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<para>
ALSO BY LAWRENCE LESSIG
-<sbr/>The Future of Ideas: The Fate of the Commons
+</para>
+<para>
+The Future of Ideas: The Fate of the Commons
in a Connected World
-<sbr/>Code: And Other Laws of Cyberspace
+</para>
+<para>
+Code: And Other Laws of Cyberspace
</para>
<!-- PAGE BREAK 4 -->
<para>
THE PENGUIN PRESS
-<sbr/>NEW YORK
+</para>
+<para>
+NEW YORK
</para>
<!-- PAGE BREAK 5 -->
<!-- PAGE BREAK 6 -->
<para>
THE PENGUIN PRESS
-<sbr/>a member of Penguin Group (USA) Inc. 375 Hudson Street New
+</para>
+<para>
+a member of Penguin Group (USA) Inc. 375 Hudson Street New
York, New York
-<sbr/>Copyright © Lawrence Lessig,
-<sbr/>All rights reserved
-<sbr/>Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
+</para>
+<para>
+Copyright © Lawrence Lessig,
+</para>
+<para>
+All rights reserved
+</para>
+<para>
+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.
-<sbr/>Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
-<sbr/>All rights reserved. Reprinted with permission.
-<sbr/>Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
-<sbr/>Library of Congress Cataloging-in-Publication Data
-<sbr/>Lessig, Lawrence.
+</para>
+<para>
+Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc.
+</para>
+<para>
+All rights reserved. Reprinted with permission.
+</para>
+<para>
+Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps.
+</para>
+<para>
+Library of Congress Cataloging-in-Publication Data
+</para>
+<para>
+Lessig, Lawrence.
Free culture : how big media uses technology and the law to lock down
culture and control creativity / Lawrence Lessig.
-<sbr/>p. cm.
-<sbr/>Includes index.
-<sbr/>ISBN 1-59420-006-8 (hardcover)
-<sbr/>1. Intellectual property—United States. 2. Mass media—United States.
-<sbr/>3. Technological innovations—United States. 4. Art—United States. I. Title.
-<sbr/>KF2979.L47
-<sbr/>343.7309'9—dc22
-<sbr/>This book is printed on acid-free paper.
-<sbr/>Printed in the United States of America
-<sbr/>1 3 5 7 9 10 8 6 4
-<sbr/>Designed by Marysarah Quinn
+</para>
+<para>
+p. cm.
+</para>
+<para>
+Includes index.
+</para>
+<para>
+ISBN 1-59420-006-8 (hardcover)
+</para>
+<para>
+1. Intellectual property—United States. 2. Mass media—United States.
+</para>
+<para>
+3. Technological innovations—United States. 4. Art—United States. I. Title.
+</para>
+<para>
+KF2979.L47
+</para>
+<para>
+343.7309'9—dc22
+</para>
+<para>
+This book is printed on acid-free paper.
+</para>
+<para>
+Printed in the United States of America
+</para>
+<para>
+1 3 5 7 9 10 8 6 4
+</para>
+<para>
+Designed by Marysarah Quinn
</para>
<para>
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.<footnote>
-<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
-<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
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
Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul
Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984),
1112–13.
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
</para></footnote>
</para>
</blockquote>
granting them exclusive rights to their creative work, so that they could
sell those exclusive rights in a commercial
marketplace.<footnote>
-<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<para>
This is not the only purpose of copyright, though it is the overwhelmingly
primary purpose of the copyright established in the federal constitution.
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.
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</para></footnote>
This is also, of
course, an important part of creativity and culture, and it has become
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,<footnote>
-<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<para>
Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
Journal 106 (1996): 283.
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
</para></footnote>
copyright law, properly balanced, protected creators against private
control. Our tradition was thus neither Soviet nor the tradition of
of obscenely severe penalties. We may
<!-- PAGE BREAK 33 -->
be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote>
-<indexterm><primary>Florida, Richard</primary></indexterm>
<para>
<!-- f4 -->
In The Rise of the Creative Class (New York: Basic Books, 2002),
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.
+<indexterm><primary>Florida, Richard</primary></indexterm>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
in fact, any special knowledge of the art. It can be employed without
preliminary study, without a darkroom and without
chemicals.<footnote>
-<indexterm><primary>Coe, Brian</primary></indexterm>
<para>
<!-- f2 -->
Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
1977), 53.
+<indexterm><primary>Coe, Brian</primary></indexterm>
</para></footnote>
</para>
</blockquote>
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.<footnote>
-<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
-<indexterm><primary>Warren, Samuel D.</primary></indexterm>
<para>
<!-- f7 -->
Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
Harvard Law Review 4 (1890): 193.
+<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
+<indexterm><primary>Warren, Samuel D.</primary></indexterm>
</para></footnote>) 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
USC School of Cinema-Television, explained to me, the grammar was
about "the placement of objects, color, . . . rhythm, pacing, and
texture."<footnote>
-<indexterm><primary>Barish, Stephanie</primary></indexterm>
-<indexterm><primary>Daley, Elizabeth</primary></indexterm>
<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
2002.
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
+<indexterm><primary>Daley, Elizabeth</primary></indexterm>
</para></footnote>
But as computers open up an interactive space where a story is
"played" as well as experienced, that grammar changes. The simple
and this literacy in particular, is to "empower people to choose the
appropriate
language for what they need to create or express."<footnote>
-<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
<!-- f13 -->
Interview with Daley and Barish.
+<indexterm><primary>Barish, Stephanie</primary></indexterm>
</para></footnote> It is to enable
students "to communicate in the language of the twenty-first century."<footnote><para>
<!-- f14 -->
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.<footnote>
-<indexterm><primary>CNN</primary></indexterm>
<para>
<!-- f21 -->
See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
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.")
+<indexterm><primary>CNN</primary></indexterm>
</para></footnote>
But it is clear that we are still in transition. "A
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."<footnote>
<!-- f13 -->
-<indexterm><primary>Black, Jane</primary></indexterm>
<para>
Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
February 2003, available at
<ulink url="http://free-culture.cc/notes/">link #17</ulink>.
+<indexterm><primary>Black, Jane</primary></indexterm>
</para>
</footnote>
Competition from other forms of media could also account for some of the
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."<footnote>
-<indexterm>
-<primary>artists</primary>
-<secondary>publicity rights on images of</secondary>
-</indexterm>
<para>
<!-- f1 -->
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.
+<indexterm>
+<primary>artists</primary>
+<secondary>publicity rights on images of</secondary>
+</indexterm>
</para></footnote>
</para>
<para>
time. A restriction imposed by one modality might be erased by
another. A freedom enabled by one modality might be displaced by
another.<footnote>
-<indexterm><primary>Commons, John R.</primary></indexterm>
<para>
<!-- f4 -->
Some people object to this way of talking about "liberty." They object
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. </para></footnote>
+of these groups might face.
+<indexterm><primary>Commons, John R.</primary></indexterm>
+</para></footnote>
</para>
<sect2 id="hollywood">
<title>Why Hollywood Is Right</title>
protecting creative property, and some believed that these laws simply
supplemented common law rights that already protected creative
authorship.<footnote>
-<indexterm><primary>Crosskey, William W.</primary></indexterm>
<para>
<!-- f8 -->
William W. Crosskey, Politics and the Constitution in the History of
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).
+<indexterm><primary>Crosskey, William W.</primary></indexterm>
</para></footnote>
This meant that there was no guaranteed public domain in the United
States in 1790. If copyrights were protected by the common law, then
negligently removes the wrong leg in an operation would be liable for
no more than $250,000 in damages for pain and
suffering.<footnote>
-<indexterm><primary>Bush, George W.</primary></indexterm>
<para>
<!-- f2. --> 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
available at
<ulink url="http://free-culture.cc/notes/">link #39</ulink>. President Bush has continued to urge tort reform in
recent months.
+<indexterm><primary>Bush, George W.</primary></indexterm>
</para></footnote>
Can common sense recognize the absurdity in a world where
the maximum fine for downloading two songs off the Internet is more
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. . . . <footnote>
-<indexterm><primary>Needleman, Rafe</primary></indexterm>
<para>
<!-- f5. -->
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.
+<indexterm><primary>Needleman, Rafe</primary></indexterm>
</para></footnote>
</para>
</blockquote>
popular music to (on average) ten thousand listeners, twenty-four
hours a day, the total artist fees that radio station would owe would be
over $1 million a year.<footnote>
-<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
<para>
<!-- f14. -->
This example was derived from fees set by the original Copyright
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."
+<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
</para></footnote>
A regular radio station broadcasting the same content would pay no
equivalent fee.
Africa from India. This is called "parallel importation," and it is
generally permitted under international trade law and is specifically
permitted within the European Union.<footnote>
-<indexterm><primary>Braithwaite, John</primary></indexterm>
<para>
<!-- f2. -->
See Peter Drahos with John Braithwaite, Information Feudalism: Who
Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
+<indexterm><primary>Braithwaite, John</primary></indexterm>
</para></footnote>
</para>
<para>
protected, and the presumption should be that other uses are not
protected. This is the reverse of the recommendation of my colleague
Paul Goldstein.<footnote>
-<indexterm><primary>Goldstein, Paul</primary></indexterm>
<para>
<!-- f7. -->
Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
Jukebox (Stanford: Stanford University Press, 2003), 187–216.
+<indexterm><primary>Goldstein, Paul</primary></indexterm>
</para></footnote>
His view is that the law should be written so that
expanded protections follow expanded uses.
<para>
The idea would be a modification of a proposal that has been
floated by Harvard law professor William Fisher.<footnote>
-<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
-<indexterm><primary>Fisher, William</primary></indexterm>
<para>
<!-- f9. --> William Fisher, Digital Music: Problems and Possibilities (last revised:
10 October 2000), available at
debate
by about a decade. See
<ulink url="http://free-culture.cc/notes/">link #85</ulink>.
+<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
+<indexterm><primary>Fisher, William</primary></indexterm>
</para></footnote>
Fisher suggests a
very clever way around the current impasse of the Internet. Under his
projects / text-free-culture-lessig.git / commitdiff