist on microfiche. If you're lucky, they "
+"exist in paper, too. Either way, you are free, using a library, to go back "
+"and remember—not just what it is convenient to remember, but remember "
+"something close to the truth."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5478
+msgid ""
+"It is said that those who fail to remember history are doomed to repeat "
+"it. That's not quite correct. We all forget history. The key is whether we "
+"have a way to go back to rediscover what we forget. More directly, the key "
+"is whether an objective past can keep us honest. Libraries help do that, by "
+"collecting content and keeping it, for schoolchildren, for researchers, for "
+"grandma. A free society presumes this knowedge."
+msgstr ""
+
+#. PAGE BREAK 121
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5487
+msgid ""
+"The Internet was an exception to this presumption. Until the Internet "
+"Archive, there was no way to go back. The Internet was the quintessentially "
+"transitory medium. And yet, as it becomes more important in forming and "
+"reforming society, it becomes more and more important to maintain in some "
+"historical form. It's just bizarre to think that we have scads of archives "
+"of newspapers from tiny towns around the world, yet there is but one copy of "
+"the Internet—the one kept by the Internet Archive."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5498
+msgid ""
+"Brewster Kahle is the founder of the Internet Archive. He was a very "
+"successful Internet entrepreneur after he was a successful computer "
+"researcher. In the 1990s, Kahle decided he had had enough business "
+"success. It was time to become a different kind of success. So he launched "
+"a series of projects designed to archive human knowledge. The Internet "
+"Archive was just the first of the projects of this Andrew Carnegie of the "
+"Internet. By December of 2002, the archive had over 10 billion pages, and it "
+"was growing at about a billion pages a month."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5508
+msgid ""
+"The Way Back Machine is the largest archive of human knowledge in human "
+"history. At the end of 2002, it held \"two hundred and thirty terabytes of "
+"material\"—and was \"ten times larger than the Library of Congress.\" "
+"And this was just the first of the archives that Kahle set out to build. In "
+"addition to the Internet Archive, Kahle has been constructing the Television "
+"Archive. Television, it turns out, is even more ephemeral than the "
+"Internet. While much of twentieth-century culture was constructed through "
+"television, only a tiny proportion of that culture is available for anyone "
+"to see today. Three hours of news are recorded each evening by Vanderbilt "
+"University—thanks to a specific exemption in the copyright law. That "
+"content is indexed, and is available to scholars for a very low fee. \"But "
+"other than that, [television] is almost unavailable,\" Kahle told me. \"If "
+"you were Barbara Walters you could get access to [the archives], but if you "
+"are just a graduate student?\" As Kahle put it,"
+msgstr ""
+
+#. PAGE BREAK 122
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5526
+msgid ""
+"Do you remember when Dan Quayle was interacting with Murphy Brown? Remember "
+"that back and forth surreal experience of a politician interacting with a "
+"fictional television character? If you were a graduate student wanting to "
+"study that, and you wanted to get those original back and forth exchanges "
+"between the two, the 60 Minutes episode that came out after it . . . it "
+"would be almost impossible. . . . Those materials are almost "
+"unfindable. . . ."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5538
+msgid ""
+"Why is that? Why is it that the part of our culture that is recorded in "
+"newspapers remains perpetually accessible, while the part that is recorded "
+"on videotape is not? How is it that we've created a world where researchers "
+"trying to understand the effect of media on nineteenthcentury America will "
+"have an easier time than researchers trying to understand the effect of "
+"media on twentieth-century America?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5546
+msgid ""
+"In part, this is because of the law. Early in American copyright law, "
+"copyright owners were required to deposit copies of their work in "
+"libraries. These copies were intended both to facilitate the spread of "
+"knowledge and to assure that a copy of the work would be around once the "
+"copyright expired, so that others might access and copy the work."
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:5563
+msgid ""
+"Doug Herrick, \"Toward a National Film Collection: Motion Pictures at the "
+"Library of Congress,\" Film Library Quarterly 13 nos. 2–3 (1980): 5; "
+"Anthony Slide, Nitrate Won't Wait: A History of Film Preservation in the "
+"United States ( Jefferson, N.C.: McFarland & Co., 1992), 36."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5554
+msgid ""
+"These rules applied to film as well. But in 1915, the Library of Congress "
+"made an exception for film. Film could be copyrighted so long as such "
+"deposits were made. But the filmmaker was then allowed to borrow back the "
+"deposits—for an unlimited time at no cost. In 1915 alone, there were "
+"more than 5,475 films deposited and \"borrowed back.\" Thus, when the "
+"copyrights to films expire, there is no copy held by any library. The copy "
+"exists—if it exists at all—in the library archive of the film "
+"company.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5571
+msgid ""
+"The same is generally true about television. Television broadcasts were "
+"originally not copyrighted—there was no way to capture the broadcasts, "
+"so there was no fear of \"theft.\" But as technology enabled capturing, "
+"broadcasters relied increasingly upon the law. The law required they make a "
+"copy of each broadcast for the work to be \"copyrighted.\" But those copies "
+"were simply kept by the broadcasters. No library had any right to them; the "
+"government didn't demand them. The content of this part of American culture "
+"is practically invisible to anyone who would look."
+msgstr ""
+
+#. PAGE BREAK 123
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5582
+msgid ""
+"Kahle was eager to correct this. Before September 11, 2001, he and his "
+"allies had started capturing television. They selected twenty stations from "
+"around the world and hit the Record button. After September 11, Kahle, "
+"working with dozens of others, selected twenty stations from around the "
+"world and, beginning October 11, 2001, made their coverage during the week "
+"of September 11 available free on-line. Anyone could see how news reports "
+"from around the world covered the events of that day."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5593
+msgid ""
+"Kahle had the same idea with film. Working with Rick Prelinger, whose "
+"archive of film includes close to 45,000 \"ephemeral films\" (meaning films "
+"other than Hollywood movies, films that were never copyrighted), Kahle "
+"established the Movie Archive. Prelinger let Kahle digitize 1,300 films in "
+"this archive and post those films on the Internet to be downloaded for "
+"free. Prelinger's is a for-profit company. It sells copies of these films as "
+"stock footage. What he has discovered is that after he made a significant "
+"chunk available for free, his stock footage sales went up "
+"dramatically. People could easily find the material they wanted to use. Some "
+"downloaded that material and made films on their own. Others purchased "
+"copies to enable other films to be made. Either way, the archive enabled "
+"access to this important part of our culture. Want to see a copy of the "
+"\"Duck and Cover\" film that instructed children how to save themselves in "
+"the middle of nuclear attack? Go to archive.org, and you can download the "
+"film in a few minutes—for free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5611
+msgid ""
+"Here again, Kahle is providing access to a part of our culture that we "
+"otherwise could not get easily, if at all. It is yet another part of what "
+"defines the twentieth century that we have lost to history. The law doesn't "
+"require these copies to be kept by anyone, or to be deposited in an archive "
+"by anyone. Therefore, there is no simple way to find them."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5619
+msgid ""
+"The key here is access, not price. Kahle wants to enable free access to this "
+"content, but he also wants to enable others to sell access to it. His aim is "
+"to ensure competition in access to this important part of our culture. Not "
+"during the commercial life of a bit of creative property, but during a "
+"second life that all creative property has—a noncommercial life."
+msgstr ""
+
+#. PAGE BREAK 124
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5627
+msgid ""
+"For here is an idea that we should more clearly recognize. Every bit of "
+"creative property goes through different \"lives.\" In its first life, if "
+"the creator is lucky, the content is sold. In such cases the commercial "
+"market is successful for the creator. The vast majority of creative property "
+"doesn't enjoy such success, but some clearly does. For that content, "
+"commercial life is extremely important. Without this commercial market, "
+"there would be, many argue, much less creativity."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5639
+msgid ""
+"After the commercial life of creative property has ended, our tradition has "
+"always supported a second life as well. A newspaper delivers the news every "
+"day to the doorsteps of America. The very next day, it is used to wrap fish "
+"or to fill boxes with fragile gifts or to build an archive of knowledge "
+"about our history. In this second life, the content can continue to inform "
+"even if that information is no longer sold."
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:5651
+msgid ""
+"Dave Barns, \"Fledgling Career in Antique Books: Woodstock Landlord, Bar "
+"Owner Starts a New Chapter by Adopting Business,\" Chicago Tribune, 5 "
+"September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, "
+"only 2.2 percent were in print in 2002. R. Anthony Reese, \"The First Sale "
+"Doctrine in the Era of Digital Networks,\" Boston College Law Review 44 "
+"(2003): 593 n. 51."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5648
+msgid ""
+"The same has always been true about books. A book goes out of print very "
+"quickly (the average today is after about a year<placeholder "
+"type=\"footnote\" id=\"0\"/>). After it is out of print, it can be sold in "
+"used book stores without the copyright owner getting anything and stored in "
+"libraries, where many get to read the book, also for free. Used book stores "
+"and libraries are thus the second life of a book. That second life is "
+"extremely important to the spread and stability of culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5665
+msgid ""
+"Yet increasingly, any assumption about a stable second life for creative "
+"property does not hold true with the most important components of popular "
+"culture in the twentieth and twenty-first centuries. For "
+"these—television, movies, music, radio, the Internet—there is no "
+"guarantee of a second life. For these sorts of culture, it is as if we've "
+"replaced libraries with Barnes & Noble superstores. With this culture, "
+"what's accessible is nothing but what a certain limited market demands. "
+"Beyond that, culture disappears."
+msgstr ""
+
+#. PAGE BREAK 125
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5676
+msgid ""
+"For most of the twentieth century, it was economics that made this so. It "
+"would have been insanely expensive to collect and make accessible all "
+"television and film and music: The cost of analog copies is extraordinarily "
+"high. So even though the law in principle would have restricted the ability "
+"of a Brewster Kahle to copy culture generally, the real restriction was "
+"economics. The market made it impossibly difficult to do anything about this "
+"ephemeral culture; the law had little practical effect."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5688
+msgid ""
+"Perhaps the single most important feature of the digital revolution is that "
+"for the first time since the Library of Alexandria, it is feasible to "
+"imagine constructing archives that hold all culture produced or distributed "
+"publicly. Technology makes it possible to imagine an archive of all books "
+"published, and increasingly makes it possible to imagine an archive of all "
+"moving images and sound."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5696
+msgid ""
+"The scale of this potential archive is something we've never imagined "
+"before. The Brewster Kahles of our history have dreamed about it; but we are "
+"for the first time at a point where that dream is possible. As Kahle "
+"describes,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5703
+msgid ""
+"It looks like there's about two to three million recordings of music. "
+"Ever. There are about a hundred thousand theatrical releases of movies, "
+". . . and about one to two million movies [distributed] during the twentieth "
+"century. There are about twenty-six million different titles of books. All "
+"of these would fit on computers that would fit in this room and be able to "
+"be afforded by a small company. So we're at a turning point in our "
+"history. Universal access is the goal. And the opportunity of leading a "
+"different life, based on this, is . . . thrilling. It could be one of the "
+"things humankind would be most proud of. Up there with the Library of "
+"Alexandria, putting a man on the moon, and the invention of the printing "
+"press."
+msgstr ""
+
+#. PAGE BREAK 126
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5717
+msgid ""
+"Kahle is not the only librarian. The Internet Archive is not the only "
+"archive. But Kahle and the Internet Archive suggest what the future of "
+"libraries or archives could be. When the commercial life of creative "
+"property ends, I don't know. But it does. And whenever it does, Kahle and "
+"his archive hint at a world where this knowledge, and culture, remains "
+"perpetually available. Some will draw upon it to understand it; some to "
+"criticize it. Some will use it, as Walt Disney did, to re-create the past "
+"for the future. These technologies promise something that had become "
+"unimaginable for much of our past—a future for our past. The "
+"technology of digital arts could make the dream of the Library of Alexandria "
+"real again."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5732
+msgid ""
+"Technologists have thus removed the economic costs of building such an "
+"archive. But lawyers' costs remain. For as much as we might like to call "
+"these \"archives,\" as warm as the idea of a \"library\" might seem, the "
+"\"content\" that is collected in these digital spaces is also someone's "
+"\"property.\" And the law of property restricts the freedoms that Kahle and "
+"others would exercise."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:5742
+msgid "CHAPTER TEN: \"Property\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:5751
+msgid "Johnson, Lyndon"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5744
+msgid ""
+"Jack Valenti has been the president of the Motion Picture Association of "
+"America since 1966. He first came to Washington, D.C., with Lyndon Johnson's "
+"administration—literally. The famous picture of Johnson's swearing-in "
+"on Air Force One after the assassination of President Kennedy has Valenti in "
+"the background. In his almost forty years of running the MPAA, Valenti has "
+"established himself as perhaps the most prominent and effective lobbyist in "
+"Washington. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5754
+msgid ""
+"The MPAA is the American branch of the international Motion Picture "
+"Association. It was formed in 1922 as a trade association whose goal was to "
+"defend American movies against increasing domestic criticism. The "
+"organization now represents not only filmmakers but producers and "
+"distributors of entertainment for television, video, and cable. Its board is "
+"made up of the chairmen and presidents of the seven major producers and "
+"distributors of motion picture and television programs in the United States: "
+"Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth "
+"Century Fox, Universal Studios, and Warner Brothers."
+msgstr ""
+
+#. PAGE BREAK 128
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5767
+msgid ""
+"Valenti is only the third president of the MPAA. No president before him has "
+"had as much influence over that organization, or over Washington. As a "
+"Texan, Valenti has mastered the single most important political skill of a "
+"Southerner—the ability to appear simple and slow while hiding a "
+"lightning-fast intellect. To this day, Valenti plays the simple, humble "
+"man. But this Harvard MBA, and author of four books, who finished high "
+"school at the age of fifteen and flew more than fifty combat missions in "
+"World War II, is no Mr. Smith. When Valenti went to Washington, he mastered "
+"the city in a quintessentially Washingtonian way."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5779
+msgid ""
+"In defending artistic liberty and the freedom of speech that our culture "
+"depends upon, the MPAA has done important good. In crafting the MPAA rating "
+"system, it has probably avoided a great deal of speech-regulating harm. But "
+"there is an aspect to the organization's mission that is both the most "
+"radical and the most important. This is the organization's effort, "
+"epitomized in Valenti's every act, to redefine the meaning of \"creative "
+"property.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5788
+msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:"
+msgstr ""
+
+#. f1
+#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
+#: freeculture.xml:5802
+msgid ""
+"Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, "
+"H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on "
+"Courts, Civil Liberties, and the Administration of Justice of the Committee "
+"on the Judiciary of the House of Representatives, 97th Cong., 2nd "
+"sess. (1982): 65 (testimony of Jack Valenti)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:5793
+msgid ""
+"No matter the lengthy arguments made, no matter the charges and the "
+"counter-charges, no matter the tumult and the shouting, reasonable men and "
+"women will keep returning to the fundamental issue, the central theme which "
+"animates this entire debate: Creative property owners must be accorded the "
+"same rights and protection resident in all other property owners in the "
+"nation. That is the issue. That is the question. And that is the rostrum on "
+"which this entire hearing and the debates to follow must rest.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 129
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5812
+msgid ""
+"The strategy of this rhetoric, like the strategy of most of Valenti's "
+"rhetoric, is brilliant and simple and brilliant because simple. The "
+"\"central theme\" to which \"reasonable men and women\" will return is this: "
+"\"Creative property owners must be accorded the same rights and protections "
+"resident in all other property owners in the nation.\" There are no "
+"second-class citizens, Valenti might have continued. There should be no "
+"second-class property owners."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5823
+msgid ""
+"This claim has an obvious and powerful intuitive pull. It is stated with "
+"such clarity as to make the idea as obvious as the notion that we use "
+"elections to pick presidents. But in fact, there is no more extreme a claim "
+"made by anyone who is serious in this debate than this claim of "
+"Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps the "
+"nation's foremost extremist when it comes to the nature and scope of "
+"\"creative property.\" His views have no reasonable connection to our actual "
+"legal tradition, even if the subtle pull of his Texan charm has slowly "
+"redefined that tradition, at least in Washington."
+msgstr ""
+
+#. f2
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:5838
+msgid ""
+"Lawyers speak of \"property\" not as an absolute thing, but as a bundle of "
+"rights that are sometimes associated with a particular object. Thus, my "
+"\"property right\" to my car gives me the right to exclusive use, but not "
+"the right to drive at 150 miles an hour. For the best effort to connect the "
+"ordinary meaning of \"property\" to \"lawyer talk,\" see Bruce Ackerman, "
+"Private Property and the Constitution (New Haven: Yale University Press, "
+"1977), 26–27."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5835
+msgid ""
+"While \"creative property\" is certainly \"property\" in a nerdy and precise "
+"sense that lawyers are trained to understand,<placeholder type=\"footnote\" "
+"id=\"0\"/> it has never been the case, nor should it be, that \"creative "
+"property owners\" have been \"accorded the same rights and protection "
+"resident in all other property owners.\" Indeed, if creative property owners "
+"were given the same rights as all other property owners, that would effect a "
+"radical, and radically undesirable, change in our tradition."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5853
+msgid ""
+"Valenti knows this. But he speaks for an industry that cares squat for our "
+"tradition and the values it represents. He speaks for an industry that is "
+"instead fighting to restore the tradition that the British overturned in "
+"1710. In the world that Valenti's changes would create, a powerful few would "
+"exercise powerful control over how our creative culture would develop."
+msgstr ""
+
+#. PAGE BREAK 130
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5861
+msgid ""
+"I have two purposes in this chapter. The first is to convince you that, "
+"historically, Valenti's claim is absolutely wrong. The second is to convince "
+"you that it would be terribly wrong for us to reject our history. We have "
+"always treated rights in creative property differently from the rights "
+"resident in all other property owners. They have never been the same. And "
+"they should never be the same, because, however counterintuitive this may "
+"seem, to make them the same would be to fundamentally weaken the opportunity "
+"for new creators to create. Creativity depends upon the owners of "
+"creativity having less than perfect control."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5876
+msgid ""
+"Organizations such as the MPAA, whose board includes the most powerful of "
+"the old guard, have little interest, their rhetoric notwithstanding, in "
+"assuring that the new can displace them. No organization does. No person "
+"does. (Ask me about tenure, for example.) But what's good for the MPAA is "
+"not necessarily good for America. A society that defends the ideals of free "
+"culture must preserve precisely the opportunity for new creativity to "
+"threaten the old. To get just a hint that there is something fundamentally "
+"wrong in Valenti's argument, we need look no further than the United States "
+"Constitution itself."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5888
+msgid ""
+"The framers of our Constitution loved \"property.\" Indeed, so strongly did "
+"they love property that they built into the Constitution an important "
+"requirement. If the government takes your property—if it condemns your "
+"house, or acquires a slice of land from your farm—it is required, "
+"under the Fifth Amendment's \"Takings Clause,\" to pay you \"just "
+"compensation\" for that taking. The Constitution thus guarantees that "
+"property is, in a certain sense, sacred. It cannot ever be taken from the "
+"property owner unless the government pays for the privilege."
+msgstr ""
+
+#. PAGE BREAK 131
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5899
+msgid ""
+"Yet the very same Constitution speaks very differently about what Valenti "
+"calls \"creative property.\" In the clause granting Congress the power to "
+"create \"creative property,\" the Constitution requires that after a "
+"\"limited time,\" Congress take back the rights that it has granted and set "
+"the \"creative property\" free to the public domain. Yet when Congress does "
+"this, when the expiration of a copyright term \"takes\" your copyright and "
+"turns it over to the public domain, Congress does not have any obligation to "
+"pay \"just compensation\" for this \"taking.\" Instead, the same "
+"Constitution that requires compensation for your land requires that you lose "
+"your \"creative property\" right without any compensation at all."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5914
+msgid ""
+"The Constitution thus on its face states that these two forms of property "
+"are not to be accorded the same rights. They are plainly to be treated "
+"differently. Valenti is therefore not just asking for a change in our "
+"tradition when he argues that creative-property owners should be accorded "
+"the same rights as every other property-right owner. He is effectively "
+"arguing for a change in our Constitution itself."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5923
+msgid ""
+"Arguing for a change in our Constitution is not necessarily wrong. There "
+"was much in our original Constitution that was plainly wrong. The "
+"Constitution of 1789 entrenched slavery; it left senators to be appointed "
+"rather than elected; it made it possible for the electoral college to "
+"produce a tie between the president and his own vice president (as it did in "
+"1800). The framers were no doubt extraordinary, but I would be the first to "
+"admit that they made big mistakes. We have since rejected some of those "
+"mistakes; no doubt there could be others that we should reject as well. So "
+"my argument is not simply that because Jefferson did it, we should, too."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5935
+msgid ""
+"Instead, my argument is that because Jefferson did it, we should at least "
+"try to understand why. Why did the framers, fanatical property types that "
+"they were, reject the claim that creative property be given the same rights "
+"as all other property? Why did they require that for creative property there "
+"must be a public domain?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5942
+msgid ""
+"To answer this question, we need to get some perspective on the history of "
+"these \"creative property\" rights, and the control that they enabled. Once "
+"we see clearly how differently these rights have been defined, we will be in "
+"a better position to ask the question that should be at the core of this "
+"war: Not whether creative property should be protected, but how. Not whether "
+"we will enforce the rights the law gives to creative-property owners, but "
+"what the particular mix of rights ought to be. Not whether artists should be "
+"paid, but whether institutions designed to assure that artists get paid need "
+"also control how culture develops."
+msgstr ""
+
+#. PAGE BREAK 132
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5956
+msgid ""
+"To answer these questions, we need a more general way to talk about how "
+"property is protected. More precisely, we need a more general way than the "
+"narrow language of the law allows. In Code and Other Laws of Cyberspace, I "
+"used a simple model to capture this more general perspective. For any "
+"particular right or regulation, this model asks how four different "
+"modalities of regulation interact to support or weaken the right or "
+"regulation. I represented it with this diagram:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><figure><title>
+#: freeculture.xml:5965
+msgid ""
+"How four different modalities of regulation interact to support or weaken "
+"the right or regulation."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:5966 freeculture.xml:6140 freeculture.xml:6433
+msgid "<graphic fileref=\"images/1331.png\"></graphic>"
+msgstr ""
+
+#. PAGE BREAK 133
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5969
+msgid ""
+"At the center of this picture is a regulated dot: the individual or group "
+"that is the target of regulation, or the holder of a right. (In each case "
+"throughout, we can describe this either as regulation or as a right. For "
+"simplicity's sake, I will speak only of regulations.) The ovals represent "
+"four ways in which the individual or group might be regulated— either "
+"constrained or, alternatively, enabled. Law is the most obvious constraint "
+"(to lawyers, at least). It constrains by threatening punishments after the "
+"fact if the rules set in advance are violated. So if, for example, you "
+"willfully infringe Madonna's copyright by copying a song from her latest CD "
+"and posting it on the Web, you can be punished with a $150,000 fine. The "
+"fine is an ex post punishment for violating an ex ante rule. It is imposed "
+"by the state."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5985
+msgid ""
+"Norms are a different kind of constraint. They, too, punish an individual "
+"for violating a rule. But the punishment of a norm is imposed by a "
+"community, not (or not only) by the state. There may be no law against "
+"spitting, but that doesn't mean you won't be punished if you spit on the "
+"ground while standing in line at a movie. The punishment might not be harsh, "
+"though depending upon the community, it could easily be more harsh than many "
+"of the punishments imposed by the state. The mark of the difference is not "
+"the severity of the rule, but the source of the enforcement."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:5996
+msgid ""
+"The market is a third type of constraint. Its constraint is effected through "
+"conditions: You can do X if you pay Y; you'll be paid M if you do N. These "
+"constraints are obviously not independent of law or norms—it is "
+"property law that defines what must be bought if it is to be taken legally; "
+"it is norms that say what is appropriately sold. But given a set of norms, "
+"and a background of property and contract law, the market imposes a "
+"simultaneous constraint upon how an individual or group might behave."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:6006
+msgid ""
+"Finally, and for the moment, perhaps, most mysteriously, "
+"\"architecture\"—the physical world as one finds it—is a "
+"constraint on behavior. A fallen bridge might constrain your ability to get "
+"across a river. Railroad tracks might constrain the ability of a community "
+"to integrate its social life. As with the market, architecture does not "
+"effect its constraint through ex post punishments. Instead, also as with the "
+"market, architecture effects its constraint through simultaneous "
+"conditions. These conditions are imposed not by courts enforcing contracts, "
+"or by police punishing theft, but by nature, by \"architecture.\" If a "
+"500-pound boulder blocks your way, it is the law of gravity that enforces "
+"this constraint. If a $500 airplane ticket stands between you and a flight "
+"to New York, it is the market that enforces this constraint."
+msgstr ""
+
+#. PAGE BREAK 134
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:6023
+msgid ""
+"So the first point about these four modalities of regulation is obvious: "
+"They interact. Restrictions imposed by one might be reinforced by "
+"another. Or restrictions imposed by one might be undermined by another."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:6029
+msgid ""
+"The second point follows directly: If we want to understand the effective "
+"freedom that anyone has at a given moment to do any particular thing, we "
+"have to consider how these four modalities interact. Whether or not there "
+"are other constraints (there may well be; my claim is not about "
+"comprehensiveness), these four are among the most significant, and any "
+"regulator (whether controlling or freeing) must consider how these four in "
+"particular interact."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:6038
+msgid "driving speed, constraints on"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:6041
+msgid ""
+"So, for example, consider the \"freedom\" to drive a car at a high "
+"speed. That freedom is in part restricted by laws: speed limits that say how "
+"fast you can drive in particular places at particular times. It is in part "
+"restricted by architecture: speed bumps, for example, slow most rational "
+"drivers; governors in buses, as another example, set the maximum rate at "
+"which the driver can drive. The freedom is in part restricted by the market: "
+"Fuel efficiency drops as speed increases, thus the price of gasoline "
+"indirectly constrains speed. And finally, the norms of a community may or "
+"may not constrain the freedom to speed. Drive at 50 mph by a school in your "
+"own neighborhood and you're likely to be punished by the neighbors. The same "
+"norm wouldn't be as effective in a different town, or at night."
+msgstr ""
+
+#. f3
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:6059
+msgid ""
+"By describing the way law affects the other three modalities, I don't mean "
+"to suggest that the other three don't affect law. Obviously, they do. Law's "
+"only distinction is that it alone speaks as if it has a right "
+"self-consciously to change the other three. The right of the other three is "
+"more timidly expressed. See Lawrence Lessig, Code: And Other Laws of "
+"Cyberspace (New York: Basic Books, 1999): 90–95; Lawrence Lessig, "
+"\"The New Chicago School,\" Journal of Legal Studies, June 1998."
+msgstr ""
+
+#. PAGE BREAK 135
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:6055
+msgid ""
+"The final point about this simple model should also be fairly clear: While "
+"these four modalities are analytically independent, law has a special role "
+"in affecting the three.<placeholder type=\"footnote\" id=\"0\"/> The law, in "
+"other words, sometimes operates to increase or decrease the constraint of a "
+"particular modality. Thus, the law might be used to increase taxes on "
+"gasoline, so as to increase the incentives to drive more slowly. The law "
+"might be used to mandate more speed bumps, so as to increase the difficulty "
+"of driving rapidly. The law might be used to fund ads that stigmatize "
+"reckless driving. Or the law might be used to require that other laws be "
+"more strict—a federal requirement that states decrease the speed "
+"limit, for example—so as to decrease the attractiveness of fast "
+"driving."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><figure><title>
+#: freeculture.xml:6083
+msgid "Law has a special role in affecting the three."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><figure>
+#: freeculture.xml:6084
+msgid "<graphic fileref=\"images/1361.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
+#: freeculture.xml:6123
+msgid "Commons, John R."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:6095
+msgid ""
+"Some people object to this way of talking about \"liberty.\" They object "
+"because their focus when considering the constraints that exist at any "
+"particular moment are constraints imposed exclusively by the government. For "
+"instance, if a storm destroys a bridge, these people think it is meaningless "
+"to say that one's liberty has been restrained. A bridge has washed out, and "
+"it's harder to get from one place to another. To talk about this as a loss "
+"of freedom, they say, is to confuse the stuff of politics with the vagaries "
+"of ordinary life. I don't mean to deny the value in this narrower view, "
+"which depends upon the context of the inquiry. I do, however, mean to argue "
+"against any insistence that this narrower view is the only proper view of "
+"liberty. As I argued in Code, we come from a long tradition of political "
+"thought with a broader focus than the narrow question of what the government "
+"did when. John Stuart Mill defended freedom of speech, for example, from "
+"the tyranny of narrow minds, not from the fear of government prosecution; "
+"John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. "
+"John R. Commons famously defended the economic freedom of labor from "
+"constraints imposed by the market; John R. Commons, \"The Right to Work,\" "
+"in Malcom Rutherford and Warren J. Samuels, eds., John R. Commons: Selected "
+"Essays (London: Routledge: 1997), 62. The Americans with Disabilities Act "
+"increases the liberty of people with physical disabilities by changing the "
+"architecture of certain public places, thereby making access to those places "
+"easier; 42 United States Code, section 12101 (2000). Each of these "
+"interventions to change existing conditions changes the liberty of a "
+"particular group. The effect of those interventions should be accounted for "
+"in order to understand the effective liberty that each of these groups might "
+"face. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:6087
+msgid ""
+"These constraints can thus change, and they can be changed. To understand "
+"the effective protection of liberty or protection of property at any "
+"particular moment, we must track these changes over time. A restriction "
+"imposed by one modality might be erased by another. A freedom enabled by one "
+"modality might be displaced by another.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:6127
+msgid "Why Hollywood Is Right"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6129
+msgid ""
+"The most obvious point that this model reveals is just why, or just how, "
+"Hollywood is right. The copyright warriors have rallied Congress and the "
+"courts to defend copyright. This model helps us see why that rallying makes "
+"sense."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6135
+msgid "Let's say this is the picture of copyright's regulation before the Internet:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6139 freeculture.xml:6432
+msgid "Copyright's regulation before the Internet."
+msgstr ""
+
+#. PAGE BREAK 136
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6144
+msgid ""
+"There is balance between law, norms, market, and architecture. The law "
+"limits the ability to copy and share content, by imposing penalties on those "
+"who copy and share content. Those penalties are reinforced by technologies "
+"that make it hard to copy and share content (architecture) and expensive to "
+"copy and share content (market). Finally, those penalties are mitigated by "
+"norms we all recognize—kids, for example, taping other kids' "
+"records. These uses of copyrighted material may well be infringement, but "
+"the norms of our society (before the Internet, at least) had no problem with "
+"this form of infringement."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6156
+msgid ""
+"Enter the Internet, or, more precisely, technologies such as MP3s and p2p "
+"sharing. Now the constraint of architecture changes dramatically, as does "
+"the constraint of the market. And as both the market and architecture relax "
+"the regulation of copyright, norms pile on. The happy balance (for the "
+"warriors, at least) of life before the Internet becomes an effective state "
+"of anarchy after the Internet."
+msgstr ""
+
+#. PAGE BREAK 137
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6164
+msgid ""
+"Thus the sense of, and justification for, the warriors' response. "
+"Technology has changed, the warriors say, and the effect of this change, "
+"when ramified through the market and norms, is that a balance of protection "
+"for the copyright owners' rights has been lost. This is Iraq after the fall "
+"of Saddam, but this time no government is justifying the looting that "
+"results."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6174
+msgid "effective state of anarchy after the Internet."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:6175
+msgid "<graphic fileref=\"images/1381.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6178
+msgid ""
+"Neither this analysis nor the conclusions that follow are new to the "
+"warriors. Indeed, in a \"White Paper\" prepared by the Commerce Department "
+"(one heavily influenced by the copyright warriors) in 1995, this mix of "
+"regulatory modalities had already been identified and the strategy to "
+"respond already mapped. In response to the changes the Internet had "
+"effected, the White Paper argued (1) Congress should strengthen intellectual "
+"property law, (2) businesses should adopt innovative marketing techniques, "
+"(3) technologists should push to develop code to protect copyrighted "
+"material, and (4) educators should educate kids to better protect copyright."
+msgstr ""
+
+#. PAGE BREAK 138
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6190
+msgid ""
+"This mixed strategy is just what copyright needed—if it was to "
+"preserve the particular balance that existed before the change induced by "
+"the Internet. And it's just what we should expect the content industry to "
+"push for. It is as American as apple pie to consider the happy life you have "
+"as an entitlement, and to look to the law to protect it if something comes "
+"along to change that happy life. Homeowners living in a flood plain have no "
+"hesitation appealing to the government to rebuild (and rebuild again) when a "
+"flood (architecture) wipes away their property (law). Farmers have no "
+"hesitation appealing to the government to bail them out when a virus "
+"(architecture) devastates their crop. Unions have no hesitation appealing to "
+"the government to bail them out when imports (market) wipe out the "
+"U.S. steel industry."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6207
+msgid ""
+"Thus, there's nothing wrong or surprising in the content industry's campaign "
+"to protect itself from the harmful consequences of a technological "
+"innovation. And I would be the last person to argue that the changing "
+"technology of the Internet has not had a profound effect on the content "
+"industry's way of doing business, or as John Seely Brown describes it, its "
+"\"architecture of revenue.\""
+msgstr ""
+
+#. f5
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6223
+msgid ""
+"See Geoffrey Smith, \"Film vs. Digital: Can Kodak Build a Bridge?\" "
+"BusinessWeek online, 2 August 1999, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #23</ulink>. For a more recent "
+"analysis of Kodak's place in the market, see Chana R. Schoenberger, \"Can "
+"Kodak Make Up for Lost Moments?\" Forbes.com, 6 October 2003, available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #24</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6215
+msgid ""
+"But just because a particular interest asks for government support, it "
+"doesn't follow that support should be granted. And just because technology "
+"has weakened a particular way of doing business, it doesn't follow that the "
+"government should intervene to support that old way of doing "
+"business. Kodak, for example, has lost perhaps as much as 20 percent of "
+"their traditional film market to the emerging technologies of digital "
+"cameras.<placeholder type=\"footnote\" id=\"0\"/> Does anyone believe the "
+"government should ban digital cameras just to support Kodak? Highways have "
+"weakened the freight business for railroads. Does anyone think we should ban "
+"trucks from roads for the purpose of protecting the railroads? Closer to the "
+"subject of this book, remote channel changers have weakened the "
+"\"stickiness\" of television advertising (if a boring commercial comes on "
+"the TV, the remote makes it easy to surf ), and it may well be that this "
+"change has weakened the television advertising market. But does anyone "
+"believe we should regulate remotes to reinforce commercial television? "
+"(Maybe by limiting them to function only once a second, or to switch to only "
+"ten channels within an hour?)"
+msgstr ""
+
+#. f6
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6255
+msgid "Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6245
+msgid ""
+"The obvious answer to these obviously rhetorical questions is no. In a free "
+"society, with a free market, supported by free enterprise and free trade, "
+"the government's role is not to support one way of doing business against "
+"others. Its role is not to pick winners and protect them against loss. If "
+"the government did this generally, then we would never have any progress. As "
+"Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software "
+"patents, \"established companies have an interest in excluding future "
+"competitors.\"<placeholder type=\"footnote\" id=\"0\"/> And relative to a "
+"startup, established companies also have the means. (Think RCA and FM "
+"radio.) A world in which competitors with new ideas must fight not only the "
+"market but also the government is a world in which competitors with new "
+"ideas will not succeed. It is a world of stasis and increasingly "
+"concentrated stagnation. It is the Soviet Union under Brezhnev."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6266
+msgid ""
+"Thus, while it is understandable for industries threatened with new "
+"technologies that change the way they do business to look to the government "
+"for protection, it is the special duty of policy makers to guarantee that "
+"that protection not become a deterrent to progress. It is the duty of policy "
+"makers, in other words, to assure that the changes they create, in response "
+"to the request of those hurt by changing technology, are changes that "
+"preserve the incentives and opportunities for innovation and change."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6276
+msgid ""
+"In the context of laws regulating speech—which include, obviously, "
+"copyright law—that duty is even stronger. When the industry "
+"complaining about changing technologies is asking Congress to respond in a "
+"way that burdens speech and creativity, policy makers should be especially "
+"wary of the request. It is always a bad deal for the government to get into "
+"the business of regulating speech markets. The risks and dangers of that "
+"game are precisely why our framers created the First Amendment to our "
+"Constitution: \"Congress shall make no law . . . abridging the freedom of "
+"speech.\" So when Congress is being asked to pass laws that would "
+"\"abridge\" the freedom of speech, it should ask— "
+"carefully—whether such regulation is justified."
+msgstr ""
+
+#. PAGE BREAK 140
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6290
+msgid ""
+"My argument just now, however, has nothing to do with whether the changes "
+"that are being pushed by the copyright warriors are \"justified.\" My "
+"argument is about their effect. For before we get to the question of "
+"justification, a hard question that depends a great deal upon your values, "
+"we should first ask whether we understand the effect of the changes the "
+"content industry wants."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6299
+msgid "Here's the metaphor that will capture the argument to follow."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6302
+msgid ""
+"In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul "
+"Hermann Müller won the Nobel Prize for his work demonstrating the "
+"insecticidal properties of DDT. By the 1950s, the insecticide was widely "
+"used around the world to kill disease-carrying pests. It was also used to "
+"increase farm production."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6309
+msgid ""
+"No one doubts that killing disease-carrying pests or increasing crop "
+"production is a good thing. No one doubts that the work of Müller was "
+"important and valuable and probably saved lives, possibly millions."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:6313
+msgid "Carson, Rachel"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6315
+msgid ""
+"But in 1962, Rachel Carson published Silent Spring, which argued that DDT, "
+"whatever its primary benefits, was also having unintended environmental "
+"consequences. Birds were losing the ability to reproduce. Whole chains of "
+"the ecology were being destroyed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6321
+msgid ""
+"No one set out to destroy the environment. Paul Müller certainly did not aim "
+"to harm any birds. But the effort to solve one set of problems produced "
+"another set which, in the view of some, was far worse than the problems that "
+"were originally attacked. Or more accurately, the problems DDT caused were "
+"worse than the problems it solved, at least when considering the other, more "
+"environmentally friendly ways to solve the problems that DDT was meant to "
+"solve."
+msgstr ""
+
+#. f7
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6334
+msgid ""
+"See, for example, James Boyle, \"A Politics of Intellectual Property: "
+"Environmentalism for the Net?\" Duke Law Journal 47 (1997): 87."
+msgstr ""
+
+#. PAGE BREAK 141
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6330
+msgid ""
+"It is to this image precisely that Duke University law professor James Boyle "
+"appeals when he argues that we need an \"environmentalism\" for "
+"culture.<placeholder type=\"footnote\" id=\"0\"/> His point, and the point I "
+"want to develop in the balance of this chapter, is not that the aims of "
+"copyright are flawed. Or that authors should not be paid for their work. Or "
+"that music should be given away \"for free.\" The point is that some of the "
+"ways in which we might protect authors will have unintended consequences for "
+"the cultural environment, much like DDT had for the natural environment. And "
+"just as criticism of DDT is not an endorsement of malaria or an attack on "
+"farmers, so, too, is criticism of one particular set of regulations "
+"protecting copyright not an endorsement of anarchy or an attack on authors. "
+"It is an environment of creativity that we seek, and we should be aware of "
+"our actions' effects on the environment."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6351
+msgid ""
+"My argument, in the balance of this chapter, tries to map exactly this "
+"effect. No doubt the technology of the Internet has had a dramatic effect on "
+"the ability of copyright owners to protect their content. But there should "
+"also be little doubt that when you add together the changes in copyright law "
+"over time, plus the change in technology that the Internet is undergoing "
+"just now, the net effect of these changes will not be only that copyrighted "
+"work is effectively protected. Also, and generally missed, the net effect of "
+"this massive increase in protection will be devastating to the environment "
+"for creativity."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6362
+msgid ""
+"In a line: To kill a gnat, we are spraying DDT with consequences for free "
+"culture that will be far more devastating than that this gnat will be lost."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:6368
+msgid "Beginnings"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6370
+msgid ""
+"America copied English copyright law. Actually, we copied and improved "
+"English copyright law. Our Constitution makes the purpose of \"creative "
+"property\" rights clear; its express limitations reinforce the English aim "
+"to avoid overly powerful publishers."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6376
+msgid ""
+"The power to establish \"creative property\" rights is granted to Congress "
+"in a way that, for our Constitution, at least, is very odd. Article I, "
+"section 8, clause 8 of our Constitution states that:"
+msgstr ""
+
+#. PAGE BREAK 142
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6381
+msgid ""
+"Congress has the power to promote the Progress of Science and useful Arts, "
+"by securing for limited Times to Authors and Inventors the exclusive Right "
+"to their respective Writings and Discoveries. We can call this the "
+"\"Progress Clause,\" for notice what this clause does not say. It does not "
+"say Congress has the power to grant \"creative property rights.\" It says "
+"that Congress has the power to promote progress. The grant of power is its "
+"purpose, and its purpose is a public one, not the purpose of enriching "
+"publishers, nor even primarily the purpose of rewarding authors."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6394
+msgid ""
+"The Progress Clause expressly limits the term of copyrights. As we saw in "
+"chapter 6, the English limited the term of copyright so as to assure that a "
+"few would not exercise disproportionate control over culture by exercising "
+"disproportionate control over publishing. We can assume the framers followed "
+"the English for a similar purpose. Indeed, unlike the English, the framers "
+"reinforced that objective, by requiring that copyrights extend \"to "
+"Authors\" only."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6403
+msgid ""
+"The design of the Progress Clause reflects something about the "
+"Constitution's design in general. To avoid a problem, the framers built "
+"structure. To prevent the concentrated power of publishers, they built a "
+"structure that kept copyrights away from publishers and kept them short. To "
+"prevent the concentrated power of a church, they banned the federal "
+"government from establishing a church. To prevent concentrating power in the "
+"federal government, they built structures to reinforce the power of the "
+"states—including the Senate, whose members were at the time selected "
+"by the states, and an electoral college, also selected by the states, to "
+"select the president. In each case, a structure built checks and balances "
+"into the constitutional frame, structured to prevent otherwise inevitable "
+"concentrations of power."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6418
+msgid ""
+"I doubt the framers would recognize the regulation we call \"copyright\" "
+"today. The scope of that regulation is far beyond anything they ever "
+"considered. To begin to understand what they did, we need to put our "
+"\"copyright\" in context: We need to see how it has changed in the 210 years "
+"since they first struck its design."
+msgstr ""
+
+#. PAGE BREAK 143
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6425
+msgid ""
+"Some of these changes come from the law: some in light of changes in "
+"technology, and some in light of changes in technology given a particular "
+"concentration of market power. In terms of our model, we started here:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6436
+msgid "We will end here:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6439
+msgid ""Copyright" today."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:6440
+msgid "<graphic fileref=\"images/1442.png\"></graphic>"
+msgstr ""
+
+#. PAGE BREAK 144
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6443
+msgid "Let me explain how."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:6448
+msgid "Law: Duration"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:6463
+msgid "Crosskey, William W."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6458
+msgid ""
+"William W. Crosskey, Politics and the Constitution in the History of the "
+"United States (London: Cambridge University Press, 1953), vol. 1, "
+"485–86: \"extinguish[ing], by plain implication of `the supreme Law of "
+"the Land,' the perpetual rights which authors had, or were supposed by some "
+"to have, under the Common Law\" (emphasis added). <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6450
+msgid ""
+"When the first Congress enacted laws to protect creative property, it faced "
+"the same uncertainty about the status of creative property that the English "
+"had confronted in 1774. Many states had passed laws protecting creative "
+"property, and some believed that these laws simply supplemented common law "
+"rights that already protected creative authorship.<placeholder "
+"type=\"footnote\" id=\"0\"/> This meant that there was no guaranteed public "
+"domain in the United States in 1790. If copyrights were protected by the "
+"common law, then there was no simple way to know whether a work published in "
+"the United States was controlled or free. Just as in England, this lingering "
+"uncertainty would make it hard for publishers to rely upon a public domain "
+"to reprint and distribute works."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6473
+msgid ""
+"That uncertainty ended after Congress passed legislation granting "
+"copyrights. Because federal law overrides any contrary state law, federal "
+"protections for copyrighted works displaced any state law protections. Just "
+"as in England the Statute of Anne eventually meant that the copyrights for "
+"all English works expired, a federal statute meant that any state copyrights "
+"expired as well."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6481
+msgid ""
+"In 1790, Congress enacted the first copyright law. It created a federal "
+"copyright and secured that copyright for fourteen years. If the author was "
+"alive at the end of that fourteen years, then he could opt to renew the "
+"copyright for another fourteen years. If he did not renew the copyright, his "
+"work passed into the public domain."
+msgstr ""
+
+#. f9
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6496
+msgid ""
+"Although 13,000 titles were published in the United States from 1790 to "
+"1799, only 556 copyright registrations were filed; John Tebbel, A History of "
+"Book Publishing in the United States, vol. 1, The Creation of an Industry, "
+"1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints "
+"recorded before 1790, only twelve were copyrighted under the 1790 act; "
+"William J. Maher, Copyright Term, Retrospective Extension and the Copyright "
+"Law of 1790 in Historical Context, 7–10 (2002), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #25</ulink>. Thus, the "
+"overwhelming majority of works fell immediately into the public domain. Even "
+"those works that were copyrighted fell into the public domain quickly, "
+"because the term of copyright was short. The initial term of copyright was "
+"fourteen years, with the option of renewal for an additional fourteen "
+"years. Copyright Act of May 31, 1790, §1, 1 stat. 124."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6488
+msgid ""
+"While there were many works created in the United States in the first ten "
+"years of the Republic, only 5 percent of the works were actually registered "
+"under the federal copyright regime. Of all the work created in the United "
+"States both before 1790 and from 1790 through 1800, 95 percent immediately "
+"passed into the public domain; the balance would pass into the pubic domain "
+"within twenty-eight years at most, and more likely within fourteen "
+"years.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 145
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6512
+msgid ""
+"This system of renewal was a crucial part of the American system of "
+"copyright. It assured that the maximum terms of copyright would be granted "
+"only for works where they were wanted. After the initial term of fourteen "
+"years, if it wasn't worth it to an author to renew his copyright, then it "
+"wasn't worth it to society to insist on the copyright, either."
+msgstr ""
+
+#. f10
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6527
+msgid ""
+"Few copyright holders ever chose to renew their copyrights. For instance, of "
+"the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For "
+"a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, "
+"\"Study No. 31: Renewal of Copyright,\" Studies on Copyright, vol. 1 (New "
+"York: Practicing Law Institute, 1963), 618. For a more recent and "
+"comprehensive analysis, see William M. Landes and Richard A. Posner, "
+"\"Indefinitely Renewable Copyright,\" University of Chicago Law Review 70 "
+"(2003): 471, 498–501, and accompanying figures."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6521
+msgid ""
+"Fourteen years may not seem long to us, but for the vast majority of "
+"copyright owners at that time, it was long enough: Only a small minority of "
+"them renewed their copyright after fourteen years; the balance allowed their "
+"work to pass into the public domain.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. f11
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6542
+msgid "See Ringer, ch. 9, n. 2."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6538
+msgid ""
+"Even today, this structure would make sense. Most creative work has an "
+"actual commercial life of just a couple of years. Most books fall out of "
+"print after one year.<placeholder type=\"footnote\" id=\"0\"/> When that "
+"happens, the used books are traded free of copyright regulation. Thus the "
+"books are no longer effectively controlled by copyright. The only practical "
+"commercial use of the books at that time is to sell the books as used books; "
+"that use—because it does not involve publication—is effectively "
+"free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6550
+msgid ""
+"In the first hundred years of the Republic, the term of copyright was "
+"changed once. In 1831, the term was increased from a maximum of 28 years to "
+"a maximum of 42 by increasing the initial term of copyright from 14 years to "
+"28 years. In the next fifty years of the Republic, the term increased once "
+"again. In 1909, Congress extended the renewal term of 14 years to 28 years, "
+"setting a maximum term of 56 years."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6558
+msgid ""
+"Then, beginning in 1962, Congress started a practice that has defined "
+"copyright law since. Eleven times in the last forty years, Congress has "
+"extended the terms of existing copyrights; twice in those forty years, "
+"Congress extended the term of future copyrights. Initially, the extensions "
+"of existing copyrights were short, a mere one to two years. In 1976, "
+"Congress extended all existing copyrights by nineteen years. And in 1998, "
+"in the Sonny Bono Copyright Term Extension Act, Congress extended the term "
+"of existing and future copyrights by twenty years."
+msgstr ""
+
+#. PAGE BREAK 146
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6568
+msgid ""
+"The effect of these extensions is simply to toll, or delay, the passing of "
+"works into the public domain. This latest extension means that the public "
+"domain will have been tolled for thirty-nine out of fifty-five years, or 70 "
+"percent of the time since 1962. Thus, in the twenty years after the Sonny "
+"Bono Act, while one million patents will pass into the public domain, zero "
+"copyrights will pass into the public domain by virtue of the expiration of a "
+"copyright term."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6579
+msgid ""
+"The effect of these extensions has been exacerbated by another, "
+"little-noticed change in the copyright law. Remember I said that the framers "
+"established a two-part copyright regime, requiring a copyright owner to "
+"renew his copyright after an initial term. The requirement of renewal meant "
+"that works that no longer needed copyright protection would pass more "
+"quickly into the public domain. The works remaining under protection would "
+"be those that had some continuing commercial value."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6589
+msgid ""
+"The United States abandoned this sensible system in 1976. For all works "
+"created after 1978, there was only one copyright term—the maximum "
+"term. For \"natural\" authors, that term was life plus fifty years. For "
+"corporations, the term was seventy-five years. Then, in 1992, Congress "
+"abandoned the renewal requirement for all works created before 1978. All "
+"works still under copyright would be accorded the maximum term then "
+"available. After the Sonny Bono Act, that term was ninety-five years."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6599
+msgid ""
+"This change meant that American law no longer had an automatic way to assure "
+"that works that were no longer exploited passed into the public domain. And "
+"indeed, after these changes, it is unclear whether it is even possible to "
+"put works into the public domain. The public domain is orphaned by these "
+"changes in copyright law. Despite the requirement that terms be \"limited,\" "
+"we have no evidence that anything will limit them."
+msgstr ""
+
+#. f12
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6616
+msgid ""
+"These statistics are understated. Between the years 1910 and 1962 (the first "
+"year the renewal term was extended), the average term was never more than "
+"thirty-two years, and averaged thirty years. See Landes and Posner, "
+"\"Indefinitely Renewable Copyright,\" loc. cit."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6608
+msgid ""
+"The effect of these changes on the average duration of copyright is "
+"dramatic. In 1973, more than 85 percent of copyright owners failed to renew "
+"their copyright. That meant that the average term of copyright in 1973 was "
+"just 32.2 years. Because of the elimination of the renewal requirement, the "
+"average term of copyright is now the maximum term. In thirty years, then, "
+"the average term has tripled, from 32.2 years to 95 years.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:6625
+msgid "Law: Scope"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6627
+msgid ""
+"The \"scope\" of a copyright is the range of rights granted by the law. The "
+"scope of American copyright has changed dramatically. Those changes are not "
+"necessarily bad. But we should understand the extent of the changes if we're "
+"to keep this debate in context."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6633
+msgid ""
+"In 1790, that scope was very narrow. Copyright covered only \"maps, charts, "
+"and books.\" That means it didn't cover, for example, music or "
+"architecture. More significantly, the right granted by a copyright gave the "
+"author the exclusive right to \"publish\" copyrighted works. That means "
+"someone else violated the copyright only if he republished the work without "
+"the copyright owner's permission. Finally, the right granted by a copyright "
+"was an exclusive right to that particular book. The right did not extend to "
+"what lawyers call \"derivative works.\" It would not, therefore, interfere "
+"with the right of someone other than the author to translate a copyrighted "
+"book, or to adapt the story to a different form (such as a drama based on a "
+"published book)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6646
+msgid ""
+"This, too, has changed dramatically. While the contours of copyright today "
+"are extremely hard to describe simply, in general terms, the right covers "
+"practically any creative work that is reduced to a tangible form. It covers "
+"music as well as architecture, drama as well as computer programs. It gives "
+"the copyright owner of that creative work not only the exclusive right to "
+"\"publish\" the work, but also the exclusive right of control over any "
+"\"copies\" of that work. And most significant for our purposes here, the "
+"right gives the copyright owner control over not only his or her particular "
+"work, but also any \"derivative work\" that might grow out of the original "
+"work. In this way, the right covers more creative work, protects the "
+"creative work more broadly, and protects works that are based in a "
+"significant way on the initial creative work."
+msgstr ""
+
+#. PAGE BREAK 148
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6661
+msgid ""
+"At the same time that the scope of copyright has expanded, procedural "
+"limitations on the right have been relaxed. I've already described the "
+"complete removal of the renewal requirement in 1992. In addition to the "
+"renewal requirement, for most of the history of American copyright law, "
+"there was a requirement that a work be registered before it could receive "
+"the protection of a copyright. There was also a requirement that any "
+"copyrighted work be marked either with that famous © or the word "
+"copyright. And for most of the history of American copyright law, there was "
+"a requirement that works be deposited with the government before a copyright "
+"could be secured."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6674
+msgid ""
+"The reason for the registration requirement was the sensible understanding "
+"that for most works, no copyright was required. Again, in the first ten "
+"years of the Republic, 95 percent of works eligible for copyright were never "
+"copyrighted. Thus, the rule reflected the norm: Most works apparently didn't "
+"need copyright, so registration narrowed the regulation of the law to the "
+"few that did. The same reasoning justified the requirement that a work be "
+"marked as copyrighted—that way it was easy to know whether a copyright "
+"was being claimed. The requirement that works be deposited was to assure "
+"that after the copyright expired, there would be a copy of the work "
+"somewhere so that it could be copied by others without locating the original "
+"author."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6688
+msgid ""
+"All of these \"formalities\" were abolished in the American system when we "
+"decided to follow European copyright law. There is no requirement that you "
+"register a work to get a copyright; the copyright now is automatic; the "
+"copyright exists whether or not you mark your work with a ©; and the "
+"copyright exists whether or not you actually make a copy available for "
+"others to copy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6696
+msgid "Consider a practical example to understand the scope of these differences."
+msgstr ""
+
+#. f13
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6707
+msgid ""
+"See Thomas Bender and David Sampliner, \"Poets, Pirates, and the Creation of "
+"American Literature,\" 29 New York University Journal of International Law "
+"and Politics 255 (1997), and James Gilraeth, ed., Federal Copyright Records, "
+"1790–1800 (U.S. G.P.O., 1987)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6700
+msgid ""
+"If, in 1790, you wrote a book and you were one of the 5 percent who actually "
+"copyrighted that book, then the copyright law protected you against another "
+"publisher's taking your book and republishing it without your "
+"permission. The aim of the act was to regulate publishers so as to prevent "
+"that kind of unfair competition. In 1790, there were 174 publishers in the "
+"United States.<placeholder type=\"footnote\" id=\"0\"/> The Copyright Act "
+"was thus a tiny regulation of a tiny proportion of a tiny part of the "
+"creative market in the United States—publishers."
+msgstr ""
+
+#. PAGE BREAK 149
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6720
+msgid ""
+"The act left other creators totally unregulated. If I copied your poem by "
+"hand, over and over again, as a way to learn it by heart, my act was totally "
+"unregulated by the 1790 act. If I took your novel and made a play based upon "
+"it, or if I translated it or abridged it, none of those activities were "
+"regulated by the original copyright act. These creative activities remained "
+"free, while the activities of publishers were restrained."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6730
+msgid ""
+"Today the story is very different: If you write a book, your book is "
+"automatically protected. Indeed, not just your book. Every e-mail, every "
+"note to your spouse, every doodle, every creative act that's reduced to a "
+"tangible form—all of this is automatically copyrighted. There is no "
+"need to register or mark your work. The protection follows the creation, not "
+"the steps you take to protect it."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6739
+msgid ""
+"That protection gives you the right (subject to a narrow range of fair use "
+"exceptions) to control how others copy the work, whether they copy it to "
+"republish it or to share an excerpt."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6744
+msgid ""
+"That much is the obvious part. Any system of copyright would control "
+"competing publishing. But there's a second part to the copyright of today "
+"that is not at all obvious. This is the protection of \"derivative rights.\" "
+"If you write a book, no one can make a movie out of your book without "
+"permission. No one can translate it without permission. CliffsNotes can't "
+"make an abridgment unless permission is granted. All of these derivative "
+"uses of your original work are controlled by the copyright holder. The "
+"copyright, in other words, is now not just an exclusive right to your "
+"writings, but an exclusive right to your writings and a large proportion of "
+"the writings inspired by them."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6758
+msgid ""
+"It is this derivative right that would seem most bizarre to our framers, "
+"though it has become second nature to us. Initially, this expansion was "
+"created to deal with obvious evasions of a narrower copyright. If I write a "
+"book, can you change one word and then claim a copyright in a new and "
+"different book? Obviously that would make a joke of the copyright, so the "
+"law was properly expanded to include those slight modifications as well as "
+"the verbatim original work."
+msgstr ""
+
+#. f14
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6781
+msgid ""
+"Jonathan Zittrain, \"The Copyright Cage,\" Legal Affairs, July/August 2003, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link #26</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6771
+msgid ""
+"In preventing that joke, the law created an astonishing power within a free "
+"culture—at least, it's astonishing when you understand that the law "
+"applies not just to the commercial publisher but to anyone with a "
+"computer. I understand the wrong in duplicating and selling someone else's "
+"work. But whatever that wrong is, transforming someone else's work is a "
+"different wrong. Some view transformation as no wrong at all—they "
+"believe that our law, as the framers penned it, should not protect "
+"derivative rights at all.<placeholder type=\"footnote\" id=\"0\"/> Whether "
+"or not you go that far, it seems plain that whatever wrong is involved is "
+"fundamentally different from the wrong of direct piracy."
+msgstr ""
+
+#. f15
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6796
+msgid ""
+"Professor Rubenfeld has presented a powerful constitutional argument about "
+"the difference that copyright law should draw (from the perspective of the "
+"First Amendment) between mere \"copies\" and derivative works. See Jed "
+"Rubenfeld, \"The Freedom of Imagination: Copyright's Constitutionality,\" "
+"Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6790
+msgid ""
+"Yet copyright law treats these two different wrongs in the same way. I can "
+"go to court and get an injunction against your pirating my book. I can go to "
+"court and get an injunction against your transformative use of my "
+"book.<placeholder type=\"footnote\" id=\"0\"/> These two different uses of "
+"my creative work are treated the same."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6807
+msgid ""
+"This again may seem right to you. If I wrote a book, then why should you be "
+"able to write a movie that takes my story and makes money from it without "
+"paying me or crediting me? Or if Disney creates a creature called \"Mickey "
+"Mouse,\" why should you be able to make Mickey Mouse toys and be the one to "
+"trade on the value that Disney originally created?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6816
+msgid ""
+"These are good arguments, and, in general, my point is not that the "
+"derivative right is unjustified. My aim just now is much narrower: simply to "
+"make clear that this expansion is a significant change from the rights "
+"originally granted."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:6824
+msgid "Law and Architecture: Reach"
+msgstr ""
+
+#. f16
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6831
+msgid ""
+"This is a simplification of the law, but not much of one. The law certainly "
+"regulates more than \"copies\"—a public performance of a copyrighted "
+"song, for example, is regulated even though performance per se doesn't make "
+"a copy; 17 United States Code, section 106(4). And it certainly sometimes "
+"doesn't regulate a \"copy\"; 17 United States Code, section 112(a). But the "
+"presumption under the existing law (which regulates \"copies;\" 17 United "
+"States Code, section 102) is that if there is a copy, there is a right."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6826
+msgid ""
+"Whereas originally the law regulated only publishers, the change in "
+"copyright's scope means that the law today regulates publishers, users, and "
+"authors. It regulates them because all three are capable of making copies, "
+"and the core of the regulation of copyright law is copies.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 151
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6843
+msgid ""
+"\"Copies.\" That certainly sounds like the obvious thing for copyright law "
+"to regulate. But as with Jack Valenti's argument at the start of this "
+"chapter, that \"creative property\" deserves the \"same rights\" as all "
+"other property, it is the obvious that we need to be most careful about. For "
+"while it may be obvious that in the world before the Internet, copies were "
+"the obvious trigger for copyright law, upon reflection, it should be obvious "
+"that in the world with the Internet, copies should not be the trigger for "
+"copyright law. More precisely, they should not always be the trigger for "
+"copyright law."
+msgstr ""
+
+#. f17
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6859
+msgid ""
+"Thus, my argument is not that in each place that copyright law extends, we "
+"should repeal it. It is instead that we should have a good argument for its "
+"extending where it does, and should not determine its reach on the basis of "
+"arbitrary and automatic changes caused by technology."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6854
+msgid ""
+"This is perhaps the central claim of this book, so let me take this very "
+"slowly so that the point is not easily missed. My claim is that the Internet "
+"should at least force us to rethink the conditions under which the law of "
+"copyright automatically applies,<placeholder type=\"footnote\" id=\"0\"/> "
+"because it is clear that the current reach of copyright was never "
+"contemplated, much less chosen, by the legislators who enacted copyright "
+"law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6870
+msgid ""
+"We can see this point abstractly by beginning with this largely empty "
+"circle."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6874
+msgid "All potential uses of a book."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:6875
+msgid "<graphic fileref=\"images/1521.png\"></graphic>"
+msgstr ""
+
+#. PAGE BREAK 152
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6879
+msgid ""
+"Think about a book in real space, and imagine this circle to represent all "
+"its potential uses. Most of these uses are unregulated by copyright law, "
+"because the uses don't create a copy. If you read a book, that act is not "
+"regulated by copyright law. If you give someone the book, that act is not "
+"regulated by copyright law. If you resell a book, that act is not regulated "
+"(copyright law expressly states that after the first sale of a book, the "
+"copyright owner can impose no further conditions on the disposition of the "
+"book). If you sleep on the book or use it to hold up a lamp or let your "
+"puppy chew it up, those acts are not regulated by copyright law, because "
+"those acts do not make a copy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6892
+msgid "Examples of unregulated uses of a book."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:6893
+msgid "<graphic fileref=\"images/1531.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6896
+msgid ""
+"Obviously, however, some uses of a copyrighted book are regulated by "
+"copyright law. Republishing the book, for example, makes a copy. It is "
+"therefore regulated by copyright law. Indeed, this particular use stands at "
+"the core of this circle of possible uses of a copyrighted work. It is the "
+"paradigmatic use properly regulated by copyright regulation (see first "
+"diagram on next page)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6904
+msgid ""
+"Finally, there is a tiny sliver of otherwise regulated copying uses that "
+"remain unregulated because the law considers these \"fair uses.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6909
+msgid ""
+"Republishing stands at the core of this circle of possible uses of a "
+"copyrighted work."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:6910
+msgid "<graphic fileref=\"images/1541.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6913
+msgid ""
+"These are uses that themselves involve copying, but which the law treats as "
+"unregulated because public policy demands that they remain unregulated. You "
+"are free to quote from this book, even in a review that is quite negative, "
+"without my permission, even though that quoting makes a copy. That copy "
+"would ordinarily give the copyright owner the exclusive right to say whether "
+"the copy is allowed or not, but the law denies the owner any exclusive right "
+"over such \"fair uses\" for public policy (and possibly First Amendment) "
+"reasons."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6924
+msgid "Unregulated copying considered "fair uses.""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:6925
+msgid "<graphic fileref=\"images/1542.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:6929
+msgid ""
+"Uses that before were presumptively unregulated are now presumptively "
+"regulated."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:6930
+msgid "<graphic fileref=\"images/1551.png\"></graphic>"
+msgstr ""
+
+#. PAGE BREAK 154
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6934
+msgid ""
+"In real space, then, the possible uses of a book are divided into three "
+"sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that "
+"are nonetheless deemed \"fair\" regardless of the copyright owner's views."
+msgstr ""
+
+#. f18
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:6942
+msgid ""
+"I don't mean \"nature\" in the sense that it couldn't be different, but "
+"rather that its present instantiation entails a copy. Optical networks need "
+"not make copies of content they transmit, and a digital network could be "
+"designed to delete anything it copies so that the same number of copies "
+"remain."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6939
+msgid ""
+"Enter the Internet—a distributed, digital network where every use of a "
+"copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> "
+"And because of this single, arbitrary feature of the design of a digital "
+"network, the scope of category 1 changes dramatically. Uses that before were "
+"presumptively unregulated are now presumptively regulated. No longer is "
+"there a set of presumptively unregulated uses that define a freedom "
+"associated with a copyrighted work. Instead, each use is now subject to the "
+"copyright, because each use also makes a copy—category 1 gets sucked "
+"into category 2. And those who would defend the unregulated uses of "
+"copyrighted work must look exclusively to category 3, fair uses, to bear the "
+"burden of this shift."
+msgstr ""
+
+#. PAGE BREAK 155
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6963
+msgid ""
+"So let's be very specific to make this general point clear. Before the "
+"Internet, if you purchased a book and read it ten times, there would be no "
+"plausible copyright-related argument that the copyright owner could make to "
+"control that use of her book. Copyright law would have nothing to say about "
+"whether you read the book once, ten times, or every night before you went to "
+"bed. None of those instances of use—reading— could be regulated "
+"by copyright law because none of those uses produced a copy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6976
+msgid ""
+"But the same book as an e-book is effectively governed by a different set of "
+"rules. Now if the copyright owner says you may read the book only once or "
+"only once a month, then copyright law would aid the copyright owner in "
+"exercising this degree of control, because of the accidental feature of "
+"copyright law that triggers its application upon there being a copy. Now if "
+"you read the book ten times and the license says you may read it only five "
+"times, then whenever you read the book (or any portion of it) beyond the "
+"fifth time, you are making a copy of the book contrary to the copyright "
+"owner's wish."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6990
+msgid ""
+"There are some people who think this makes perfect sense. My aim just now is "
+"not to argue about whether it makes sense or not. My aim is only to make "
+"clear the change. Once you see this point, a few other points also become "
+"clear:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:6996
+msgid ""
+"First, making category 1 disappear is not anything any policy maker ever "
+"intended. Congress did not think through the collapse of the presumptively "
+"unregulated uses of copyrighted works. There is no evidence at all that "
+"policy makers had this idea in mind when they allowed our policy here to "
+"shift. Unregulated uses were an important part of free culture before the "
+"Internet."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7006
+msgid ""
+"Second, this shift is especially troubling in the context of transformative "
+"uses of creative content. Again, we can all understand the wrong in "
+"commercial piracy. But the law now purports to regulate any transformation "
+"you make of creative work using a machine. \"Copy and paste\" and \"cut and "
+"paste\" become crimes. Tinkering with a story and releasing it to others "
+"exposes the tinkerer to at least a requirement of justification. However "
+"troubling the expansion with respect to copying a particular work, it is "
+"extraordinarily troubling with respect to transformative uses of creative "
+"work."
+msgstr ""
+
+#. PAGE BREAK 156
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7022
+msgid ""
+"Third, this shift from category 1 to category 2 puts an extraordinary burden "
+"on category 3 (\"fair use\") that fair use never before had to bear. If a "
+"copyright owner now tried to control how many times I could read a book "
+"on-line, the natural response would be to argue that this is a violation of "
+"my fair use rights. But there has never been any litigation about whether I "
+"have a fair use right to read, because before the Internet, reading did not "
+"trigger the application of copyright law and hence the need for a fair use "
+"defense. The right to read was effectively protected before because reading "
+"was not regulated."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7037
+msgid ""
+"This point about fair use is totally ignored, even by advocates for free "
+"culture. We have been cornered into arguing that our rights depend upon fair "
+"use—never even addressing the earlier question about the expansion in "
+"effective regulation. A thin protection grounded in fair use makes sense "
+"when the vast majority of uses are unregulated. But when everything becomes "
+"presumptively regulated, then the protections of fair use are not enough."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7048
+msgid ""
+"The case of Video Pipeline is a good example. Video Pipeline was in the "
+"business of making \"trailer\" advertisements for movies available to video "
+"stores. The video stores displayed the trailers as a way to sell "
+"videos. Video Pipeline got the trailers from the film distributors, put the "
+"trailers on tape, and sold the tapes to the retail stores."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7055
+msgid ""
+"The company did this for about fifteen years. Then, in 1997, it began to "
+"think about the Internet as another way to distribute these previews. The "
+"idea was to expand their \"selling by sampling\" technique by giving on-line "
+"stores the same ability to enable \"browsing.\" Just as in a bookstore you "
+"can read a few pages of a book before you buy the book, so, too, you would "
+"be able to sample a bit from the movie on-line before you bought it."
+msgstr ""
+
+#. PAGE BREAK 157
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7067
+msgid ""
+"In 1998, Video Pipeline informed Disney and other film distributors that it "
+"intended to distribute the trailers through the Internet (rather than "
+"sending the tapes) to distributors of their videos. Two years later, Disney "
+"told Video Pipeline to stop. The owner of Video Pipeline asked Disney to "
+"talk about the matter—he had built a business on distributing this "
+"content as a way to help sell Disney films; he had customers who depended "
+"upon his delivering this content. Disney would agree to talk only if Video "
+"Pipeline stopped the distribution immediately. Video Pipeline thought it "
+"was within their \"fair use\" rights to distribute the clips as they had. So "
+"they filed a lawsuit to ask the court to declare that these rights were in "
+"fact their rights."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7084
+msgid ""
+"Disney countersued—for $100 million in damages. Those damages were "
+"predicated upon a claim that Video Pipeline had \"willfully infringed\" on "
+"Disney's copyright. When a court makes a finding of willful infringement, it "
+"can award damages not on the basis of the actual harm to the copyright "
+"owner, but on the basis of an amount set in the statute. Because Video "
+"Pipeline had distributed seven hundred clips of Disney movies to enable "
+"video stores to sell copies of those movies, Disney was now suing Video "
+"Pipeline for $100 million."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7096
+msgid ""
+"Disney has the right to control its property, of course. But the video "
+"stores that were selling Disney's films also had some sort of right to be "
+"able to sell the films that they had bought from Disney. Disney's claim in "
+"court was that the stores were allowed to sell the films and they were "
+"permitted to list the titles of the films they were selling, but they were "
+"not allowed to show clips of the films as a way of selling them without "
+"Disney's permission."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7105
+msgid ""
+"Now, you might think this is a close case, and I think the courts would "
+"consider it a close case. My point here is to map the change that gives "
+"Disney this power. Before the Internet, Disney couldn't really control how "
+"people got access to their content. Once a video was in the marketplace, the "
+"\"first-sale doctrine\" would free the seller to use the video as he wished, "
+"including showing portions of it in order to engender sales of the entire "
+"movie video. But with the Internet, it becomes possible for Disney to "
+"centralize control over access to this content. Because each use of the "
+"Internet produces a copy, use on the Internet becomes subject to the "
+"copyright owner's control. The technology expands the scope of effective "
+"control, because the technology builds a copy into every transaction."
+msgstr ""
+
+#. PAGE BREAK 158
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7120
+msgid ""
+"No doubt, a potential is not yet an abuse, and so the potential for control "
+"is not yet the abuse of control. Barnes & Noble has the right to say you "
+"can't touch a book in their store; property law gives them that right. But "
+"the market effectively protects against that abuse. If Barnes & Noble "
+"banned browsing, then consumers would choose other bookstores. Competition "
+"protects against the extremes. And it may well be (my argument so far does "
+"not even question this) that competition would prevent any similar danger "
+"when it comes to copyright. Sure, publishers exercising the rights that "
+"authors have assigned to them might try to regulate how many times you read "
+"a book, or try to stop you from sharing the book with anyone. But in a "
+"competitive market such as the book market, the dangers of this happening "
+"are quite slight."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7138
+msgid ""
+"Again, my aim so far is simply to map the changes that this changed "
+"architecture enables. Enabling technology to enforce the control of "
+"copyright means that the control of copyright is no longer defined by "
+"balanced policy. The control of copyright is simply what private owners "
+"choose. In some contexts, at least, that fact is harmless. But in some "
+"contexts it is a recipe for disaster."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:7148
+msgid "Architecture and Law: Force"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7150
+msgid ""
+"The disappearance of unregulated uses would be change enough, but a second "
+"important change brought about by the Internet magnifies its "
+"significance. This second change does not affect the reach of copyright "
+"regulation; it affects how such regulation is enforced."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7156
+msgid ""
+"In the world before digital technology, it was generally the law that "
+"controlled whether and how someone was regulated by copyright law. The law, "
+"meaning a court, meaning a judge: In the end, it was a human, trained in the "
+"tradition of the law and cognizant of the balances that tradition embraced, "
+"who said whether and how the law would restrict your freedom."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:7163
+msgid "Casablanca"
+msgstr ""
+
+#. f19
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7172
+msgid ""
+"See David Lange, \"Recognizing the Public Domain,\" Law and Contemporary "
+"Problems 44 (1981): 172–73."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7165
+msgid ""
+"There's a famous story about a battle between the Marx Brothers and Warner "
+"Brothers. The Marxes intended to make a parody of Casablanca. Warner "
+"Brothers objected. They wrote a nasty letter to the Marxes, warning them "
+"that there would be serious legal consequences if they went forward with "
+"their plan.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f20
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7182
+msgid "Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7178
+msgid ""
+"This led the Marx Brothers to respond in kind. They warned Warner Brothers "
+"that the Marx Brothers \"were brothers long before you were.\"<placeholder "
+"type=\"footnote\" id=\"0\"/> The Marx Brothers therefore owned the word "
+"brothers, and if Warner Brothers insisted on trying to control Casablanca, "
+"then the Marx Brothers would insist on control over brothers."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7189
+msgid ""
+"An absurd and hollow threat, of course, because Warner Brothers, like the "
+"Marx Brothers, knew that no court would ever enforce such a silly "
+"claim. This extremism was irrelevant to the real freedoms anyone (including "
+"Warner Brothers) enjoyed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7195
+msgid ""
+"On the Internet, however, there is no check on silly rules, because on the "
+"Internet, increasingly, rules are enforced not by a human but by a machine: "
+"Increasingly, the rules of copyright law, as interpreted by the copyright "
+"owner, get built into the technology that delivers copyrighted content. It "
+"is code, rather than law, that rules. And the problem with code regulations "
+"is that, unlike law, code has no shame. Code would not get the humor of the "
+"Marx Brothers. The consequence of that is not at all funny."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7206
+msgid "Consider the life of my Adobe eBook Reader."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7209
+msgid ""
+"An e-book is a book delivered in electronic form. An Adobe eBook is not a "
+"book that Adobe has published; Adobe simply produces the software that "
+"publishers use to deliver e-books. It provides the technology, and the "
+"publisher delivers the content by using the technology."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7216
+msgid "On the next page is a picture of an old version of my Adobe eBook Reader."
+msgstr ""
+
+#. PAGE BREAK 160
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7220
+msgid ""
+"As you can see, I have a small collection of e-books within this e-book "
+"library. Some of these books reproduce content that is in the public domain: "
+"Middlemarch, for example, is in the public domain. Some of them reproduce "
+"content that is not in the public domain: My own book The Future of Ideas is "
+"not yet within the public domain. Consider Middlemarch first. If you click "
+"on my e-book copy of Middlemarch, you'll see a fancy cover, and then a "
+"button at the bottom called Permissions."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7231
+msgid "Picture of an old version of Adobe eBook Reader"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7232
+msgid "<graphic fileref=\"images/1611.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7235
+msgid ""
+"If you click on the Permissions button, you'll see a list of the permissions "
+"that the publisher purports to grant with this book."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7239
+msgid "List of the permissions that the publisher purports to grant."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7240
+msgid "<graphic fileref=\"images/1612.png\"></graphic>"
+msgstr ""
+
+#. PAGE BREAK 161
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7244
+msgid ""
+"According to my eBook Reader, I have the permission to copy to the clipboard "
+"of the computer ten text selections every ten days. (So far, I've copied no "
+"text to the clipboard.) I also have the permission to print ten pages from "
+"the book every ten days. Lastly, I have the permission to use the Read Aloud "
+"button to hear Middlemarch read aloud through the computer."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7260
+msgid ""
+"Here's the e-book for another work in the public domain (including the "
+"translation): Aristotle's Politics."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7264
+msgid "E-book of Aristotle;s "Politics""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7265
+msgid "<graphic fileref=\"images/1621.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7268
+msgid ""
+"According to its permissions, no printing or copying is permitted at "
+"all. But fortunately, you can use the Read Aloud button to hear the book."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7273
+msgid "List of the permissions for Aristotle;s "Politics"."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7274
+msgid "<graphic fileref=\"images/1622.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7277
+msgid ""
+"Finally (and most embarrassingly), here are the permissions for the original "
+"e-book version of my last book, The Future of Ideas:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7282
+msgid "List of the permissions for "The Future of Ideas"."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7283
+msgid "<graphic fileref=\"images/1631.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7286
+msgid "No copying, no printing, and don't you dare try to listen to this book!"
+msgstr ""
+
+#. f21
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7296
+msgid ""
+"In principle, a contract might impose a requirement on me. I might, for "
+"example, buy a book from you that includes a contract that says I will read "
+"it only three times, or that I promise to read it three times. But that "
+"obligation (and the limits for creating that obligation) would come from the "
+"contract, not from copyright law, and the obligations of contract would not "
+"necessarily pass to anyone who subsequently acquired the book."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7289
+msgid ""
+"Now, the Adobe eBook Reader calls these controls \"permissions\"— as "
+"if the publisher has the power to control how you use these works. For "
+"works under copyright, the copyright owner certainly does have the "
+"power—up to the limits of the copyright law. But for work not under "
+"copyright, there is no such copyright power.<placeholder type=\"footnote\" "
+"id=\"0\"/> When my e-book of Middlemarch says I have the permission to copy "
+"only ten text selections into the memory every ten days, what that really "
+"means is that the eBook Reader has enabled the publisher to control how I "
+"use the book on my computer, far beyond the control that the law would "
+"enable."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7311
+msgid ""
+"The control comes instead from the code—from the technology within "
+"which the e-book \"lives.\" Though the e-book says that these are "
+"permissions, they are not the sort of \"permissions\" that most of us deal "
+"with. When a teenager gets \"permission\" to stay out till midnight, she "
+"knows (unless she's Cinderella) that she can stay out till 2 A.M., but will "
+"suffer a punishment if she's caught. But when the Adobe eBook Reader says I "
+"have the permission to make ten copies of the text into the computer's "
+"memory, that means that after I've made ten copies, the computer will not "
+"make any more. The same with the printing restrictions: After ten pages, the "
+"eBook Reader will not print any more pages. It's the same with the silly "
+"restriction that says that you can't use the Read Aloud button to read my "
+"book aloud—it's not that the company will sue you if you do; instead, "
+"if you push the Read Aloud button with my book, the machine simply won't "
+"read aloud."
+msgstr ""
+
+#. PAGE BREAK 163
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7329
+msgid ""
+"These are controls, not permissions. Imagine a world where the Marx Brothers "
+"sold word processing software that, when you tried to type \"Warner "
+"Brothers,\" erased \"Brothers\" from the sentence."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7334
+msgid ""
+"This is the future of copyright law: not so much copyright law as copyright "
+"code. The controls over access to content will not be controls that are "
+"ratified by courts; the controls over access to content will be controls "
+"that are coded by programmers. And whereas the controls that are built into "
+"the law are always to be checked by a judge, the controls that are built "
+"into the technology have no similar built-in check."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7342
+msgid ""
+"How significant is this? Isn't it always possible to get around the controls "
+"built into the technology? Software used to be sold with technologies that "
+"limited the ability of users to copy the software, but those were trivial "
+"protections to defeat. Why won't it be trivial to defeat these protections "
+"as well?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7350
+msgid ""
+"We've only scratched the surface of this story. Return to the Adobe eBook "
+"Reader."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7354
+msgid ""
+"Early in the life of the Adobe eBook Reader, Adobe suffered a public "
+"relations nightmare. Among the books that you could download for free on the "
+"Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful "
+"book is in the public domain. Yet when you clicked on Permissions for that "
+"book, you got the following report:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7362
+msgid "List of the permissions for "Alice's Adventures in Wonderland"."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7364
+msgid "<graphic fileref=\"images/1641.png\"></graphic>"
+msgstr ""
+
+#. PAGE BREAK 164
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7368
+msgid ""
+"Here was a public domain children's book that you were not allowed to copy, "
+"not allowed to lend, not allowed to give, and, as the \"permissions\" "
+"indicated, not allowed to \"read aloud\"!"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7375
+msgid ""
+"The public relations nightmare attached to that final permission. For the "
+"text did not say that you were not permitted to use the Read Aloud button; "
+"it said you did not have the permission to read the book aloud. That led "
+"some people to think that Adobe was restricting the right of parents, for "
+"example, to read the book to their children, which seemed, to say the least, "
+"absurd."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7383
+msgid ""
+"Adobe responded quickly that it was absurd to think that it was trying to "
+"restrict the right to read a book aloud. Obviously it was only restricting "
+"the ability to use the Read Aloud button to have the book read aloud. But "
+"the question Adobe never did answer is this: Would Adobe thus agree that a "
+"consumer was free to use software to hack around the restrictions built into "
+"the eBook Reader? If some company (call it Elcomsoft) developed a program to "
+"disable the technological protection built into an Adobe eBook so that a "
+"blind person, say, could use a computer to read the book aloud, would Adobe "
+"agree that such a use of an eBook Reader was fair? Adobe didn't answer "
+"because the answer, however absurd it might seem, is no."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7396
+msgid ""
+"The point is not to blame Adobe. Indeed, Adobe is among the most innovative "
+"companies developing strategies to balance open access to content with "
+"incentives for companies to innovate. But Adobe's technology enables "
+"control, and Adobe has an incentive to defend this control. That incentive "
+"is understandable, yet what it creates is often crazy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7404
+msgid ""
+"To see the point in a particularly absurd context, consider a favorite story "
+"of mine that makes the same point."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:7407 freeculture.xml:7449
+msgid "Aibo robotic dog"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7409
+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 "
+"doesn't leave that much of a mess (at least in your house)."
+msgstr ""
+
+#. PAGE BREAK 165
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7414
+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 "
+"information about the Aibo dog to be shared. This fan set up aibopet.com "
+"(and aibohack.com, but that resolves to the same site), and on that site he "
+"provided information about how to teach an Aibo to do tricks in addition to "
+"the ones Sony had taught it."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7423
+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 "
+"say that aibopet.com was giving information about how to teach the dog to do "
+"new tricks is just to say that aibopet.com was giving information to users "
+"of the Aibo pet about how to hack their computer \"dog\" to make it do new "
+"tricks (thus, aibohack.com)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7431
+msgid ""
+"If you're not a programmer or don't know many programmers, the word hack has "
+"a particularly unfriendly connotation. Nonprogrammers hack bushes or "
+"weeds. Nonprogrammers in horror movies do even worse. But to programmers, or "
+"coders, as I call them, hack is a much more positive term. Hack just means "
+"code that enables the program to do something it wasn't originally intended "
+"or enabled to do. If you buy a new printer for an old computer, you might "
+"find the old computer doesn't run, or \"drive,\" the printer. If you "
+"discovered that, you'd later be happy to discover a hack on the Net by "
+"someone who has written a driver to enable the computer to drive the printer "
+"you just bought."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7443
+msgid ""
+"Some hacks are easy. Some are unbelievably hard. Hackers as a community like "
+"to challenge themselves and others with increasingly difficult "
+"tasks. There's a certain respect that goes with the talent to hack "
+"well. There's a well-deserved respect that goes with the talent to hack "
+"ethically."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7451
+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 "
+"jazz. The dog wasn't programmed to dance jazz. It was a clever bit of "
+"tinkering that turned the dog into a more talented creature than Sony had "
+"built."
+msgstr ""
+
+#. PAGE BREAK 166
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7458
+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 "
+"permissible for a dog to dance jazz in the United States? We forget that "
+"stories about the backcountry still flow across much of the world. So let's "
+"just be clear before we continue: It's not a crime anywhere (anymore) to "
+"dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it "
+"be a crime (though we don't have a lot to go on here) to teach your robot "
+"dog to dance jazz. Dancing jazz is a completely legal activity. One imagines "
+"that the owner of aibopet.com thought, What possible problem could there be "
+"with teaching a robot dog to dance?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7474
+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 "
+"Felten prepared for a conference. This Princeton academic is well known and "
+"respected. He was hired by the government in the Microsoft case to test "
+"Microsoft's claims about what could and could not be done with its own "
+"code. In that trial, he demonstrated both his brilliance and his "
+"coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his "
+"ground. He was not about to be bullied into being silent about something he "
+"knew very well."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
+#: freeculture.xml:7497 freeculture.xml:9925
+msgid "Electronic Frontier Foundation"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7487
+msgid ""
+"See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" "
+"Science 293 (2001): 2028; Brendan I. Koerner, \"Play Dead: Sony Muzzles the "
+"Techies Who Teach a Robot Dog New Tricks,\" American Prospect, January 2002; "
+"\"Court Dismisses Computer Scientists' Challenge to DMCA,\" Intellectual "
+"Property Litigation Reporter, 11 December 2001; Bill Holland, \"Copyright "
+"Act Raising Free-Speech Concerns,\" Billboard, May 2001; Janelle Brown, \"Is "
+"the RIAA Running Scared?\" Salon.com, April 2001; Electronic Frontier "
+"Foundation, \"Frequently Asked Questions about Felten and USENIX v. RIAA "
+"Legal Case,\" available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#27</ulink>. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7485
+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 "
+"paper to be submitted at conference. The paper was intended to describe the "
+"weakness in an encryption system being developed by the Secure Digital Music "
+"Initiative as a technique to control the distribution of music."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7505
+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 "
+"originally stood, granted them. Using encryption, SDMI hoped to develop a "
+"standard that would allow the content owner to say \"this music cannot be "
+"copied,\" and have a computer respect that command. The technology was to "
+"be part of a \"trusted system\" of control that would get content owners to "
+"trust the system of the Internet much more."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7515
+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 "
+"content, contestants were to try to crack it and, if they did, report the "
+"problems to the consortium."
+msgstr ""
+
+#. PAGE BREAK 167
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7522
+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 "
+"would suffer the same weakness, and Felten and his team thought it "
+"worthwhile to point this out to those who study encryption."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7528
+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 "
+"because it is the law, but also because it is a really great idea. A "
+"strongly protected tradition of free speech is likely to encourage a wide "
+"range of criticism. That criticism is likely, in turn, to improve the "
+"systems or people or ideas criticized."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7536
+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 "
+"building and deploying this technology. The paper was an academic essay, "
+"unintelligible to most people. But it clearly showed the weakness in the "
+"SDMI system, and why SDMI would not, as presently constituted, succeed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7544
+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 "
+"hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:7551
+msgid ""
+"Your site contains information providing the means to circumvent AIBO-ware's "
+"copy protection protocol constituting a violation of the anti-circumvention "
+"provisions of the Digital Millennium Copyright Act."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7557
+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 "
+"RIAA lawyer that read:"
+msgstr ""
+
+#. PAGE BREAK 168
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:7563
+msgid ""
+"Any disclosure of information gained from participating in the Public "
+"Challenge would be outside the scope of activities permitted by the "
+"Agreement and could subject you and your research team to actions under the "
+"Digital Millennium Copyright Act (\"DMCA\")."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7571
+msgid ""
+"In both cases, this weirdly Orwellian law was invoked to control the spread "
+"of information. The Digital Millennium Copyright Act made spreading such "
+"information an offense."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7576
+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 "
+"response was to find technologies that might compensate. These new "
+"technologies would be copyright protection technologies— technologies "
+"to control the replication and distribution of copyrighted material. They "
+"were designed as code to modify the original code of the Internet, to "
+"reestablish some protection for copyright owners."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7585
+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, legal code "
+"intended to buttress software code which itself was intended to support the "
+"legal code of copyright."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7591
+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 "
+"the line that copyright law drew. The DMCA regulated devices that were "
+"designed to circumvent copyright protection measures. It was designed to ban "
+"those devices, whether or not the use of the copyrighted material made "
+"possible by that circumvention would have been a copyright violation."
+msgstr ""
+
+#. PAGE BREAK 169
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7600
+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 "
+"jazz. That enablement no doubt involved the use of copyrighted material. But "
+"as aibopet.com's site was noncommercial, and the use did not enable "
+"subsequent copyright infringements, there's no doubt that aibopet.com's hack "
+"was fair use of Sony's copyrighted material. Yet fair use is not a defense "
+"to the DMCA. The question is not whether the use of the copyrighted material "
+"was a copyright violation. The question is whether a copyright protection "
+"system was circumvented."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7612
+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 "
+"system could be circumvented, the RIAA lawyer suggested, Felten himself was "
+"distributing a circumvention technology. Thus, even though he was not "
+"himself infringing anyone's copyright, his academic paper was enabling "
+"others to infringe others' copyright."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7620
+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 "
+"be banned because it was a copyright-infringing technology: It enabled "
+"consumers to copy films without the permission of the copyright owner. No "
+"doubt there were uses of the technology that were legal: Fred Rogers, aka "
+"\"Mr. Rogers,\" for example, had testified in that case that he wanted "
+"people to feel free to tape Mr. Rogers' Neighborhood."
+msgstr ""
+
+#. f23
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:7646
+msgid ""
+"Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, "
+"455 fn. 27 (1984). Rogers never changed his view about the VCR. See James "
+"Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of the VCR "
+"(New York: W. W. Norton, 1987), 270–71."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:7631
+msgid ""
+"Some public stations, as well as commercial stations, program the "
+"\"Neighborhood\" at hours when some children cannot use it. I think that "
+"it's a real service to families to be able to record such programs and show "
+"them at appropriate times. I have always felt that with the advent of all of "
+"this new technology that allows people to tape the \"Neighborhood\" "
+"off-the-air, and I'm speaking for the \"Neighborhood\" because that's what I "
+"produce, that they then become much more active in the programming of their "
+"family's television life. Very frankly, I am opposed to people being "
+"programmed by others. My whole approach in broadcasting has always been "
+"\"You are an important person just the way you are. You can make healthy "
+"decisions.\" Maybe I'm going on too long, but I just feel that anything that "
+"allows a person to be more active in the control of his or her life, in a "
+"healthy way, is important.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 170
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7655
+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 "
+"responsible."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7660
+msgid "This led Conrad to draw the cartoon below, which we can adopt to the DMCA."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7664
+msgid "No argument I have can top this picture, but let me try to get close."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7667
+msgid ""
+"The anticircumvention provisions of the DMCA target copyright circumvention "
+"technologies. Circumvention technologies can be used for different "
+"ends. They can be used, for example, to enable massive pirating of "
+"copyrighted material—a bad end. Or they can be used to enable the use "
+"of particular copyrighted materials in ways that would be considered fair "
+"use—a good end."
+msgstr ""
+
+#. PAGE BREAK 171
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7675
+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 "
+"protect against an intruder. At least some would say that such a use would "
+"be good. It, too, is a technology that has both good and bad uses."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7683
+msgid "VCR/handgun cartoon."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7684
+msgid "<graphic fileref=\"images/1711.png\"></graphic>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7687
+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 "
+"technologies) are illegal. Flash: No one ever died from copyright "
+"circumvention. Yet the law bans circumvention technologies absolutely, "
+"despite the potential that they might do some good, but permits guns, "
+"despite the obvious and tragic harm they do."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7695
+msgid ""
+"The Aibo and RIAA examples demonstrate how copyright owners are changing the "
+"balance that copyright law grants. Using code, copyright owners restrict "
+"fair use; using the DMCA, they punish those who would attempt to evade the "
+"restrictions on fair use that they impose through code. Technology becomes a "
+"means by which fair use can be erased; the law of the DMCA backs up that "
+"erasing."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7703
+msgid ""
+"This is how code becomes law. The controls built into the technology of copy "
+"and access protection become rules the violation of which is also a "
+"violation of the law. In this way, the code extends the law—increasing "
+"its regulation, even if the subject it regulates (activities that would "
+"otherwise plainly constitute fair use) is beyond the reach of the law. Code "
+"becomes law; code extends the law; code thus extends the control that "
+"copyright owners effect—at least for those copyright holders with the "
+"lawyers who can write the nasty letters that Felten and aibopet.com "
+"received."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7713
+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 "
+"with which infringements of the law can be detected. For contrary to the "
+"rhetoric common at the birth of cyberspace that on the Internet, no one "
+"knows you're a dog, increasingly, given changing technologies deployed on "
+"the Internet, it is easy to find the dog who committed a legal wrong. The "
+"technologies of the Internet are open to snoops as well as sharers, and the "
+"snoops are increasingly good at tracking down the identity of those who "
+"violate the rules."
+msgstr ""
+
+#. f24
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7732
+msgid ""
+"For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, "
+"Copyright, Fan Fiction, and a New Common Law,\" Loyola of Los Angeles "
+"Entertainment Law Journal 17 (1997): 651."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7726
+msgid ""
+"For example, imagine you were part of a Star Trek fan club. You gathered "
+"every month to share trivia, and maybe to enact a kind of fan fiction about "
+"the show. One person would play Spock, another, Captain Kirk. The characters "
+"would begin with a plot from a real story, then simply continue "
+"it.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7738
+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 "
+"with by the copyright police. You were free in that space to do as you "
+"wished with this part of our culture. You were allowed to build on it as you "
+"wished without fear of legal control."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7745
+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 "
+"scouring the Net for trademark and copyright infringement would quickly find "
+"your site. Your posting of fan fiction, depending upon the ownership of the "
+"series that you're depicting, could well inspire a lawyer's threat. And "
+"ignoring the lawyer's threat would be extremely costly indeed. The law of "
+"copyright is extremely efficient. The penalties are severe, and the process "
+"is quick."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7755
+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 "
+"balance radically. It is as if your car transmitted the speed at which you "
+"traveled at every moment that you drove; that would be just one step before "
+"the state started issuing tickets based upon the data you transmitted. That "
+"is, in effect, what is happening here."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:7764
+msgid "Market: Concentration"
+msgstr ""
+
+#. PAGE BREAK 173
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7766
+msgid ""
+"So copyright's duration has increased dramatically—tripled in the past "
+"thirty years. And copyright's scope has increased as well—from "
+"regulating only publishers to now regulating just about everyone. And "
+"copyright's reach has changed, as every action becomes a copy and hence "
+"presumptively regulated. And as technologists find better ways to control "
+"the use of content, and as copyright is increasingly enforced through "
+"technology, copyright's force changes, too. Misuse is easier to find and "
+"easier to control. This regulation of the creative process, which began as a "
+"tiny regulation governing a tiny part of the market for creative work, has "
+"become the single most important regulator of creativity there is. It is a "
+"massive expansion in the scope of the government's control over innovation "
+"and creativity; it would be totally unrecognizable to those who gave birth "
+"to copyright's control."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7784
+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 "
+"some sense the most familiar, though its significance and scope are not well "
+"understood. It is the one that creates precisely the reason to be concerned "
+"about all the other changes I have described."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7791
+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 "
+"alteration, caused by changes in legal rules governing the media. Before "
+"this change happened, the different forms of media were owned by separate "
+"media companies. Now, the media is increasingly owned by only a few "
+"companies. Indeed, after the changes that the FCC announced in June 2003, "
+"most expect that within a few years, we will live in a world where just "
+"three companies control more than percent of the media."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7802
+msgid "These changes are of two sorts: the scope of concentration, and its nature."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:7805
+msgid "BMG"
+msgstr ""
+
+#. f25
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7811
+msgid ""
+"FCC Oversight: Hearing Before the Senate Commerce, Science and "
+"Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement "
+"of Senator John McCain)."
+msgstr ""
+
+#. f26
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7818
+msgid ""
+"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" "
+"New York Times, 23 December 2002."
+msgstr ""
+
+#. f27
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7824
+msgid ""
+"Molly Ivins, \"Media Consolidation Must Be Stopped,\" Charleston Gazette, 31 "
+"May 2003."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7807
+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 "
+"companies control 85 percent of our media sources.\"<placeholder "
+"type=\"footnote\" id=\"0\"/> The five recording labels of Universal Music "
+"Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control "
+"84.8 percent of the U.S. music market.<placeholder type=\"footnote\" "
+"id=\"1\"/> The \"five largest cable companies pipe programming to 74 percent "
+"of the cable subscribers nationwide.\"<placeholder type=\"footnote\" "
+"id=\"2\"/>"
+msgstr ""
+
+#. PAGE BREAK 174
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7829
+msgid ""
+"The story with radio is even more dramatic. Before deregulation, the "
+"nation's largest radio broadcasting conglomerate owned fewer than "
+"seventy-five stations. Today one company owns more than 1,200 stations. "
+"During that period of consolidation, the total number of radio owners "
+"dropped by 34 percent. Today, in most markets, the two largest broadcasters "
+"control 74 percent of that market's revenues. Overall, just four companies "
+"control 90 percent of the nation's radio advertising revenues."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7840
+msgid ""
+"Newspaper ownership is becoming more concentrated as well. Today, there are "
+"six hundred fewer daily newspapers in the United States than there were "
+"eighty years ago, and ten companies control half of the nation's "
+"circulation. There are twenty major newspaper publishers in the United "
+"States. The top ten film studios receive 99 percent of all film revenue. The "
+"ten largest cable companies account for 85 percent of all cable "
+"revenue. This is a market far from the free press the framers sought to "
+"protect. Indeed, it is a market that is quite well protected— by the "
+"market."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary>
+#: freeculture.xml:7854 freeculture.xml:7871
+msgid "Fallows, James"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7851
+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 "
+"article about Rupert Murdoch, <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:7869
+msgid ""
+"James Fallows, \"The Age of Murdoch,\" Atlantic Monthly (September 2003): "
+"89. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:7858
+msgid ""
+"Murdoch's companies now constitute a production system unmatched in its "
+"integration. They supply content—Fox movies . . . Fox TV shows "
+". . . Fox-controlled sports broadcasts, plus newspapers and books. They sell "
+"the content to the public and to advertisers—in newspapers, on the "
+"broadcast network, on the cable channels. And they operate the physical "
+"distribution system through which the content reaches the "
+"customers. Murdoch's satellite systems now distribute News Corp. content in "
+"Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that "
+"system will serve the same function in the United States.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7876
+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 "
+"outlets of media as possible. A picture describes this pattern better than a "
+"thousand words could do:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure><title>
+#: freeculture.xml:7882
+msgid "Pattern of modern media ownership."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><figure>
+#: freeculture.xml:7883
+msgid "<graphic fileref=\"images/1761.png\"></graphic>"
+msgstr ""
+
+#. PAGE BREAK 175
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7887
+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 "
+"content?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7892
+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 "
+"listening to a barrage of creators try to convince me to the contrary, I am "
+"beginning to change my mind."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7898
+msgid ""
+"Here's a representative story that begins to suggest how this integration "
+"may matter."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:7901
+msgid "Lear, Norman"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:7903 freeculture.xml:7967
+msgid "All in the Family"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7905
+msgid ""
+"In 1969, Norman Lear created a pilot for All in the Family. He took the "
+"pilot to ABC. The network didn't like it. It was too edgy, they told "
+"Lear. Make it again. Lear made a second pilot, more edgy than the first. ABC "
+"was exasperated. You're missing the point, they told Lear. We wanted less "
+"edgy, not more."
+msgstr ""
+
+#. f29
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7917
+msgid ""
+"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center "
+"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, "
+"3 April 2003 (transcript of prepared remarks available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #28</ulink>; for the Lear story, "
+"not included in the prepared remarks, see <ulink "
+"url=\"http://free-culture.cc/notes/\">link #29</ulink>)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7912
+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 "
+"Lear held assured an independence from network control.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 176
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7929
+msgid ""
+"The network did not control those copyrights because the law forbade the "
+"networks from controlling the content they syndicated. The law required a "
+"separation between the networks and the content producers; that separation "
+"would guarantee Lear freedom. And as late as 1992, because of these rules, "
+"the vast majority of prime time television—75 percent of it—was "
+"\"independent\" of the networks."
+msgstr ""
+
+#. f30
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:7948
+msgid ""
+"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
+"Ownership Before the Senate Commerce Committee, 108th Cong., 1st "
+"sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union and "
+"the Consumer Federation of America), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #30</ulink>. Kimmelman quotes "
+"Victoria Riskin, president of Writers Guild of America, West, in her Remarks "
+"at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7938
+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 "
+"twenty-five independent television production studios; in 2002, only five "
+"independent television studios remained. \"In 1992, only 15 percent of new "
+"series were produced for a network by a company it controlled. Last year, "
+"the percentage of shows produced by controlled companies more than "
+"quintupled to 77 percent.\" \"In 1992, 16 new series were produced "
+"independently of conglomerate control, last year there was "
+"one.\"<placeholder type=\"footnote\" id=\"0\"/> In 2002, 75 percent of prime "
+"time television was owned by the networks that ran it. \"In the ten-year "
+"period between 1992 and 2002, the number of prime time television hours per "
+"week produced by network studios increased over 200%, whereas the number of "
+"prime time television hours per week produced by independent studios "
+"decreased 63%.\"<placeholder type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7969
+msgid ""
+"Today, another Norman Lear with another All in the Family would find that he "
+"had the choice either to make the show less edgy or to be fired: The content "
+"of any show developed for a network is increasingly owned by the network."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7975
+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 "
+"Diller said to Bill Moyers,"
+msgstr ""
+
+#. f32
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:7990
+msgid ""
+"\"Barry Diller Takes on Media Deregulation,\" Now with Bill Moyers, Bill "
+"Moyers, 25 April 2003, edited transcript available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #31</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:7981
+msgid ""
+"Well, if you have companies that produce, that finance, that air on their "
+"channel and then distribute worldwide everything that goes through their "
+"controlled distribution system, then what you get is fewer and fewer actual "
+"voices participating in the process. [We u]sed to have dozens and dozens of "
+"thriving independent production companies producing television programs. Now "
+"you have less than a handful.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:7997
+msgid ""
+"This narrowing has an effect on what is produced. The product of such large "
+"and concentrated networks is increasingly homogenous. Increasingly "
+"safe. Increasingly sterile. The product of news shows from networks like "
+"this is increasingly tailored to the message the network wants to "
+"convey. This is not the communist party, though from the inside, it must "
+"feel a bit like the communist party. No one can question without risk of "
+"consequence—not necessarily banishment to Siberia, but punishment "
+"nonetheless. Independent, critical, different views are quashed. This is not "
+"the environment for a democracy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:8008
+msgid "Clark, Kim B."
+msgstr ""
+
+#. f33
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:8017
+msgid ""
+"Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National "
+"Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business "
+"School Press, 1997). Christensen acknowledges that the idea was first "
+"suggested by Dean Kim Clark. See Kim B. Clark, \"The Interaction of Design "
+"Hierarchies and Market Concepts in Technological Evolution,\" Research "
+"Policy 14 (1985): 235–51. For a more recent study, see Richard Foster "
+"and Sarah Kaplan, Creative Destruction: Why Companies That Are Built to Last "
+"Underperform the Market—and How to Successfully Transform Them (New "
+"York: Currency/Doubleday, 2001)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8010
+msgid ""
+"Economics itself offers a parallel that explains why this integration "
+"affects creativity. Clay Christensen has written about the \"Innovator's "
+"Dilemma\": the fact that large traditional firms find it rational to ignore "
+"new, breakthrough technologies that compete with their core business. The "
+"same analysis could help explain why large, traditional media companies "
+"would find it rational to ignore new cultural trends.<placeholder "
+"type=\"footnote\" id=\"0\"/> Lumbering giants not only don't, but should "
+"not, sprint. Yet if the field is only open to the giants, there will be far "
+"too little sprinting."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8033
+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 "
+"are important, and the effect on culture is hard to measure."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8039
+msgid ""
+"But there is a quintessentially obvious example that does strongly suggest "
+"the concern."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8043
+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; "
+"criminal and civil courts are filled with the consequences of this battle."
+msgstr ""
+
+#. PAGE BREAK 178
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8048
+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 "
+"am not pro drugs. Indeed, I come from a family once wrecked by "
+"drugs—though the drugs that wrecked my family were all quite legal. I "
+"believe this war is a profound mistake because the collateral damage from it "
+"is so great as to make waging the war insane. When you add together the "
+"burdens on the criminal justice system, the desperation of generations of "
+"kids whose only real economic opportunities are as drug warriors, the "
+"queering of constitutional protections because of the constant surveillance "
+"this war requires, and, most profoundly, the total destruction of the legal "
+"systems of many South American nations because of the power of the local "
+"drug cartels, I find it impossible to believe that the marginal benefit in "
+"reduced drug consumption by Americans could possibly outweigh these costs."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8067
+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 "
+"fundamentally upon the press to help inform Americans about these issues."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8073
+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 "
+"of short film clips about issues related to illegal drugs. In one series "
+"(the Nick and Norm series) two men are in a bar, discussing the idea of "
+"legalizing drugs as a way to avoid some of the collateral damage from the "
+"war. One advances an argument in favor of drug legalization. The other "
+"responds in a powerful and effective way against the argument of the "
+"first. In the end, the first guy changes his mind (hey, it's "
+"television). The plug at the end is a damning attack on the pro-legalization "
+"campaign."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8085
+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><chapter><sect1><sect2><para>
+#: freeculture.xml:8089
+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 "
+"demonstrate the extraordinary collateral harm that comes from the drug "
+"war. Can you do it?"
+msgstr ""
+
+#. PAGE BREAK 179
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8095
+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 "
+"world to help you get your message out. Can you be sure your message will be "
+"heard then?"
+msgstr ""
+
+#. f34
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:8112
+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 "
+"Washington, D.C., area. Comcast rejected the ads as \"against [their] "
+"policy.\" The local NBC affiliate, WRC, rejected the ads without reviewing "
+"them. The local ABC affiliate, WJOA, originally agreed to run the ads and "
+"accepted payment to do so, but later decided not to run the ads and returned "
+"the collected fees. Interview with Neal Levine, 15 October 2003. These "
+"restrictions are, of course, not limited to drug policy. See, for example, "
+"Nat Ives, \"On the Issue of an Iraq War, Advocacy Ads Meet with Rejection "
+"from TV Networks,\" New York Times, 13 March 2003, C4. Outside of "
+"election-related air time there is very little that the FCC or the courts "
+"are willing to do to even the playing field. For a general overview, see "
+"Rhonda Brown, \"Ad Hoc Access: The Regulation of Editorial Advertising on "
+"Television and Radio,\" Yale Law and Policy Review 6 (1988): 449–79, "
+"and for a more recent summary of the stance of the FCC and the courts, see "
+"Radio-Television News Directors Association v. FCC, 184 F. 3d 872 "
+"(D.C. Cir. 1999). Municipal authorities exercise the same authority as the "
+"networks. In a recent example from San Francisco, the San Francisco transit "
+"authority rejected an ad that criticized its Muni diesel buses. Phillip "
+"Matier and Andrew Ross, \"Antidiesel Group Fuming After Muni Rejects Ad,\" "
+"SFGate.com, 16 June 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #32</ulink>. The ground was that "
+"the criticism was \"too controversial.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8102
+msgid ""
+"No. You cannot. Television stations have a general policy of avoiding "
+"\"controversial\" ads. Ads sponsored by the government are deemed "
+"uncontroversial; ads disagreeing with the government are controversial. "
+"This selectivity might be thought inconsistent with the First Amendment, but "
+"the Supreme Court has held that stations have the right to choose what they "
+"run. Thus, the major channels of commercial media will refuse one side of a "
+"crucial debate the opportunity to present its case. And the courts will "
+"defend the rights of the stations to be this biased.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8139
+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 "
+"that condition into doubt. If a handful of companies control access to the "
+"media, and that handful of companies gets to decide which political "
+"positions it will allow to be promoted on its channels, then in an obvious "
+"and important way, concentration matters. You might like the positions the "
+"handful of companies selects. But you should not like a world in which a "
+"mere few get to decide which issues the rest of us get to know about."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:8151
+msgid "Together"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8153
+msgid ""
+"There is something innocent and obvious about the claim of the copyright "
+"warriors that the government should \"protect my property.\" In the "
+"abstract, it is obviously true and, ordinarily, totally harmless. No sane "
+"sort who is not an anarchist could disagree."
+msgstr ""
+
+#. PAGE BREAK 180
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8159
+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 "
+"mean that the effective constraint on the liberty to cultivate our culture "
+"is dramatically different—the claim begins to seem less innocent and "
+"obvious. Given (1) the power of technology to supplement the law's control, "
+"and (2) the power of concentrated markets to weaken the opportunity for "
+"dissent, if strictly enforcing the massively expanded \"property\" rights "
+"granted by copyright fundamentally changes the freedom within this culture "
+"to cultivate and build upon our past, then we have to ask whether this "
+"property should be redefined."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8175
+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, "
+"disastrous for the most important creative enterprises within our culture "
+"today."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8181
+msgid ""
+"But there is a space between zero and one, Internet culture "
+"notwithstanding. And these massive shifts in the effective power of "
+"copyright regulation, tied to increased concentration of the content "
+"industry and resting in the hands of technology that will increasingly "
+"enable control over the use of culture, should drive us to consider whether "
+"another adjustment is called for. Not an adjustment that increases "
+"copyright's power. Not an adjustment that increases its term. Rather, an "
+"adjustment to restore the balance that has traditionally defined copyright's "
+"regulation—a weakening of that regulation, to strengthen creativity."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8193
+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 "
+"flout. Instead, copyright power has grown dramatically in a short period of "
+"time, as the technologies of distribution and creation have changed and as "
+"lobbyists have pushed for more control by copyright holders. Changes in the "
+"past in response to changes in technology suggest that we may well need "
+"similar changes in the future. And these changes have to be reductions in "
+"the scope of copyright, in response to the extraordinary increase in control "
+"that technology and the market enable."
+msgstr ""
+
+#. PAGE BREAK 181
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8205
+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 "
+"the effect of changing law, concentrated markets, and changing technology, "
+"together they produce an astonishing conclusion: Never in our history have "
+"fewer had a legal right to control more of the development of our culture "
+"than now."
+msgstr ""
+
+#. f35
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:8227
+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><chapter><sect1><sect2><para>
+#: freeculture.xml:8213
+msgid ""
+"Not when copyrights were perpetual, for when copyrights were perpetual, they "
+"affected only that precise creative work. Not when only publishers had the "
+"tools to publish, for the market then was much more diverse. Not when there "
+"were only three television networks, for even then, newspapers, film "
+"studios, radio stations, and publishers were independent of the "
+"networks. Never has copyright protected such a wide range of rights, against "
+"as broad a range of actors, for a term that was remotely as long. This form "
+"of regulation—a tiny regulation of a tiny part of the creative energy "
+"of a nation at the founding—is now a massive regulation of the overall "
+"creative process. Law plus technology plus the market now interact to turn "
+"this historically benign regulation into the most significant regulation of "
+"culture that our free society has known.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8232
+msgid "This has been a long chapter. Its point can now be briefly stated."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8235
+msgid ""
+"At the start of this book, I distinguished between commercial and "
+"noncommercial culture. In the course of this chapter, I have distinguished "
+"between copying a work and transforming it. We can now combine these two "
+"distinctions and draw a clear map of the changes that copyright law has "
+"undergone. In 1790, the law looked like this:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
+#: freeculture.xml:8248 freeculture.xml:8286
+msgid "PUBLISH"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
+#: freeculture.xml:8249 freeculture.xml:8287 freeculture.xml:8326 freeculture.xml:8359
+msgid "TRANSFORM"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:8254 freeculture.xml:8292 freeculture.xml:8331 freeculture.xml:8364
+msgid "Commercial"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:8255 freeculture.xml:8293 freeculture.xml:8294 freeculture.xml:8332 freeculture.xml:8333 freeculture.xml:8365 freeculture.xml:8366 freeculture.xml:8370 freeculture.xml:8371
+msgid "©"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:8256 freeculture.xml:8260 freeculture.xml:8261 freeculture.xml:8298 freeculture.xml:8299 freeculture.xml:8338
+msgid "Free"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:8259 freeculture.xml:8297 freeculture.xml:8336 freeculture.xml:8369
+msgid "Noncommercial"
+msgstr ""
+
+#. PAGE BREAK 182
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8268
+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 "
+"only with registration, and only those who intended to benefit commercially "
+"would register, copying through publishing of noncommercial work was also "
+"free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8277
+msgid "By the end of the nineteenth century, the law had changed to this:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8306
+msgid ""
+"Derivative works were now regulated by copyright law—if published, "
+"which again, given the economics of publishing at the time, means if offered "
+"commercially. But noncommercial publishing and transformation were still "
+"essentially free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8312
+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 "
+"copying became more prevalent, the reach of the law expanded. Thus by 1975, "
+"as photocopying machines became more common, we could say the law began to "
+"look like this:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
+#: freeculture.xml:8325 freeculture.xml:8358
+msgid "COPY"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
+#: freeculture.xml:8337
+msgid "©/Free"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8345
+msgid ""
+"The law was interpreted to reach noncommercial copying through, say, copy "
+"machines, but still much of copying outside of the commercial market "
+"remained free. But the consequence of the emergence of digital technologies, "
+"especially in the context of a digital network, means that the law now looks "
+"like this:"
+msgstr ""
+
+#. PAGE BREAK 183
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8378
+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 "
+"not, transformative or not—with the same rules designed to regulate "
+"commercial publishers."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8386
+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 "
+"extending the regulations of copyright law into each of these domains "
+"actually does any good."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8392
+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 "
+"regulates just now) noncommercial copying and, especially, noncommercial "
+"transformation. And increasingly, for the reasons sketched especially in "
+"chapters 7 and 8, one might well wonder whether it does more harm than good "
+"for commercial transformation. More commercial transformative work would be "
+"created if derivative rights were more sharply restricted."
+msgstr ""
+
+#. f36
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:8408
+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 "
+"and private interests. See Thomas C. Grey, \"The Disintegration of "
+"Property,\" in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, "
+"eds. (New York: New York University Press, 1980)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8402
+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, "
+"the state ought to protect it. But first impressions notwithstanding, "
+"historically, this property right (as with all property rights<placeholder "
+"type=\"footnote\" id=\"0\"/>) has been crafted to balance the important "
+"need to give authors and artists incentives with the equally important need "
+"to assure access to creative work. This balance has always been struck in "
+"light of new technologies. And for almost half of our tradition, the "
+"\"copyright\" did not control at all the freedom of others to build upon or "
+"transform a creative work. American culture was born free, and for almost "
+"180 years our country consistently protected a vibrant and rich free "
+"culture."
+msgstr ""
+
+#. PAGE BREAK 184
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8425
+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 "
+"\"copyright\" as a statutory right recognized those limits, by granting "
+"copyright owners protection for a limited time only (the story of chapter "
+"6). The tradition of \"fair use\" is animated by a similar concern that is "
+"increasingly under strain as the costs of exercising any fair use right "
+"become unavoidably high (the story of chapter 7). Adding statutory rights "
+"where markets might stifle innovation is another familiar limit on the "
+"property right that copyright is (chapter 8). And granting archives and "
+"libraries a broad freedom to collect, claims of property notwithstanding, is "
+"a crucial part of guaranteeing the soul of a culture (chapter 9). Free "
+"cultures, like free markets, are built with property. But the nature of the "
+"property that builds a free culture is very different from the extremist "
+"vision that dominates the debate today."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8444
+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 "
+"Internet present to twentieth-century business models for producing and "
+"distributing culture, the law and technology are being transformed in a way "
+"that will undermine our tradition of free culture. The property right that "
+"is copyright is no longer the balanced right that it was, or was intended to "
+"be. The property right that is copyright has become unbalanced, tilted "
+"toward an extreme. The opportunity to create and transform becomes weakened "
+"in a world in which creation requires permission and creativity must check "
+"with a lawyer."
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:8461
+msgid "PUZZLES"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:8465
+msgid "CHAPTER ELEVEN: Chimera"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:8467
+msgid "chimeras"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:8470
+msgid "Wells, H. G."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:8473
+msgid ""Country of the Blind, The" (Wells)"
+msgstr ""
+
+#. f1.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:8481
+msgid ""
+"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, The "
+"Country of the Blind and Other Stories, Michael Sherborne, ed. (New York: "
+"Oxford University Press, 1996)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8477
+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 "
+"the Peruvian Andes.<placeholder type=\"footnote\" id=\"0\"/> The valley is "
+"extraordinarily beautiful, with \"sweet water, pasture, an even climate, "
+"slopes of rich brown soil with tangles of a shrub that bore an excellent "
+"fruit.\" But the villagers are all blind. Nunez takes this as an "
+"opportunity. \"In the Country of the Blind,\" he tells himself, \"the "
+"One-Eyed Man is King.\" So he resolves to live with the villagers to explore "
+"life as a king."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8493
+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.\" "
+"They don't have the word blind. They think he's just thick. Indeed, as they "
+"increasingly notice the things he can't do (hear the sound of grass being "
+"stepped on, for example), they increasingly try to control him. He, in turn, "
+"becomes increasingly frustrated. \"`You don't understand,' he cried, in a "
+"voice that was meant to be great and resolute, and which broke. `You are "
+"blind and I can see. Leave me alone!'\""
+msgstr ""
+
+#. PAGE BREAK 187
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8505
+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, "
+"a young woman who to him seems \"the most beautiful thing in the whole of "
+"creation,\" understands the beauty of sight. Nunez's description of what he "
+"sees \"seemed to her the most poetical of fancies, and she listened to his "
+"description of the stars and the mountains and her own sweet white-lit "
+"beauty as though it was a guilty indulgence.\" \"She did not believe,\" "
+"Wells tells us, and \"she could only half understand, but she was "
+"mysteriously delighted.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8516
+msgid ""
+"When Nunez announces his desire to marry his \"mysteriously delighted\" "
+"love, the father and the village object. \"You see, my dear,\" her father "
+"instructs, \"he's an idiot. He has delusions. He can't do anything right.\" "
+"They take Nunez to the village doctor."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8522
+msgid ""
+"After a careful examination, the doctor gives his opinion. \"His brain is "
+"affected,\" he reports."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8526
+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 brain.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8531
+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 "
+"surgical operation—namely, to remove these irritant bodies [the "
+"eyes].\""
+msgstr ""
+
+#. PAGE BREAK 188
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8537
+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 "
+"have to read the original to learn what happens in the end. I believe in "
+"free culture, but never in giving away the end of a story.) It sometimes "
+"happens that the eggs of twins fuse in the mother's womb. That fusion "
+"produces a \"chimera.\" A chimera is a single creature with two sets of "
+"DNA. The DNA in the blood, for example, might be different from the DNA of "
+"the skin. This possibility is an underused plot for murder mysteries. \"But "
+"the DNA shows with 100 percent certainty that she was not the person whose "
+"blood was at the scene. . . .\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8554
+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 "
+"the code of an individual. Yet in fact, not only can two individuals have "
+"the same set of DNA (identical twins), but one person can have two different "
+"sets of DNA (a chimera). Our understanding of a \"person\" should reflect "
+"this reality."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8562
+msgid ""
+"The more I work to understand the current struggle over copyright and "
+"culture, which I've sometimes called unfairly, and sometimes not unfairly "
+"enough, \"the copyright wars,\" the more I think we're dealing with a "
+"chimera. For example, in the battle over the question \"What is p2p file "
+"sharing?\" both sides have it right, and both sides have it wrong. One side "
+"says, \"File sharing is just like two kids taping each others' "
+"records—the sort of thing we've been doing for the last thirty years "
+"without any question at all.\" That's true, at least in part. When I tell my "
+"best friend to try out a new CD that I've bought, but rather than just send "
+"the CD, I point him to my p2p server, that is, in all relevant respects, "
+"just like what every executive in every recording company no doubt did as a "
+"kid: sharing music."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8576
+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 "
+"friends can get access, but it stretches the meaning of \"friends\" beyond "
+"recognition to say \"my ten thousand best friends\" can get access. Whether "
+"or not sharing my music with my best friend is what \"we have always been "
+"allowed to do,\" we have not always been allowed to share music with \"our "
+"ten thousand best friends.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8585
+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,\" "
+"that's true, at least in part. If, after Lyle Lovett (finally) releases a "
+"new album, rather than buying it, I go to Kazaa and find a free copy to "
+"take, that is very much like stealing a copy from Tower."
+msgstr ""
+
+#. PAGE BREAK 189
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8595
+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 "
+"Tower Records, I get a bit of plastic and a cover, and something to show on "
+"my shelves. (And, while we're at it, we could also note that when I take a "
+"CD from Tower Records, the maximum fine that might be imposed on me, under "
+"California law, at least, is $1,000. According to the RIAA, by contrast, if "
+"I download a ten-song CD, I'm liable for $1,500,000 in damages.)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8605
+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 "
+"a chimera. And rather than simply denying what the other side asserts, we "
+"need to begin to think about how we should respond to this chimera. What "
+"rules should govern it?"
+msgstr ""
+
+#. f2.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:8620
+msgid ""
+"For an excellent summary, see the report prepared by GartnerG2 and the "
+"Berkman Center for Internet and Society at Harvard Law School, \"Copyright "
+"and Digital Media in a Post-Napster World,\" 27 June 2003, available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #33</ulink>. Reps. John "
+"Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill "
+"that would treat unauthorized on-line copying as a felony offense with "
+"punishments ranging as high as five years imprisonment; see Jon Healey, "
+"\"House Bill Aims to Up Stakes on Piracy,\" Los Angeles Times, 17 July 2003, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#34</ulink>. Civil penalties are currently set at $150,000 per copied "
+"song. For a recent (and unsuccessful) legal challenge to the RIAA's demand "
+"that an ISP reveal the identity of a user accused of sharing more than 600 "
+"songs through a family computer, see RIAA v. Verizon Internet Services (In "
+"re. Verizon Internet Services), 240 F. Supp. 2d 24 (D.D.C. 2003). Such a "
+"user could face liability ranging as high as $90 million. Such astronomical "
+"figures furnish the RIAA with a powerful arsenal in its prosecution of file "
+"sharers. Settlements ranging from $12,000 to $17,500 for four students "
+"accused of heavy file sharing on university networks must have seemed a mere "
+"pittance next to the $98 billion the RIAA could seek should the matter "
+"proceed to court. See Elizabeth Young, \"Downloading Could Lead to Fines,\" "
+"redandblack.com, August 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #35</ulink>. For an example of "
+"the RIAA's targeting of student file sharing, and of the subpoenas issued to "
+"universities to reveal student file-sharer identities, see James Collins, "
+"\"RIAA Steps Up Bid to Force BC, MIT to Name Students,\" Boston Globe, 8 "
+"August 2003, D3, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #36</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8612
+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 "
+"could prosecute families for millions of dollars in damages just because "
+"file sharing occurred on a family computer. And we can get universities to "
+"monitor all computer traffic to make sure that no computer is used to commit "
+"this crime. These responses might be extreme, but each of them has either "
+"been proposed or actually implemented.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8657
+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 "
+"copyright liability, either civil or criminal, for making copyrighted "
+"content available on the Net. Make file sharing like gossip: regulated, if "
+"at all, by social norms but not by law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8664
+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 "
+"recognizes the truth in both. And while I end this book with a sketch of a "
+"system that does just that, my aim in the next chapter is to show just how "
+"awful it would be for us to adopt the zero-tolerance extreme. I believe "
+"either extreme would be worse than a reasonable alternative. But I believe "
+"the zero-tolerance solution would be the worse of the two extremes."
+msgstr ""
+
+#. PAGE BREAK 190
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8676
+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 "
+"occurring. The law and technology are being shifted to give content holders "
+"a kind of control over our culture that they have never had before. And in "
+"this extremism, many an opportunity for new innovation and new creativity "
+"will be lost."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8684
+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 "
+"also kill. We have never seen the power to innovate spread so broadly among "
+"our citizens, and we have just begun to see the innovation that this power "
+"will unleash. Yet the Internet has already seen the passing of one cycle of "
+"innovation around technologies to distribute content. The law is responsible "
+"for this passing. As the vice president for global public policy at one of "
+"these new innovators, eMusic.com, put it when criticizing the DMCA's added "
+"protection for copyrighted material,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:8697
+msgid ""
+"eMusic opposes music piracy. We are a distributor of copyrighted material, "
+"and we want to protect those rights."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:8701
+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 "
+"necessarily the best. It is simply too early to answer that question. Market "
+"forces operating naturally may very well produce a totally different "
+"industry model."
+msgstr ""
+
+#. f3.
+#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
+#: freeculture.xml:8718
+msgid ""
+"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
+"Entertainment on the Internet and Other Media: Hearing Before the "
+"Subcommittee on Telecommunications, Trade, and Consumer Protection, House "
+"Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, "
+"vice president, Global Public Policy and Standards, EMusic.com), available "
+"in LEXIS, Federal Document Clearing House Congressional Testimony File."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:8709
+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 "
+"digital media and the manner in which digital media are distributed. This in "
+"turn will directly influence the options that are available to consumers, "
+"both in terms of the ease with which they will be able to access digital "
+"media and the equipment that they will require to do so. Poor choices made "
+"this early in the game will retard the growth of this market, hurting "
+"everyone's interests.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8733
+msgid ""
+"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the "
+"major labels.\" Its position on these matters has now changed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8738
+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 "
+"opportunities that could be extraordinarily valuable."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:8746
+msgid "CHAPTER TWELVE: Harms"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8749
+msgid ""
+"To fight \"piracy,\" to protect \"property,\" the content industry has "
+"launched a war. Lobbying and lots of campaign contributions have now brought "
+"the government into this war. As with any war, this one will have both "
+"direct and collateral damage. As with any war of prohibition, these damages "
+"will be suffered most by our own people."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8757
+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 "
+"extend this description of consequences into an argument. Is this war "
+"justified?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8764
+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 "
+"the property called \"intellectual property\" is at its greatest in our "
+"history."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8772
+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 "
+"in the name of property still resonate; the uncritical rejection of "
+"\"piracy\" still has play."
+msgstr ""
+
+#. PAGE BREAK 193
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:8779
+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 "
+"the third is unintended. I'm less sure about the first two. The first two "
+"protect modern RCAs, but there is no Howard Armstrong in the wings to fight "
+"today's monopolists of culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:8786
+msgid "Constraining Creators"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8788
+msgid ""
+"In the next ten years we will see an explosion of digital technologies. "
+"These technologies will enable almost anyone to capture and share "
+"content. Capturing and sharing content, of course, is what humans have done "
+"since the dawn of man. It is how we learn and communicate. But capturing and "
+"sharing through digital technology is different. The fidelity and power are "
+"different. You could send an e-mail telling someone about a joke you saw on "
+"Comedy Central, or you could send the clip. You could write an essay about "
+"the inconsistencies in the arguments of the politician you most love to "
+"hate, or you could make a short film that puts statement against "
+"statement. You could write a poem to express your love, or you could weave "
+"together a string—a mash-up— of songs from your favorite artists "
+"in a collage and make it available on the Net."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8803
+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 "
+"part it is something new. It is continuous with the Kodak, but it explodes "
+"the boundaries of Kodak-like technologies. The technology of digital "
+"\"capturing and sharing\" promises a world of extraordinarily diverse "
+"creativity that can be easily and broadly shared. And as that creativity is "
+"applied to democracy, it will enable a broad range of citizens to use "
+"technology to express and criticize and contribute to the culture all "
+"around."
+msgstr ""
+
+#. PAGE BREAK 194
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8814
+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 "
+"from others. Think about an old man telling a story to a collection of "
+"neighbors in a small town. Now imagine that same storytelling extended "
+"across the globe."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8824
+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 "
+"moment. Think about your favorite amazing sites on the Net. Web sites that "
+"offer plot summaries from forgotten television shows; sites that catalog "
+"cartoons from the 1960s; sites that mix images and sound to criticize "
+"politicians or businesses; sites that gather newspaper articles on remote "
+"topics of science or culture. There is a vast amount of creative work spread "
+"across the Internet. But as the law is currently crafted, this work is "
+"presumptively illegal."
+msgstr ""
+
+#. f1.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:8847
+msgid ""
+"See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom (Hoboken, "
+"N.J.: John Wiley & Sons, 2003), 176, 204; for details of the settlement, "
+"see MCI press release, \"MCI Wins U.S. District Court Approval for SEC "
+"Settlement\" (7 July 2003), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #37</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:8867
+msgid "Bush, George W."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:8858
+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 "
+"overview, see Tanya Albert, \"Measure Stalls in Senate: `We'll Be Back,' Say "
+"Tort Reformers,\" amednews.com, 28 July 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #38</ulink>, and \"Senate Turns "
+"Back Malpractice Caps,\" CBSNews.com, 9 July 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #39</ulink>. President Bush has "
+"continued to urge tort reform in recent months. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8835
+msgid ""
+"That presumption will increasingly chill creativity, as the examples of "
+"extreme penalties for vague infringements continue to proliferate. It is "
+"impossible to get a clear sense of what's allowed and what's not, and at the "
+"same time, the penalties for crossing the line are astonishingly harsh. The "
+"four students who were threatened by the RIAA ( Jesse Jordan of chapter 3 "
+"was just one) were threatened with a $98 billion lawsuit for building search "
+"engines that permitted songs to be copied. Yet World-Com—which "
+"defrauded investors of $11 billion, resulting in a loss to investors in "
+"market capitalization of over $200 billion—received a fine of a mere "
+"$750 million.<placeholder type=\"footnote\" id=\"0\"/> And under legislation "
+"being pushed in Congress right now, a doctor who negligently removes the "
+"wrong leg in an operation would be liable for no more than $250,000 in "
+"damages for pain and suffering.<placeholder type=\"footnote\" id=\"1\"/> Can "
+"common sense recognize the absurdity in a world where the maximum fine for "
+"downloading two songs off the Internet is more than the fine for a doctor's "
+"negligently butchering a patient?"
+msgstr ""
+
+#. f3.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:8894
+msgid ""
+"See Danit Lidor, \"Artists Just Wanna Be Free,\" Wired, 7 July 2003, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#40</ulink>. For an overview of the exhibition, see <ulink "
+"url=\"http://free-culture.cc/notes/\">link #41</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8874
+msgid ""
+"The consequence of this legal uncertainty, tied to these extremely high "
+"penalties, is that an extraordinary amount of creativity will either never "
+"be exercised, or never be exercised in the open. We drive this creative "
+"process underground by branding the modern-day Walt Disneys \"pirates.\" We "
+"make it impossible for businesses to rely upon a public domain, because the "
+"boundaries of the public domain are designed to be unclear. It never pays to "
+"do anything except pay for the right to create, and hence only those who can "
+"pay are allowed to create. As was the case in the Soviet Union, though for "
+"very different reasons, we will begin to see a world of underground "
+"art—not because the message is necessarily political, or because the "
+"subject is controversial, but because the very act of creating the art is "
+"legally fraught. Already, exhibits of \"illegal art\" tour the United "
+"States.<placeholder type=\"footnote\" id=\"0\"/> In what does their "
+"\"illegality\" consist? In the act of mixing the culture around us with an "
+"expression that is critical or reflective."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8905
+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 10. But an even bigger "
+"part has to do with the increasing ease with which infractions can be "
+"tracked. As users of file-sharing systems discovered in 2002, it is a "
+"trivial matter for copyright owners to get courts to order Internet service "
+"providers to reveal who has what content. It is as if your cassette tape "
+"player transmitted a list of the songs that you played in the privacy of "
+"your own home that anyone could tune into for whatever reason they chose."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8916
+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 "
+"tools of Photoshop, sharing content on the Web, must worry all the "
+"time. Images are all around, but the only safe images to use in the act of "
+"creation are those purchased from Corbis or another image farm. And in "
+"purchasing, censoring happens. There is a free market in pencils; we needn't "
+"worry about its effect on creativity. But there is a highly regulated, "
+"monopolized market in cultural icons; the right to cultivate and transform "
+"them is not similarly free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8927
+msgid ""
+"Lawyers rarely see this because lawyers are rarely empirical. As I described "
+"in chapter 7, in response to the story about documentary filmmaker Jon Else, "
+"I have been lectured again and again by lawyers who insist Else's use was "
+"fair use, and hence I am wrong to say that the law regulates such a use."
+msgstr ""
+
+#. PAGE BREAK 196
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8936
+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 "
+"defending rights such as fair use is astonishingly bad—in practically "
+"every context, but especially here. It costs too much, it delivers too "
+"slowly, and what it delivers often has little connection to the justice "
+"underlying the claim. The legal system may be tolerable for the very rich. "
+"For everyone else, it is an embarrassment to a tradition that prides itself "
+"on the rule of law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8946
+msgid ""
+"Judges and lawyers can tell themselves that fair use provides adequate "
+"\"breathing room\" between regulation by the law and the access the law "
+"should allow. But it is a measure of how out of touch our legal system has "
+"become that anyone actually believes this. The rules that publishers impose "
+"upon writers, the rules that film distributors impose upon filmmakers, the "
+"rules that newspapers impose upon journalists— these are the real laws "
+"governing creativity. And these rules have little relationship to the "
+"\"law\" with which judges comfort themselves."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8957
+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 "
+"against a copyright infringement claim, and which would never return to the "
+"wrongfully accused defendant anything of the costs she suffered to defend "
+"her right to speak—in that world, the astonishingly broad regulations "
+"that pass under the name \"copyright\" silence speech and creativity. And in "
+"that world, it takes a studied blindness for people to continue to believe "
+"they live in a culture that is free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8968
+msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me,"
+msgstr ""
+
+#. PAGE BREAK 197
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:8972
+msgid ""
+"We're losing [creative] opportunities right and left. Creative people are "
+"being forced not to express themselves. Thoughts are not being "
+"expressed. And while a lot of stuff may [still] be created, it still won't "
+"get distributed. Even if the stuff gets made . . . you're not going to get "
+"it distributed in the mainstream media unless you've got a little note from "
+"a lawyer saying, \"This has been cleared.\" You're not even going to get it "
+"on PBS without that kind of permission. That's the point at which they "
+"control it."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:8985
+msgid "Constraining Innovators"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8987
+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 "
+"going. Maybe you think there's enough weird art out there, and enough "
+"expression that is critical of what seems to be just about everything. And "
+"if you think that, you might think there's little in this story to worry "
+"you."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:8995
+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 "
+"ideologue. And if you're one of these sorts (and a special one at that, 188 "
+"pages into a book like this), then you can see this other aspect by "
+"substituting \"free market\" every place I've spoken of \"free culture.\" "
+"The point is the same, even if the interests affecting culture are more "
+"fundamental."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9004
+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, "
+"concedes that some regulation of markets is necessary—at a minimum, we "
+"need rules of property and contract, and courts to enforce both. Likewise, "
+"in this culture debate, everyone concedes that at least some framework of "
+"copyright is also required. But both perspectives vehemently insist that "
+"just because some regulation is good, it doesn't follow that more regulation "
+"is better. And both perspectives are constantly attuned to the ways in which "
+"regulation simply enables the powerful industries of today to protect "
+"themselves against the competitors of tomorrow."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:9016 freeculture.xml:9117
+msgid "Barry, Hank"
+msgstr ""
+
+#. PAGE BREAK 198
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9018
+msgid ""
+"This is the single most dramatic effect of the shift in regulatory strategy "
+"that I described in chapter 10. The consequence of this massive threat of "
+"liability tied to the murky boundaries of copyright law is that innovators "
+"who want to innovate in this space can safely innovate only if they have the "
+"sign-off from last generation's dominant industries. That lesson has been "
+"taught through a series of cases that were designed and executed to teach "
+"venture capitalists a lesson. That lesson—what former Napster CEO Hank "
+"Barry calls a \"nuclear pall\" that has fallen over the Valley—has "
+"been learned."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9030
+msgid ""
+"Consider one example to make the point, a story whose beginning I told in "
+"The Future of Ideas and which has progressed in a way that even I (pessimist "
+"extraordinaire) would never have predicted."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9035
+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 "
+"ways to get access to content. Their goal was also to facilitate new ways to "
+"create content. Unlike the major labels, MP3.com offered creators a venue to "
+"distribute their creativity, without demanding an exclusive engagement from "
+"the creators."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9043
+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 "
+"leverage the revealed preferences of music listeners to recommend new "
+"artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And "
+"so on."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9050
+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 "
+"data. In January 2000, the company launched a service called "
+"my.mp3.com. Using software provided by MP3.com, a user would sign into an "
+"account and then insert into her computer a CD. The software would identify "
+"the CD, and then give the user access to that content. So, for example, if "
+"you inserted a CD by Jill Sobule, then wherever you were—at work or at "
+"home—you could get access to that music once you signed into your "
+"account. The system was therefore a kind of music-lockbox."
+msgstr ""
+
+#. PAGE BREAK 199
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9062
+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 "
+"service was to give users access to their own content, and as a by-product, "
+"by seeing the content they already owned, to discover the kind of content "
+"the users liked."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9071
+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, "
+"but that would have taken a great deal of time, and would have produced a "
+"product of questionable quality.) It therefore purchased 50,000 CDs from a "
+"store, and started the process of making copies of those CDs. Again, it "
+"would not serve the content from those copies to anyone except those who "
+"authenticated that they had a copy of the CD they wanted to access. So while "
+"this was 50,000 copies, it was 50,000 copies directed at giving customers "
+"something they had already bought."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9083
+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 "
+"the five. Nine months later, a federal judge found MP3.com to have been "
+"guilty of willful infringement with respect to the fifth. Applying the law "
+"as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com "
+"then settled with the remaining plaintiff, Vivendi Universal, paying over "
+"$54 million. Vivendi purchased MP3.com just about a year later."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9093
+msgid "That part of the story I have told before. Now consider its conclusion."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9096
+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 "
+"good faith claim that the service they wanted to offer would be considered "
+"legal under copyright law. This lawsuit alleged that it should have been "
+"obvious that the courts would find this behavior illegal; therefore, this "
+"lawsuit sought to punish any lawyer who had dared to suggest that the law "
+"was less restrictive than the labels demanded."
+msgstr ""
+
+#. PAGE BREAK 200
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9106
+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 "
+"send an unequivocal message to lawyers advising clients in this space: It is "
+"not just your clients who might suffer if the content industry directs its "
+"guns against them. It is also you. So those of you who believe the law "
+"should be less restrictive should realize that such a view of the law will "
+"cost you and your firm dearly."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:9116
+msgid "Hummer, John"
+msgstr ""
+
+#. f4.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9124
+msgid ""
+"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" Los Angeles Times, "
+"23 April 2003. For a parallel argument about the effects on innovation in "
+"the distribution of music, see Janelle Brown, \"The Music Revolution Will "
+"Not Be Digitized,\" Salon.com, 1 June 2001, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #42</ulink>. See also Jon "
+"Healey, \"Online Music Services Besieged,\" Los Angeles Times, 28 May 2001."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9119
+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 "
+"(VC) that had funded Napster at a certain stage of its development, its "
+"cofounder ( John Hummer), and general partner (Hank Barry).<placeholder "
+"type=\"footnote\" id=\"0\"/> The claim here, as well, was that the VC should "
+"have recognized the right of the content industry to control how the "
+"industry should develop. They should be held personally liable for funding a "
+"company whose business turned out to be beyond the law. Here again, the aim "
+"of the lawsuit is transparent: Any VC now recognizes that if you fund a "
+"company whose business is not approved of by the dinosaurs, you are at risk "
+"not just in the marketplace, but in the courtroom as well. Your investment "
+"buys you not only a company, it also buys you a lawsuit. So extreme has the "
+"environment become that even car manufacturers are afraid of technologies "
+"that touch content. In an article in Business 2.0, Rafe Needleman describes "
+"a discussion with BMW:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><indexterm><primary>
+#: freeculture.xml:9148
+msgid "BMW"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary>
+#: freeculture.xml:9163
+msgid "Needleman, Rafe"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:9159
+msgid ""
+"Rafe Needleman, \"Driving in Cars with MP3s,\" Business 2.0, 16 June 2003, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli for this example. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:9150
+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 "
+"had rigged a new vehicle to play MP3s via the car's built-in sound system, "
+"but that the company's marketing and legal departments weren't comfortable "
+"with pushing this forward for release stateside. Even today, no new cars are "
+"sold in the United States with bona fide MP3 players. . . . <placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9168
+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 "
+"empowers copyright holders to exercise. It is a system that will obviously "
+"and necessarily stifle new innovation. It is hard enough to start a "
+"company. It is impossibly hard if that company is constantly threatened by "
+"litigation."
+msgstr ""
+
+#. PAGE BREAK 201
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9178
+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 "
+"of uncertainty. We have no good way to know how it should apply to new "
+"technologies. Yet by reversing our tradition of judicial deference, and by "
+"embracing the astonishingly high penalties that copyright law imposes, that "
+"uncertainty now yields a reality which is far more conservative than is "
+"right. If the law imposed the death penalty for parking tickets, we'd not "
+"only have fewer parking tickets, we'd also have much less driving. The same "
+"principle applies to innovation. If innovation is constantly checked by this "
+"uncertain and unlimited liability, we will have much less vibrant innovation "
+"and much less creativity."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9193
+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 "
+"contexts is the same. This wildly punitive system of regulation will "
+"systematically stifle creativity and innovation. It will protect some "
+"industries and some creators, but it will harm industry and creativity "
+"generally. Free market and free culture depend upon vibrant competition. "
+"Yet the effect of the law today is to stifle just this kind of competition. "
+"The effect is to produce an overregulated culture, just as the effect of too "
+"much control in the market is to produce an overregulatedregulated market."
+msgstr ""
+
+#. PAGE BREAK 202
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9210
+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 "
+"innovation. A permission culture means a lawyer's culture—a culture in "
+"which the ability to create requires a call to your lawyer. Again, I am not "
+"antilawyer, at least when they're kept in their proper place. I am certainly "
+"not antilaw. But our profession has lost the sense of its limits. And "
+"leaders in our profession have lost an appreciation of the high costs that "
+"our profession imposes upon others. The inefficiency of the law is an "
+"embarrassment to our tradition. And while I believe our profession should "
+"therefore do everything it can to make the law more efficient, it should at "
+"least do everything it can to limit the reach of the law where the law is "
+"not doing any good. The transaction costs buried within a permission culture "
+"are enough to bury a wide range of creativity. Someone needs to do a lot of "
+"justifying to justify that result. The uncertainty of the law is one burden "
+"on innovation. There is a second burden that operates more directly. This is "
+"the effort by many in the content industry to use the law to directly "
+"regulate the technology of the Internet so that it better protects their "
+"content."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9235
+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 "
+"design. But from the perspective of the content industry, this feature is a "
+"\"bug.\" The efficient spread of content means that content distributors "
+"have a harder time controlling the distribution of content. One obvious "
+"response to this efficiency is thus to make the Internet less efficient. If "
+"the Internet enables \"piracy,\" then, this response says, we should break "
+"the kneecaps of the Internet."
+msgstr ""
+
+#. f6.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9251
+msgid ""
+"\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the "
+"Berkman Center for Internet and Society at Harvard Law School (2003), "
+"33–35, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#44</ulink>."
+msgstr ""
+
+#. f7.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9267
+msgid "GartnerG2, 26–27."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9247
+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 "
+"require computers to determine whether the content they access is protected "
+"or not, and to disable the spread of protected content.<placeholder "
+"type=\"footnote\" id=\"0\"/> Congress has already launched proceedings to "
+"explore a mandatory \"broadcast flag\" that would be required on any device "
+"capable of transmitting digital video (i.e., a computer), and that would "
+"disable the copying of any content that is marked with a broadcast "
+"flag. Other members of Congress have proposed immunizing content providers "
+"from liability for technology they might deploy that would hunt down "
+"copyright violators and disable their machines.<placeholder "
+"type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. PAGE BREAK 203
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9272
+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 "
+"infrastructure will always be tuned to the particular technology of the "
+"day. It will impose significant burdens and costs on the technology, but "
+"will likely be eclipsed by advances around exactly those requirements."
+msgstr ""
+
+#. f8.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9286
+msgid ""
+"See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, "
+"February 2002 (Entertainment)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9283
+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 "
+"impose.<placeholder type=\"footnote\" id=\"0\"/> Their argument was "
+"obviously not that copyright should not be protected. Instead, they argued, "
+"any protection should not do more harm than good."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9294
+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 "
+"market crowd."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9300
+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 "
+"done right, it benefits creators and harms leeches. When done wrong, it is "
+"regulation the powerful use to defeat competitors."
+msgstr ""
+
+#. f9.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9309
+msgid "Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9306
+msgid ""
+"As I described in chapter 10, despite this feature of copyright as "
+"regulation, and subject to important qualifications outlined by Jessica "
+"Litman in her book Digital Copyright,<placeholder type=\"footnote\" "
+"id=\"0\"/> overall this history of copyright is not bad. As chapter 10 "
+"details, when new technologies have come along, Congress has struck a "
+"balance to assure that the new is protected from the old. Compulsory, or "
+"statutory, licenses have been one part of that strategy. Free use (as in the "
+"case of the VCR) has been another."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9319
+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 "
+"new technology and the legitimate rights of content creators, both the "
+"courts and Congress have imposed legal restrictions that will have the "
+"effect of smothering the new to benefit the old."
+msgstr ""
+
+#. f10.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9327
+msgid ""
+"The only circuit court exception is found in Recording Industry Association "
+"of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th "
+"Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that "
+"makers of a portable MP3 player were not liable for contributory copyright "
+"infringement for a device that is unable to record or redistribute music (a "
+"device whose only copying function is to render portable a music file "
+"already stored on a user's hard drive). At the district court level, the "
+"only exception is found in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, "
+"Ltd., 259 F. Supp. 2d 1029 (C.D. Cal., 2003), where the court found the "
+"link between the distributor and any given user's conduct too attenuated to "
+"make the distributor liable for contributory or vicarious infringement "
+"liability."
+msgstr ""
+
+#. f11.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9346
+msgid ""
+"For example, in July 2002, Representative Howard Berman introduced the "
+"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize "
+"copyright holders from liability for damage done to computers when the "
+"copyright holders use technology to stop copyright infringement. In August "
+"2002, Representative Billy Tauzin introduced a bill to mandate that "
+"technologies capable of rebroadcasting digital copies of films broadcast on "
+"TV (i.e., computers) respect a \"broadcast flag\" that would disable copying "
+"of that content. And in March of the same year, Senator Fritz Hollings "
+"introduced the Consumer Broadband and Digital Television Promotion Act, "
+"which mandated copyright protection technology in all digital media "
+"devices. See GartnerG2, \"Copyright and Digital Media in a Post-Napster "
+"World,\" 27 June 2003, 33–34, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #44</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9326
+msgid ""
+"The response by the courts has been fairly universal.<placeholder "
+"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
+"threatened and actually implemented by Congress. I won't catalog all of "
+"those responses here.<placeholder type=\"footnote\" id=\"1\"/> But there is "
+"one example that captures the flavor of them all. This is the story of the "
+"demise of Internet radio."
+msgstr ""
+
+#. PAGE BREAK 204
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9369
+msgid ""
+"As I described in chapter 4, when a radio station plays a song, the "
+"recording artist doesn't get paid for that \"radio performance\" unless he "
+"or she is also the composer. So, for example if Marilyn Monroe had recorded "
+"a version of \"Happy Birthday\"—to memorialize her famous performance "
+"before President Kennedy at Madison Square Garden— then whenever that "
+"recording was played on the radio, the current copyright owners of \"Happy "
+"Birthday\" would get some money, whereas Marilyn Monroe would not."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9380
+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 "
+"thus benefited because by playing her music, the radio station was making it "
+"more likely that her records would be purchased. Thus, the recording artist "
+"got something, even if only indirectly. Probably this reasoning had less to "
+"do with the result than with the power of radio stations: Their lobbyists "
+"were quite good at stopping any efforts to get Congress to require "
+"compensation to the recording artists."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9392
+msgid ""
+"Enter Internet radio. Like regular radio, Internet radio is a technology to "
+"stream content from a broadcaster to a listener. The broadcast travels "
+"across the Internet, not across the ether of radio spectrum. Thus, I can "
+"\"tune in\" to an Internet radio station in Berlin while sitting in San "
+"Francisco, even though there's no way for me to tune in to a regular radio "
+"station much beyond the San Francisco metropolitan area."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9402
+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 "
+"to using her computer, whereas under the existing architecture for broadcast "
+"radio, there is an obvious limit to the number of broadcasters and clear "
+"broadcast frequencies. Internet radio could therefore be more competitive "
+"than regular radio; it could provide a wider range of selections. And "
+"because the potential audience for Internet radio is the whole world, niche "
+"stations could easily develop and market their content to a relatively large "
+"number of users worldwide. According to some estimates, more than eighty "
+"million users worldwide have tuned in to this new form of radio."
+msgstr ""
+
+#. PAGE BREAK 205
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9418
+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 "
+"not only is the technology better, so, too, is the competition. Indeed, "
+"there is a direct parallel between the fight to establish FM radio and the "
+"fight to protect Internet radio. As one author describes Howard Armstrong's "
+"struggle to enable FM radio,"
+msgstr ""
+
+#. f12.
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:9447
+msgid "Lessing, 239."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:9430
+msgid ""
+"An almost unlimited number of FM stations was possible in the shortwaves, "
+"thus ending the unnatural restrictions imposed on radio in the crowded "
+"longwaves. If FM were freely developed, the number of stations would be "
+"limited only by economics and competition rather than by technical "
+"restrictions. . . . Armstrong likened the situation that had grown up in "
+"radio to that following the invention of the printing press, when "
+"governments and ruling interests attempted to control this new instrument of "
+"mass communications by imposing restrictive licenses on it. This tyranny was "
+"broken only when it became possible for men freely to acquire printing "
+"presses and freely to run them. FM in this sense was as great an invention "
+"as the printing presses, for it gave radio the opportunity to strike off its "
+"shackles.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f13.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9456
+msgid "Ibid., 229."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9452
+msgid ""
+"This potential for FM radio was never realized—not because Armstrong "
+"was wrong about the technology, but because he underestimated the power of "
+"\"vested interests, habits, customs and legislation\"<placeholder "
+"type=\"footnote\" id=\"0\"/> to retard the growth of this competing "
+"technology."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9463
+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 "
+"stations. The only restrictions on Internet radio are those imposed by the "
+"law. Copyright law is one such law. So the first question we should ask is, "
+"what copyright rules would govern Internet radio?"
+msgstr ""
+
+#. PAGE BREAK 206
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9471
+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 "
+"lobby, the RIAA. Thus when Congress considered the phenomenon of Internet "
+"radio in 1995, the lobbyists had primed Congress to adopt a different rule "
+"for Internet radio than the rule that applies to terrestrial radio. While "
+"terrestrial radio does not have to pay our hypothetical Marilyn Monroe when "
+"it plays her hypothetical recording of \"Happy Birthday\" on the air, "
+"Internet radio does. Not only is the law not neutral toward Internet "
+"radio—the law actually burdens Internet radio more than it burdens "
+"terrestrial radio."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:9511
+msgid "CARP (Copyright Arbitration Royalty Panel)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9494
+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 "
+"Professor William Fisher. Conference Proceedings, iLaw (Stanford), 3 July "
+"2003, on file with author. Professors Fisher and Zittrain submitted "
+"testimony in the CARP proceeding that was ultimately rejected. See Jonathan "
+"Zittrain, Digital Performance Right in Sound Recordings and Ephemeral "
+"Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #45</ulink>. For an excellent "
+"analysis making a similar point, see Randal C. Picker, \"Copyright as Entry "
+"Policy: The Case of Digital Distribution,\" Antitrust Bulletin (Summer/Fall "
+"2002): 461: \"This was not confusion, these are just old-fashioned entry "
+"barriers. Analog radio stations are protected from digital entrants, "
+"reducing entry in radio and diversity. Yes, this is done in the name of "
+"getting royalties to copyright holders, but, absent the play of powerful "
+"interests, that could have been done in a media-neutral way.\" <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9487
+msgid ""
+"This financial burden is not slight. As Harvard law professor William Fisher "
+"estimates, if an Internet radio station distributed adfree popular music to "
+"(on average) ten thousand listeners, twenty-four hours a day, the total "
+"artist fees that radio station would owe would be over $1 million a "
+"year.<placeholder type=\"footnote\" id=\"0\"/> A regular radio station "
+"broadcasting the same content would pay no equivalent fee."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9517
+msgid ""
+"The burden is not financial only. Under the original rules that were "
+"proposed, an Internet radio station (but not a terrestrial radio station) "
+"would have to collect the following data from every listening transaction:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9524
+msgid "name of the service;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9527
+msgid "channel of the program (AM/FM stations use station ID);"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9530
+msgid "type of program (archived/looped/live);"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9533
+msgid "date of transmission;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9536
+msgid "time of transmission;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9539
+msgid "time zone of origination of transmission;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9542
+msgid "numeric designation of the place of the sound recording within the program;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9545
+msgid "duration of transmission (to nearest second);"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9548
+msgid "sound recording title;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9551
+msgid "ISRC code of the recording;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9554
+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 "
+"the track;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9557
+msgid "featured recording artist;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9560
+msgid "retail album title;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9563
+msgid "recording label;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9566
+msgid "UPC code of the retail album;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9569
+msgid "catalog number;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9572
+msgid "copyright owner information;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9575
+msgid "musical genre of the channel or program (station format);"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9578
+msgid "name of the service or entity;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9581
+msgid "channel or program;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9584
+msgid "date and time that the user logged in (in the user's time zone);"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9587
+msgid "date and time that the user logged out (in the user's time zone);"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9590
+msgid "time zone where the signal was received (user);"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9593
+msgid "Unique User identifier;"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:9596
+msgid "the country in which the user received the transmissions."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9601
+msgid ""
+"The Librarian of Congress eventually suspended these reporting requirements, "
+"pending further study. And he also changed the original rates set by the "
+"arbitration panel charged with setting rates. But the basic difference "
+"between Internet radio and terrestrial radio remains: Internet radio has to "
+"pay a type of copyright fee that terrestrial radio does not."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9609
+msgid ""
+"Why? What justifies this difference? Was there any study of the economic "
+"consequences from Internet radio that would justify these differences? Was "
+"the motive to protect artists against piracy?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9615
+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 "
+"Real Networks, told me,"
+msgstr ""
+
+#. PAGE BREAK 208
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:9621
+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 "
+"it was much higher. It was ten times higher than what radio stations pay to "
+"perform the same songs for the same period of time. And so the attorneys "
+"representing the webcasters asked the RIAA, . . . \"How do you come up with "
+"a rate that's so much higher? Why is it worth more than radio? Because here "
+"we have hundreds of thousands of webcasters who want to pay, and that should "
+"establish the market rate, and if you set the rate so high, you're going to "
+"drive the small webcasters out of business. . . .\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:9637
+msgid ""
+"And the RIAA experts said, \"Well, we don't really model this as an industry "
+"with thousands of webcasters, we think it should be an industry with, you "
+"know, five or seven big players who can pay a high rate and it's a stable, "
+"predictable market.\" (Emphasis added.)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9644
+msgid ""
+"Translation: The aim is to use the law to eliminate competition, so that "
+"this platform of potentially immense competition, which would cause the "
+"diversity and range of content available to explode, would not cause pain to "
+"the dinosaurs of old. There is no one, on either the right or the left, who "
+"should endorse this use of the law. And yet there is practically no one, on "
+"either the right or the left, who is doing anything effective to prevent it."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:9654
+msgid "Corrupting Citizens"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9656
+msgid ""
+"Overregulation stifles creativity. It smothers innovation. It gives "
+"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
+"for a democratic creativity that digital technology enables."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9662
+msgid ""
+"In addition to these important harms, there is one more that was important "
+"to our forebears, but seems forgotten today. Overregulation corrupts "
+"citizens and weakens the rule of law."
+msgstr ""
+
+#. f15.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9671
+msgid ""
+"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet "
+"and American Life Project (24 April 2001), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #46</ulink>. The Pew Internet "
+"and American Life Project reported that 37 million Americans had downloaded "
+"music files from the Internet by early 2001."
+msgstr ""
+
+#. PAGE BREAK 209
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9667
+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 "
+"of citizens. According to The New York Times, 43 million Americans "
+"downloaded music in May 2002.<placeholder type=\"footnote\" id=\"0\"/> "
+"According to the RIAA, the behavior of those 43 million Americans is a "
+"felony. We thus have a set of rules that transform 20 percent of America "
+"into criminals. As the RIAA launches lawsuits against not only the Napsters "
+"and Kazaas of the world, but against students building search engines, and "
+"increasingly against ordinary users downloading content, the technologies "
+"for sharing will advance to further protect and hide illegal use. It is an "
+"arms race or a civil war, with the extremes of one side inviting a more "
+"extreme response by the other."
+msgstr ""
+
+#. f16.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9705
+msgid ""
+"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" Los "
+"Angeles Times, 10 September 2003, Business."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9692
+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 "
+"Jordan it had found a scapegoat, not a defendant. The threat of having to "
+"pay either all the money in the world in damages ($15,000,000) or almost all "
+"the money in the world to defend against paying all the money in the world "
+"in damages ($250,000 in legal fees) led Jordan to choose to pay all the "
+"money he had in the world ($12,000) to make the suit go away. The same "
+"strategy animates the RIAA's suits against individual users. In September "
+"2003, the RIAA sued 261 individuals—including a twelve-year-old girl "
+"living in public housing and a seventy-year-old man who had no idea what "
+"file sharing was.<placeholder type=\"footnote\" id=\"0\"/> As these "
+"scapegoats discovered, it will always cost more to defend against these "
+"suits than it would cost to simply settle. (The twelve year old, for "
+"example, like Jesse Jordan, paid her life savings of $2,000 to settle the "
+"case.) Our law is an awful system for defending rights. It is an "
+"embarrassment to our tradition. And the consequence of our law as it is, is "
+"that those with the power can use the law to quash any rights they oppose."
+msgstr ""
+
+#. f17.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9727
+msgid ""
+"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During "
+"Prohibition,\" American Economic Review 81, no. 2 (1991): 242."
+msgstr ""
+
+#. f18.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9735
+msgid ""
+"National Drug Control Policy: Hearing Before the House Government Reform "
+"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John "
+"P. Walters, director of National Drug Control Policy)."
+msgstr ""
+
+#. f19.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9745
+msgid ""
+"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" "
+"Journal of Economic Literature 36 (1998): 818 (survey of compliance "
+"literature)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9717
+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 "
+"prohibition, at a time when the per capita consumption of alcohol was 1.5 "
+"gallons per capita per year. The war against drinking initially reduced that "
+"consumption to just 30 percent of its preprohibition levels, but by the end "
+"of prohibition, consumption was up to 70 percent of the preprohibition "
+"level. Americans were drinking just about as much, but now, a vast number "
+"were criminals.<placeholder type=\"footnote\" id=\"0\"/> We have launched a "
+"war on drugs aimed at reducing the consumption of regulated narcotics that 7 "
+"percent (or 16 million) Americans now use.<placeholder type=\"footnote\" "
+"id=\"1\"/> That is a drop from the high (so to speak) in 1979 of 14 percent "
+"of the population. We regulate automobiles to the point where the vast "
+"majority of Americans violate the law every day. We run such a complex tax "
+"system that a majority of cash businesses regularly cheat.<placeholder "
+"type=\"footnote\" id=\"2\"/> We pride ourselves on our \"free society,\" but "
+"an endless array of ordinary behavior is regulated within our society. And "
+"as a result, a huge proportion of Americans regularly violate at least some "
+"law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9754
+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 "
+"about the importance of \"ethics.\" As my colleague Charlie Nesson told a "
+"class at Stanford, each year law schools admit thousands of students who "
+"have illegally downloaded music, illegally consumed alcohol and sometimes "
+"drugs, illegally worked without paying taxes, illegally driven cars. These "
+"are kids for whom behaving illegally is increasingly the norm. And then we, "
+"as law professors, are supposed to teach them how to behave "
+"ethically—how to say no to bribes, or keep client funds separate, or "
+"honor a demand to disclose a document that will mean that your case is "
+"over. Generations of Americans—more significantly in some parts of "
+"America than in others, but still, everywhere in America today—can't "
+"live their lives both normally and legally, since \"normally\" entails a "
+"certain degree of illegality."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9771
+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 "
+"that choice more rationally. Whether a law makes sense depends, in part, at "
+"least, upon whether the costs of the law, both intended and collateral, "
+"outweigh the benefits. If the costs, intended and collateral, do outweigh "
+"the benefits, then the law ought to be changed. Alternatively, if the costs "
+"of the existing system are much greater than the costs of an alternative, "
+"then we have a good reason to consider the alternative."
+msgstr ""
+
+#. PAGE BREAK 211
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9784
+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 "
+"dramatically by legalizing murder on Wednesdays and Fridays. But that "
+"wouldn't make any sense, since murder is wrong every day of the week. A "
+"society is right to ban murder always and everywhere."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9791
+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 "
+"obeying the law. The more often, and more repeatedly, we as citizens "
+"experience violating the law, the less we respect the law. Obviously, in "
+"most cases, the important issue is the law, not respect for the law. I don't "
+"care whether the rapist respects the law or not; I want to catch and "
+"incarcerate the rapist. But I do care whether my students respect the "
+"law. And I do care if the rules of law sow increasing disrespect because of "
+"the extreme of regulation they impose. Twenty million Americans have come "
+"of age since the Internet introduced this different idea of \"sharing.\" We "
+"need to be able to call these twenty million Americans \"citizens,\" not "
+"\"felons.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9805
+msgid ""
+"When at least forty-three million citizens download content from the "
+"Internet, and when they use tools to combine that content in ways "
+"unauthorized by copyright holders, the first question we should be asking is "
+"not how best to involve the FBI. The first question should be whether this "
+"particular prohibition is really necessary in order to achieve the proper "
+"ends that copyright law serves. Is there another way to assure that artists "
+"get paid without transforming forty-three million Americans into felons? "
+"Does it make sense if there are other ways to assure that artists get paid "
+"without transforming America into a nation of felons?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9817
+msgid "This abstract point can be made more clear with a particular example."
+msgstr ""
+
+#. PAGE BREAK 212
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9820
+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 "
+"protects our right to buy and sell that plastic: It is not a copyright "
+"infringement for me to sell all my classical records at a used record store "
+"and buy jazz records to replace them. That \"use\" of the recordings is "
+"free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9831
+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 "
+"copy-protection technologies, I am \"free\" to copy, or \"rip,\" music from "
+"my records onto a computer hard disk. Indeed, Apple Corporation went so far "
+"as to suggest that \"freedom\" was a right: In a series of commercials, "
+"Apple endorsed the \"Rip, Mix, Burn\" capacities of digital technologies."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:9839
+msgid "Adromeda"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9841
+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 "
+"one archive. Then, using Apple's iTunes, or a wonderful program called "
+"Andromeda, we can build different play lists of our music: Bach, Baroque, "
+"Love Songs, Love Songs of Significant Others—the potential is "
+"endless. And by reducing the costs of mixing play lists, these technologies "
+"help build a creativity with play lists that is itself independently "
+"valuable. Compilations of songs are creative and meaningful in their own "
+"right."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9852
+msgid ""
+"This use is enabled by unprotected media—either CDs or records. But "
+"unprotected media also enable file sharing. File sharing threatens (or so "
+"the content industry believes) the ability of creators to earn a fair return "
+"from their creativity. And thus, many are beginning to experiment with "
+"technologies to eliminate unprotected media. These technologies, for "
+"example, would enable CDs that could not be ripped. Or they might enable spy "
+"programs to identify ripped content on people's machines."
+msgstr ""
+
+#. PAGE BREAK 213
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9862
+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, "
+"and get technology to disable the technologies that protect the "
+"content. Trading in those technologies is illegal, but maybe that doesn't "
+"bother you much. In any case, for the vast majority of people, these "
+"protection technologies would effectively destroy the archiving use of "
+"CDs. The technology, in other words, would force us all back to the world "
+"where we either listened to music by manipulating pieces of plastic or were "
+"part of a massively complex \"digital rights management\" system."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9876
+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 "
+"the freedom to move content would be justifiable. But what if there were "
+"another way to assure that artists are paid, without locking down any "
+"content? What if, in other words, a different system could assure "
+"compensation to artists while also preserving the freedom to move content "
+"easily?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9885
+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 "
+"point is the relatively uncontroversial one: If a different system achieved "
+"the same legitimate objectives that the existing copyright system achieved, "
+"but left consumers and creators much more free, then we'd have a very good "
+"reason to pursue this alternative—namely, freedom. The choice, in "
+"other words, would not be between property and piracy; the choice would be "
+"between different property systems and the freedoms each allowed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9896
+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 "
+"alternative is that it would lead to a very different market for producing "
+"and distributing creativity. The dominant few, who today control the vast "
+"majority of the distribution of content in the world, would no longer "
+"exercise this extreme of control. Rather, they would go the way of the "
+"horse-drawn buggy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9905
+msgid ""
+"Except that this generation's buggy manufacturers have already saddled "
+"Congress, and are riding the law to protect themselves against this new form "
+"of competition. For them the choice is between fortythree million Americans "
+"as criminals and their own survival."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9911
+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; "
+"but not so charming as to justify giving up a tradition as deep and "
+"important as our tradition of free culture. There's one more aspect to this "
+"corruption that is particularly important to civil liberties, and follows "
+"directly from any war of prohibition. As Electronic Frontier Foundation "
+"attorney Fred von Lohmann describes, this is the \"collateral damage\" that "
+"\"arises whenever you turn a very large percentage of the population into "
+"criminals.\" This is the collateral damage to civil liberties generally. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9928
+msgid "\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:9933
+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 "
+"hope to have any privacy rights? If you're a copyright infringer, how can "
+"you hope to be secure against seizures of your computer? How can you hope to "
+"continue to receive Internet access? . . . Our sensibilities change as soon "
+"as we think, \"Oh, well, but that person's a criminal, a lawbreaker.\" Well, "
+"what this campaign against file sharing has done is turn a remarkable "
+"percentage of the American Internet-using population into \"lawbreakers.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9945
+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 "
+"effectively erase much of the privacy most would presume."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9950
+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 "
+"names of customers who the RIAA believed were violating copyright "
+"law. Verizon fought that demand and lost. With a simple request to a judge, "
+"and without any notice to the customer at all, the identity of an Internet "
+"user is revealed."
+msgstr ""
+
+#. f20.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9968
+msgid ""
+"See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in "
+"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 "
+"September 2003, E1; Chris Cobbs, \"Worried Parents Pull Plug on File "
+"`Stealing'; With the Music Industry Cracking Down on File Swapping, Parents "
+"are Yanking Software from Home PCs to Avoid Being Sued,\" Orlando Sentinel "
+"Tribune, 30 August 2003, C1; Jefferson Graham, \"Recording Industry Sues "
+"Parents,\" USA Today, 15 September 2003, 4D; John Schwartz, \"She Says She's "
+"No Music Pirate. No Snoop Fan, Either,\" New York Times, 25 September 2003, "
+"C1; Margo Varadi, \"Is Brianna a Criminal?\" Toronto Star, 18 September "
+"2003, P7."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9959
+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 "
+"copyrighted music from file-sharing systems. But as we've seen, the "
+"potential damages from these suits are astronomical: If a family's computer "
+"is used to download a single CD's worth of music, the family could be liable "
+"for $2 million in damages. That didn't stop the RIAA from suing a number of "
+"these families, just as they had sued Jesse Jordan.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f21.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:9986
+msgid ""
+"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some "
+"Methods Used,\" CNN.com, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #47</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9982
+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 "
+"to track Napster users.<placeholder type=\"footnote\" id=\"0\"/> Using a "
+"sophisticated hashing algorithm, the RIAA took what is in effect a "
+"fingerprint of every song in the Napster catalog. Any copy of one of those "
+"MP3s will have the same \"fingerprint.\""
+msgstr ""
+
+#. f22.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:10007
+msgid ""
+"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" Boston "
+"Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, \"Four Students Sued over "
+"Music Sites; Industry Group Targets File Sharing at Colleges,\" Washington "
+"Post, 4 April 2003, E1; Elizabeth Armstrong, \"Students `Rip, Mix, Burn' at "
+"Their Own Risk,\" Christian Science Monitor, 2 September 2003, 20; Robert "
+"Becker and Angela Rozas, \"Music Pirate Hunt Turns to Loyola; Two Students "
+"Names Are Handed Over; Lawsuit Possible,\" Chicago Tribune, 16 July 2003, "
+"1C; Beth Cox, \"RIAA Trains Antipiracy Guns on Universities,\" Internet "
+"News, 30 January 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #48</ulink>; Benny Evangelista, "
+"\"Download Warning 101: Freshman Orientation This Fall to Include Record "
+"Industry Warnings Against File Sharing,\" San Francisco Chronicle, 11 August "
+"2003, E11; \"Raid, Letters Are Weapons at Universities,\" USA Today, 26 "
+"September 2000, 3D."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:9995
+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 "
+"used to make as a kid. You don't know, and neither does your daughter, where "
+"these songs came from. But she copies these songs onto her computer. She "
+"then takes her computer to college and connects it to a college network, and "
+"if the college network is \"cooperating\" with the RIAA's espionage, and she "
+"hasn't properly protected her content from the network (do you know how to "
+"do that yourself ?), then the RIAA will be able to identify your daughter as "
+"a \"criminal.\" And under the rules that universities are beginning to "
+"deploy,<placeholder type=\"footnote\" id=\"0\"/> your daughter can lose the "
+"right to use the university's computer network. She can, in some cases, be "
+"expelled."
+msgstr ""
+
+#. PAGE BREAK 216
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:10026
+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 "
+"she didn't know anything about the source of the songs or that they came "
+"from Napster. And it may well be that the university believes her. But the "
+"university might not believe her. It might treat this \"contraband\" as "
+"presumptive of guilt. And as any number of college students have already "
+"learned, our presumptions about innocence disappear in the middle of wars of "
+"prohibition. This war is no different. Says von Lohmann,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:10041
+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 "
+"civil liberties of those people are very much in peril in a general "
+"matter. [I don't] think [there is any] analog where you could randomly "
+"choose any person off the street and be confident that they were committing "
+"an unlawful act that could put them on the hook for potential felony "
+"liability or hundreds of millions of dollars of civil liability. Certainly "
+"we all speed, but speeding isn't the kind of an act for which we routinely "
+"forfeit civil liberties. Some people use drugs, and I think that's the "
+"closest analog, [but] many have noted that the war against drugs has eroded "
+"all of our civil liberties because it's treated so many Americans as "
+"criminals. Well, I think it's fair to say that file sharing is an order of "
+"magnitude larger number of Americans than drug use. . . . If forty to sixty "
+"million Americans have become lawbreakers, then we're really on a slippery "
+"slope to lose a lot of civil liberties for all forty to sixty million of "
+"them."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:10061
+msgid ""
+"When forty to sixty million Americans are considered \"criminals\" under the "
+"law, and when the law could achieve the same objective— securing "
+"rights to authors—without these millions being considered "
+"\"criminals,\" who is the villain? Americans or the law? Which is American, "
+"a constant war on our own people or a concerted effort through our democracy "
+"to change our law?"
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:10074
+msgid "BALANCES"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:10078
+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 "
+"fire. Now you don't know how to put it out. Next to you is a bucket, filled "
+"with gasoline. Obviously, gasoline won't put the fire out."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:10084
+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 "
+"understands just why she should stop—the bucket is in the air. The "
+"gasoline is about to hit the blazing car. And the fire that gasoline will "
+"ignite is about to ignite everything around."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:10092
+msgid ""
+"A war about copyright rages all around—and we're all focusing on the "
+"wrong thing. No doubt, current technologies threaten existing businesses. "
+"No doubt they may threaten artists. But technologies change. The industry "
+"and technologists have plenty of ways to use technology to protect "
+"themselves against the current threats of the Internet. This is a fire that "
+"if let alone would burn itself out."
+msgstr ""
+
+#. PAGE BREAK 219
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:10101
+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 "
+"problem they perceive. But the problem they perceive is not the real threat "
+"this culture faces. For while we watch this small fire in the corner, there "
+"is a massive change in the way culture is made that is happening all around."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:10109
+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 "
+"onto this fire."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:10114
+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 "
+"broadly, it is the simple, binary view that remains. We rubberneck to look "
+"at the fire when we should be keeping our eyes on the road."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:10120
+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 "
+"efforts, so far failed, to find a way to refocus this debate. We must "
+"understand these failures if we're to understand what success will require."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:10129
+msgid "CHAPTER THIRTEEN: Eldred"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10131
+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 "
+"did something about it. Eric Eldred, a retired computer programmer living in "
+"New Hampshire, decided to put Hawthorne on the Web. An electronic version, "
+"Eldred thought, with links to pictures and explanatory text, would make this "
+"nineteenth-century author's work come alive."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10140
+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 "
+"hobby, and his hobby begat a cause: Eldred would build a library of public "
+"domain works by scanning these works and making them available for free."
+msgstr ""
+
+#. PAGE BREAK 221
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10147
+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 "
+"who can't get access to printed versions of these works. Instead, Eldred was "
+"producing derivative works from these public domain works. Just as Disney "
+"turned Grimm into stories more accessible to the twentieth century, Eldred "
+"transformed Hawthorne, and many others, into a form more "
+"accessible—technically accessible—today."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10158
+msgid ""
+"Eldred's freedom to do this with Hawthorne's work grew from the same source "
+"as Disney's. Hawthorne's Scarlet Letter had passed into the public domain in "
+"1907. It was free for anyone to take without the permission of the Hawthorne "
+"estate or anyone else. Some, such as Dover Press and Penguin Classics, take "
+"works from the public domain and produce printed editions, which they sell "
+"in bookstores across the country. Others, such as Disney, take these stories "
+"and turn them into animated cartoons, sometimes successfully (Cinderella), "
+"sometimes not (The Hunchback of Notre Dame, Treasure Planet). These are all "
+"commercial publications of public domain works."
+msgstr ""
+
+#. f1.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10181
+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 "
+"noncommercial pornographers—people who were distributing porn but were "
+"not making money directly or indirectly from that distribution. Such a "
+"class didn't exist before the Internet came into being because the costs of "
+"distributing porn were so high. Yet this new class of distributors got "
+"special attention in the Supreme Court, when the Court struck down the "
+"Communications Decency Act of 1996. It was partly because of the burden on "
+"noncommercial speakers that the statute was found to exceed Congress's "
+"power. The same point could have been made about noncommercial publishers "
+"after the advent of the Internet. The Eric Eldreds of the world before the "
+"Internet were extremely few. Yet one would think it at least as important to "
+"protect the Eldreds of the world as to protect noncommercial pornographers."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10170
+msgid ""
+"The Internet created the possibility of noncommercial publications of public "
+"domain works. Eldred's is just one example. There are literally thousands of "
+"others. Hundreds of thousands from across the world have discovered this "
+"platform of expression and now use it to share works that are, by law, free "
+"for the taking. This has produced what we might call the \"noncommercial "
+"publishing industry,\" which before the Internet was limited to people with "
+"large egos or with political or social causes. But with the Internet, it "
+"includes a wide range of individuals and groups dedicated to spreading "
+"culture generally.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10198
+msgid ""
+"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection "
+"of poems New Hampshire was slated to pass into the public domain. Eldred "
+"wanted to post that collection in his free public library. But Congress got "
+"in the way. As I described in chapter 10, in 1998, for the eleventh time in "
+"forty years, Congress extended the terms of existing copyrights—this "
+"time by twenty years. Eldred would not be free to add any works more recent "
+"than 1923 to his collection until 2019. Indeed, no copyrighted work would "
+"pass into the public domain until that year (and not even then, if Congress "
+"extends the term again). By contrast, in the same period, more than 1 "
+"million patents will pass into the public domain."
+msgstr ""
+
+#. f2.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10218
+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 "
+"Constitution. I invite all of you to work with me to strengthen our "
+"copyright laws in all of the ways available to us. As you know, there is "
+"also Jack Valenti's proposal for a term to last forever less one "
+"day. Perhaps the Committee may look at that next Congress,\" 144 "
+"Cong. Rec. H9946, 9951-2 (October 7, 1998)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10213
+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, "
+"Mary Bono, says, believed that \"copyrights should be forever.\"<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10229
+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 "
+"would publish as planned, CTEA notwithstanding. But because of a second law "
+"passed in 1998, the NET (No Electronic Theft) Act, his act of publishing "
+"would make Eldred a felon—whether or not anyone complained. This was a "
+"dangerous strategy for a disabled programmer to undertake."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10238
+msgid ""
+"It was here that I became involved in Eldred's battle. I was a "
+"constitutional scholar whose first passion was constitutional "
+"interpretation. And though constitutional law courses never focus upon the "
+"Progress Clause of the Constitution, it had always struck me as importantly "
+"different. As you know, the Constitution says,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:10249
+msgid ""
+"Congress has the power to promote the Progress of Science . . . by securing "
+"for limited Times to Authors . . . exclusive Right to their "
+". . . Writings. . . ."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10255
+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 "
+"to Congress simply says Congress has the power to do something—for "
+"example, to regulate \"commerce among the several states\" or \"declare "
+"War.\" But here, the \"something\" is something quite specific—to "
+"\"promote . . . Progress\"—through means that are also specific— "
+"by \"securing\" \"exclusive Rights\" (i.e., copyrights) \"for limited "
+"Times.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
+#: freeculture.xml:10274 freeculture.xml:11728
+msgid "Jaszi, Peter"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10265
+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 "
+"Congress has the power to extend existing terms, then the Constitution's "
+"requirement that terms be \"limited\" will have no practical effect. If "
+"every time a copyright is about to expire, Congress has the power to extend "
+"its term, then Congress can achieve what the Constitution plainly "
+"forbids—perpetual terms \"on the installment plan,\" as Professor "
+"Peter Jaszi so nicely put it. <placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10277
+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 "
+"of the question. No one had ever challenged Congress's practice of extending "
+"existing terms. That failure may in part be why Congress seemed so "
+"untroubled in its habit. That, and the fact that the practice had become so "
+"lucrative for Congress. Congress knows that copyright owners will be willing "
+"to pay a great deal of money to see their copyright terms extended. And so "
+"Congress is quite happy to keep this gravy train going."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10288
+msgid ""
+"For this is the core of the corruption in our present system of "
+"government. \"Corruption\" not in the sense that representatives are "
+"bribed. Rather, \"corruption\" in the sense that the system induces the "
+"beneficiaries of Congress's acts to raise and give money to Congress to "
+"induce it to act. There's only so much time; there's only so much Congress "
+"can do. Why not limit its actions to those things it must do—and those "
+"things that pay? Extending copyright terms pays."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10297
+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 "
+"hundred years after it was created. The Estate of Robert Frost is a good "
+"example. Frost died in 1963. His poetry continues to be extraordinarily "
+"valuable. Thus the Robert Frost estate benefits greatly from any extension "
+"of copyright, since no publisher would pay the estate any money if the poems "
+"Frost wrote could be published by anyone for free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10307
+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 "
+"expire. You sit on the board of the Robert Frost estate. Your financial "
+"adviser comes to your board meeting with a very grim report:"
+msgstr ""
+
+#. PAGE BREAK 224
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10314
+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 "
+"the annual royalty check of $100,000 from the publishers of those works."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10322
+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 "
+"copyright by twenty years. That bill would be extraordinarily valuable to "
+"us. So we should hope this bill passes.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10328
+msgid ""
+"\"Hope?\" a fellow board member says. \"Can't we be doing something about "
+"it?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10332
+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 "
+"the bill.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10337
+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 "
+"this extension were passed?\" you ask the adviser. \"How much is it worth?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10343
+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 "
+"`discount rate' that we use to evaluate estate investments (6 percent), then "
+"this law would be worth $1,146,000 to the estate.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10349
+msgid ""
+"You're a bit shocked by the number, but you quickly come to the correct "
+"conclusion:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10353
+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 "
+"assure that the bill was passed?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10359
+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 "
+"copyrights. Which for us means over $1,000,000.\""
+msgstr ""
+
+#. PAGE BREAK 225
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10365
+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 "
+"in the position of the Robert Frost estate faces the same choice: If they "
+"can contribute to get a law passed to extend copyrights, they will benefit "
+"greatly from that extension. And so each time copyrights are about to "
+"expire, there is a massive amount of lobbying to get the copyright term "
+"extended."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10376
+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 "
+"buy further extensions of copyright."
+msgstr ""
+
+#. f3.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10389
+msgid ""
+"Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse "
+"Effort; Congress OKs Bill Granting Creators 20 More Years,\" Chicago "
+"Tribune, 17 October 1998, 22."
+msgstr ""
+
+#. f4.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10396
+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>."
+msgstr ""
+
+#. f5.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10403
+msgid ""
+"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" Congressional "
+"Quarterly This Week, 8 August 1990, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #50</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10382
+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 "
+"thirteen original sponsors of the act in the House received the maximum "
+"contribution from Disney's political action committee; in the Senate, eight "
+"of the twelve sponsors received contributions.<placeholder type=\"footnote\" "
+"id=\"0\"/> The RIAA and the MPAA are estimated to have spent over $1.5 "
+"million lobbying in the 1998 election cycle. They paid out more than "
+"$200,000 in campaign contributions.<placeholder type=\"footnote\" id=\"1\"/> "
+"Disney is estimated to have contributed more than $800,000 to reelection "
+"campaigns in the cycle.<placeholder type=\"footnote\" id=\"2\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10411
+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 "
+"never-ending incentives to increase the copyright term was central to my "
+"thinking. In my view, a pragmatic court committed to interpreting and "
+"applying the Constitution of our framers would see that if Congress has the "
+"power to extend existing terms, then there would be no effective "
+"constitutional requirement that terms be \"limited.\" If they could extend "
+"it once, they would extend it again and again and again."
+msgstr ""
+
+#. PAGE BREAK 226
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10424
+msgid ""
+"It was also my judgment that this Supreme Court would not allow Congress to "
+"extend existing terms. As anyone close to the Supreme Court's work knows, "
+"this Court has increasingly restricted the power of Congress when it has "
+"viewed Congress's actions as exceeding the power granted to it by the "
+"Constitution. Among constitutional scholars, the most famous example of this "
+"trend was the Supreme Court's decision in 1995 to strike down a law that "
+"banned the possession of guns near schools."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10437
+msgid ""
+"Since 1937, the Supreme Court had interpreted Congress's granted powers very "
+"broadly; so, while the Constitution grants Congress the power to regulate "
+"only \"commerce among the several states\" (aka \"interstate commerce\"), "
+"the Supreme Court had interpreted that power to include the power to "
+"regulate any activity that merely affected interstate commerce."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10447
+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 "
+"considered on a national scale, affects interstate commerce. A Constitution "
+"designed to limit Congress's power was instead interpreted to impose no "
+"limit."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10456
+msgid ""
+"The Supreme Court, under Chief Justice Rehnquist's command, changed that in "
+"United States v. Lopez. The government had argued that possessing guns near "
+"schools affected interstate commerce. Guns near schools increase crime, "
+"crime lowers property values, and so on. In the oral argument, the Chief "
+"Justice asked the government whether there was any activity that would not "
+"affect interstate commerce under the reasoning the government advanced. The "
+"government said there was not; if Congress says an activity affects "
+"interstate commerce, then that activity affects interstate commerce. The "
+"Supreme Court, the government said, was not in the position to second-guess "
+"Congress."
+msgstr ""
+
+#. f6.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10472
+msgid "United States v. Lopez, 514 U.S. 549, 564 (1995)."
+msgstr ""
+
+#. f7.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10478
+msgid "United States v. Morrison, 529 U.S. 598 (2000)."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10469
+msgid ""
+"\"We pause to consider the implications of the government's arguments,\" the "
+"Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> If anything "
+"Congress says is interstate commerce must therefore be considered interstate "
+"commerce, then there would be no limit to Congress's power. The decision in "
+"Lopez was reaffirmed five years later in United States "
+"v. Morrison.<placeholder type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. f8.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10485
+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 "
+"the Commerce Clause was that the interpretation offered by the government "
+"would allow the government unending power to regulate commerce—the "
+"limitation to interstate commerce notwithstanding. The same point is true in "
+"the context of the Copyright Clause. Here, too, the government's "
+"interpretation would allow the government unending power to regulate "
+"copyrights—the limitation to \"limited times\" notwithstanding."
+msgstr ""
+
+#. PAGE BREAK 227
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10483
+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\" "
+"id=\"0\"/> And if it is applied to the Progress Clause, the principle should "
+"yield the conclusion that Congress can't extend an existing term. If "
+"Congress could extend an existing term, then there would be no \"stopping "
+"point\" to Congress's power over terms, though the Constitution expressly "
+"states that there is such a limit. Thus, the same principle applied to the "
+"power to grant copyrights should entail that Congress is not allowed to "
+"extend the term of existing copyrights."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10509
+msgid ""
+"If, that is, the principle announced in Lopez stood for a principle. Many "
+"believed the decision in Lopez stood for politics—a conservative "
+"Supreme Court, which believed in states' rights, using its power over "
+"Congress to advance its own personal political preferences. But I rejected "
+"that view of the Supreme Court's decision. Indeed, shortly after the "
+"decision, I wrote an article demonstrating the \"fidelity\" in such an "
+"interpretation of the Constitution. The idea that the Supreme Court decides "
+"cases based upon its politics struck me as extraordinarily boring. I was "
+"not going to devote my life to teaching constitutional law if these nine "
+"Justices were going to be petty politicians."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10523
+msgid ""
+"Now let's pause for a moment to make sure we understand what the argument in "
+"Eldred was not about. By insisting on the Constitution's limits to "
+"copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious "
+"sense, he was fighting a kind of piracy—piracy of the public "
+"domain. When Robert Frost wrote his work and when Walt Disney created Mickey "
+"Mouse, the maximum copyright term was just fifty-six years. Because of "
+"interim changes, Frost and Disney had already enjoyed a seventy-five-year "
+"monopoly for their work. They had gotten the benefit of the bargain that the "
+"Constitution envisions: In exchange for a monopoly protected for fifty-six "
+"years, they created new work. But now these entities were using their "
+"power—expressed through the power of lobbyists' money—to get "
+"another twenty-year dollop of monopoly. That twenty-year dollop would be "
+"taken from the public domain. Eric Eldred was fighting a piracy that affects "
+"us all."
+msgstr ""
+
+#. f9.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10546
+msgid ""
+"Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 "
+"U.S. 186 (2003) (No. 01-618), n.10, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #51</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10541
+msgid ""
+"Some people view the public domain with contempt. In their brief before the "
+"Supreme Court, the Nashville Songwriters Association wrote that the public "
+"domain is nothing more than \"legal piracy.\"<placeholder type=\"footnote\" "
+"id=\"0\"/> But it is not piracy when the law allows it; and in our "
+"constitutional system, our law requires it. Some may not like the "
+"Constitution's requirements, but that doesn't make the Constitution a "
+"pirate's charter."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10556
+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 "
+"development and distribution of our culture. Yet, as Eric Eldred discovered, "
+"we have set up a system that assures that copyright terms will be repeatedly "
+"extended, and extended, and extended. We have created the perfect storm for "
+"the public domain. Copyrights have not expired, and will not expire, so long "
+"as Congress is free to be bought to extend them again."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10568
+msgid ""
+"It is valuable copyrights that are responsible for terms being extended. "
+"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for "
+"copyright owners to ignore. But the real harm to our society from copyright "
+"extensions is not that Mickey Mouse remains Disney's. Forget Mickey "
+"Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s "
+"that have continuing commercial value. The real harm of term extension comes "
+"not from these famous works. The real harm is to the works that are not "
+"famous, not commercially exploited, and no longer available as a result."
+msgstr ""
+
+#. f10.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10589
+msgid ""
+"The figure of 2 percent is an extrapolation from the study by the "
+"Congressional Research Service, in light of the estimated renewal "
+"ranges. See Brief of Petitioners, Eldred v. Ashcroft, 7, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #52</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10583
+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 "
+"work has any continuing commercial value. It was the copyright holders for "
+"that 2 percent who pushed the CTEA through. But the law and its effect were "
+"not limited to that 2 percent. The law extended the terms of copyright "
+"generally.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 229
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10598
+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, "
+"10,047 books were published. In 2000, 174 of those books were still in "
+"print. Let's say you were Brewster Kahle, and you wanted to make available "
+"to the world in your iArchive project the remaining 9,873. What would you "
+"have to do?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10610
+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 "
+"on-line) and paging through tomes of books, cross-checking the titles and "
+"authors of the 9,873 books with the copyright registration and renewal "
+"records for works published in 1930. That will produce a list of books still "
+"under copyright."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10618
+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><chapter><sect1><para>
+#: freeculture.xml:10622
+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 "
+"thousands of government monopolies without there being at least a list?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10629
+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 "
+"how impossibly difficult it would be to track down thousands of such "
+"records—especially since the person who registered is not necessarily "
+"the current owner. And we're just talking about 1930!"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10638
+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><chapter><sect1><para>
+#: freeculture.xml:10644
+msgid ""
+"Well, actually, if you think about it, there are plenty of lists of who owns "
+"what property. Think about deeds on houses, or titles to cars. And where "
+"there isn't a list, the code of real space is pretty good at suggesting who "
+"the owner of a bit of property is. (A swing set in your backyard is probably "
+"yours.) So formally or informally, we have a pretty good way to know who "
+"owns what tangible property."
+msgstr ""
+
+#. PAGE BREAK 230
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10653
+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 "
+"ordinarily a license plate that will link the owner to the car. If you see a "
+"bunch of children's toys sitting on the front lawn of a house, it's fairly "
+"easy to determine who owns the toys. And if you happen to see a baseball "
+"lying in a gutter on the side of the road, look around for a second for some "
+"kids playing ball. If you don't see any kids, then okay: Here's a bit of "
+"property whose owner we can't easily determine. It is the exception that "
+"proves the rule: that we ordinarily know quite well who owns what property."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10668
+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 "
+"described, there's no list of copyright owners. There are authors' names, of "
+"course, but their copyrights could have been assigned, or passed down in an "
+"estate like Grandma's old jewelry. To know who owns what, you would have to "
+"hire a private detective. The bottom line: The owner cannot easily be "
+"located. And in a regime like ours, in which it is a felony to use such "
+"property without the property owner's permission, the property isn't going "
+"to be used."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10680
+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 "
+"creative works is much more dire."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:10685
+msgid "Agee, Michael"
+msgstr ""
+
+#. f11.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10698
+msgid ""
+"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" Los "
+"Angeles Times, 6 October 2002; David Streitfeld, \"Classic Movies, Songs, "
+"Books at Stake; Supreme Court Hears Arguments Today on Striking Down "
+"Copyright Extension,\" Orlando Sentinel Tribune, 9 October 2002."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10687
+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 "
+"beneficiary of the Bono Act. The Laurel and Hardy films were made between "
+"1921 and 1951. Only one of these films, The Lucky Dog, is currently out of "
+"copyright. But for the CTEA, films made after 1923 would have begun entering "
+"the public domain. Because Agee controls the exclusive rights for these "
+"popular films, he makes a great deal of money. According to one estimate, "
+"\"Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo's "
+"silent films.\"<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10706
+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 "
+"the Sonny Bono Copyright Term Extension Act will, if left standing, destroy "
+"a whole generation of American film."
+msgstr ""
+
+#. PAGE BREAK 231
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10712
+msgid ""
+"His argument is straightforward. A tiny fraction of this work has any "
+"continuing commercial value. The rest—to the extent it survives at "
+"all—sits in vaults gathering dust. It may be that some of this work "
+"not now commercially valuable will be deemed to be valuable by the owners of "
+"the vaults. For this to occur, however, the commercial benefit from the work "
+"must exceed the costs of making the work available for distribution."
+msgstr ""
+
+#. f12.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10729
+msgid ""
+"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the "
+"Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618), 12. See "
+"also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet "
+"Archive, Eldred v. Ashcroft, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #53</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10723
+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 "
+"technology has lowered these costs substantially. While it cost more than "
+"$10,000 to restore a ninety-minute black-and-white film in 1993, it can now "
+"cost as little as $100 to digitize one hour of mm film.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10739
+msgid ""
+"Restoration technology is not the only cost, nor the most important. "
+"Lawyers, too, are a cost, and increasingly, a very important one. In "
+"addition to preserving the film, a distributor needs to secure the rights. "
+"And to secure the rights for a film that is under copyright, you need to "
+"locate the copyright owner."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10747
+msgid ""
+"Or more accurately, owners. As we've seen, there isn't only a single "
+"copyright associated with a film; there are many. There isn't a single "
+"person whom you can contact about those copyrights; there are as many as can "
+"hold the rights, which turns out to be an extremely large number. Thus the "
+"costs of clearing the rights to these films is exceptionally high."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10756
+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 "
+"felony. And even if you're not worried about committing a felony, when she "
+"does show up, she'll have the right to sue you for all the profits you have "
+"made. So, if you're successful, you can be fairly confident you'll be "
+"getting a call from someone's lawyer. And if you're not successful, you "
+"won't make enough to cover the costs of your own lawyer. Either way, you "
+"have to talk to a lawyer. And as is too often the case, saying you have to "
+"talk to a lawyer is the same as saying you won't make any money."
+msgstr ""
+
+#. PAGE BREAK 232
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10767
+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 "
+"outweigh the legal costs. Thus, for the vast majority of old films, Agee "
+"argued, the film will not be restored and distributed until the copyright "
+"expires."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10777
+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 "
+"dissolves over time. They will be gone, and the metal canisters in which "
+"they are now stored will be filled with nothing more than dust."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10785
+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 "
+"crucially important legal device. For that tiny fraction, the copyright "
+"creates incentives to produce and distribute the creative work. For that "
+"tiny fraction, the copyright acts as an \"engine of free expression.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10794
+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 "
+"go out of print within one year. The same is true of music and "
+"film. Commercial culture is sharklike. It must keep moving. And when a "
+"creative work falls out of favor with the commercial distributors, the "
+"commercial life ends."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10804
+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 "
+"have archives of films because we expect people to choose between spending "
+"Friday night watching new movies and spending Friday night watching a 1930 "
+"news documentary. The noncommercial life of culture is important and "
+"valuable—for entertainment but also, and more importantly, for "
+"knowledge. To understand who we are, and where we came from, and how we have "
+"made the mistakes that we have, we need to have access to this history."
+msgstr ""
+
+#. PAGE BREAK 233
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10817
+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 "
+"context do no good."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10824
+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 "
+"copyright-related use that would be inhibited by an exclusive right. When a "
+"book went out of print, you could not buy it from a publisher. But you "
+"could still buy it from a used book store, and when a used book store sells "
+"it, in America, at least, there is no need to pay the copyright owner "
+"anything. Thus, the ordinary use of a book after its commercial life ended "
+"was a use that was independent of copyright law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10834
+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, "
+"it was never at all feasible to preserve or restore film. Like the remains "
+"of a great dinner, when it's over, it's over. Once a film passed out of its "
+"commercial life, it may have been archived for a bit, but that was the end "
+"of its life so long as the market didn't have more to offer."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10843
+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 "
+"their commercial value. Long copyrights for these works would not have "
+"interfered with anything."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10849
+msgid "But this situation has now changed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10852
+msgid ""
+"One crucially important consequence of the emergence of digital technologies "
+"is to enable the archive that Brewster Kahle dreams of. Digital "
+"technologies now make it possible to preserve and give access to all sorts "
+"of knowledge. Once a book goes out of print, we can now imagine digitizing "
+"it and making it available to everyone, forever. Once a film goes out of "
+"distribution, we could digitize it and make it available to everyone, "
+"forever. Digital technologies give new life to copyrighted material after it "
+"passes out of its commercial life. It is now possible to preserve and assure "
+"universal access to this knowledge and culture, whereas before it was not."
+msgstr ""
+
+#. PAGE BREAK 234
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10865
+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 "
+"copyright. To digitize a book is to copy it. To do that requires permission "
+"of the copyright owner. The same with music, film, or any other aspect of "
+"our culture protected by copyright. The effort to make these things "
+"available to history, or to researchers, or to those who just want to "
+"explore, is now inhibited by a set of rules that were written for a "
+"radically different context."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10875
+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 "
+"the way. And it doesn't get in the way for any useful copyright purpose, for "
+"the purpose of copyright is to enable the commercial market that spreads "
+"culture. No, we are talking about culture after it has lived its commercial "
+"life. In this context, copyright is serving no purpose at all related to the "
+"spread of knowledge. In this context, copyright is not an engine of free "
+"expression. Copyright is a brake."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10886
+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 "
+"Random House do as well as Brewster Kahle in spreading culture widely?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10892
+msgid ""
+"Maybe. Someday. But there is absolutely no evidence to suggest that "
+"publishers would be as complete as libraries. If Barnes & Noble offered "
+"to lend books from its stores for a low price, would that eliminate the need "
+"for libraries? Only if you think that the only role of a library is to serve "
+"what \"the market\" would demand. But if you think the role of a library is "
+"bigger than this—if you think its role is to archive culture, whether "
+"there's a demand for any particular bit of that culture or not—then we "
+"can't count on the commercial market to do our library work for us."
+msgstr ""
+
+#. f13.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:10915
+msgid ""
+"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 "
+"December 2002, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #54</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10903
+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 "
+"message is absolutely not antimarket. But where we see the market is not "
+"doing the job, then we should allow nonmarket forces the freedom to fill the "
+"gaps. As one researcher calculated for American culture, 94 percent of the "
+"films, books, and music produced between and 1946 is not commercially "
+"available. However much you love the commercial market, if access is a "
+"value, then 6 percent is a failure to provide that value.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10922
+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 "
+"Bono Copyright Term Extension Act unconstitutional. The two central claims "
+"that we made were (1) that extending existing terms violated the "
+"Constitution's \"limited Times\" requirement, and (2) that extending terms "
+"by another twenty years violated the First Amendment."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10930
+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 "
+"claims, though after hearing an extensive argument. But that decision at "
+"least had a dissent, by one of the most conservative judges on that "
+"court. That dissent gave our claims life."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10937
+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: "
+"If Congress can extend existing terms, then there is no \"stopping point\" "
+"to Congress's power under the Copyright Clause. The power to extend existing "
+"terms means Congress is not required to grant terms that are \"limited.\" "
+"Thus, Judge Sentelle argued, the court had to interpret the term \"limited "
+"Times\" to give it meaning. And the best interpretation, Judge Sentelle "
+"argued, would be to deny Congress the power to extend existing terms."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10948
+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 "
+"cases or cases that raise issues specific to the circuit as a whole, where "
+"the court will sit \"en banc\" to hear the case."
+msgstr ""
+
+#. PAGE BREAK 236
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10954
+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 "
+"D.C. Circuit, Judge David Tatel. Both the most conservative and the most "
+"liberal judges in the D.C. Circuit believed Congress had overstepped its "
+"bounds."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10963
+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 "
+"hundred cases a year, out of more than five thousand appeals.) And it "
+"practically never reviews a decision that upholds a statute when no other "
+"court has yet reviewed the statute."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10970
+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 "
+"2002. The summer would be spent writing briefs and preparing for argument."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10976
+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 "
+"the appeal. And if you know something more than just the minimum, you "
+"probably think there was no way this case could have been won. After our "
+"defeat, I received literally thousands of missives by well-wishers and "
+"supporters, thanking me for my work on behalf of this noble but doomed "
+"cause. And none from this pile was more significant to me than the e-mail "
+"from my client, Eric Eldred."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10986
+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 "
+"story to myself, I can never escape believing that my own mistake lost it."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:10991 freeculture.xml:11005
+msgid "Steward, Geoffrey"
+msgstr ""
+
+#. PAGE BREAK 237
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:10993
+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 "
+"lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, "
+"Reavis and Pogue. Jones Day took a great deal of heat from its "
+"copyright-protectionist clients for supporting us. They ignored this "
+"pressure (something that few law firms today would ever do), and throughout "
+"the case, they gave it everything they could."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11003 freeculture.xml:11342 freeculture.xml:11356 freeculture.xml:11450 freeculture.xml:11672 freeculture.xml:11703 freeculture.xml:11789
+msgid "Ayer, Don"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11004
+msgid "Bromberg, Dan"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11007
+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 "
+"involved. Bromberg and Ayer in particular had a common view about how this "
+"case would be won: We would only win, they repeatedly told me, if we could "
+"make the issue seem \"important\" to the Supreme Court. It had to seem as if "
+"dramatic harm were being done to free speech and free culture; otherwise, "
+"they would never vote against \"the most powerful media companies in the "
+"world.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11017
+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 "
+"is. But the idea that the Supreme Court decides the law based on how "
+"important they believe the issues are is just wrong. It might be \"right\" "
+"as in \"true,\" I thought, but it is \"wrong\" as in \"it just shouldn't be "
+"that way.\" As I believed that any faithful interpretation of what the "
+"framers of our Constitution did would yield the conclusion that the CTEA was "
+"unconstitutional, and as I believed that any faithful interpretation of what "
+"the First Amendment means would yield the conclusion that the power to "
+"extend existing copyright terms is unconstitutional, I was not persuaded "
+"that we had to sell our case like soap. Just as a law that bans the "
+"swastika is unconstitutional not because the Court likes Nazis but because "
+"such a law would violate the Constitution, so too, in my view, would the "
+"Court decide whether Congress's law was constitutional based on the "
+"Constitution, not based on whether they liked the values that the framers "
+"put in the Constitution."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11038
+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 "
+"reason to hear the case in the Supreme Court if they weren't convinced that "
+"this regulation was harmful. So in my view, we didn't need to persuade them "
+"that this law was bad, we needed to show why it was unconstitutional."
+msgstr ""
+
+#. PAGE BREAK 238
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11046
+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 "
+"would not hear our arguments if it thought these were just the arguments of "
+"a group of lefty loons. This Supreme Court was not about to launch into a "
+"new field of judicial review if it seemed that this field of review was "
+"simply the preference of a small political minority. Although my focus in "
+"the case was not to demonstrate how bad the Sonny Bono Act was but to "
+"demonstrate that it was unconstitutional, my hope was to make this argument "
+"against a background of briefs that covered the full range of political "
+"views. To show that this claim against the CTEA was grounded in law and not "
+"politics, then, we tried to gather the widest range of credible "
+"critics—credible not because they were rich and famous, but because "
+"they, in the aggregate, demonstrated that this law was unconstitutional "
+"regardless of one's politics."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11065
+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. "
+"Mrs. Schlafly viewed the CTEA as a sellout by Congress. In November 1998, "
+"she wrote a stinging editorial attacking the Republican Congress for "
+"allowing the law to pass. As she wrote, \"Do you sometimes wonder why bills "
+"that create a financial windfall to narrow special interests slide easily "
+"through the intricate legislative process, while bills that benefit the "
+"general public seem to get bogged down?\" The answer, as the editorial "
+"documented, was the power of money. Schlafly enumerated Disney's "
+"contributions to the key players on the committees. It was money, not "
+"justice, that gave Mickey Mouse twenty more years in Disney's control, "
+"Schlafly argued."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11081
+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 "
+"the Supreme Court: If Congress can extend the term of existing copyrights, "
+"there is no limit to Congress's power to set terms. That strong "
+"conservative argument persuaded a strong conservative judge, Judge Sentelle."
+msgstr ""
+
+#. PAGE BREAK 239
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11090
+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 "
+"Foundation (home of the GNU project that made GNU/ Linux possible). They "
+"included a powerful brief about the costs of uncertainty by Intel. There "
+"were two law professors' briefs, one by copyright scholars and one by First "
+"Amendment scholars. There was an exhaustive and uncontroverted brief by the "
+"world's experts in the history of the Progress Clause. And of course, there "
+"was a new brief by Eagle Forum, repeating and strengthening its arguments."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11103
+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 "
+"the Internet Archive, the American Association of Law Libraries, and the "
+"National Writers Union."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11109
+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 "
+"was struck, a whole generation of American film would disappear. The other "
+"made the economic argument absolutely clear."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11115
+msgid "Akerlof, George"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11116
+msgid "Arrow, Kenneth"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11117
+msgid "Buchanan, James"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11118
+msgid "Coase, Ronald"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11119
+msgid "Friedman, Milton"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11121
+msgid ""
+"This economists' brief was signed by seventeen economists, including five "
+"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
+"Friedman, Kenneth Arrow, and George Akerlof. The economists, as the list of "
+"Nobel winners demonstrates, spanned the political spectrum. Their "
+"conclusions were powerful: There was no plausible claim that extending the "
+"terms of existing copyrights would do anything to increase incentives to "
+"create. Such extensions were nothing more than \"rent-seeking\"—the "
+"fancy term economists use to describe special-interest legislation gone "
+"wild."
+msgstr ""
+
+#. PAGE BREAK 240
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11132
+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 "
+"the start. But when the case got to the Supreme Court, we added three "
+"lawyers to help us frame this argument to this Court: Alan Morrison, a "
+"lawyer from Public Citizen, a Washington group that had made constitutional "
+"history with a series of seminal victories in the Supreme Court defending "
+"individual rights; my colleague and dean, Kathleen Sullivan, who had argued "
+"many cases in the Court, and who had advised us early on about a First "
+"Amendment strategy; and finally, former solicitor general Charles Fried."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11146
+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 "
+"companies the special favor of extended copyright terms. Fried was the only "
+"one who turned down that lucrative assignment to stand up for something he "
+"believed in. He had been Ronald Reagan's chief lawyer in the Supreme "
+"Court. He had helped craft the line of cases that limited Congress's power "
+"in the context of the Commerce Clause. And while he had argued many "
+"positions in the Supreme Court that I personally disagreed with, his joining "
+"the cause was a vote of confidence in our argument."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11158
+msgid ""
+"The government, in defending the statute, had its collection of friends, as "
+"well. Significantly, however, none of these \"friends\" included historians "
+"or economists. The briefs on the other side of the case were written "
+"exclusively by major media companies, congressmen, and copyright holders."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11165
+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 "
+"their power and, indirectly, the gravy train of contributions such power "
+"induced. And of course it was not surprising that the copyright holders "
+"would defend the idea that they should continue to have the right to control "
+"who did what with content they wanted to control."
+msgstr ""
+
+#. f14.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:11181
+msgid ""
+"Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. "
+"(2003) (No. 01-618), 19."
+msgstr ""
+
+#. f15.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:11189
+msgid ""
+"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
+"the Fray,\" New York Times, 28 March 1998, B7."
+msgstr ""
+
+#. PAGE BREAK 241
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11174
+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 "
+"than allowing it to fall into the public domain—because if this "
+"creativity were in the public domain, then people could use it to \"glorify "
+"drugs or to create pornography.\"<placeholder type=\"footnote\" id=\"0\"/> "
+"That was also the motive of the Gershwin estate, which defended its "
+"\"protection\" of the work of George Gershwin. They refuse, for example, to "
+"license Porgy and Bess to anyone who refuses to use African Americans in the "
+"cast.<placeholder type=\"footnote\" id=\"1\"/> That's their view of how this "
+"part of American culture should be controlled, and they wanted this law to "
+"help them effect that control."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11199
+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 "
+"making a choice about which speakers it will favor. Famous and beloved "
+"copyright owners, such as the Gershwin estate and Dr. Seuss, come to "
+"Congress and say, \"Give us twenty years to control the speech about these "
+"icons of American culture. We'll do better with them than anyone else.\" "
+"Congress of course likes to reward the popular and famous by giving them "
+"what they want. But when Congress gives people an exclusive right to speak "
+"in a certain way, that's just what the First Amendment is traditionally "
+"meant to block."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11211
+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 "
+"copyrights—extensions that would further concentrate the market; it "
+"would also mean that there was no limit to Congress's power to play "
+"favorites, through copyright, with who has the right to speak. Between "
+"February and October, there was little I did beyond preparing for this "
+"case. Early on, as I said, I set the strategy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11220
+msgid ""
+"The Supreme Court was divided into two important camps. One camp we called "
+"\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives "
+"included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice "
+"Kennedy, and Justice Thomas. These five had been the most consistent in "
+"limiting Congress's power. They were the five who had supported the "
+"Lopez/Morrison line of cases that said that an enumerated power had to be "
+"interpreted to assure that Congress's powers had limits."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11229 freeculture.xml:11253 freeculture.xml:11601 freeculture.xml:11613
+msgid "Breyer, Stephen"
+msgstr ""
+
+#. PAGE BREAK 242
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11231
+msgid ""
+"The Rest were the four Justices who had strongly opposed limits on "
+"Congress's power. These four—Justice Stevens, Justice Souter, Justice "
+"Ginsburg, and Justice Breyer—had repeatedly argued that the "
+"Constitution gives Congress broad discretion to decide how best to implement "
+"its powers. In case after case, these justices had argued that the Court's "
+"role should be one of deference. Though the votes of these four justices "
+"were the votes that I personally had most consistently agreed with, they "
+"were also the votes that we were least likely to get."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11243
+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 "
+"involved), she had been particularly deferential in the context of "
+"intellectual property protections. She and her daughter (an excellent and "
+"well-known intellectual property scholar) were cut from the same "
+"intellectual property cloth. We expected she would agree with the writings "
+"of her daughter: that Congress had the power in this context to do as it "
+"wished, even if what Congress wished made little sense."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11255
+msgid ""
+"Close behind Justice Ginsburg were two justices whom we also viewed as "
+"unlikely allies, though possible surprises. Justice Souter strongly favored "
+"deference to Congress, as did Justice Breyer. But both were also very "
+"sensitive to free speech concerns. And as we strongly believed, there was a "
+"very important free speech argument against these retrospective extensions."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11263
+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 "
+"on this Court. His votes are consistently eclectic, which just means that no "
+"simple ideology explains where he will stand. But he had consistently argued "
+"for limits in the context of intellectual property generally. We were fairly "
+"confident he would recognize limits here."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11271
+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 "
+"get at least a majority to go our way. Thus, the single overriding argument "
+"that animated our claim rested on the Conservatives' most important "
+"jurisprudential innovation—the argument that Judge Sentelle had relied "
+"upon in the Court of Appeals, that Congress's power must be interpreted so "
+"that its enumerated powers have limits."
+msgstr ""
+
+#. PAGE BREAK 243
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11281
+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 Lopez case, "
+"under the government's argument here, Congress would always have unlimited "
+"power to extend existing terms. If anything was plain about Congress's power "
+"under the Progress Clause, it was that this power was supposed to be "
+"\"limited.\" Our aim would be to get the Court to reconcile Eldred with "
+"Lopez: If Congress's power to regulate commerce was limited, then so, too, "
+"must Congress's power to regulate copyright be limited."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11294
+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 "
+"from the very beginning, Congress has been extending the term of existing "
+"copyrights. So, the government argued, the Court should not now say that "
+"practice is unconstitutional."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11303
+msgid ""
+"There was some truth to the government's claim, but not much. We certainly "
+"agreed that Congress had extended existing terms in and in 1909. And of "
+"course, in 1962, Congress began extending existing terms "
+"regularly—eleven times in forty years."
+msgstr ""
+
+#. PAGE BREAK 244
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11310
+msgid ""
+"But this \"consistency\" should be kept in perspective. Congress extended "
+"existing terms once in the first hundred years of the Republic. It then "
+"extended existing terms once again in the next fifty. Those rare extensions "
+"are in contrast to the now regular practice of extending existing "
+"terms. Whatever restraint Congress had had in the past, that restraint was "
+"now gone. Congress was now in a cycle of extensions; there was no reason to "
+"expect that cycle would end. This Court had not hesitated to intervene where "
+"Congress was in a similar cycle of extension. There was no reason it "
+"couldn't intervene here. Oral argument was scheduled for the first week in "
+"October. I arrived in D.C. two weeks before the argument. During those two "
+"weeks, I was repeatedly \"mooted\" by lawyers who had volunteered to help in "
+"the case. Such \"moots\" are basically practice rounds, where wannabe "
+"justices fire questions at wannabe winners."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11333
+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 "
+"power to set terms. Going with the government would mean that terms would be "
+"effectively unlimited; going with us would give Congress a clear line to "
+"follow: Don't extend existing terms. The moots were an effective practice; I "
+"found ways to take every question back to this central idea."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11344
+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 "
+"Fried. He had argued many cases before the Supreme Court. And in his review "
+"of the moot, he let his concern speak:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11350
+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 "
+"consistent practice for two hundred years. You have to make them see the "
+"harm—passionately get them to see the harm. For if they don't see "
+"that, then we haven't any chance of winning.\""
+msgstr ""
+
+#. PAGE BREAK 245
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11358
+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 "
+"thing—not because of politics but because it was right. As a law "
+"professor, I had spent my life teaching my students that this Court does the "
+"right thing—not because of politics but because it is right. As I "
+"listened to Ayer's plea for passion in pressing politics, I understood his "
+"point, and I rejected it. Our argument was right. That was enough. Let the "
+"politicians learn to see that it was also good. The night before the "
+"argument, a line of people began to form in front of the Supreme Court. The "
+"case had become a focus of the press and of the movement to free "
+"culture. Hundreds stood in line for the chance to see the "
+"proceedings. Scores spent the night on the Supreme Court steps so that they "
+"would be assured a seat."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11375
+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 "
+"parents, for example.) Members of the Supreme Court bar can get a seat in a "
+"special section reserved for them. And senators and congressmen have a "
+"special place where they get to sit, too. And finally, of course, the press "
+"has a gallery, as do clerks working for the Justices on the Court. As we "
+"entered that morning, there was no place that was not taken. This was an "
+"argument about intellectual property law, yet the halls were filled. As I "
+"walked in to take my seat at the front of the Court, I saw my parents "
+"sitting on the left. As I sat down at the table, I saw Jack Valenti sitting "
+"in the special section ordinarily reserved for family of the Justices."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11390
+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 "
+"was a case about enumerated powers, I said, and whether those enumerated "
+"powers had any limit."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11396
+msgid ""
+"Justice O'Connor stopped me within one minute of my opening. The history "
+"was bothering her."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:11401
+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 "
+"of time? I mean, this seems to be a practice that began with the very first "
+"act."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11408
+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 "
+"emphasize limits on Congress's power."
+msgstr ""
+
+#. PAGE BREAK 246
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:11414
+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 "
+"effect to what they had in mind, and the answer is yes."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11422
+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><chapter><sect1><blockquote><para>
+#: freeculture.xml:11428
+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 "
+"because of the disruption, is that for all these years the act has impeded "
+"progress in science and the useful arts. I just don't see any empirical "
+"evidence for that."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11436
+msgid ""
+"Here follows my clear mistake. Like a professor correcting a student, I "
+"answered,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:11442
+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 "
+"impeding progress. Our only argument is this is a structural limit necessary "
+"to assure that what would be an effectively perpetual term not be permitted "
+"under the copyright laws."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11452
+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 "
+"briefs had been written about it. He wanted to hear it. And here was the "
+"place Don Ayer's advice should have mattered. This was a softball; my answer "
+"was a swing and a miss."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11459
+msgid ""
+"The second came from the Chief, for whom the whole case had been "
+"crafted. For the Chief Justice had crafted the Lopez ruling, and we hoped "
+"that he would see this case as its second cousin."
+msgstr ""
+
+#. PAGE BREAK 247
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11464
+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><chapter><sect1><blockquote><para>
+#: freeculture.xml:11472
+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><chapter><sect1><blockquote><para>
+#: freeculture.xml:11476
+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 "
+"cannot be justified under ordinary First Amendment analysis or under a "
+"proper reading of the limits built into the Copyright Clause."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11485
+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 "
+"General Olson,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:11491
+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 "
+"argument that's being made by petitioners here, that a limited time which is "
+"extendable is the functional equivalent of an unlimited time."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11500
+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 "
+"academic, not the practical. The government was arguing as if this were the "
+"first case ever to consider limits on Congress's Copyright and Patent Clause "
+"power. Ever the professor and not the advocate, I closed by pointing out the "
+"long history of the Court imposing limits on Congress's power in the name of "
+"the Copyright and Patent Clause— indeed, the very first case striking "
+"a law of Congress as exceeding a specific enumerated power was based upon "
+"the Copyright and Patent Clause. All true. But it wasn't going to move the "
+"Court to my side."
+msgstr ""
+
+#. PAGE BREAK 248
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11513
+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 "
+"differently. But one way of thinking about this case left me optimistic."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11521
+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 "
+"answer I wanted the Court to hear. For I could not imagine how the Court "
+"could understand that the government believed Congress's power was unlimited "
+"under the terms of the Copyright Clause, and sustain the government's "
+"argument. The solicitor general had made my argument for me. No matter how "
+"often I tried, I could not understand how the Court could find that "
+"Congress's power under the Commerce Clause was limited, but under the "
+"Copyright Clause, unlimited. In those rare moments when I let myself believe "
+"that we may have prevailed, it was because I felt this Court—in "
+"particular, the Conservatives—would feel itself constrained by the "
+"rule of law that it had established elsewhere."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11540
+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 "
+"message, I could tell in an instant that she had bad news to report.The "
+"Supreme Court had affirmed the decision of the Court of Appeals. Seven "
+"justices had voted in the majority. There were two dissents."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11547
+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 "
+"had been wrong in my reasoning."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11552
+msgid ""
+"My reasoning. Here was a case that pitted all the money in the world against "
+"reasoning. And here was the last naïve law professor, scouring the pages, "
+"looking for reasoning."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11557
+msgid ""
+"I first scoured the opinion, looking for how the Court would distinguish the "
+"principle in this case from the principle in Lopez. The argument was nowhere "
+"to be found. The case was not even cited. The argument that was the core "
+"argument of our case did not even appear in the Court's opinion."
+msgstr ""
+
+#. PAGE BREAK 249
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11568
+msgid ""
+"Justice Ginsburg simply ignored the enumerated powers argument. Consistent "
+"with her view that Congress's power was not limited generally, she had found "
+"Congress's power not limited here."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11574
+msgid ""
+"Her opinion was perfectly reasonable—for her, and for Justice "
+"Souter. Neither believes in Lopez. It would be too much to expect them to "
+"write an opinion that recognized, much less explained, the doctrine they had "
+"worked so hard to defeat."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11580
+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 "
+"powers with the Commerce Clause and unlimited powers with the Progress "
+"Clause. It had never even occurred to me that they could reconcile the two "
+"simply by not addressing the argument. There was no inconsistency because "
+"they would not talk about the two together. There was therefore no "
+"principle that followed from the Lopez case: In that context, Congress's "
+"power would be limited, but in this context it would not."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11591
+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 "
+"select the part of the Constitution they would enforce based on the values "
+"they thought important? We were right back to the argument that I said I "
+"hated at the start: I had failed to convince them that the issue here was "
+"important, and I had failed to recognize that however much I might hate a "
+"system in which the Court gets to pick the constitutional values that it "
+"will respect, that is the system we have."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11603
+msgid ""
+"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
+"was crafted internal to the law: He argued that the tradition of "
+"intellectual property law should not support this unjustified extension of "
+"terms. He based his argument on a parallel analysis that had governed in the "
+"context of patents (so had we). But the rest of the Court discounted the "
+"parallel—without explaining how the very same words in the Progress "
+"Clause could come to mean totally different things depending upon whether "
+"the words were about patents or copyrights. The Court let Justice Stevens's "
+"charge go unanswered."
+msgstr ""
+
+#. PAGE BREAK 250
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11616
+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 "
+"become so long as to be effectively unlimited. We had said that under the "
+"current term, a copyright gave an author 99.8 percent of the value of a "
+"perpetual term. Breyer said we were wrong, that the actual number was "
+"99.9997 percent of a perpetual term. Either way, the point was clear: If the "
+"Constitution said a term had to be \"limited,\" and the existing term was so "
+"long as to be effectively unlimited, then it was unconstitutional."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11627
+msgid ""
+"These two justices understood all the arguments we had made. But because "
+"neither believed in the Lopez case, neither was willing to push it as a "
+"reason to reject this extension. The case was decided without anyone having "
+"addressed the argument that we had carried from Judge Sentelle. It was "
+"Hamlet without the Prince."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11634
+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 "
+"depression. This anger was of two sorts."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11639
+msgid ""
+"It was first anger with the five \"Conservatives.\" It would have been one "
+"thing for them to have explained why the principle of Lopez didn't apply in "
+"this case. That wouldn't have been a very convincing argument, I don't "
+"believe, having read it made by others, and having tried to make it "
+"myself. But it at least would have been an act of integrity. These justices "
+"in particular have repeatedly said that the proper mode of interpreting the "
+"Constitution is \"originalism\"—to first understand the framers' text, "
+"interpreted in their context, in light of the structure of the "
+"Constitution. That method had produced Lopez and many other \"originalist\" "
+"rulings. Where was their \"originalism\" now?"
+msgstr ""
+
+#. PAGE BREAK 251
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11652
+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 "
+"an opinion that never once tried to explain how the structure of that clause "
+"would affect the interpretation of Congress's power. And they joined an "
+"opinion that didn't even try to explain why this grant of power could be "
+"unlimited, whereas the Commerce Clause would be limited. In short, they had "
+"joined an opinion that did not apply to, and was inconsistent with, their "
+"own method for interpreting the Constitution. This opinion may well have "
+"yielded a result that they liked. It did not produce a reason that was "
+"consistent with their own principles."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11667
+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 "
+"it is."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11674
+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 "
+"much more pragmatic view. When Don Ayer said that this case would be won "
+"based on whether I could convince the Justices that the framers' values were "
+"important, I fought the idea, because I didn't want to believe that that is "
+"how this Court decides. I insisted on arguing this case as if it were a "
+"simple application of a set of principles. I had an argument that followed "
+"in logic. I didn't need to waste my time showing it should also follow in "
+"popularity."
+msgstr ""
+
+#. PAGE BREAK 252
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11685
+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 "
+"different directions, where the truth about the harm that this unchecked "
+"power will cause could have been made clear to this Court. Justice Kennedy "
+"in good faith wanted to be shown. I, idiotically, corrected his "
+"question. Justice Souter in good faith wanted to be shown the First "
+"Amendment harms. I, like a math teacher, reframed the question to make the "
+"logical point. I had shown them how they could strike this law of Congress "
+"if they wanted to. There were a hundred places where I could have helped "
+"them want to, yet my stubbornness, my refusal to give in, stopped me. I have "
+"stood before hundreds of audiences trying to persuade; I have used passion "
+"in that effort to persuade; but I refused to stand before this audience and "
+"try to persuade with the passion I had used elsewhere. It was not the basis "
+"on which a court should decide the issue."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11705
+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 "
+"Sullivan?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11710
+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 "
+"a great deal more to show our society why our framers were right. And when "
+"we do that, we will be able to show that Court."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11716
+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 "
+"reason to resist doing right. I can't help but think that if I had stepped "
+"down from this pretty picture of dispassionate justice, I could have "
+"persuaded."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11723
+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 "
+"intellectual property professors stated publicly that my bringing this case "
+"was a mistake. \"The Court is not ready,\" Peter Jaszi said; this issue "
+"should not be raised until it is. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 253
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11731
+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, "
+"then that is all the evidence that's needed to know that here again Peter "
+"was right. Either I was not ready to argue this case in a way that would do "
+"some good or they were not ready to hear this case in a way that would do "
+"some good. Either way, the decision to bring this case—a decision I "
+"had made four years before—was wrong. While the reaction to the Sonny "
+"Bono Act itself was almost unanimously negative, the reaction to the Court's "
+"decision was mixed. No one, at least in the press, tried to say that "
+"extending the term of copyright was a good idea. We had won that battle over "
+"ideas. Where the decision was praised, it was praised by papers that had "
+"been skeptical of the Court's activism in other cases. Deference was a good "
+"thing, even if it left standing a silly law. But where the decision was "
+"attacked, it was attacked because it left standing a silly and harmful "
+"law. The New York Times wrote in its editorial,"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><blockquote><para>
+#: freeculture.xml:11752
+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 "
+"perpetuity. The public domain has been a grand experiment, one that should "
+"not be allowed to die. The ability to draw freely on the entire creative "
+"output of humanity is one of the reasons we live in a time of such fruitful "
+"creative ferment."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11761
+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 "
+"case, was Ruben Bolling's, reproduced on the next page. The \"powerful and "
+"wealthy\" line is a bit unfair. But the punch in the face felt exactly like "
+"that."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11768
+msgid ""
+"The image that will always stick in my head is that evoked by the quote from "
+"The New York Times. That \"grand experiment\" we call the \"public domain\" "
+"is over? When I can make light of it, I think, \"Honey, I shrunk the "
+"Constitution.\" But I can rarely make light of it. We had in our "
+"Constitution a commitment to free culture. In the case that I fathered, the "
+"Supreme Court effectively renounced that commitment. A better lawyer would "
+"have made them see differently."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:11779
+msgid "CHAPTER FOURTEEN: Eldred II"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11781
+msgid ""
+"The day Eldred was decided, fate would have it that I was to travel to "
+"Washington, D.C. (The day the rehearing petition in Eldred was "
+"denied—meaning the case was really finally over—fate would have "
+"it that I was giving a speech to technologists at Disney World.) This was a "
+"particularly long flight to my least favorite city. The drive into the city "
+"from Dulles was delayed because of traffic, so I opened up my computer and "
+"wrote an op-ed piece."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11791
+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 "
+"advice from Don Ayer: You need to make them see why it is important. And "
+"alternating with that command was the question of Justice Kennedy: \"For all "
+"these years the act has impeded progress in science and the useful arts. I "
+"just don't see any empirical evidence for that.\" And so, having failed in "
+"the argument of constitutional principle, finally, I turned to an argument "
+"of politics."
+msgstr ""
+
+#. PAGE BREAK 256
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11801
+msgid ""
+"The New York Times published the piece. In it, I proposed a simple fix: "
+"Fifty years after a work has been published, the copyright owner would be "
+"required to register the work and pay a small fee. If he paid the fee, he "
+"got the benefit of the full term of copyright. If he did not, the work "
+"passed into the public domain."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11809
+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 "
+"early on, it won't get passed unless it has another name."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11814
+msgid ""
+"Or another two names. For depending upon your perspective, this is either "
+"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation "
+"Act.\" Either way, the essence of the idea is clear and obvious: Remove "
+"copyright where it is doing nothing except blocking access and the spread of "
+"knowledge. Leave it for as long as Congress allows for those works where its "
+"worth is at least $1. But for everything else, let the content go."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11822 freeculture.xml:12020
+msgid "Forbes, Steve"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11824
+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 "
+"support. When you focus the issue on lost creativity, people can see the "
+"copyright system makes no sense. As a good Republican might say, here "
+"government regulation is simply getting in the way of innovation and "
+"creativity. And as a good Democrat might say, here the government is "
+"blocking access and the spread of knowledge for no good reason. Indeed, "
+"there is no real difference between Democrats and Republicans on this "
+"issue. Anyone can recognize the stupid harm of the present system."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11836
+msgid ""
+"Indeed, many recognized the obvious benefit of the registration "
+"requirement. For one of the hardest things about the current system for "
+"people who want to license content is that there is no obvious place to look "
+"for the current copyright owners. Since registration is not required, since "
+"marking content is not required, since no formality at all is required, it "
+"is often impossibly hard to locate copyright owners to ask permission to use "
+"or license their work. This system would lower these costs, by establishing "
+"at least one registry where copyright owners could be identified."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11846
+msgid "Berlin Act (1908)"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><indexterm><primary>
+#: freeculture.xml:11847 freeculture.xml:11886
+msgid "Berne Convention (1908)"
+msgstr ""
+
+#. f1.
+#. type: Content of: <book><chapter><sect1><para><footnote><para>
+#: freeculture.xml:11854
+msgid ""
+"Until the 1908 Berlin Act of the Berne Convention, national copyright "
+"legislation sometimes made protection depend upon compliance with "
+"formalities such as registration, deposit, and affixation of notice of the "
+"author's claim of copyright. However, starting with the 1908 act, every text "
+"of the Convention has provided that \"the enjoyment and the exercise\" of "
+"rights guaranteed by the Convention \"shall not be subject to any "
+"formality.\" The prohibition against formalities is presently embodied in "
+"Article 5(2) of the Paris Text of the Berne Convention. Many countries "
+"continue to impose some form of deposit or registration requirement, albeit "
+"not as a condition of copyright. French law, for example, requires the "
+"deposit of copies of works in national repositories, principally the "
+"National Museum. Copies of books published in the United Kingdom must be "
+"deposited in the British Library. The German Copyright Act provides for a "
+"Registrar of Authors where the author's true name can be filed in the case "
+"of anonymous or pseudonymous works. Paul Goldstein, International "
+"Intellectual Property Law, Cases and Materials (New York: Foundation Press, "
+"2001), 153–54."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11850
+msgid ""
+"As I described in chapter 10, formalities in copyright law were removed in "
+"1976, when Congress followed the Europeans by abandoning any formal "
+"requirement before a copyright is granted.<placeholder type=\"footnote\" "
+"id=\"0\"/> The Europeans are said to view copyright as a \"natural right.\" "
+"Natural rights don't need forms to exist. Traditions, like the "
+"Anglo-American tradition that required copyright owners to follow form if "
+"their rights were to be protected, did not, the Europeans thought, properly "
+"respect the dignity of the author. My right as a creator turns on my "
+"creativity, not upon the special favor of the government."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11880
+msgid ""
+"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
+"copyright policy. It is absurd especially for authors, because a world "
+"without formalities harms the creator. The ability to spread \"Walt Disney "
+"creativity\" is destroyed when there is no simple way to know what's "
+"protected and what's not."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11888
+msgid ""
+"The fight against formalities achieved its first real victory in Berlin in "
+"1908. International copyright lawyers amended the Berne Convention in 1908, "
+"to require copyright terms of life plus fifty years, as well as the "
+"abolition of copyright formalities. The formalities were hated because the "
+"stories of inadvertent loss were increasingly common. It was as if a Charles "
+"Dickens character ran all copyright offices, and the failure to dot an i or "
+"cross a t resulted in the loss of widows' only income."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11898
+msgid ""
+"These complaints were real and sensible. And the strictness of the "
+"formalities, especially in the United States, was absurd. The law should "
+"always have ways of forgiving innocent mistakes. There is no reason "
+"copyright law couldn't, as well. Rather than abandoning formalities totally, "
+"the response in Berlin should have been to embrace a more equitable system "
+"of registration."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11906
+msgid ""
+"Even that would have been resisted, however, because registration in the "
+"nineteenth and twentieth centuries was still expensive. It was also a "
+"hassle. The abolishment of formalities promised not only to save the "
+"starving widows, but also to lighten an unnecessary regulatory burden "
+"imposed upon creators."
+msgstr ""
+
+#. PAGE BREAK 258
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11914
+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 "
+"second-class form of property. If a carpenter builds a table, his rights "
+"over the table don't depend upon filing a form with the government. He has "
+"a property right over the table \"naturally,\" and he can assert that right "
+"against anyone who would steal the table, whether or not he has informed the "
+"government of his ownership of the table."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11926
+msgid ""
+"This argument is correct, but its implications are misleading. For the "
+"argument in favor of formalities does not depend upon creative property "
+"being second-class property. The argument in favor of formalities turns upon "
+"the special problems that creative property presents. The law of "
+"formalities responds to the special physics of creative property, to assure "
+"that it can be efficiently and fairly spread."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11935
+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 "
+"effective. And few would think a car is second-class property just because "
+"you must register the car with the state and tag it with a license. In both "
+"of those cases, everyone sees that there is an important reason to secure "
+"registration—both because it makes the markets more efficient and "
+"because it better secures the rights of the owner. Without a registration "
+"system for land, landowners would perpetually have to guard their "
+"property. With registration, they can simply point the police to a "
+"deed. Without a registration system for cars, auto theft would be much "
+"easier. With a registration system, the thief has a high burden to sell a "
+"stolen car. A slight burden is placed on the property owner, but those "
+"burdens produce a much better system of protection for property generally."
+msgstr ""
+
+#. PAGE BREAK 259
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11951
+msgid ""
+"It is similarly special physics that makes formalities important in "
+"copyright law. Unlike a carpenter's table, there's nothing in nature that "
+"makes it relatively obvious who might own a particular bit of creative "
+"property. A recording of Lyle Lovett's latest album can exist in a billion "
+"places without anything necessarily linking it back to a particular "
+"owner. And like a car, there's no way to buy and sell creative property with "
+"confidence unless there is some simple way to authenticate who is the author "
+"and what rights he has. Simple transactions are destroyed in a world without "
+"formalities. Complex, expensive, lawyer transactions take their place."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11965
+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.\" "
+"Because we live in a system without formalities, there is no way easily to "
+"build upon or use culture from our past. If copyright terms were, as Justice "
+"Story said they would be, \"short,\" then this wouldn't matter much. For "
+"fourteen years, under the framers' system, a work would be presumptively "
+"controlled. After fourteen years, it would be presumptively uncontrolled."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11975
+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 "
+"burden on the creative process. If the only way a library can offer an "
+"Internet exhibit about the New Deal is to hire a lawyer to clear the rights "
+"to every image and sound, then the copyright system is burdening creativity "
+"in a way that has never been seen before because there are no formalities."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11984
+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 "
+"term. Others will know how to contact you and, therefore, how to get your "
+"permission if they want to use your work. And you will get the benefit of an "
+"extended copyright term."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11991
+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 "
+"monopoly over that work either. The work should pass into the public domain "
+"where anyone can copy it, or build archives with it, or create a movie based "
+"on it. It should become free if it is not worth $1 to you."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:11998
+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 "
+"$1? Isn't that the real problem with registration?"
+msgstr ""
+
+#. PAGE BREAK 260
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12004
+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 "
+"because they are terribly funded) in enabling simple and cheap "
+"registrations. Any real solution to the problem of formalities must address "
+"the real problem of governments standing at the core of any system of "
+"formalities. In this book, I offer such a solution. That solution "
+"essentially remakes the Copyright Office. For now, assume it was Amazon that "
+"ran the registration system. Assume it was one-click registration. The "
+"Eldred Act would propose a simple, one-click registration fifty years after "
+"a work was published. Based upon historical data, that system would move up "
+"to 98 percent of commercial work, commercial work that no longer had a "
+"commercial life, into the public domain within fifty years. What do you "
+"think?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12022
+msgid ""
+"When Steve Forbes endorsed the idea, some in Washington began to pay "
+"attention. Many people contacted me pointing to representatives who might be "
+"willing to introduce the Eldred Act. And I had a few who directly suggested "
+"that they might be willing to take the first step."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12028
+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 "
+"imposed the simplest requirement upon copyright owners possible. In May "
+"2003, it looked as if the bill would be introduced. On May 16, I posted on "
+"the Eldred Act blog, \"we are close.\" There was a general reaction in the "
+"blog community that something good might happen here."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12037
+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 "
+"the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the "
+"congresswoman that the MPAA would oppose the Eldred Act. The reasons are "
+"embarrassingly thin. More importantly, their thinness shows something clear "
+"about what this debate is really about."
+msgstr ""
+
+#. PAGE BREAK 261
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12045
+msgid ""
+"The MPAA argued first that Congress had \"firmly rejected the central "
+"concept in the proposed bill\"—that copyrights be renewed. That was "
+"true, but irrelevant, as Congress's \"firm rejection\" had occurred long "
+"before the Internet made subsequent uses much more likely. Second, they "
+"argued that the proposal would harm poor copyright owners—apparently "
+"those who could not afford the $1 fee. Third, they argued that Congress had "
+"determined that extending a copyright term would encourage restoration "
+"work. Maybe in the case of the small percentage of work covered by copyright "
+"law that is still commercially valuable, but again this was irrelevant, as "
+"the proposal would not cut off the extended term unless the $1 fee was not "
+"paid. Fourth, the MPAA argued that the bill would impose \"enormous\" costs, "
+"since a registration system is not free. True enough, but those costs are "
+"certainly less than the costs of clearing the rights for a copyright whose "
+"owner is not known. Fifth, they worried about the risks if the copyright to "
+"a story underlying a film were to pass into the public domain. But what risk "
+"is that? If it is in the public domain, then the film is a valid derivative "
+"use."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12066
+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 "
+"copyright owners who don't even know they have a copyright to give. Whether "
+"they are free to give away their copyright or not—a controversial "
+"claim in any case—unless they know about a copyright, they're not "
+"likely to."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12074
+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, "
+"common sense was delayed. The difference between the two stories was the "
+"power of the opposition—the power of the side that fought to defend "
+"the status quo. In both cases, a new technology threatened old "
+"interests. But in only one case did those interest's have the power to "
+"protect themselves against this new competitive threat."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12084
+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 "
+"here, too, we should ask, is the law following or resisting common sense? If "
+"common sense supports the law, what explains this common sense?"
+msgstr ""
+
+#. PAGE BREAK 262
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12093
+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 "
+"law should work to eliminate it. When the issue is p2p sharing, it is easy "
+"to understand why the law backs the owners still: Much of this sharing is "
+"wrong, even if much is harmless. When the issue is copyright terms for the "
+"Mickey Mouses of the world, it is possible still to understand why the law "
+"favors Hollywood: Most people don't recognize the reasons for limiting "
+"copyright terms; it is thus still possible to see good faith within the "
+"resistance."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12104
+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 "
+"driving this war. This act would free an extraordinary range of content that "
+"is otherwise unused. It wouldn't interfere with any copyright owner's desire "
+"to exercise continued control over his content. It would simply liberate "
+"what Kevin Kelly calls the \"Dark Content\" that fills archives around the "
+"world. So when the warriors oppose a change like this, we should ask one "
+"simple question:"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12114
+msgid "What does this industry really want?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12117
+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 "
+"their content. The effort to block the Eldred Act is an effort to assure "
+"that nothing more passes into the public domain. It is another step to "
+"assure that the public domain will never compete, that there will be no use "
+"of content that is not commercially controlled, and that there will be no "
+"commercial use of content that doesn't require their permission first."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12127
+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 "
+"the protection of \"property\" but the rejection of a tradition. Their aim "
+"is not simply to protect what is theirs. Their aim is to assure that all "
+"there is is what is theirs."
+msgstr ""
+
+#. PAGE BREAK 263
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12134
+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 "
+"tied to the Internet could somehow be quashed. Just as RCA feared the "
+"competition of FM, they fear the competition of a public domain connected to "
+"a public that now has the means to create with it and to share its own "
+"creation."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12146
+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 "
+"demands that their remote and useless property rights be respected, so that "
+"these remote and forgotten copyright holders might block the progress of "
+"others."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12153
+msgid ""
+"All this seems to follow easily from this untroubled acceptance of the "
+"\"property\" in intellectual property. Common sense supports it, and so long "
+"as it does, the assaults will rain down upon the technologies of the "
+"Internet. The consequence will be an increasing \"permission society.\" The "
+"past can be cultivated only if you can identify the owner and gain "
+"permission to build upon his work. The future will be controlled by this "
+"dead (and often unfindable) hand of the past."
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:12165
+msgid "CONCLUSION"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12167
+msgid ""
+"There are more than 35 million people with the AIDS virus "
+"worldwide. Twenty-five million of them live in sub-Saharan Africa. "
+"Seventeen million have already died. Seventeen million Africans is "
+"proportional percentage-wise to seven million Americans. More importantly, "
+"it is seventeen million Africans."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12174
+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 "
+"had a dramatic effect. In the United States, AIDS patients who regularly "
+"take a cocktail of these drugs increase their life expectancy by ten to "
+"twenty years. For some, the drugs make the disease almost invisible."
+msgstr ""
+
+#. f1.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12189
+msgid ""
+"Commission on Intellectual Property Rights, \"Final Report: Integrating "
+"Intellectual Property Rights and Development Policy\" (London, 2002), "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#55</ulink>. According to a World Health Organization press release issued 9 "
+"July 2002, only 230,000 of the 6 million who need drugs in the developing "
+"world receive them—and half of them are in Brazil."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12182
+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, "
+"some cost $25,000 per year. At these prices, of course, no African nation "
+"can afford the drugs for the vast majority of its population: $15,000 is "
+"thirty times the per capita gross national product of Zimbabwe. At these "
+"prices, the drugs are totally unavailable.<placeholder type=\"footnote\" "
+"id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 265
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12200
+msgid ""
+"These prices are not high because the ingredients of the drugs are "
+"expensive. These prices are high because the drugs are protected by "
+"patents. The drug companies that produced these life-saving mixes enjoy at "
+"least a twenty-year monopoly for their inventions. They use that monopoly "
+"power to extract the most they can from the market. That power is in turn "
+"used to keep the prices high."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12208
+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 "
+"patents, drug research is, in my view, the clearest case where patents are "
+"needed. The patent gives the drug company some assurance that if it is "
+"successful in inventing a new drug to treat a disease, it will be able to "
+"earn back its investment and more. This is socially an extremely valuable "
+"incentive. I am the last person who would argue that the law should abolish "
+"it, at least without other changes."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12219
+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 "
+"began to recognize the devastation that AIDS was bringing, they started "
+"looking for ways to import HIV treatments at costs significantly below the "
+"market price."
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:12237 freeculture.xml:12671
+msgid "Braithwaite, John"
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12235
+msgid ""
+"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the "
+"Knowledge Economy? (New York: The New Press, 2003), 37. <placeholder "
+"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12226
+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 "
+"nation's market with the consent of the patent owner. For example, if the "
+"drug was sold in India, it could be imported into Africa from India. This is "
+"called \"parallel importation,\" and it is generally permitted under "
+"international trade law and is specifically permitted within the European "
+"Union.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. f3.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12247
+msgid ""
+"International Intellectual Property Institute (IIPI), Patent Protection and "
+"Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared "
+"for the World Intellectual Property Organization (Washington, D.C., 2000), "
+"14, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#56</ulink>. For a firsthand account of the struggle over South Africa, see "
+"Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human "
+"Resources, House Committee on Government Reform, H. Rep., 1st sess., "
+"Ser. No. 106-126 (22 July 1999), 150–57 (statement of James Love)."
+msgstr ""
+
+#. f4.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12279
+msgid ""
+"International Intellectual Property Institute (IIPI), Patent Protection and "
+"Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared "
+"for the World Intellectual Property Organization (Washington, D.C., 2000), "
+"15."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12242
+msgid ""
+"However, the United States government opposed the bill. Indeed, more than "
+"opposed. As the International Intellectual Property Association "
+"characterized it, \"The U.S. government pressured South Africa . . . not to "
+"permit compulsory licensing or parallel imports.\"<placeholder "
+"type=\"footnote\" id=\"0\"/> Through the Office of the United States Trade "
+"Representative, the government asked South Africa to change the "
+"law—and to add pressure to that request, in 1998, the USTR listed "
+"South Africa for possible trade sanctions. That same year, more than forty "
+"pharmaceutical companies began proceedings in the South African courts to "
+"challenge the government's actions. The United States was then joined by "
+"other governments from the EU. Their claim, and the claim of the "
+"pharmaceutical companies, was that South Africa was violating its "
+"obligations under international law by discriminating against a particular "
+"kind of patent— pharmaceutical patents. The demand of these "
+"governments, with the United States in the lead, was that South Africa "
+"respect these patents as it respects any other patent, regardless of any "
+"effect on the treatment of AIDS within South Africa.<placeholder "
+"type=\"footnote\" id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12285
+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 "
+"drugs. Poverty and the total absence of an effective health care "
+"infrastructure matter more. But whether patents are the most important "
+"reason or not, the price of drugs has an effect on their demand, and patents "
+"affect price. And so, whether massive or marginal, there was an effect from "
+"our government's intervention to stop the flow of medications into Africa."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12295
+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 "
+"like wheat (if they eat it, we can't); instead, the flow that the United "
+"States intervened to stop was, in effect, a flow of knowledge: information "
+"about how to take chemicals that exist within Africa, and turn those "
+"chemicals into drugs that would save 15 to 30 million lives."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12303
+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 "
+"not as if these countries were in the position to buy the drugs for the "
+"prices the drug companies were charging. Again, the Africans are wildly too "
+"poor to afford these drugs at the offered prices. Stopping the parallel "
+"import of these drugs would not substantially increase the sales by "
+"U.S. companies."
+msgstr ""
+
+#. f5.
+#. PAGE BREAK 333
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12318
+msgid ""
+"See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at "
+"Odds with Firms' Profit Motive,\" San Francisco Chronicle, 24 May 1999, A1, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link #57</ulink> "
+"(\"compulsory licenses and gray markets pose a threat to the entire system "
+"of intellectual property protection\"); Robert Weissman, \"AIDS and "
+"Developing Countries: Democratizing Access to Essential Medicines,\" Foreign "
+"Policy in Focus 4:23 (August 1999), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing "
+"U.S. policy); John A. Harrelson, \"TRIPS, Pharmaceutical Patents, and the "
+"HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property "
+"Rights and Compassion, a Synopsis,\" Widener Law Symposium Journal (Spring "
+"2001): 175."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12312
+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 "
+"sanctity of property.<placeholder type=\"footnote\" id=\"0\"/> It was "
+"because \"intellectual property\" would be violated that these drugs should "
+"not flow into Africa. It was a principle about the importance of "
+"\"intellectual property\" that led these government actors to intervene "
+"against the South African response to AIDS."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12339
+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 "
+"happen? How could we allow a policy to be pursued whose direct cost would be "
+"to speed the death of 15 to 30 million Africans, and whose only real benefit "
+"would be to uphold the \"sanctity\" of an idea? What possible justification "
+"could there ever be for a policy that results in so many deaths? What "
+"exactly is the insanity that would allow so many to die for such an "
+"abstraction?"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12349
+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 "
+"certain patent policy not because of ideals, but because it is the policy "
+"that makes them the most money. And it only makes them the most money "
+"because of a certain corruption within our political system— a "
+"corruption the drug companies are certainly not responsible for."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12357
+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 "
+"drugs as cheaply as they can to countries in Africa and elsewhere. There "
+"are issues they'd have to resolve to make sure the drugs didn't get back "
+"into the United States, but those are mere problems of technology. They "
+"could be overcome."
+msgstr ""
+
+#. PAGE BREAK 268
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12365
+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 "
+"before a Senate or House hearing, and ask, \"How is it you can sell this HIV "
+"drug in Africa for only $1 a pill, but the same drug would cost an American "
+"$1,500?\" Because there is no \"sound bite\" answer to that question, its "
+"effect would be to induce regulation of prices in America. The drug "
+"companies thus avoid this spiral by avoiding the first step. They reinforce "
+"the idea that property should be sacred. They adopt a rational strategy in "
+"an irrational context, with the unintended consequence that perhaps millions "
+"die. And that rational strategy thus becomes framed in terms of this "
+"ideal—the sanctity of an idea called \"intellectual property.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12380
+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 "
+"done, how will we justify what we have done? What is the argument?"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12386
+msgid ""
+"A sensible patent policy could endorse and strongly support the patent "
+"system without having to reach everyone everywhere in exactly the same "
+"way. Just as a sensible copyright policy could endorse and strongly support "
+"a copyright system without having to regulate the spread of culture "
+"perfectly and forever, a sensible patent policy could endorse and strongly "
+"support a patent system without having to block the spread of drugs to a "
+"country not rich enough to afford market prices in any case. A sensible "
+"policy, in other words, could be a balanced policy. For most of our history, "
+"both copyright and patent policies were balanced in just this sense."
+msgstr ""
+
+#. PAGE BREAK 269
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12398
+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. "
+"A certain property fundamentalism, having no connection to our tradition, "
+"now reigns in this culture—bizarrely, and with consequences more grave "
+"to the spread of ideas and culture than almost any other single policy "
+"decision that we as a democracy will make. A simple idea blinds us, and "
+"under the cover of darkness, much happens that most of us would reject if "
+"any of us looked. So uncritically do we accept the idea of property in ideas "
+"that we don't even notice how monstrous it is to deny ideas to a people who "
+"are dying without them. So uncritically do we accept the idea of property in "
+"culture that we don't even question when the control of that property "
+"removes our ability, as a people, to develop our culture "
+"democratically. Blindness becomes our common sense. And the challenge for "
+"anyone who would reclaim the right to cultivate our culture is to find a way "
+"to make this common sense open its eyes."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12418
+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 "
+"this debate fits with ideas that seem natural, and that fit is reinforced by "
+"the RCAs of our day. They wage a frantic war to fight \"piracy,\" and "
+"devastate a culture for creativity. They defend the idea of \"creative "
+"property,\" while transforming real creators into modern-day "
+"sharecroppers. They are insulted by the idea that rights should be balanced, "
+"even though each of the major players in this content war was itself a "
+"beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city "
+"like Washington, hypocrisy is not even noticed. Powerful lobbies, complex "
+"issues, and MTV attention spans produce the \"perfect storm\" for free "
+"culture."
+msgstr ""
+
+#. f6.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12435
+msgid ""
+"Jonathan Krim, \"The Quiet War over Open-Source,\" Washington Post, August "
+"2003, E1, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#59</ulink>; William New, \"Global Group's Shift on `Open Source' Meeting "
+"Spurs Stir,\" National Journal's Technology Daily, 19 August 2003, available "
+"at <ulink url=\"http://free-culture.cc/notes/\">link #60</ulink>; William "
+"New, \"U.S. Official Opposes `Open Source' Talks at WIPO,\" National "
+"Journal's Technology Daily, 19 August 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #61</ulink>."
+msgstr ""
+
+#. PAGE BREAK 270
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12432
+msgid ""
+"In August 2003, a fight broke out in the United States about a decision by "
+"the World Intellectual Property Organization to cancel a "
+"meeting.<placeholder type=\"footnote\" id=\"0\"/> At the request of a wide "
+"range of interests, WIPO had decided to hold a meeting to discuss \"open and "
+"collaborative projects to create public goods.\" These are projects that "
+"have been successful in producing public goods without relying exclusively "
+"upon a proprietary use of intellectual property. Examples include the "
+"Internet and the World Wide Web, both of which were developed on the basis "
+"of protocols in the public domain. It included an emerging trend to support "
+"open academic journals, including the Public Library of Science project that "
+"I describe in the Afterword. It included a project to develop single "
+"nucleotide polymorphisms (SNPs), which are thought to have great "
+"significance in biomedical research. (That nonprofit project comprised a "
+"consortium of the Wellcome Trust and pharmaceutical and technological "
+"companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, "
+"Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, "
+"Novartis, Pfizer, and Searle.) It included the Global Positioning System, "
+"which Ronald Reagan set free in the early 1980s. And it included \"open "
+"source and free software.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12465
+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 "
+"property extremism. Instead, in all of them, intellectual property was "
+"balanced by agreements to keep access open or to impose limitations on the "
+"way in which proprietary claims might be used."
+msgstr ""
+
+#. f7.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12473
+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:12472
+msgid ""
+"From the perspective of this book, then, the conference was "
+"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its "
+"scope included both commercial and noncommercial work. They primarily "
+"involved science, but from many perspectives. And WIPO was an ideal venue "
+"for this discussion, since WIPO is the preeminent international body dealing "
+"with intellectual property issues."
+msgstr ""
+
+#. PAGE BREAK 271
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12483
+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 "
+"conference for the World Summit on the Information Society (WSIS). At a "
+"press conference before the address, I was asked what I would say. I "
+"responded that I would be talking a little about the importance of balance "
+"in intellectual property for the development of an information society. The "
+"moderator for the event then promptly interrupted to inform me and the "
+"assembled reporters that no question about intellectual property would be "
+"discussed by WSIS, since those questions were the exclusive domain of "
+"WIPO. In the talk that I had prepared, I had actually made the issue of "
+"intellectual property relatively minor. But after this astonishing "
+"statement, I made intellectual property the sole focus of my talk. There was "
+"no way to talk about an \"Information Society\" unless one also talked about "
+"the range of information and culture that would be free. My talk did not "
+"make my immoderate moderator very happy. And she was no doubt correct that "
+"the scope of intellectual property protections was ordinarily the stuff of "
+"WIPO. But in my view, there couldn't be too much of a conversation about how "
+"much intellectual property is needed, since in my view, the very idea of "
+"balance in intellectual property had been lost."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12507
+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 "
+"meeting about \"open and collaborative projects to create public goods\" "
+"seemed perfectly appropriate within the WIPO agenda."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12513
+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.\" "
+"Microsoft in particular is wary of discussion of the subject. From its "
+"perspective, a conference to discuss open source and free software would be "
+"like a conference to discuss Apple's operating system. Both open source and "
+"free software compete with Microsoft's software. And internationally, many "
+"governments have begun to explore requirements that they use open source or "
+"free software, rather than \"proprietary software,\" for their own internal "
+"uses."
+msgstr ""
+
+#. f8.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12536
+msgid ""
+"Microsoft's position about free and open source software is more "
+"sophisticated. As it has repeatedly asserted, it has no problem with \"open "
+"source\" software or software in the public domain. Microsoft's principal "
+"opposition is to \"free software\" licensed under a \"copyleft\" license, "
+"meaning a license that requires the licensee to adopt the same terms on any "
+"derivative work. See Bradford L. Smith, \"The Future of Software: Enabling "
+"the Marketplace to Decide,\" Government Policy Toward Open Source Software "
+"(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, "
+"American Enterprise Institute for Public Policy Research, 2002), 69, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#62</ulink>. See also Craig Mundie, Microsoft senior vice president, The "
+"Commercial Software Model, discussion at New York University Stern School of "
+"Business (3 May 2001), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #63</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12524
+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 "
+"software. There are many important companies that depend fundamentally upon "
+"open source and free software, IBM being the most prominent. IBM is "
+"increasingly shifting its focus to the GNU/Linux operating system, the most "
+"famous bit of \"free software\"—and IBM is emphatically a commercial "
+"entity. Thus, to support \"open source and free software\" is not to oppose "
+"commercial entities. It is, instead, to support a mode of software "
+"development that is different from Microsoft's.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 272
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12558
+msgid ""
+"More important for our purposes, to support \"open source and free "
+"software\" is not to oppose copyright. \"Open source and free software\" is "
+"not software in the public domain. Instead, like Microsoft's software, the "
+"copyright owners of free and open source software insist quite strongly that "
+"the terms of their software license be respected by adopters of free and "
+"open source software. The terms of that license are no doubt different from "
+"the terms of a proprietary software license. Free software licensed under "
+"the General Public License (GPL), for example, requires that the source code "
+"for the software be made available by anyone who modifies and redistributes "
+"the software. But that requirement is effective only if copyright governs "
+"software. If copyright did not govern software, then free software could not "
+"impose the same kind of requirements on its adopters. It thus depends upon "
+"copyright law just as Microsoft does."
+msgstr ""
+
+#. f9.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12584
+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>
+#: freeculture.xml:12576
+msgid ""
+"It is therefore understandable that as a proprietary software developer, "
+"Microsoft would oppose this WIPO meeting, and understandable that it would "
+"use its lobbyists to get the United States government to oppose it, as "
+"well. And indeed, that is just what was reported to have happened. According "
+"to Jonathan Krim of the Washington Post, Microsoft's lobbyists succeeded in "
+"getting the United States government to veto the meeting.<placeholder "
+"type=\"footnote\" id=\"0\"/> And without U.S. backing, the meeting was "
+"canceled."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12590
+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 "
+"the law. There was nothing surprising about its lobbying here, and nothing "
+"terribly surprising about the most powerful software producer in the United "
+"States having succeeded in its lobbying efforts."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12598
+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 "
+"international relations for the U.S. Patent and Trademark Office, explained "
+"that \"open-source software runs counter to the mission of WIPO, which is to "
+"promote intellectual-property rights.\" She is quoted as saying, \"To hold a "
+"meeting which has as its purpose to disclaim or waive such rights seems to "
+"us to be contrary to the goals of WIPO.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12608
+msgid "These statements are astonishing on a number of levels."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12612
+msgid ""
+"First, they are just flat wrong. As I described, most open source and free "
+"software relies fundamentally upon the intellectual property right called "
+"\"copyright\". Without it, restrictions imposed by those licenses wouldn't "
+"work. Thus, to say it \"runs counter\" to the mission of promoting "
+"intellectual property rights reveals an extraordinary gap in "
+"understanding—the sort of mistake that is excusable in a first-year "
+"law student, but an embarrassment from a high government official dealing "
+"with intellectual property issues."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12622
+msgid ""
+"Second, who ever said that WIPO's exclusive aim was to \"promote\" "
+"intellectual property maximally? As I had been scolded at the preparatory "
+"conference of WSIS, WIPO is to consider not only how best to protect "
+"intellectual property, but also what the best balance of intellectual "
+"property is. As every economist and lawyer knows, the hard question in "
+"intellectual property law is to find that balance. But that there should be "
+"limits is, I had thought, uncontested. One wants to ask Ms. Boland, are "
+"generic drugs (drugs based on drugs whose patent has expired) contrary to "
+"the WIPO mission? Does the public domain weaken intellectual property? Would "
+"it have been better if the protocols of the Internet had been patented?"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12635
+msgid ""
+"Third, even if one believed that the purpose of WIPO was to maximize "
+"intellectual property rights, in our tradition, intellectual property rights "
+"are held by individuals and corporations. They get to decide what to do with "
+"those rights because, again, they are their rights. If they want to "
+"\"waive\" or \"disclaim\" their rights, that is, within our tradition, "
+"totally appropriate. When Bill Gates gives away more than $20 billion to do "
+"good in the world, that is not inconsistent with the objectives of the "
+"property system. That is, on the contrary, just what a property system is "
+"supposed to be about: giving individuals the right to decide what to do with "
+"their property."
+msgstr ""
+
+#. PAGE BREAK 274
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12647
+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 "
+"WIPO has an interest in interfering with the choices of the individuals who "
+"own intellectual property rights. That somehow, WIPO's objective should be "
+"to stop an individual from \"waiving\" or \"disclaiming\" an intellectual "
+"property right. That the interest of WIPO is not just that intellectual "
+"property rights be maximized, but that they also should be exercised in the "
+"most extreme and restrictive way possible."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12659
+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 "
+"only was property held by a relatively small number of individuals and "
+"entities. And not only were the rights that ran with that property powerful "
+"and extensive. But the feudal system had a strong interest in assuring that "
+"property holders within that system not weaken feudalism by liberating "
+"people or property within their control to the free market. Feudalism "
+"depended upon maximum control and concentration. It fought any freedom that "
+"might interfere with that control."
+msgstr ""
+
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12676
+msgid ""
+"See Drahos with Braithwaite, Information Feudalism, 210–20. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12673
+msgid ""
+"As Peter Drahos and John Braithwaite relate, this is precisely the choice we "
+"are now making about intellectual property.<placeholder type=\"footnote\" "
+"id=\"0\"/> We will have an information society. That much is certain. Our "
+"only choice now is whether that information society will be free or "
+"feudal. The trend is toward the feudal."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12684
+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 "
+"her comments made sense. But there was one comment that was particularly "
+"depressing for me. An anonymous poster wrote,"
+msgstr ""
+
+#. PAGE BREAK 275
+#. type: Content of: <book><chapter><blockquote><para>
+#: freeculture.xml:12691
+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 "
+"promote the right balance of intellectual property rights, not simply to "
+"promote intellectual property rights\"), not as it is. If we were talking "
+"about the world as it is, then of course Boland didn't say anything "
+"wrong. But in the world as Lessig would have it, then of course she "
+"did. Always pay attention to the distinction between Lessig's world and "
+"ours."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12703
+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 "
+"government should be doing. (Of course, my criticism of Ms. Boland was not "
+"about whether she was seeking balance or not; my criticism was that her "
+"comments betrayed a first-year law student's mistake. I have no illusion "
+"about the extremism of our government, whether Republican or Democrat. My "
+"only illusion apparently is about whether our government should speak the "
+"truth or not.)"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12713
+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 "
+"a government should be \"to promote the right balance\" of intellectual "
+"property. That was obviously silly to him. And it obviously betrayed, he "
+"believed, my own silly utopianism. \"Typical for an academic,\" the poster "
+"might well have continued."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12721
+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 "
+"academics throughout history (and not just in our own country's history)."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12727
+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 "
+"that this has become quite serious indeed. If it should be obvious to "
+"everyone that the government does not seek balance, that the government is "
+"simply the tool of the most powerful lobbyists, that the idea of holding the "
+"government to a different standard is absurd, that the idea of demanding of "
+"the government that it speak truth and not lies is just naïve, then who "
+"have we, the most powerful democracy in the world, become?"
+msgstr ""
+
+#. PAGE BREAK 276
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12738
+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 "
+"more than the handmaiden of the most powerful interests. It might be crazy "
+"to argue that we should preserve a tradition that has been part of our "
+"tradition for most of our history—free culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12747
+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 "
+"considering relaxing ownership rules, which would thereby further increase "
+"the concentration in media ownership, an extraordinary bipartisan coalition "
+"formed to fight this change. For perhaps the first time in history, "
+"interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted "
+"Turner, and CodePink Women for Peace organized to oppose this change in FCC "
+"policy. An astonishing 700,000 letters were sent to the FCC, demanding more "
+"hearings and a different result."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12759
+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 "
+"that vote revealed just how powerful this movement had become. There was no "
+"substantial support for the FCC's decision, and there was broad and "
+"sustained support for fighting further concentration in the media."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12767
+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 "
+"rich, or because there are only a handful of big players. The poor quality "
+"of Big Macs or Quarter Pounders does not mean that you can't get a good "
+"hamburger from somewhere else."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12774
+msgid ""
+"The danger in media concentration comes not from the concentration, but "
+"instead from the feudalism that this concentration, tied to the change in "
+"copyright, produces. It is not just that there are a few powerful companies "
+"that control an ever expanding slice of the media. It is that this "
+"concentration can call upon an equally bloated range of "
+"rights—property rights of a historically extreme form—that makes "
+"their bigness bad."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12784
+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 "
+"bigness alone, it is not terribly surprising. We Americans have a long "
+"history of fighting \"big,\" wisely or not. That we could be motivated to "
+"fight \"big\" again is not something new."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12791
+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 "
+"\"intellectual property.\" Not because balance is alien to our tradition; "
+"indeed, as I've argued, balance is our tradition. But because the muscle to "
+"think critically about the scope of anything called \"property\" is not well "
+"exercised within this tradition anymore."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12799
+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:12802
+msgid "Dylan, Bob"
+msgstr ""
+
+#. f11.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12807
+msgid ""
+"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September "
+"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#65</ulink>; Paul R. La Monica, \"Music Industry Sues Swappers,\" CNN/Money, "
+"8 September 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #66</ulink>; Soni Sangha and "
+"Phyllis Furman with Robert Gearty, \"Sued for a Song, N.Y.C. 12-Yr-Old Among "
+"261 Cited as Sharers,\" New York Daily News, 9 September 2003, 3; Frank "
+"Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., "
+"12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 September "
+"2003, E1; Katie Dean, \"Schoolgirl Settles with RIAA,\" Wired News, 10 "
+"September 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #67</ulink>."
+msgstr ""
+
+#. f12.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12825
+msgid ""
+"Jon Wiederhorn, \"Eminem Gets Sued . . . by a Little Old Lady,\" mtv.com, 17 "
+"September 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #68</ulink>."
+msgstr ""
+
+#. f13.
+#. PAGE BREAK 334
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12832
+msgid ""
+"Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan "
+"Songs,\" Kansascity.com, 9 July 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #69</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12804
+msgid ""
+"As I write these final words, the news is filled with stories about the RIAA "
+"lawsuits against almost three hundred individuals.<placeholder "
+"type=\"footnote\" id=\"0\"/> Eminem has just been sued for \"sampling\" "
+"someone else's music.<placeholder type=\"footnote\" id=\"1\"/> The story "
+"about Bob Dylan \"stealing\" from a Japanese author has just finished making "
+"the rounds.<placeholder type=\"footnote\" id=\"2\"/> An insider from "
+"Hollywood—who insists he must remain anonymous—reports \"an "
+"amazing conversation with these studio guys. They've got extraordinary [old] "
+"content that they'd love to use but can't because they can't begin to clear "
+"the rights. They've got scores of kids who could do amazing things with the "
+"content, but it would take scores of lawyers to clean it first.\" "
+"Congressmen are talking about deputizing computer viruses to bring down "
+"computers thought to violate the law. Universities are threatening expulsion "
+"for kids who use a computer to share content."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:12849 freeculture.xml:13199
+msgid "Creative Commons"
+msgstr ""
+
+#. type: Content of: <book><chapter><indexterm><primary>
+#: freeculture.xml:12850
+msgid "Gil, Gilberto"
+msgstr ""
+
+#. f14.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12855
+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 "
+"#70</ulink>."
+msgstr ""
+
+#. f15.
+#. type: Content of: <book><chapter><para><footnote><para>
+#: freeculture.xml:12864
+msgid ""
+"\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>."
+msgstr ""
+
+#. PAGE BREAK 278
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12852
+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 "
+"BBC content, and rip, mix, and burn it.<placeholder type=\"footnote\" "
+"id=\"0\"/> And in Brazil, the culture minister, Gilberto Gil, himself a folk "
+"hero of Brazilian music, has joined with Creative Commons to release content "
+"and free licenses in that Latin American country.<placeholder "
+"type=\"footnote\" id=\"1\"/> I've told a dark story. The truth is more "
+"mixed. A technology has given us a new freedom. Slowly, some begin to "
+"understand that this freedom need not mean anarchy. We can carry a free "
+"culture into the twenty-first century, without artists losing and without "
+"the potential of digital technology being destroyed. It will take some "
+"thought, and more importantly, it will take some will to transform the RCAs "
+"of our day into the Causbys."
+msgstr ""
+
+#. PAGE BREAK 279
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12878
+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:12886
+msgid "AFTERWORD"
+msgstr ""
+
+#. PAGE BREAK 280
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12890
+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 "
+"might be done."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12895
+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 "
+"draw from the history of remaking common sense, it is that it requires "
+"remaking how many people think about the very same issue."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12901
+msgid ""
+"That means this movement must begin in the streets. It must recruit a "
+"significant number of parents, teachers, librarians, creators, authors, "
+"musicians, filmmakers, scientists—all to tell this story in their own "
+"words, and to tell their neighbors why this battle is so important."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:12908
+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 "
+"matters. Not as much as it should, at least when an RCA stands opposed, but "
+"still, it matters. And thus, in the second part below, I sketch changes that "
+"Congress could make to better secure a free culture."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:12917
+msgid "US, NOW"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12919
+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 "
+"anarchy, either total control or artists won't be paid. If that really is "
+"the choice, then the warriors should win."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12925
+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 "
+"believe in maximal copyright—\"All Rights Reserved\"— and those "
+"who reject copyright—\"No Rights Reserved.\" The \"All Rights "
+"Reserved\" sorts believe that you should ask permission before you \"use\" a "
+"copyrighted work in any way. The \"No Rights Reserved\" sorts believe you "
+"should be able to do with content as you wish, regardless of whether you "
+"have permission or not."
+msgstr ""
+
+#. PAGE BREAK 282
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12935
+msgid ""
+"When the Internet was first born, its initial architecture effectively "
+"tilted in the \"no rights reserved\" direction. Content could be copied "
+"perfectly and cheaply; rights could not easily be controlled. Thus, "
+"regardless of anyone's desire, the effective regime of copyright under the "
+"original design of the Internet was \"no rights reserved.\" Content was "
+"\"taken\" regardless of the rights. Any rights were effectively unprotected."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12947
+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 "
+"legislation, litigation, and changes to the network's design, copyright "
+"holders have been able to change the essential character of the environment "
+"of the original Internet. If the original architecture made the effective "
+"default \"no rights reserved,\" the future architecture will make the "
+"effective default \"all rights reserved.\" The architecture and law that "
+"surround the Internet's design will increasingly produce an environment "
+"where all use of content requires permission. The \"cut and paste\" world "
+"that defines the Internet today will become a \"get permission to cut and "
+"paste\" world that is a creator's nightmare."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:12961
+msgid ""
+"What's needed is a way to say something in the middle—neither \"all "
+"rights reserved\" nor \"no rights reserved\" but \"some rights "
+"reserved\"— and thus a way to respect copyrights but enable creators "
+"to free content as they see fit. In other words, we need a way to restore a "
+"set of freedoms that we could just take for granted before."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:12970
+msgid "Rebuilding Freedoms Previously Presumed: Examples"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:12972
+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 "
+"Internet, most of us didn't have to worry much about data about our lives "
+"that we broadcast to the world. If you walked into a bookstore and browsed "
+"through some of the works of Karl Marx, you didn't need to worry about "
+"explaining your browsing habits to your neighbors or boss. The \"privacy\" "
+"of your browsing habits was assured."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:12982
+msgid "What made it assured?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:12986
+msgid ""
+"Well, if we think in terms of the modalities I described in chapter 10, your "
+"privacy was assured because of an inefficient architecture for gathering "
+"data and hence a market constraint (cost) on anyone who wanted to gather "
+"that data. If you were a suspected spy for North Korea, working for the CIA, "
+"no doubt your privacy would not be assured. But that's because the CIA "
+"would (we hope) find it valuable enough to spend the thousands required to "
+"track you. But for most of us (again, we can hope), spying doesn't pay. The "
+"highly inefficient architecture of real space means we all enjoy a fairly "
+"robust amount of privacy. That privacy is guaranteed to us by friction. Not "
+"by law (there is no law protecting \"privacy\" in public places), and in "
+"many places, not by norms (snooping and gossip are just fun), but instead, "
+"by the costs that friction imposes on anyone who would want to spy."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:13000
+msgid "Amazon"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13002
+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 "
+"pages, Amazon collects the data about what you've looked at. You know this "
+"because at the side of the page, there's a list of \"recently viewed\" "
+"pages. Now, because of the architecture of the Net and the function of "
+"cookies on the Net, it is easier to collect the data than not. The friction "
+"has disappeared, and hence any \"privacy\" protected by the friction "
+"disappears, too."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13012
+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 "
+"should have the \"right\" to browse in a library without the government "
+"knowing which books you look at (I'm one of those lefties, too), then this "
+"change in the technology of monitoring might concern you. If it becomes "
+"simple to gather and sort who does what in electronic spaces, then the "
+"friction-induced privacy of yesterday disappears."
+msgstr ""
+
+#. f1.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:13028
+msgid ""
+"See, for example, Marc Rotenberg, \"Fair Information Practices and the "
+"Architecture of Privacy (What Larry Doesn't Get),\" Stanford Technology Law "
+"Review 1 (2001): par. 6–18, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #72</ulink> (describing examples "
+"in which technology defines privacy policy). See also Jeffrey Rosen, The "
+"Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: "
+"Random House, 2004) (mapping tradeoffs between technology and privacy)."
+msgstr ""
+
+#. PAGE BREAK 284
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13022
+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 "
+"before gave us that leads many to push for laws to do what friction "
+"did.<placeholder type=\"footnote\" id=\"0\"/> And whether you're in favor of "
+"those laws or not, it is the pattern that is important here. We must take "
+"affirmative steps to secure a kind of freedom that was passively provided "
+"before. A change in technology now forces those who believe in privacy to "
+"affirmatively act where, before, privacy was given by default."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13046
+msgid ""
+"A similar story could be told about the birth of the free software "
+"movement. When computers with software were first made available "
+"commercially, the software—both the source code and the "
+"binaries— was free. You couldn't run a program written for a Data "
+"General machine on an IBM machine, so Data General and IBM didn't care much "
+"about controlling their software."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
+#: freeculture.xml:13053
+msgid "Stallman, Richard"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13055
+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 "
+"free to explore and tinker with the software that ran on machines. Being a "
+"smart sort himself, and a talented programmer, Stallman grew to depend upon "
+"the freedom to add to or modify other people's work."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13063
+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 "
+"offered. If you thought you had a better way to prove a theorem, you could "
+"take what someone else did and change it. In a classics department, if you "
+"believed a colleague's translation of a recently discovered text was flawed, "
+"you were free to improve it. Thus, to Stallman, it seemed obvious that you "
+"should be free to tinker with and improve the code that ran a machine. This, "
+"too, was knowledge. Why shouldn't it be open for criticism like anything "
+"else?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13075
+msgid ""
+"No one answered that question. Instead, the architecture of revenue for "
+"computing changed. As it became possible to import programs from one system "
+"to another, it became economically attractive (at least in the view of some) "
+"to hide the code of your program. So, too, as companies started selling "
+"peripherals for mainframe systems. If I could just take your printer driver "
+"and copy it, then that would make it easier for me to sell a printer to the "
+"market than it was for you."
+msgstr ""
+
+#. PAGE BREAK 285
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13084
+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 "
+"free software had been erased by a change in the economics of computing. And "
+"as he believed, if he did nothing about it, then the freedom to change and "
+"share software would be fundamentally weakened."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13093
+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 "
+"the birth of the GNU project, into which Linus Torvalds's \"Linux\" kernel "
+"was added to produce the GNU/Linux operating system."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13099
+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 "
+"Foundation's GPL cannot be modified and distributed unless the source code "
+"for that software is made available as well. Thus, anyone building upon "
+"GPL'd software would have to make their buildings free as well. This would "
+"assure, Stallman believed, that an ecology of code would develop that "
+"remained free for others to build upon. His fundamental goal was freedom; "
+"innovative creative code was a byproduct."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13110
+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 "
+"for granted before. Through the affirmative use of licenses that bind "
+"copyrighted code, Stallman was affirmatively reclaiming a space where free "
+"software would survive. He was actively protecting what before had been "
+"passively guaranteed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13118
+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 "
+"journals are produced."
+msgstr ""
+
+#. PAGE BREAK 286
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13123
+msgid ""
+"As digital technologies develop, it is becoming obvious to many that "
+"printing thousands of copies of journals every month and sending them to "
+"libraries is perhaps not the most efficient way to distribute "
+"knowledge. Instead, journals are increasingly becoming electronic, and "
+"libraries and their users are given access to these electronic journals "
+"through password-protected sites. Something similar to this has been "
+"happening in law for almost thirty years: Lexis and Westlaw have had "
+"electronic versions of case reports available to subscribers to their "
+"service. Although a Supreme Court opinion is not copyrighted, and anyone is "
+"free to go to a library and read it, Lexis and Westlaw are also free to "
+"charge users for the privilege of gaining access to that Supreme Court "
+"opinion through their respective services."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13139
+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 "
+"people to develop new and innovative ways to spread knowledge. The law has "
+"agreed, which is why Lexis and Westlaw have been allowed to flourish. And if "
+"there's nothing wrong with selling the public domain, then there could be "
+"nothing wrong, in principle, with selling access to material that is not in "
+"the public domain."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13148
+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 "
+"data except by paying for a subscription?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13153
+msgid ""
+"As many are beginning to notice, this is increasingly the reality with "
+"scientific journals. When these journals were distributed in paper form, "
+"libraries could make the journals available to anyone who had access to the "
+"library. Thus, patients with cancer could become cancer experts because the "
+"library gave them access. Or patients trying to understand the risks of a "
+"certain treatment could research those risks by reading all available "
+"articles about that treatment. This freedom was therefore a function of the "
+"institution of libraries (norms) and the technology of paper journals "
+"(architecture)—namely, that it was very hard to control access to a "
+"paper journal."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13165
+msgid ""
+"As journals become electronic, however, the publishers are demanding that "
+"libraries not give the general public access to the journals. This means "
+"that the freedoms provided by print journals in public libraries begin to "
+"disappear. Thus, as with privacy and with software, a changing technology "
+"and market shrink a freedom taken for granted before."
+msgstr ""
+
+#. PAGE BREAK 287
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13173
+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 "
+"example, is a nonprofit corporation dedicated to making scientific research "
+"available to anyone with a Web connection. Authors of scientific work submit "
+"that work to the Public Library of Science. That work is then subject to "
+"peer review. If accepted, the work is then deposited in a public, electronic "
+"archive and made permanently available for free. PLoS also sells a print "
+"version of its work, but the copyright for the print journal does not "
+"inhibit the right of anyone to redistribute the work for free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13186
+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 "
+"doubt that this alternative competes with the traditional publishers and "
+"their efforts to make money from the exclusive distribution of content. But "
+"competition in our tradition is presumptively a good—especially when "
+"it helps spread knowledge and science."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:13197
+msgid "Rebuilding Free Culture: One Idea"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13202
+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><sect1><sect2><para>
+#: freeculture.xml:13206
+msgid ""
+"Enter the Creative Commons. The Creative Commons is a nonprofit corporation "
+"established in Massachusetts, but with its home at Stanford University. Its "
+"aim is to build a layer of reasonable copyright on top of the extremes that "
+"now reign. It does this by making it easy for people to build upon other "
+"people's work, by making it simple for creators to express the freedom for "
+"others to take and build upon their work. Simple tags, tied to "
+"human-readable descriptions, tied to bulletproof licenses, make this "
+"possible."
+msgstr ""
+
+#. PAGE BREAK 288
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13216
+msgid ""
+"Simple—which means without a middleman, or without a lawyer. By "
+"developing a free set of licenses that people can attach to their content, "
+"Creative Commons aims to mark a range of content that can easily, and "
+"reliably, be built upon. These tags are then linked to machine-readable "
+"versions of the license that enable computers automatically to identify "
+"content that can easily be shared. These three expressions together—a "
+"legal license, a human-readable description, and machine-readable "
+"tags—constitute a Creative Commons license. A Creative Commons license "
+"constitutes a grant of freedom to anyone who accesses the license, and more "
+"importantly, an expression of the ideal that the person associated with the "
+"license believes in something different than the \"All\" or \"No\" "
+"extremes. Content is marked with the CC mark, which does not mean that "
+"copyright is waived, but that certain freedoms are given."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13234
+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 "
+"license that permits any use, so long as attribution is given. She can "
+"choose a license that permits only noncommercial use. She can choose a "
+"license that permits any use so long as the same freedoms are given to other "
+"uses (\"share and share alike\"). Or any use so long as no derivative use is "
+"made. Or any use at all within developing nations. Or any sampling use, so "
+"long as full copies are not made. Or lastly, any educational use."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13245
+msgid ""
+"These choices thus establish a range of freedoms beyond the default of "
+"copyright law. They also enable freedoms that go beyond traditional fair "
+"use. And most importantly, they express these freedoms in a way that "
+"subsequent users can use and rely upon without the need to hire a "
+"lawyer. Creative Commons thus aims to build a layer of content, governed by "
+"a layer of reasonable copyright law, that others can build upon. Voluntary "
+"choice of individuals and creators will make this content available. And "
+"that content will in turn enable us to rebuild a public domain."
+msgstr ""
+
+#. PAGE BREAK 289
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13256
+msgid ""
+"This is just one project among many within the Creative Commons. And of "
+"course, Creative Commons is not the only organization pursuing such "
+"freedoms. But the point that distinguishes the Creative Commons from many is "
+"that we are not interested only in talking about a public domain or in "
+"getting legislators to help build a public domain. Our aim is to build a "
+"movement of consumers and producers of content (\"content conducers,\" as "
+"attorney Mia Garlick calls them) who help build the public domain and, by "
+"their work, demonstrate the importance of the public domain to other "
+"creativity."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13268
+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 "
+"produced by insane and unintended consequences of laws written centuries "
+"ago, applied to a technology that only Jefferson could have imagined. The "
+"rules may well have made sense against a background of technologies from "
+"centuries ago, but they do not make sense against the background of digital "
+"technologies. New rules—with different freedoms, expressed in ways so "
+"that humans without lawyers can use them—are needed. Creative Commons "
+"gives people a way effectively to begin to build those rules."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13280
+msgid ""
+"Why would creators participate in giving up total control? Some participate "
+"to better spread their content. Cory Doctorow, for example, is a science "
+"fiction author. His first novel, Down and Out in the Magic Kingdom, was "
+"released on-line and for free, under a Creative Commons license, on the same "
+"day that it went on sale in bookstores."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13287
+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 "
+"Cory's book whether or not it's on the Internet, and (2) those who may never "
+"hear of Cory's book, if it isn't made available for free on the "
+"Internet. Some part of (1) will download Cory's book instead of buying "
+"it. Call them bad-(1)s. Some part of (2) will download Cory's book, like "
+"it, and then decide to buy it. Call them (2)-goods. If there are more "
+"(2)-goods than bad-(1)s, the strategy of releasing Cory's book free on-line "
+"will probably increase sales of Cory's book."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13299
+msgid ""
+"Indeed, the experience of his publisher clearly supports that conclusion. "
+"The book's first printing was exhausted months before the publisher had "
+"expected. This first novel of a science fiction author was a total success."
+msgstr ""
+
+#. PAGE BREAK 290
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13305
+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 "
+"book about the free software movement titled Free for All, made an "
+"electronic version of his book free on-line under a Creative Commons license "
+"after the book went out of print. He then monitored used book store prices "
+"for the book. As predicted, as the number of downloads increased, the used "
+"book price for his book increased, as well."
+msgstr ""
+
+#. f2.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:13331
+msgid ""
+"Willful Infringement: A Report from the Front Lines of the Real Culture Wars "
+"(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre "
+"production, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#72</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13316
+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 "
+"are others who use Creative Commons licenses for other reasons. Many who use "
+"the \"sampling license\" do so because anything else would be "
+"hypocritical. The sampling license says that others are free, for commercial "
+"or noncommercial purposes, to sample content from the licensed work; they "
+"are just not free to make full copies of the licensed work available to "
+"others. This is consistent with their own art—they, too, sample from "
+"others. Because the legal costs of sampling are so high (Walter Leaphart, "
+"manager of the rap group Public Enemy, which was born sampling the music of "
+"others, has stated that he does not \"allow\" Public Enemy to sample "
+"anymore, because the legal costs are so high<placeholder type=\"footnote\" "
+"id=\"0\"/>), these artists release into the creative environment content "
+"that others can build upon, so that their form of creativity might grow."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13340
+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 "
+"balance in this debate. If you just go along with the system as it is, you "
+"are effectively saying you believe in the \"All Rights Reserved\" "
+"model. Good for you, but many do not. Many believe that however appropriate "
+"that rule is for Hollywood and freaks, it is not an appropriate description "
+"of how most creators view the rights associated with their content. The "
+"Creative Commons license expresses this notion of \"Some Rights Reserved,\" "
+"and gives many the chance to say it to others."
+msgstr ""
+
+#. PAGE BREAK 291
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13352
+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 "
+"partnerships with middleware content providers to help them build into their "
+"technologies simple ways for users to mark their content with Creative "
+"Commons freedoms. Then the next step is to watch and celebrate creators who "
+"build content based upon content set free."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13362
+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 "
+"showing people how important that domain is to creativity and "
+"innovation. Creative Commons relies upon voluntary steps to achieve this "
+"rebuilding. They will lead to a world in which more than voluntary steps are "
+"possible."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13370
+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 "
+"project does not compete with copyright; it complements it. Its aim is not "
+"to defeat the rights of authors, but to make it easier for authors and "
+"creators to exercise their rights more flexibly and cheaply. That "
+"difference, we believe, will enable creativity to spread more easily."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><title>
+#: freeculture.xml:13384
+msgid "THEM, SOON"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:13386
+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 "
+"politicians will listen to these ideas and implement these reforms. But "
+"that also means that we have time to build awareness around the changes that "
+"we need."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><para>
+#: freeculture.xml:13393
+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 "
+"step, not an end. But any of these steps would carry us a long way to our "
+"end."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:13400
+msgid "1. More Formalities"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13402
+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 "
+"you buy a car, you get a bill of sale and register the car. If you buy an "
+"airplane ticket, it has your name on it."
+msgstr ""
+
+#. PAGE BREAK 293
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13409
+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><sect1><sect2><para>
+#: freeculture.xml:13414
+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 "
+"register. You don't even have to mark your content. The default is control, "
+"and \"formalities\" are banished."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13420
+msgid "Why?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13423
+msgid ""
+"As I suggested in chapter 10, the motivation to abolish formalities was a "
+"good one. In the world before digital technologies, formalities imposed a "
+"burden on copyright holders without much benefit. Thus, it was progress when "
+"the law relaxed the formal requirements that a copyright owner must bear to "
+"protect and secure his work. Those formalities were getting in the way."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13431
+msgid ""
+"But the Internet changes all this. Formalities today need not be a "
+"burden. Rather, the world without formalities is the world that burdens "
+"creativity. Today, there is no simple way to know who owns what, or with "
+"whom one must deal in order to use or build upon the creative work of "
+"others. There are no records, there is no system to trace— there is no "
+"simple way to know how to get permission. Yet given the massive increase in "
+"the scope of copyright's rule, getting permission is a necessary step for "
+"any work that builds upon our past. And thus, the lack of formalities forces "
+"many into silence where they otherwise could speak."
+msgstr ""
+
+#. f1.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:13445
+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 "
+"by other countries as well."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13443
+msgid ""
+"The law should therefore change this requirement<placeholder "
+"type=\"footnote\" id=\"0\"/>—but it should not change it by going back "
+"to the old, broken system. We should require formalities, but we should "
+"establish a system that will create the incentives to minimize the burden of "
+"these formalities."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13453
+msgid ""
+"The important formalities are three: marking copyrighted work, registering "
+"copyrights, and renewing the claim to copyright. Traditionally, the first of "
+"these three was something the copyright owner did; the second two were "
+"something the government did. But a revised system of formalities would "
+"banish the government from the process, except for the sole purpose of "
+"approving standards developed by others."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><title>
+#: freeculture.xml:13465
+msgid "REGISTRATION AND RENEWAL"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13467
+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 "
+"registration, the copyright owner paid a fee. As with most government "
+"agencies, the Copyright Office had little incentive to minimize the burden "
+"of registration; it also had little incentive to minimize the fee. And as "
+"the Copyright Office is not a main target of government policymaking, the "
+"office has historically been terribly underfunded. Thus, when people who "
+"know something about the process hear this idea about formalities, their "
+"first reaction is panic—nothing could be worse than forcing people to "
+"deal with the mess that is the Copyright Office."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13480
+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 "
+"innovatively about how governmental functions can be designed. Just because "
+"there is a public purpose to a government role, it doesn't follow that the "
+"government must actually administer the role. Instead, we should be creating "
+"incentives for private parties to serve the public, subject to standards "
+"that the government sets."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13489
+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 "
+"owners for these Web sites have to pay a fee to keep their registration "
+"alive. In the main top-level domains (.com, .org, .net), there is a central "
+"registry. The actual registrations are, however, performed by many competing "
+"registrars. That competition drives the cost of registering down, and more "
+"importantly, it drives the ease with which registration occurs up."
+msgstr ""
+
+#. PAGE BREAK 295
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13499
+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 "
+"it should not be in the registrar business. Instead, it should establish a "
+"database, and a set of standards for registrars. It should approve "
+"registrars that meet its standards. Those registrars would then compete with "
+"one another to deliver the cheapest and simplest systems for registering and "
+"renewing copyrights. That competition would substantially lower the burden "
+"of this formality—while producing a database of registrations that "
+"would facilitate the licensing of content."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><title>
+#: freeculture.xml:13514
+msgid "MARKING"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13516
+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 "
+"failing to comply with a regulatory rule—akin to imposing the death "
+"penalty for a parking ticket in the world of creative rights. Here again, "
+"there is no reason that a marking requirement needs to be enforced in this "
+"way. And more importantly, there is no reason a marking requirement needs to "
+"be enforced uniformly across all media."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13526
+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 "
+"to locate a copyright owner to secure permission to use the work."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13532
+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 "
+"how or where a statue was to be marked, or a record, or a film. A new "
+"marking requirement could solve these problems by recognizing the "
+"differences in media, and by allowing the system of marking to evolve as "
+"technologies enable it to. The system could enable a special signal from the "
+"failure to mark—not the loss of the copyright, but the loss of the "
+"right to punish someone for failing to get permission first."
+msgstr ""
+
+#. f2.
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para><footnote><para>
+#: freeculture.xml:13549
+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 "
+"than is justified by the marginal incentive it creates."
+msgstr ""
+
+#. PAGE BREAK 296
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13542
+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 "
+"not be that the copyright is lost. The consequence could instead be that "
+"anyone has the right to use this work, until the copyright owner complains "
+"and demonstrates that it is his work and he doesn't give "
+"permission.<placeholder type=\"footnote\" id=\"0\"/> The meaning of an "
+"unmarked work would therefore be \"use unless someone complains.\" If "
+"someone does complain, then the obligation would be to stop using the work "
+"in any new work from then on though no penalty would attach for existing "
+"uses. This would create a strong incentive for copyright owners to mark "
+"their work."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13562
+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 "
+"to ensure that the system evolves is to limit the Copyright Office's role to "
+"that of approving standards for marking content that have been crafted "
+"elsewhere."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13569
+msgid ""
+"For example, if a recording industry association devises a method for "
+"marking CDs, it would propose that to the Copyright Office. The Copyright "
+"Office would hold a hearing, at which other proposals could be made. The "
+"Copyright Office would then select the proposal that it judged preferable, "
+"and it would base that choice solely upon the consideration of which method "
+"could best be integrated into the registration and renewal system. We would "
+"not count on the government to innovate; but we would count on the "
+"government to keep the product of innovation in line with its other "
+"important functions."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13580
+msgid ""
+"Finally, marking content clearly would simplify registration requirements. "
+"If photographs were marked by author and year, there would be little reason "
+"not to allow a photographer to reregister, for example, all photographs "
+"taken in a particular year in one quick step. The aim of the formality is "
+"not to burden the creator; the system itself should be kept as simple as "
+"possible."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13588
+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 "
+"unclear."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
+#: freeculture.xml:13593
+msgid ""
+"If formalities such as registration were reinstated, one of the most "
+"difficult aspects of relying upon the public domain would be removed. It "
+"would be simple to identify what content is presumptively free; it would be "
+"simple to identify who controls the rights for a particular kind of content; "
+"it would be simple to assert those rights, and to renew that assertion at "
+"the appropriate time."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:13605
+msgid "2. Shorter Terms"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13607
+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 "
+"authors."
+msgstr ""
+
+#. f3.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:13619
+msgid ""
+"\"A Radical Rethink,\" Economist, 366:8308 (25 January 2003): 15, available "
+"at <ulink url=\"http://free-culture.cc/notes/\">link #74</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13612
+msgid ""
+"In The Future of Ideas, I proposed a seventy-five-year term, granted in "
+"five-year increments with a requirement of renewal every five years. That "
+"seemed radical enough at the time. But after we lost Eldred v. Ashcroft, "
+"the proposals became even more radical. The Economist endorsed a proposal "
+"for a fourteen-year copyright term.<placeholder type=\"footnote\" id=\"0\"/> "
+"Others have proposed tying the term to the term for patents."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13626
+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 "
+"that are important to keep in mind about copyright terms."
+msgstr ""
+
+#. (1)
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13634
+msgid ""
+"Keep it short: The term should be as long as necessary to give incentives to "
+"create, but no longer. If it were tied to very strong protections for "
+"authors (so authors were able to reclaim rights from publishers), rights to "
+"the same work (not derivative works) might be extended further. The key is "
+"not to tie the work up with legal regulations when it no longer benefits an "
+"author."
+msgstr ""
+
+#. (2)
+#. PAGE BREAK 298
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13642
+msgid ""
+"Keep it simple: The line between the public domain and protected content "
+"must be kept clear. Lawyers like the fuzziness of \"fair use,\" and the "
+"distinction between \"ideas\" and \"expression.\" That kind of law gives "
+"them lots of work. But our framers had a simpler idea in mind: protected "
+"versus unprotected. The value of short terms is that there is little need "
+"to build exceptions into copyright when the term itself is kept short. A "
+"clear and active \"lawyer-free zone\" makes the complexities of \"fair use\" "
+"and \"idea/expression\" less necessary to navigate."
+msgstr ""
+
+#. f4.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><footnote><para>
+#: freeculture.xml:13662
+msgid ""
+"Department of Veterans Affairs, Veteran's Application for Compensation "
+"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #75</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13655
+msgid ""
+"Keep it alive: Copyright should have to be renewed. Especially if the "
+"maximum term is long, the copyright owner should be required to signal "
+"periodically that he wants the protection continued. This need not be an "
+"onerous burden, but there is no reason this monopoly protection has to be "
+"granted for free. On average, it takes ninety minutes for a veteran to apply "
+"for a pension.<placeholder type=\"footnote\" id=\"0\"/> If we make veterans "
+"suffer that burden, I don't see why we couldn't require authors to spend ten "
+"minutes every fifty years to file a single form."
+msgstr ""
+
+#. (4)
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13673
+msgid ""
+"Keep it prospective: Whatever the term of copyright should be, the clearest "
+"lesson that economists teach is that a term once given should not be "
+"extended. It might have been a mistake in 1923 for the law to offer authors "
+"only a fifty-six-year term. I don't think so, but it's possible. If it was a "
+"mistake, then the consequence was that we got fewer authors to create in "
+"1923 than we otherwise would have. But we can't correct that mistake today "
+"by increasing the term. No matter what we do today, we will not increase the "
+"number of authors who wrote in 1923. Of course, we can increase the reward "
+"that those who write now get (or alternatively, increase the copyright "
+"burden that smothers many works that are today invisible). But increasing "
+"their reward will not increase their creativity in 1923. What's not done is "
+"not done, and there's nothing we can do about that now."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13688
+msgid ""
+"These changes together should produce an average copyright term that is much "
+"shorter than the current term. Until 1976, the average term was just 32.2 "
+"years. We should be aiming for the same."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13693
+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 "
+"the term under Richard Nixon. How \"radical\" can it be to ask for a more "
+"generous copyright law than Richard Nixon presided over?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:13703
+msgid "3. Free Use Vs. Fair Use"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13705
+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 "
+"heavens. The airplane came along. The scope of property rights quickly "
+"changed. There was no fuss, no constitutional challenge. It made no sense "
+"anymore to grant that much control, given the emergence of that new "
+"technology."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13713
+msgid ""
+"Our Constitution gives Congress the power to give authors \"exclusive "
+"right\" to \"their writings.\" Congress has given authors an exclusive right "
+"to \"their writings\" plus any derivative writings (made by others) that are "
+"sufficiently close to the author's original work. Thus, if I write a book, "
+"and you base a movie on that book, I have the power to deny you the right to "
+"release that movie, even though that movie is not \"my writing.\""
+msgstr ""
+
+#. f5.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:13726
+msgid ""
+"Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia "
+"University Press, 1967), 32."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13722
+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 "
+"dramatizations of a work.<placeholder type=\"footnote\" id=\"0\"/> The "
+"courts have expanded it slowly through judicial interpretation ever "
+"since. This expansion has been commented upon by one of the law's greatest "
+"judges, Judge Benjamin Kaplan."
+msgstr ""
+
+#. f6.
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
+#: freeculture.xml:13739
+msgid "Ibid., 56."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
+#: freeculture.xml:13735
+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 "
+"accepting such an enlargement of copyright while yet intoning the "
+"abracadabra of idea and expression.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13744
+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 "
+"sense. More precisely, they don't make sense for the period of time that a "
+"copyright runs. And they don't make sense as an amorphous grant. Consider "
+"each limitation in turn."
+msgstr ""
+
+#. PAGE BREAK 300
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13751
+msgid ""
+"Term: If Congress wants to grant a derivative right, then that right should "
+"be for a much shorter term. It makes sense to protect John Grisham's right "
+"to sell the movie rights to his latest novel (or at least I'm willing to "
+"assume it does); but it does not make sense for that right to run for the "
+"same term as the underlying copyright. The derivative right could be "
+"important in inducing creativity; it is not important long after the "
+"creative work is done."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13762
+msgid ""
+"Scope: Likewise should the scope of derivative rights be narrowed. Again, "
+"there are some cases in which derivative rights are important. Those should "
+"be specified. But the law should draw clear lines around regulated and "
+"unregulated uses of copyrighted material. When all \"reuse\" of creative "
+"material was within the control of businesses, perhaps it made sense to "
+"require lawyers to negotiate the lines. It no longer makes sense for lawyers "
+"to negotiate the lines. Think about all the creative possibilities that "
+"digital technologies enable; now imagine pouring molasses into the "
+"machines. That's what this general requirement of permission does to the "
+"creative process. Smothers it."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13774
+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 "
+"derivative rights—turning a book into a movie, or a poem into a "
+"musical score—it doesn't make sense to require negotiation for the "
+"unforeseeable. Here, a statutory right would make much more sense."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:13790
+msgid "Goldstein, Paul"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:13788
+msgid ""
+"Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox "
+"(Stanford: Stanford University Press, 2003), 187–216. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13782
+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 "
+"reverse of the recommendation of my colleague Paul Goldstein.<placeholder "
+"type=\"footnote\" id=\"0\"/> His view is that the law should be written so "
+"that expanded protections follow expanded uses."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13796
+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 "
+"Internet, the uncertainty about the scope of protection, and the incentives "
+"to protect existing architectures of revenue, combined with a strong "
+"copyright, weaken the process of innovation."
+msgstr ""
+
+#. PAGE BREAK 301
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13803
+msgid ""
+"The law could remedy this problem either by removing protection beyond the "
+"part explicitly drawn or by granting reuse rights upon certain statutory "
+"conditions. Either way, the effect would be to free a great deal of culture "
+"to others to cultivate. And under a statutory rights regime, that reuse "
+"would earn artists more income."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:13813
+msgid "4. Liberate the Music—Again"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13815
+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, "
+"most pressing—music. There is no other policy issue that better "
+"teaches the lessons of this book than the battles around the sharing of "
+"music."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13822
+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 "
+"other single application. It was the Internet's killer app—possibly in "
+"two senses of that word. It no doubt was the application that drove demand "
+"for bandwidth. It may well be the application that drives demand for "
+"regulations that in the end kill innovation on the network."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13831
+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, "
+"and, most importantly, spread. The law does this by giving an exclusive "
+"right to a composer to control public performances of his work, and to a "
+"performing artist to control copies of her performance."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13838
+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 "
+"all the file-sharing networks do. As I described in chapter 5, they enable "
+"four different kinds of sharing:"
+msgstr ""
+
+#. A.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13846
+msgid ""
+"There are some who are using sharing networks as substitutes for purchasing "
+"CDs."
+msgstr ""
+
+#. B.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13851
+msgid ""
+"There are also some who are using sharing networks to sample, on the way to "
+"purchasing CDs."
+msgstr ""
+
+#. PAGE BREAK 302
+#. C.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13857
+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 "
+"too cumbersome to buy off the Net."
+msgstr ""
+
+#. D.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:13863
+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 "
+"endorses."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13869
+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 "
+"with which the law aims to eliminate type A, moreover, should depend upon "
+"the magnitude of type B. As with VCRs, if the net effect of sharing is "
+"actually not very harmful, the need for regulation is significantly "
+"weakened."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13877
+msgid ""
+"As I said in chapter 5, the actual harm caused by sharing is controversial. "
+"For the purposes of this chapter, however, I assume the harm is real. I "
+"assume, in other words, that type A sharing is significantly greater than "
+"type B, and is the dominant use of sharing networks."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13884
+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 "
+"respond."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13889
+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 "
+"content. It won't be the easiest way to get access to a broad range of "
+"content in ten years. Today, access to the Internet is cumbersome and "
+"slow—we in the United States are lucky to have broadband service at "
+"1.5 MBs, and very rarely do we get service at that speed both up and "
+"down. Although wireless access is growing, most of us still get access "
+"across wires. Most only gain access through a machine with a keyboard. The "
+"idea of the always on, always connected Internet is mainly just an idea."
+msgstr ""
+
+#. PAGE BREAK 303
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13901
+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 "
+"policy on the basis of technology in transition. They should make policy on "
+"the basis of where the technology is going. The question should not be, how "
+"should the law regulate sharing in this world? The question should be, what "
+"law will we require when the network becomes the network it is clearly "
+"becoming? That network is one in which every machine with electricity is "
+"essentially on the Net; where everywhere you are—except maybe the "
+"desert or the Rockies—you can instantaneously be connected to the "
+"Internet. Imagine the Internet as ubiquitous as the best cell-phone service, "
+"where with the flip of a device, you are connected."
+msgstr ""
+
+#. f8.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:13933
+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 "
+"#76</ulink>."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13916
+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 "
+"is streamed to the user when the user demands. Here, then, is the critical "
+"point: When it is extremely easy to connect to services that give access to "
+"content, it will be easier to connect to services that give you access to "
+"content than it will be to download and store content on the many devices "
+"you will have for playing content. It will be easier, in other words, to "
+"subscribe than it will be to be a database manager, as everyone in the "
+"download-sharing world of Napster-like technologies essentially is. Content "
+"services will compete with content sharing, even if the services charge "
+"money for the content they give access to. Already cell-phone services in "
+"Japan offer music (for a fee) streamed over cell phones (enhanced with plugs "
+"for headphones). The Japanese are paying for this content even though "
+"\"free\" content is available in the form of MP3s across the "
+"Web.<placeholder type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. PAGE BREAK 304
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13940
+msgid ""
+"This point about the future is meant to suggest a perspective on the "
+"present: It is emphatically temporary. The \"problem\" with file "
+"sharing—to the extent there is a real problem—is a problem that "
+"will increasingly disappear as it becomes easier to connect to the "
+"Internet. And thus it is an extraordinary mistake for policy makers today "
+"to be \"solving\" this problem in light of a technology that will be gone "
+"tomorrow. The question should not be how to regulate the Internet to "
+"eliminate file sharing (the Net will evolve that problem away). The question "
+"instead should be how to assure that artists get paid, during this "
+"transition between twentieth-century models for doing business and "
+"twenty-first-century technologies."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13956
+msgid ""
+"The answer begins with recognizing that there are different \"problems\" "
+"here to solve. Let's start with type D content—uncopyrighted content "
+"or copyrighted content that the artist wants shared. The \"problem\" with "
+"this content is to make sure that the technology that would enable this kind "
+"of sharing is not rendered illegal. You can think of it this way: Pay phones "
+"are used to deliver ransom demands, no doubt. But there are many who need "
+"to use pay phones who have nothing to do with ransoms. It would be wrong to "
+"ban pay phones in order to eliminate kidnapping."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13967
+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 "
+"because the artist is no longer valuable enough for the record label he "
+"signed with to carry his work. Or it may be unavailable because the work is "
+"forgotten. Either way, the aim of the law should be to facilitate the access "
+"to this content, ideally in a way that returns something to the artist."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13976
+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 "
+"and used book stores don't pay the copyright owner when someone reads or "
+"buys an out-of-print book. That makes total sense, of course, since any "
+"other system would be so burdensome as to eliminate the possibility of used "
+"book stores' existing. But from the author's perspective, this \"sharing\" "
+"of his content without his being compensated is less than ideal."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13986
+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 "
+"music available for sale, then commercial and noncommercial providers would "
+"be free, under this rule, to \"share\" that content, even though the sharing "
+"involved making a copy. The copy here would be incidental to the trade; in a "
+"context where commercial publishing has ended, trading music should be as "
+"free as trading books."
+msgstr ""
+
+#. PAGE BREAK 305
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:13997
+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 "
+"law set a low statutory rate for the commercial sharing of content that was "
+"not offered for sale by a commercial publisher, and if that rate were "
+"automatically transferred to a trust for the benefit of the artist, then "
+"businesses could develop around the idea of trading this content, and "
+"artists would benefit from this trade."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14007
+msgid ""
+"This system would also create an incentive for publishers to keep works "
+"available commercially. Works that are available commercially would not be "
+"subject to this license. Thus, publishers could protect the right to charge "
+"whatever they want for content if they kept the work commercially "
+"available. But if they don't keep it available, and instead, the computer "
+"hard disks of fans around the world keep it alive, then any royalty owed for "
+"such copying should be much less than the amount owed a commercial "
+"publisher."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14017
+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 "
+"for gaining access to content change. The law's solution should be as "
+"flexible as the problem is, understanding that we are in the middle of a "
+"radical transformation in the technology for delivering and accessing "
+"content."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14025
+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><sect1><sect2><para>
+#: freeculture.xml:14029
+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 "
+"set of rights that secure copyright. If those rights are to be protected, "
+"then the content industry should be compensated for that harm. Just as the "
+"technology of tobacco harmed the health of millions of Americans, or the "
+"technology of asbestos caused grave illness to thousands of miners, so, too, "
+"has the technology of digital networks harmed the interests of the content "
+"industry."
+msgstr ""
+
+#. PAGE BREAK 306
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14040
+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. "
+"And it suggests a fair response: Rather than seeking to destroy the "
+"Internet, or the p2p technologies that are currently harming content "
+"providers on the Internet, we should find a relatively simple way to "
+"compensate those who are harmed."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
+#: freeculture.xml:14084
+msgid "Fisher, William"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:14051
+msgid ""
+"William Fisher, Digital Music: Problems and Possibilities (last revised: 10 "
+"October 2000), available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #77</ulink>; William Fisher, "
+"Promises to Keep: Technology, Law, and the Future of Entertainment "
+"(forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available "
+"at <ulink url=\"http://free-culture.cc/notes/\">link #78</ulink>. Professor "
+"Netanel has proposed a related idea that would exempt noncommercial sharing "
+"from the reach of copyright and would establish compensation to artists to "
+"balance any loss. See Neil Weinstock Netanel, \"Impose a Noncommercial Use "
+"Levy to Allow Free P2P File Sharing,\" available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals, "
+"see Lawrence Lessig, \"Who's Holding Back Broadband?\" Washington Post, 8 "
+"January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter "
+"to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations "
+"Committee, 26 February 2002, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #80</ulink>; Serguei Osokine, A "
+"Quick Case for Intellectual Property Use Fee (IPUF), 3 March 2002, available "
+"at <ulink url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson "
+"Graham, \"Kazaa, Verizon Propose to Pay Artists Directly,\" USA Today, 13 "
+"May 2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#82</ulink>; Steven M. Cherry, \"Getting Copyright Right,\" IEEE Spectrum "
+"Online, 1 July 2002, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #83</ulink>; Declan McCullagh, "
+"\"Verizon's Copyright Campaign,\" CNET News.com, 27 August 2002, available "
+"at <ulink url=\"http://free-culture.cc/notes/\">link #84</ulink>. Fisher's "
+"proposal is very similar to Richard Stallman's proposal for DAT. Unlike "
+"Fisher's, Stallman's proposal would not pay artists directly proportionally, "
+"though more popular artists would get more than the less popular. As is "
+"typical with Stallman, his proposal predates the current debate by about a "
+"decade. See <ulink url=\"http://free-culture.cc/notes/\">link #85</ulink>. "
+"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
+"id=\"1\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14048
+msgid ""
+"The idea would be a modification of a proposal that has been floated by "
+"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
+"id=\"0\"/> Fisher suggests a very clever way around the current impasse of "
+"the Internet. Under his plan, all content capable of digital transmission "
+"would (1) be marked with a digital watermark (don't worry about how easy it "
+"is to evade these marks; as you'll see, there's no incentive to evade "
+"them). Once the content is marked, then entrepreneurs would develop (2) "
+"systems to monitor how many items of each content were distributed. On the "
+"basis of those numbers, then (3) artists would be compensated. The "
+"compensation would be paid for by (4) an appropriate tax."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14097
+msgid ""
+"Fisher's proposal is careful and comprehensive. It raises a million "
+"questions, most of which he answers well in his upcoming book, Promises to "
+"Keep. The modification that I would make is relatively simple: Fisher "
+"imagines his proposal replacing the existing copyright system. I imagine it "
+"complementing the existing system. The aim of the proposal would be to "
+"facilitate compensation to the extent that harm could be shown. This "
+"compensation would be temporary, aimed at facilitating a transition between "
+"regimes. And it would require renewal after a period of years. If it "
+"continues to make sense to facilitate free exchange of content, supported "
+"through a taxation system, then it can be continued. If this form of "
+"protection is no longer necessary, then the system could lapse into the old "
+"system of controlling access."
+msgstr ""
+
+#. PAGE BREAK 307
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14112
+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 "
+"supports the widest range of \"semiotic democracy\" possible. But the aims "
+"of semiotic democracy would be satisfied if the other changes I described "
+"were accomplished—in particular, the limits on derivative uses. A "
+"system that simply charges for access would not greatly burden semiotic "
+"democracy if there were few limitations on what one was allowed to do with "
+"the content itself."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14125
+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 "
+"outweighed by the benefit of facilitating innovation. This background system "
+"to compensate would also not need to interfere with innovative proposals "
+"such as Apple's MusicStore. As experts predicted when Apple launched the "
+"MusicStore, it could beat \"free\" by being easier than free is. This has "
+"proven correct: Apple has sold millions of songs at even the very high price "
+"of 99 cents a song. (At 99 cents, the cost is the equivalent of a per-song "
+"CD price, though the labels have none of the costs of a CD to pay.) Apple's "
+"move was countered by Real Networks, offering music at just 79 cents a "
+"song. And no doubt there will be a great deal of competition to offer and "
+"sell music on-line."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14140
+msgid ""
+"This competition has already occurred against the background of \"free\" "
+"music from p2p systems. As the sellers of cable television have known for "
+"thirty years, and the sellers of bottled water for much more than that, "
+"there is nothing impossible at all about \"competing with free.\" Indeed, if "
+"anything, the competition spurs the competitors to offer new and better "
+"products. This is precisely what the competitive market was to be "
+"about. Thus in Singapore, though piracy is rampant, movie theaters are often "
+"luxurious—with \"first class\" seats, and meals served while you watch "
+"a movie—as they struggle and succeed in finding ways to compete with "
+"\"free.\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14152
+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 "
+"content. That competition would continue to shrink type A sharing. It would "
+"inspire an extraordinary range of new innovators—ones who would have a "
+"right to the content, and would no longer fear the uncertain and "
+"barbarically severe punishments of the law."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14161
+msgid "In summary, then, my proposal is this:"
+msgstr ""
+
+#. PAGE BREAK 308
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14166
+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 "
+"interests affected by this technological change, while enabling, and "
+"encouraging, the most efficient technology we can create."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14173
+msgid "We can minimize that harm while maximizing the benefit to innovation by"
+msgstr ""
+
+#. 1.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:14179
+msgid "guaranteeing the right to engage in type D sharing;"
+msgstr ""
+
+#. 2.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:14183
+msgid ""
+"permitting noncommercial type C sharing without liability, and commercial "
+"type C sharing at a low and fixed rate set by statute;"
+msgstr ""
+
+#. 3.
+#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
+#: freeculture.xml:14189
+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><sect1><sect2><para>
+#: freeculture.xml:14194
+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 "
+"consumers continue to \"take\" content for nothing? Should the law do "
+"something then?"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14200
+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 "
+"is not whether it eliminates sharing in the abstract. The real issue is its "
+"effect on the market. Is it better (a) to have a technology that is 95 "
+"percent secure and produces a market of size x, or (b) to have a technology "
+"that is 50 percent secure but produces a market of five times x? Less secure "
+"might produce more unauthorized sharing, but it is likely to also produce a "
+"much bigger market in authorized sharing. The most important thing is to "
+"assure artists' compensation without breaking the Internet. Once that's "
+"assured, then it may well be appropriate to find ways to track down the "
+"petty pirates."
+msgstr ""
+
+#. PAGE BREAK 309
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14214
+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 "
+"ways to break the Internet. Our focus until we're there should be on how to "
+"make sure the artists are paid, while protecting the space for innovation "
+"and creativity that the Internet is."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><title>
+#: freeculture.xml:14225
+msgid "5. Fire Lots of Lawyers"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14227
+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, "
+"not because there are big bucks at the end but because there are ideals at "
+"the end that I would love to live."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14233
+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 "
+"our profession has become too attuned to the client. And in a world where "
+"the rich clients have one strong view, the unwillingness of the profession "
+"to question or counter that one strong view queers the law."
+msgstr ""
+
+#. f10.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:14250
+msgid ""
+"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer "
+"Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14241
+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 "
+"precisely the positions of some of the most moderate and significant figures "
+"in the history of this branch of the law. Many, for example, thought crazy "
+"the challenge that we brought to the Copyright Term Extension Act. Yet just "
+"thirty years ago, the dominant scholar and practitioner in the field of "
+"copyright, Melville Nimmer, thought it obvious.<placeholder "
+"type=\"footnote\" id=\"0\"/>"
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14256
+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 "
+"to actually reckon the costs of the law."
+msgstr ""
+
+#. f11.
+#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
+#: freeculture.xml:14266
+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 "
+"question his own publicly stated position—twice. He initially "
+"predicted that downloading would substantially harm the industry. He then "
+"revised his view in light of the data, and he has since revised his view "
+"again. Compare Stan J. Liebowitz, Rethinking the Network Economy: The True "
+"Forces That Drive the Digital Marketplace (New York: Amacom, 2002), "
+"(reviewing his original view but expressing skepticism) with Stan J. "
+"Liebowitz, \"Will MP3s Annihilate the Record Industry?\" working paper, June "
+"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#86</ulink>. Liebowitz's careful analysis is extremely valuable in "
+"estimating the effect of file-sharing technology. In my view, however, he "
+"underestimates the costs of the legal system. See, for example, Rethinking, "
+"174–76."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14261
+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 "
+"actually functions, simply assume that the transaction costs of the legal "
+"system are slight.<placeholder type=\"footnote\" id=\"0\"/> They see a "
+"system that has been around for hundreds of years, and they assume it works "
+"the way their elementary school civics class taught them it works."
+msgstr ""
+
+#. PAGE BREAK 310
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14289
+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 "
+"corrupt. I don't think our legal system (at the federal level, at least) is "
+"at all corrupt. I mean simply because the costs of our legal system are so "
+"astonishingly high that justice can practically never be done."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14297
+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 "
+"lawyer spend reading cases carefully, or researching obscure strands of "
+"authority? The answer is the increasing reality: very little. The law "
+"depended upon the careful articulation and development of doctrine, but the "
+"careful articulation and development of legal doctrine depends upon careful "
+"work. Yet that careful work costs too much, except in the most high-profile "
+"and costly cases."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14307
+msgid ""
+"The costliness and clumsiness and randomness of this system mock our "
+"tradition. And lawyers, as well as academics, should consider it their duty "
+"to change the way the law works—or better, to change the law so that "
+"it works. It is wrong that the system works well only for the top 1 percent "
+"of the clients. It could be made radically more efficient, and inexpensive, "
+"and hence radically more just."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14315
+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 "
+"law will too often do if too much of our culture is left to its review."
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14321
+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 "
+"the amazing things your community could facilitate with digital "
+"technology—a wiki, a barn raising, activism to change something. "
+"Think about all those creative things, and then imagine cold molasses poured "
+"onto the machines. This is what any regime that requires permission "
+"produces. Again, this is the reality of Brezhnev's Russia."
+msgstr ""
+
+#. PAGE BREAK 311
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14330
+msgid ""
+"The law should regulate in certain areas of culture—but it should "
+"regulate culture only where that regulation does good. Yet lawyers rarely "
+"test their power, or the power they promote, against this simple pragmatic "
+"question: \"Will it do good?\" When challenged about the expanding reach of "
+"the law, the lawyer answers, \"Why not?\""
+msgstr ""
+
+#. type: Content of: <book><chapter><sect1><sect2><para>
+#: freeculture.xml:14339
+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 "
+"lawyers away."
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:14348
+msgid "NOTES"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:14350
+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 "
+"unstable. I have tried to remedy the instability by redirecting readers to "
+"the original source through the Web site associated with this book. For each "
+"link below, you can go to http://free-culture.cc/notes and locate the "
+"original source by clicking on the number after the # sign. If the original "
+"link remains alive, you will be redirected to that link. If the original "
+"link has disappeared, you will be redirected to an appropriate reference for "
+"the material."
+msgstr ""
+
+#. type: Content of: <book><chapter><title>
+#: freeculture.xml:14365
+msgid "ACKNOWLEDGMENTS"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:14367
+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 "
+"helped launch a movement, the free culture movement, and it is to him that "
+"this book is dedicated."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:14373
+msgid ""
+"I received guidance in various places from friends and academics, including "
+"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and "
+"Kathleen Sullivan. And I received correction and guidance from many amazing "
+"students at Stanford Law School and Stanford University. They included "
+"Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica "
+"Goldberg, Robert Hallman, Andrew Harris, Matthew Kahn, Brian Link, Ohad "
+"Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine "
+"Crump and Harry Surden, who helped direct their research, and to Laura "
+"Lynch, who brilliantly managed the army that they assembled, and provided "
+"her own critical eye on much of this."
+msgstr ""
+
+#. PAGE BREAK 337
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:14386
+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 "
+"prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro "
+"Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am "
+"thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University "
+"Business Law Center, for giving me the chance to spend time in Japan, and to "
+"Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was "
+"there."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:14397
+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 "
+"advice and correction from many whom I have never even met. Among those who "
+"have responded with extremely helpful advice to requests on my blog about "
+"the book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as "
+"well as a long list of those who had specific ideas about ways to develop my "
+"argument. They included Richard Bondi, Steven Cherry, David Coe, Nik "
+"Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, "
+"Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James "
+"Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan "
+"McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir Safdar, "
+"Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, "
+"Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko "
+"Williams, \"Wink,\" Roger Wood, \"Ximmbo da Jazz,\" and Richard Yanco. (I "
+"apologize if I have missed anyone; with computers come glitches, and a crash "
+"of my e-mail system meant I lost a bunch of great replies.)"
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:14417
+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 "
+"see more clearly the significance of the regulation of derivitive works. And "
+"Richard corrected an embarrassingly large number of errors. While my work is "
+"in part inspired by Stallman's, he does not agree with me in important "
+"places throughout this book."
+msgstr ""
+
+#. type: Content of: <book><chapter><para>
+#: freeculture.xml:14426
+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 "
+"always been right. This slow learner is, as ever, grateful for her perpetual "
+"patience and love."
+msgstr ""
projects / text-free-culture-lessig.git / commitdiff