More index entries.

diff --git a/freeculture.xml b/freeculture.xml
index 6f0f1a716bbca91723c8802e371cd68e0cff04ef..4089b58939049a12722f71ff568084bd080f90f0 100644 (file)
--- a/freeculture.xml
+++ b/freeculture.xml
@@ -412,6 +412,8 @@ 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?
 </para>
 to enter into an exclusive license with Delta Airlines? Could we
 set up an auction to decide how much these rights are worth?
 </para>

+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 In 1945, these questions became a federal case. When North Carolina
 farmers Thomas Lee and Tinie Causby started losing chickens
 <para>
 In 1945, these questions became a federal case. When North Carolina
 farmers Thomas Lee and Tinie Causby started losing chickens


@@ -423,6 +425,8 @@ 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.
 </para>
 extent, upwards," then the government was trespassing on their
 property, and the Causbys wanted it to stop.
 </para>

+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 The Supreme Court agreed to hear the Causbys' case. Congress had
 declared the airways public, but if one's property really extended to the
 <para>
 The Supreme Court agreed to hear the Causbys' case. Congress had
 declared the airways public, but if one's property really extended to the


@@ -442,17 +446,18 @@ 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
 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.<footnote><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 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&ndash;13.
+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
+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&ndash;13.

 </para></footnote>
 </para>
 </blockquote>
 </para></footnote>
 </para>
 </blockquote>


@@ -470,6 +475,8 @@ 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.
 </para>
 technologies of the time. And as it adjusts, it changes. Ideas that were
 as solid as rock in one age crumble in another.
 </para>

+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 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
 <para>
 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


@@ -882,27 +889,31 @@ culture if it is allowed to continue unchecked. We must come to
                understand
 the source of this war. We must resolve it soon.
 </para>
                understand
 the source of this war. We must resolve it soon.
 </para>

-<para>
-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.
-</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>
+<para>
+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.
+</para>
+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 And thus, when geeks and technologists defend their Armstrong or
 <para>
 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
+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

 <!-- PAGE BREAK 27 -->
 the lucky Wright brothers, the Internet has not inspired a revolution
 on its side.
 <!-- PAGE BREAK 27 -->
 the lucky Wright brothers, the Internet has not inspired a revolution
 on its side.


@@ -945,15 +956,16 @@ sense stand silent in the face of these extremes because, as with
 versus RCA, the more powerful side has ensured that it has the
 more powerful view?
 </para>
 versus RCA, the more powerful side has ensured that it has the
 more powerful view?
 </para>

+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 <para>

-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.
+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.

 <!-- PAGE BREAK 28 -->
 </para>
 <para>
 <!-- PAGE BREAK 28 -->
 </para>
 <para>


@@ -4755,6 +4767,7 @@ fixed for a limited time, after which the work protected by copyright
 passed into the public domain.
 </para>
 <indexterm><primary>Bacon, Francis</primary></indexterm>
 passed into the public domain.
 </para>
 <indexterm><primary>Bacon, Francis</primary></indexterm>

+<indexterm><primary>Bunyan, John</primary></indexterm>

 <para>
 "The public domain." Before the case of Donaldson v. Beckett, there
 was no clear idea of a public domain in England. Before 1774, there
 <para>
 "The public domain." Before the case of Donaldson v. Beckett, there
 was no clear idea of a public domain in England. Before 1774, there


@@ -6358,6 +6371,7 @@ 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.
 </para>
 production is a good thing. No one doubts that the work of Müller was
 important and valuable and probably saved lives, possibly millions.
 </para>

+<indexterm><primary>Carson, Rachel</primary></indexterm>

 <para>
 But in 1962, Rachel Carson published Silent Spring, which argued that
 DDT, whatever its primary benefits, was also having unintended
 <para>
 But in 1962, Rachel Carson published Silent Spring, which argued that
 DDT, whatever its primary benefits, was also having unintended


@@ -7209,6 +7223,7 @@ 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.
 </para>
 tradition embraced, who said whether and how the law would restrict
 your freedom.
 </para>

+<indexterm><primary>Casablanca</primary></indexterm>

 <para>
 There's a famous story about a battle between the Marx Brothers
 and Warner Brothers. The Marxes intended to make a parody of
 <para>
 There's a famous story about a battle between the Marx Brothers
 and Warner Brothers. The Marxes intended to make a parody of


@@ -8556,6 +8571,7 @@ permission and creativity must check with a lawyer.
 <!-- PAGE BREAK 186 -->
 <sect1 id="chimera">
 <title>CHAPTER ELEVEN: Chimera</title>
 <!-- PAGE BREAK 186 -->
 <sect1 id="chimera">
 <title>CHAPTER ELEVEN: Chimera</title>

+<indexterm><primary>chimeras</primary></indexterm>

 <para>
 
 In a well-known short story by H. G. Wells, a mountain climber
 <para>
 
 In a well-known short story by H. G. Wells, a mountain climber


@@ -8621,13 +8637,12 @@ that in order to cure him completely, all that we need to do is a simple
 and easy surgical operation&mdash;namely, to remove these irritant bodies
 [the eyes]."
 </para>
 and easy surgical operation&mdash;namely, to remove these irritant bodies
 [the eyes]."
 </para>

+<indexterm><primary>chimeras</primary></indexterm>

 <para>
 <para>

-"Thank Heaven for science!" says the father to the doctor. They 
-               inform
+"Thank Heaven for science!" says the father to the doctor. They inform

 Nunez of this condition necessary for him to be allowed his bride.
 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.)
+(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
 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


@@ -8638,15 +8653,16 @@ plot for murder mysteries. "But the DNA shows with 100 percent
                certainty
 that she was not the person whose blood was at the scene. . . ."
 </para>
                certainty
 that she was not the person whose blood was at the scene. . . ."
 </para>

+<indexterm><primary>chimeras</primary></indexterm>

 <para>
 <para>

-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.
+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.

 </para>
 </para>

+<indexterm><primary>chimeras</primary></indexterm>

 <para>
 The more I work to understand the current struggle over copyright
 and culture, which I've sometimes called unfairly, and sometimes not
 <para>
 The more I work to understand the current struggle over copyright
 and culture, which I've sometimes called unfairly, and sometimes not


@@ -8695,23 +8711,24 @@ to the RIAA, by contrast, if I download a ten-song CD, I'm
                liable
 for $1,500,000 in damages.)
 </para>
                liable
 for $1,500,000 in damages.)
 </para>

+<indexterm><primary>chimeras</primary></indexterm>

 <para>
 <para>

-The point is not that it is as neither side describes. The point is that
-it is both&mdash;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?
+The point is not that it is as neither side describes. The point is
+that it is both&mdash;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?

 </para>
 </para>

+<indexterm><primary>chimeras</primary></indexterm>

 <para>
 We could respond by simply pretending that it is not a chimera. We
 <para>
 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.<footnote><para>
+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.<footnote><para>

 <!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
 Berkman Center for Internet and Society at Harvard Law School, 
                "Copyright
 <!-- f2. --> For an excellent summary, see the report prepared by GartnerG2 and the
 Berkman Center for Internet and Society at Harvard Law School, 
                "Copyright


@@ -8866,10 +8883,12 @@ 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.
 </para>
 power of the property called "intellectual property" is at its greatest in
 our history.
 </para>

+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 <para>

-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
+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.
 </para>
 <para>
 rejection of "piracy" still has play.
 </para>
 <para>


@@ -8951,7 +8970,9 @@ Approval for SEC Settlement" (7 July 2003), available at
 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
 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.<footnote><para>
+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
 an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
 <!-- 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
 an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'


@@ -9584,29 +9605,30 @@ 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
 William Fisher estimates, if an Internet radio station distributed adfree
 popular music to (on average) ten thousand listeners, twenty-four
 hours a day, the total artist fees that radio station would owe would be

-over $1 million a year.<footnote><para>
-<!-- f14. --> 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 
+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
+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>.
 <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
+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."
 </para></footnote>
 interests, that could have been done in a media-neutral way."
 </para></footnote>

- A regular radio station broadcasting the same
-content would pay no equivalent fee.
+A regular radio station broadcasting the same content would pay no
+equivalent fee.

 </para>
 <para>
 The burden is not financial only. Under the original rules that were
 </para>
 <para>
 The burden is not financial only. Under the original rules that were


@@ -12238,6 +12260,8 @@ 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.
 </para>
 domain connected to a public that now has the means to create with it
 and to share its own creation.
 </para>

+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 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
 <para>
 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


@@ -12958,6 +12982,8 @@ 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.
 </para>
 thought to violate the law. Universities are threatening expulsion for
 kids who use a computer to share content.
 </para>

+<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
+<indexterm><primary>Causby, Tinie</primary></indexterm>

 <para>
 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
 <para>
 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