msgid ""
msgstr ""
"Project-Id-Version: PACKAGE VERSION\n"
-"POT-Creation-Date: 2012-07-27 11:04+0300\n"
+"POT-Creation-Date: 2012-07-27 20:12+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"
"Content-Transfer-Encoding: 8bit\n"
#. type: Content of the copy entity
-#: freeculture.xml:13
+#: freeculture.xml:12
msgid "©"
msgstr ""
#. type: Attribute 'lang' of: <book>
-#: freeculture.xml:19
+#: freeculture.xml:18
msgid "en"
msgstr ""
#. type: Content of: <book><bookinfo><title>
-#: freeculture.xml:21
+#: freeculture.xml:20
msgid "Free Culture"
msgstr ""
#. type: Content of: <book><bookinfo>
-#: freeculture.xml:23
+#: freeculture.xml:22
msgid "<abbrev>\"freeculture\"</abbrev>"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:25 freeculture.xml:113
+#: freeculture.xml:24 freeculture.xml:112
msgid ""
"HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL "
"CREATIVITY"
msgstr ""
#. type: Content of: <book><bookinfo>
-#: freeculture.xml:28
+#: freeculture.xml:27
msgid "<pubdate>2004-03-25</pubdate>"
msgstr ""
#. type: Content of: <book><bookinfo><releaseinfo>
-#: freeculture.xml:30
+#: freeculture.xml:29
msgid "Version 2004-02-10"
msgstr ""
#. type: Content of: <book><bookinfo><authorgroup><author><firstname>
-#: freeculture.xml:34
+#: freeculture.xml:33
msgid "Lawrence"
msgstr ""
#. type: Content of: <book><bookinfo><authorgroup><author><surname>
-#: freeculture.xml:35
+#: freeculture.xml:34
msgid "Lessig"
msgstr ""
#. type: Content of: <book><bookinfo>
-#: freeculture.xml:39
+#: freeculture.xml:38
msgid "<copyright> <year>2004</year> <holder>Lawrence Lessig</holder> </copyright>"
msgstr ""
#. type: Content of: <book><bookinfo><legalnotice><para>
-#: freeculture.xml:46
+#: freeculture.xml:45
msgid ""
-"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 "
+"This version of <citetitle>Free Culture</citetitle> 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>"
msgstr ""
#. type: Content of: <book><bookinfo><abstract><title>
-#: freeculture.xml:55
+#: freeculture.xml:54
msgid "ABOUT THE AUTHOR"
msgstr ""
#. type: Content of: <book><bookinfo><abstract><para>
-#: freeculture.xml:57
+#: freeculture.xml:56
msgid ""
"LAWRENCE LESSIG (<ulink "
"url=\"http://www.lessig.org/\">http://www.lessig.org</ulink>), professor of "
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:81
+#: freeculture.xml:80
msgid "You can buy a copy of this book by clicking on one of the links below:"
msgstr ""
#. type: Content of: <book><colophon><itemizedlist><listitem><para>
-#: freeculture.xml:84
+#: freeculture.xml:83
msgid "<ulink url=\"http://www.amazon.com/\">Amazon</ulink>"
msgstr ""
#. type: Content of: <book><colophon><itemizedlist><listitem><para>
-#: freeculture.xml:85
+#: freeculture.xml:84
msgid "<ulink url=\"http://www.barnesandnoble.com/\">B&N</ulink>"
msgstr ""
#. type: Content of: <book><colophon><itemizedlist><listitem><para>
-#: freeculture.xml:86
+#: freeculture.xml:85
msgid "<ulink url=\"http://www.penguin.com/\">Penguin</ulink>"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:93
+#: freeculture.xml:92
msgid "ALSO BY LAWRENCE LESSIG"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:96
+#: freeculture.xml:95
msgid "The Future of Ideas: The Fate of the Commons in a Connected World"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:99
+#: freeculture.xml:98
msgid "Code: And Other Laws of Cyberspace"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:104
+#: freeculture.xml:103
msgid "THE PENGUIN PRESS, NEW YORK"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:109
+#: freeculture.xml:108
msgid "FREE CULTURE"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:119
+#: freeculture.xml:118
msgid "LAWRENCE LESSIG"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:124
+#: freeculture.xml:123
msgid ""
"THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street "
"New York, New York"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:128
+#: freeculture.xml:127
msgid "Copyright © Lawrence Lessig. All rights reserved."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:131
+#: freeculture.xml:130
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."
+"Excerpt from an editorial titled \"The Coming of Copyright Perpetuity,\" "
+"<citetitle>The New York Times</citetitle>, January 16, 2003. Copyright "
+"© 2003 by The New York Times Co. Reprinted with permission."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:136
+#: freeculture.xml:135
msgid ""
"Cartoon in <xref linkend=\"fig-1711\"/> by Paul Conrad, copyright Tribune "
"Media Services, Inc. All rights reserved. Reprinted with permission."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:140
+#: freeculture.xml:139
msgid ""
"Diagram in <xref linkend=\"fig-1761\"/> courtesy of the office of FCC "
"Commissioner, Michael J. Copps."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:144
+#: freeculture.xml:143
msgid "Library of Congress Cataloging-in-Publication Data"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:147
+#: freeculture.xml:146
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><colophon><para>
-#: freeculture.xml:152
+#: freeculture.xml:151
msgid "p. cm."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:155
+#: freeculture.xml:154
msgid "Includes index."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:158
+#: freeculture.xml:157
msgid "ISBN 1-59420-006-8 (hardcover)"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:161
+#: freeculture.xml:160
msgid ""
"1. Intellectual property—United States. 2. Mass media—United "
"States."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:164
+#: freeculture.xml:163
msgid ""
"3. Technological innovations—United States. 4. Art—United "
"States. I. Title."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:167
+#: freeculture.xml:166
msgid "KF2979.L47"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:170
+#: freeculture.xml:169
msgid "343.7309'9—dc22"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:173
+#: freeculture.xml:172
msgid "This book is printed on acid-free paper."
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:176
+#: freeculture.xml:175
msgid "Printed in the United States of America"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:179
+#: freeculture.xml:178
msgid "1 3 5 7 9 10 8 6 4"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:182
+#: freeculture.xml:181
msgid "Designed by Marysarah Quinn"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:186
+#: freeculture.xml:185
msgid "&translationblock;"
msgstr ""
#. type: Content of: <book><colophon><para>
-#: freeculture.xml:190
+#: freeculture.xml:189
msgid ""
"Without limiting the rights under copyright reserved above, no part of this "
"publication may be reproduced, stored in or introduced into a retrieval "
msgstr ""
#. type: Content of: <book><dedication><para>
-#: freeculture.xml:207
+#: freeculture.xml:206
msgid ""
"To Eric Eldred—whose work first drew me to this cause, and for whom it "
"continues still."
msgstr ""
#. type: Content of: <book><dedication><para><figure><title>
-#: freeculture.xml:213
+#: freeculture.xml:212
msgid "Creative Commons, Some rights reserved"
msgstr ""
#. type: Content of: <book><dedication><para><figure>
-#: freeculture.xml:214
+#: freeculture.xml:213
msgid "<graphic fileref=\"images/cc.png\"></graphic>"
msgstr ""
#. type: Content of: <book><dedication><para>
-#: freeculture.xml:212
+#: freeculture.xml:211
msgid "<placeholder type=\"figure\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><lot><title>
-#: freeculture.xml:222
+#: freeculture.xml:221
msgid "List of figures"
msgstr ""
#. type: Content of: <book><preface><title>
-#: freeculture.xml:284
+#: freeculture.xml:283
msgid "PREFACE"
msgstr ""
#. type: Content of: <book><preface><indexterm><primary>
-#: freeculture.xml:286
+#: freeculture.xml:285
msgid "Pogue, David"
msgstr ""
#. type: Content of: <book><preface><para>
-#: freeculture.xml:289
+#: 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:"
+"At the end of his review of my first book, <citetitle>Code: And Other Laws "
+"of Cyberspace</citetitle>, David Pogue, a brilliant writer and author of "
+"countless technical and computer-related texts, wrote this:"
msgstr ""
#. type: Content of: <book><preface><blockquote><para><footnote><para>
-#: freeculture.xml:299
+#: freeculture.xml:298
msgid ""
-"David Pogue, \"Don't Just Chat, Do Something,\" New York Times, 30 January "
-"2000."
+"David Pogue, \"Don't Just Chat, Do Something,\" <citetitle>New York "
+"Times</citetitle>, 30 January 2000."
msgstr ""
#. type: Content of: <book><preface><blockquote><para>
-#: freeculture.xml:295
+#: 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 "
msgstr ""
#. type: Content of: <book><preface><para>
-#: freeculture.xml:304
+#: 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."
+"off the modem, unplug the computer, and any troubles that exist in "
+"<emphasis>that</emphasis> space wouldn't \"affect\" us anymore."
msgstr ""
#. PAGE BREAK 12
#: freeculture.xml:312
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."
+"even if he was right then, the point is not right now: <citetitle>Free "
+"Culture</citetitle> 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><preface><para>
-#: freeculture.xml:322
+#: freeculture.xml:323
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."
+"But unlike <citetitle>Code</citetitle>, 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><preface><para><footnote><para>
-#: freeculture.xml:333
+#: freeculture.xml:335
msgid ""
-"Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, "
-"ed. 2002)."
+"Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 "
+"(Joshua Gay, ed. 2002)."
msgstr ""
#. type: Content of: <book><preface><para>
-#: freeculture.xml:328
+#: freeculture.xml:330
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\" "
"\"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."
+"rights, to guarantee that follow-on creators and innovators remain "
+"<emphasis>as free as possible</emphasis> 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><preface><para>
-#: freeculture.xml:347
+#: freeculture.xml:350
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 "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:355 freeculture.xml:12702
+#: freeculture.xml:358 freeculture.xml:12674
msgid "CodePink Women in Peace"
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:366 freeculture.xml:376 freeculture.xml:12715
+#: freeculture.xml:369 freeculture.xml:379 freeculture.xml:12687
msgid "Safire, William"
msgstr ""
#. type: Content of: <book><preface><para>
-#: freeculture.xml:357
+#: freeculture.xml:360
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 "
msgstr ""
#. type: Content of: <book><preface><blockquote><para><footnote><para>
-#: freeculture.xml:374
+#: freeculture.xml:377
msgid ""
-"William Safire, \"The Great Media Gulp,\" New York Times, 22 May 2003. "
-"<placeholder type=\"indexterm\" id=\"0\"/>"
+"William Safire, \"The Great Media Gulp,\" <citetitle>New York "
+"
Times</citetitle>, 22 May 2003. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><preface><blockquote><para>
-#: freeculture.xml:370
+#: freeculture.xml:373
msgid ""
"Does that sound unconservative? Not to me. The concentration of "
"power—political, corporate, media, cultural—should be anathema "
msgstr ""
#. type: Content of: <book><preface><para>
-#: freeculture.xml:381
-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."
+#: freeculture.xml:384
+msgid ""
+"This idea is an element of the argument of <citetitle>Free "
+"Culture</citetitle>, 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 <citetitle>Free Software, Free Society</citetitle>, "
+"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><preface><para>
-#: freeculture.xml:397
+#: freeculture.xml:400
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 "
msgstr ""
#. type: Content of: <book><preface><para>
-#: freeculture.xml:415
+#: freeculture.xml:418
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 "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:430
+#: freeculture.xml:433
msgid "INTRODUCTION"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:432
+#: freeculture.xml:435
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, "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:444
+#: freeculture.xml:447
msgid ""
-"St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: "
-"Rothman Reprints, 1969), 18."
+"St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South "
+"Hackensack, N.J.: Rothman Reprints, 1969), 18."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:440
+#: freeculture.xml:443
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, "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:453
+#: freeculture.xml:456
msgid ""
"Then came airplanes, and for the first time, this principle of American "
"law—deep within the foundations of our tradition, and acknowledged by "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:461 freeculture.xml:474 freeculture.xml:505 freeculture.xml:524 freeculture.xml:924 freeculture.xml:941 freeculture.xml:986 freeculture.xml:8741 freeculture.xml:12103 freeculture.xml:12806
+#: freeculture.xml:464 freeculture.xml:477 freeculture.xml:508 freeculture.xml:527 freeculture.xml:927 freeculture.xml:944 freeculture.xml:990 freeculture.xml:8724 freeculture.xml:12077 freeculture.xml:12778
msgid "Causby, Thomas Lee"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:462 freeculture.xml:475 freeculture.xml:506 freeculture.xml:525 freeculture.xml:925 freeculture.xml:942 freeculture.xml:987 freeculture.xml:8742 freeculture.xml:12104 freeculture.xml:12807
+#: freeculture.xml:465 freeculture.xml:478 freeculture.xml:509 freeculture.xml:528 freeculture.xml:928 freeculture.xml:945 freeculture.xml:991 freeculture.xml:8725 freeculture.xml:12078 freeculture.xml:12779
msgid "Causby, Tinie"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:464
+#: freeculture.xml:467
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:477
+#: freeculture.xml:480
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, "
msgstr ""
#. type: Content of: <book><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:497
+#: freeculture.xml:500
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\"/>"
+"Notes Toward a Cultural Geography of Authorship,\" <citetitle>Stanford Law "
+"Review</citetitle> 48 (1996): 1293, 1333. See also Paul Goldstein, "
+"<citetitle>Real Property</citetitle> (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:488
+#: freeculture.xml:491
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:511
+#: freeculture.xml:514
msgid "\"Common sense revolts at the idea.\""
msgstr ""
#. PAGE BREAK 18
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:514
+#: freeculture.xml:517
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:527
+#: freeculture.xml:530
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 "
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:556
+#: freeculture.xml:559
msgid "Bell, Alexander Graham"
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:557
+#: freeculture.xml:560
msgid "Edison, Thomas"
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:558
+#: freeculture.xml:561
msgid "Faraday, Michael"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:545
+#: freeculture.xml:548
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:561
+#: freeculture.xml:564
msgid ""
"On the day after Christmas, 1933, four patents were issued to Armstrong for "
"his most significant invention—FM radio. Until then, consumer radio "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:571
+#: freeculture.xml:574
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:582
+#: freeculture.xml:585
msgid "The audience was hearing something no one had thought possible:"
msgstr ""
#. type: Content of: <book><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:593
+#: freeculture.xml:596
msgid ""
-"Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong "
-"(Philadelphia: J. B. Lipincott Company, 1956), 209."
+"Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard "
+"Armstrong</citetitle> (Philadelphia: J. B. Lipincott Company, 1956), 209."
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:586
+#: freeculture.xml:589
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 "
#. PAGE BREAK 20
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:599
+#: freeculture.xml:602
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 "
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:613 freeculture.xml:633
+#: freeculture.xml:616 freeculture.xml:636
msgid "Sarnoff, David"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:608
+#: freeculture.xml:611
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 "
msgstr ""
#. type: Content of: <book><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:620
+#: freeculture.xml:623
msgid ""
"See \"Saints: The Heroes and Geniuses of the Electronic Era,\" First "
"Electronic Church of America, at www.webstationone.com/fecha, available at "
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:617
+#: freeculture.xml:620
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:629
+#: freeculture.xml:632
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, "
msgstr ""
#. type: Content of: <book><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:642
+#: freeculture.xml:645
msgid "Lessing, 226."
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:637
+#: freeculture.xml:640
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:647
+#: freeculture.xml:650
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 "
msgstr ""
#. type: Content of: <book><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:666
+#: freeculture.xml:669
msgid "Lessing, 256."
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:662
+#: freeculture.xml:665
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, "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:670
+#: freeculture.xml:673
msgid "AT&T"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:672
+#: freeculture.xml:675
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:682
+#: freeculture.xml:685
msgid ""
"Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's "
"patents. After incorporating FM technology into the emerging standard for "
#. PAGE BREAK 22
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:694
+#: freeculture.xml:697
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, "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:716
+#: freeculture.xml:719
msgid ""
"Amanda Lenhart, \"The Ever-Shifting Internet Population: A New Look at "
"Internet Access and the Digital Divide,\" Pew Internet and American Life "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:710
+#: freeculture.xml:713
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:725
+#: freeculture.xml:728
msgid ""
"As the Internet has been integrated into ordinary life, it has changed "
"things. Some of these changes are technical—the Internet has made "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:736
+#: freeculture.xml:739
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 "
#. PAGE BREAK 23
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:745
+#: freeculture.xml:748
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:757
+#: freeculture.xml:760
msgid ""
"At the beginning of our history, and for just about the whole of our "
"tradition, noncommercial culture was essentially unregulated. Of course, if "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:782 freeculture.xml:1784 freeculture.xml:1795
+#: freeculture.xml:785 freeculture.xml:1798 freeculture.xml:1809
msgid "Brandeis, Louis D."
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:774
+#: freeculture.xml:777
msgid ""
"This is not the only purpose of copyright, though it is the overwhelmingly "
"primary purpose of the copyright established in the federal constitution. "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:768
+#: freeculture.xml:771
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 "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:792
+#: freeculture.xml:795
msgid ""
-"See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), "
-"ch. 13."
+"See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: "
+"Prometheus Books, 2001), ch. 13."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:790
+#: freeculture.xml:793
msgid ""
"This rough divide between the free and the controlled has now been "
"erased.<placeholder type=\"footnote\" id=\"0\"/> The Internet has set the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:808
+#: freeculture.xml:811
msgid ""
"This change gets justified as necessary to protect commercial creativity. "
"And indeed, protectionism is precisely its motivation. But the protectionism "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:821
+#: freeculture.xml:824
msgid ""
"For the Internet has unleashed an extraordinary possibility for many to "
"participate in the process of building and cultivating a culture that "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:840
+#: freeculture.xml:843
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 "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:857
+#: freeculture.xml:860
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."
+"Tools to Turn the Net into an Illicit Video Club,\" <citetitle>New York "
+"Times</citetitle>, 17 January 2002."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:849
+#: freeculture.xml:852
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:866
+#: freeculture.xml:869
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:874
+#: freeculture.xml:877
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:888 freeculture.xml:14046
+#: freeculture.xml:891 freeculture.xml:14031
msgid "Netanel, Neil Weinstock"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:886
+#: freeculture.xml:889
msgid ""
-"Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" Yale Law "
-"Journal 106 (1996): 283. <placeholder type=\"indexterm\" id=\"0\"/>"
+"Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" "
+"<citetitle>Yale Law Journal</citetitle> 106 (1996): 283. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:880
+#: freeculture.xml:883
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:896
+#: freeculture.xml:899
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:908
+#: freeculture.xml:911
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:916
+#: freeculture.xml:919
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:927
+#: freeculture.xml:930
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 "
#. PAGE BREAK 27
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:944
+#: freeculture.xml:947
msgid ""
"And thus, when geeks and technologists defend their Armstrong or Wright "
"brothers technology, most of us are simply unsympathetic. Common sense does "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:954
+#: freeculture.xml:957
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."
+"time when the concentration of power to control the "
+"<emphasis>uses</emphasis> of culture has been as unquestioningly accepted as "
+"it is now."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:963
+#: freeculture.xml:967
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:969
+#: freeculture.xml:973
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
+#: freeculture.xml:977
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:980
+#: freeculture.xml:984
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 "
#. PAGE BREAK 28
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:989
+#: freeculture.xml:993
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:999
+#: freeculture.xml:1003
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1004
+#: freeculture.xml:1008
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1012
+#: freeculture.xml:1016
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1023
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:1033
+#: freeculture.xml:1037
msgid "\"PIRACY\""
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1037 freeculture.xml:4656
+#: freeculture.xml:1041 freeculture.xml:4644
msgid "Mansfield, William Murray, Lord"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1040
+#: freeculture.xml:1044
msgid ""
"Since the inception of the law regulating creative property, there has been "
"a war against \"piracy.\" The precise contours of this concept, \"piracy,\" "
#. f1
#. type: Content of: <book><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:1052
-msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield)."
+#: freeculture.xml:1056
+msgid ""
+"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 "
+"Eng. Rep. 1274 (1777) (Mansfield)."
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:1048
+#: freeculture.xml:1052
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 "
#. PAGE BREAK 31
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1058
+#: freeculture.xml:1062
msgid ""
"Today we are in the middle of another \"war\" against \"piracy.\" The "
"Internet has provoked this war. The Internet makes possible the efficient "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1067
+#: freeculture.xml:1071
msgid ""
"This efficiency does not respect the traditional lines of copyright. The "
"network doesn't discriminate between the sharing of copyrighted and "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1075
+#: freeculture.xml:1079
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!"
+"body piercing—our kids are becoming <emphasis>thieves</emphasis>!"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1082
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1088
+#: freeculture.xml:1093
msgid "The idea goes something like this:"
msgstr ""
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:1092
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:1100
+#: freeculture.xml:1105
msgid "Dreyfuss, Rochelle"
msgstr ""
#. f2
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:1106
+#: freeculture.xml:1111
msgid ""
"See Rochelle Dreyfuss, \"Expressive Genericity: Trademarks as Language in "
-"the Pepsi Generation,\" Notre Dame Law Review 65 (1990): 397."
+"the Pepsi Generation,\" <citetitle>Notre Dame Law Review</citetitle> 65 "
+"(1990): 397."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1119 freeculture.xml:6749
+#: freeculture.xml:1124 freeculture.xml:6740
msgid "Zittrain, Jonathan"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:1114
+#: 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. <placeholder type=\"indexterm\" "
-"id=\"0\"/>"
+"<citetitle>Wall Street Journal</citetitle>, 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,\" <citetitle>Boston Globe</citetitle>, 24 November "
+"2002. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1102
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:1124
+#: freeculture.xml:1129
msgid "ASCAP"
msgstr ""
#. PAGE BREAK 32
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1126
+#: freeculture.xml:1131
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1134
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1141
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1148
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1155 freeculture.xml:1183
+#: freeculture.xml:1160 freeculture.xml:1188
msgid "Florida, Richard"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:1176
+#: 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\"/>"
+"In <citetitle>The Rise of the Creative Class</citetitle> (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:1157
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:1189
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:1196
+#: freeculture.xml:1201
msgid "CHAPTER ONE: Creators"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1198
+#: 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 "
+"in May of that year, in a silent flop called <citetitle>Plane "
+"Crazy</citetitle>. In November, in New York City's Colony Theater, in the "
+"first widely distributed cartoon synchronized with sound, "
+"<citetitle>Steamboat Willie</citetitle> brought to life the character that "
"would become Mickey Mouse."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1205
+#: 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,"
+"<citetitle>The Jazz Singer</citetitle>. 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:1214
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1221
+#: 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 "
#. f1
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:1234
+#: freeculture.xml:1239
msgid ""
-"Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons "
-"(New York: Penguin Books, 1987), 34–35."
+"Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated "
+"Cartoons</citetitle> (New York: Penguin Books, 1987), 34–35."
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1228
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:1243
+#: freeculture.xml:1248
msgid "Iwerks, Ub"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1240
+#: freeculture.xml:1245
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1246
+#: freeculture.xml:1251
msgid ""
"Disney had created something very new, based upon something relatively "
"new. Synchronized sound brought life to a form of creativity that had "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1255
+#: freeculture.xml:1260
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."
+"Buster Keaton. The film was <citetitle>Steamboat Bill, Jr</citetitle>."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1261
+#: freeculture.xml:1266
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."
+"laughter from his audience. <citetitle>Steamboat Bill, Jr</citetitle>. 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:1274
+#: freeculture.xml:1280
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."
+"five songs in <citetitle>Steamboat Willie</citetitle>: \"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:1269
+#: freeculture.xml:1274
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."
+"<citetitle>Steamboat Bill, Jr</citetitle>. 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 "
+"<citetitle>The Jazz Singer</citetitle> that we get <citetitle>Steamboat "
+"Willie</citetitle>. 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:1295
+#: freeculture.xml:1301
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1291
+#: freeculture.xml:1297
msgid ""
"This \"borrowing\" was nothing unique, either for Disney or for the "
"industry. Disney was always parroting the feature-length mainstream films of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1310
+#: freeculture.xml:1316
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 "
#. PAGE BREAK 37
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1319
+#: freeculture.xml:1325
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 "
"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."
+"together: <citetitle>Snow White</citetitle> (1937), "
+"<citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> "
+"(1940), <citetitle>Dumbo</citetitle> (1941), <citetitle>Bambi</citetitle> "
+"(1942), <citetitle>Song of the South</citetitle> (1946), "
+"<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in "
+"Wonderland</citetitle> (1951), <citetitle>Robin Hood</citetitle> (1952), "
+"<citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the "
+"Tramp</citetitle> (1955), <citetitle>Mulan</citetitle> (1998), "
+"<citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101 "
+"Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> "
+"(1963), and <citetitle>The Jungle Book</citetitle> (1967)—not to "
+"mention a recent example that we should perhaps quickly forget, "
+"<citetitle>Treasure Planet</citetitle> (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:1339
+#: freeculture.xml:1347
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 "
#. f4
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1353
+#: freeculture.xml:1361
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1347
+#: freeculture.xml:1355
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1370
+#: freeculture.xml:1378
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, "
#. PAGE BREAK 38
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1379
+#: freeculture.xml:1387
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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1392
+#: freeculture.xml:1400
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1398
+#: freeculture.xml:1406
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."
+"Americans but that is inescapable within Japanese culture: "
+"<citetitle>manga</citetitle>, 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:1407
+#: freeculture.xml:1415
msgid ""
"Americans tend to look down upon this form of culture. That's an "
"unattractive characteristic of ours. We're likely to misunderstand much "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1418
+#: freeculture.xml:1426
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 "
#. PAGE BREAK 39
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1423
+#: freeculture.xml:1431
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 "
+"This is the phenomenon of <citetitle>doujinshi</citetitle>. 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 "
+"<emphasis>just</emphasis> 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1437
+#: freeculture.xml:1446
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1448
+#: freeculture.xml:1457
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 "
"\"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."
+"<citetitle>Steamboat Bill, Jr</citetitle>. 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 ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1462
+#: freeculture.xml:1471
msgid "Winick, Judd"
msgstr ""
#. f5
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1475
+#: freeculture.xml:1484
msgid ""
-"For an excellent history, see Scott McCloud, Reinventing Comics (New York: "
-"Perennial, 2000)."
+"For an excellent history, see Scott McCloud, <citetitle>Reinventing "
+"Comics</citetitle> (New York: Perennial, 2000)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1465
+#: freeculture.xml:1474
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1480
+#: freeculture.xml:1489
msgid ""
"American comics now are quite different, Winick explains, in part because of "
"the legal difficulty of adapting comics the way doujinshi are "
#. f6
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1497
+#: freeculture.xml:1506
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.\""
+"All the Comics My Kid Watches Are Japanese Imports?\" <citetitle>Rutgers Law "
+"Review</citetitle> 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:1489
+#: freeculture.xml:1498
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1508
+#: freeculture.xml:1517
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1519
+#: freeculture.xml:1528
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 "
#. PAGE BREAK 41
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1526
+#: freeculture.xml:1535
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1539
+#: freeculture.xml:1548
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1556 freeculture.xml:2730 freeculture.xml:4355 freeculture.xml:4589 freeculture.xml:7144 freeculture.xml:8201
+#: freeculture.xml:1565 freeculture.xml:2748 freeculture.xml:4351 freeculture.xml:4577 freeculture.xml:7127 freeculture.xml:8184
msgid "Vaidhyanathan, Siva"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1549
+#: freeculture.xml:1558
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: "
+"The term <citetitle>intellectual property</citetitle> is of relatively "
+"recent origin. See Siva Vaidhyanathan, <citetitle>Copyrights and "
+"Copywrongs</citetitle>, 11 (New York: New York University Press, 2001). See "
+"also Lawrence Lessig, <citetitle>The Future of Ideas</citetitle> (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:1544
+#: freeculture.xml:1553
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1563
+#: freeculture.xml:1572
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 "
#. PAGE BREAK 42
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1578
+#: freeculture.xml:1587
msgid ""
"Thus, even though the things that Disney took—or more generally, the "
"things taken by anyone exercising Walt Disney creativity—are valuable, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1587
+#: freeculture.xml:1596
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1595
+#: freeculture.xml:1604
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1601
+#: freeculture.xml:1610
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."
+"of Shakespeare without securing permission from anyone. (Does "
+"<emphasis>anyone</emphasis> 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:1615
+#: freeculture.xml:1624
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1626
+#: freeculture.xml:1635
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?"
+"The hard question is therefore not <emphasis>whether</emphasis> a culture is "
+"free. All cultures are free to some degree. The hard question instead is "
+"\"<emphasis>How</emphasis> 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:1637
+#: freeculture.xml:1647
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:1645
+#: freeculture.xml:1655
msgid "CHAPTER TWO: \"Mere Copyists\""
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1646
+#: freeculture.xml:1656
msgid "Daguerre, Louis"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1648
+#: freeculture.xml:1658
msgid ""
"In 1839, Louis Daguerre invented the first practical technology for "
"producing what we would call \"photographs.\" Appropriately enough, they "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1657
+#: freeculture.xml:1667
msgid ""
"Yet despite high prices, the demand for daguerreotypes was strong. This "
"pushed inventors to find simpler and cheaper ways to make \"automatic "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1668
+#: freeculture.xml:1678
msgid "Eastman, George"
msgstr ""
#. PAGE BREAK 45
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1671
+#: freeculture.xml:1681
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 "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1688
+#: freeculture.xml:1698
msgid ""
-"Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University "
-"Press, 1975), 112."
+"Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: "
+"Johns Hopkins University Press, 1975), 112."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1683
+#: freeculture.xml:1693
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:"
+"type=\"footnote\" id=\"0\"/> As he described in <citetitle>The Kodak "
+"Primer</citetitle>:"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1706 freeculture.xml:1729
+#: freeculture.xml:1716 freeculture.xml:1739
msgid "Coe, Brian"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:1704
+#: freeculture.xml:1714
msgid ""
-"Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), "
-"53. <placeholder type=\"indexterm\" id=\"0\"/>"
+"Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: "
+"
Taplinger Publishing, 1977), 53. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1693
+#: freeculture.xml:1703
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 "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1722
+#: freeculture.xml:1732
msgid "Jenkins, 177."
msgstr ""
#. f4
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1726
+#: freeculture.xml:1736
msgid "Based on a chart in Jenkins, p. 178."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1711
+#: freeculture.xml:1721
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, "
#. f5
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1744
+#: freeculture.xml:1754
msgid "Coe, 58."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1733
+#: freeculture.xml:1743
msgid ""
"The real significance of Eastman's invention, however, was not economic. It "
"was social. Professional photography gave individuals a glimpse of places "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1748
+#: freeculture.xml:1758
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 "
#. f6
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1770
+#: freeculture.xml:1780
msgid ""
-"For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 "
-"S.E."
+"For illustrative cases, see, for example, <citetitle>Pavesich</citetitle> "
+"v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905); "
+"<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, "
+"123090 S.W. 364, 366 (Ky. 1909); <citetitle>Corliss</citetitle> "
+"v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass. Dist. Ct. 1894)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1761
+#: freeculture.xml:1771
msgid ""
"What was required for this technology to flourish? Obviously, Eastman's "
"genius was an important part. But also important was the legal environment "
#. PAGE BREAK 47
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1774
+#: freeculture.xml:1788
msgid ""
"The arguments in favor of requiring permission will sound surprisingly "
"familiar. The photographer was \"taking\" something from the person or "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1796
+#: freeculture.xml:1810
msgid "Warren, Samuel D."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1793
+#: freeculture.xml:1807
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\"/>"
+"Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" "
+"<citetitle>Harvard Law Review</citetitle> 4 (1890): 193. <placeholder "
+"
type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1786
+#: freeculture.xml:1800
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 "
"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."
+"for nothing. Just as Disney could take inspiration from <citetitle>Steamboat "
+"Bill, Jr</citetitle>. 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:1813
+#: freeculture.xml:1827
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)."
+"See Melville B. Nimmer, \"The Right of Publicity,\" <citetitle>Law and "
+"Contemporary Problems</citetitle> 19 (1954): 203; William L. Prosser, "
+"\"Privacy,\" <citetitle>California Law Review</citetitle> 48 (1960) "
+"398–407; <citetitle>White</citetitle> v. <citetitle>Samsung "
+"Electronics America, Inc</citetitle>., 971 F. 2d 1395 (9th Cir. 1992), "
+"cert. denied, 508 U.S. 951 (1993)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1803
+#: freeculture.xml:1817
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1821
+#: freeculture.xml:1835
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, "
#. PAGE BREAK 48
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1838
+#: freeculture.xml:1852
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 "
#. f9
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1870
+#: freeculture.xml:1884
msgid ""
"H. Edward Goldberg, \"Essential Presentation Tools: Hardware and Software "
"You Need to Create Digital Multimedia Presentations,\" cadalyst, February "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1864
+#: freeculture.xml:1878
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:1887
+#: freeculture.xml:1901
msgid "Yanofsky, Dave"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1882
+#: freeculture.xml:1896
msgid ""
"\"Media literacy,\" as Dave Yanofsky, the executive director of Just Think!, "
"puts it, \"is the ability . . . to understand, analyze, and deconstruct "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1890
+#: freeculture.xml:1904
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 "
#. f10
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1900
+#: freeculture.xml:1914
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."
+"Judith Van Evra, <citetitle>Television and Child Development</citetitle> "
+"(Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); \"Findings on Family "
+"and TV Study,\" <citetitle>Denver Post</citetitle>, 25 May 1997, B6."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1896
+#: freeculture.xml:1910
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1911
+#: freeculture.xml:1925
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1921
+#: freeculture.xml:1935
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1928
+#: freeculture.xml:1942
msgid "Crichton, Michael"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1942 freeculture.xml:2002 freeculture.xml:2009 freeculture.xml:2444
+#: freeculture.xml:1956 freeculture.xml:2016 freeculture.xml:2023 freeculture.xml:2458
msgid "Barish, Stephanie"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1943
+#: freeculture.xml:1957
msgid "Daley, Elizabeth"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1940
+#: freeculture.xml:1954
msgid ""
"Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
#. f12
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:1954
+#: freeculture.xml:1968
msgid ""
"See Scott Steinberg, \"Crichton Gets Medieval on PCs,\" E!online, 4 November "
"2000, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1930
+#: freeculture.xml:1944
msgid ""
"This grammar has changed as media has changed. When it was just film, as "
"Elizabeth Daley, executive director of the University of Southern "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:1961
+#: freeculture.xml:1975
msgid "computer games"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1963
+#: freeculture.xml:1977
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1970
+#: freeculture.xml:1984
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:1977
+#: freeculture.xml:1991
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1985
+#: freeculture.xml:1999
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:2001
+#: freeculture.xml:2015
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:2006 freeculture.xml:3701 freeculture.xml:4775 freeculture.xml:7929
+#: freeculture.xml:2020 freeculture.xml:3725 freeculture.xml:4763 freeculture.xml:7911
msgid "Ibid."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:1990
+#: freeculture.xml:2004
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2011
+#: freeculture.xml:2025
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2023
+#: freeculture.xml:2037
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2031
+#: freeculture.xml:2045
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 "
"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."
+"well. Yet neither is text a form in which <emphasis>these</emphasis> 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:2050
+#: freeculture.xml:2064
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2061
+#: freeculture.xml:2075
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2080
+#: freeculture.xml:2094
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 "
#. PAGE BREAK 53
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2087
+#: freeculture.xml:2101
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2096
+#: freeculture.xml:2110
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2107
+#: freeculture.xml:2121
msgid ""
"These retellings had an increasingly familiar feel. There was music scored "
"for the intermissions, and fancy graphics that flashed across the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:2114 freeculture.xml:7867
+#: freeculture.xml:2128 freeculture.xml:7849
msgid "ABC"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:2115
+#: freeculture.xml:2129
msgid "CBS"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2117
+#: freeculture.xml:2131
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 "
"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."
+"the sense Mike Godwin uses the term in his book <citetitle>Cyber "
+"Rights</citetitle>, 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:2131
+#: freeculture.xml:2145
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2141
+#: freeculture.xml:2155
msgid ""
"But unlike any technology for simply capturing images, the Internet allows "
"these creations to be shared with an extraordinary number of people, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2150
+#: freeculture.xml:2164
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."
+"public way—it's a kind of electronic <citetitle>Jerry "
+"Springer</citetitle>, available anywhere in the world."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2159
+#: freeculture.xml:2173
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 "
#. PAGE BREAK 55
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2173
+#: freeculture.xml:2187
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 "
#. f15
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2199
+#: freeculture.xml:2213
msgid ""
-"See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, "
-"trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16."
+"See, for example, Alexis de Tocqueville, <citetitle>Democracy in "
+"America</citetitle>, bk. 1, trans. Henry Reeve (New York: Bantam Books, "
+"2000), ch. 16."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2184
+#: freeculture.xml:2198
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 "
#. f16
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2208
+#: freeculture.xml:2222
msgid ""
-"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" Journal of Political "
-"Philosophy 10 (2) (2002): 129."
+"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" <citetitle>Journal "
+"of Political Philosophy</citetitle> 10 (2) (2002): 129."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2204
+#: freeculture.xml:2218
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 "
#. f17
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2223
+#: freeculture.xml:2237
msgid ""
-"Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), "
-"65–80, 175, 182, 183, 192."
+"Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton "
+"University Press, 2001), 65–80, 175, 182, 183, 192."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2216
+#: freeculture.xml:2230
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 "
#. PAGE BREAK 56
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2229
+#: freeculture.xml:2243
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2240
+#: freeculture.xml:2254
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. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:2252
+#: freeculture.xml:2266
msgid "Dean, Howard"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2248
+#: freeculture.xml:2262
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 "
#. f18
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2266
+#: 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><indexterm><primary>
-#: freeculture.xml:2269
+#: freeculture.xml:2283
msgid "Lott, Trent"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2255
+#: freeculture.xml:2269
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2272
+#: freeculture.xml:2286
msgid ""
"This different cycle is possible because the same commercial pressures don't "
"exist with blogs as with other ventures. Television and newspapers are "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2279
+#: freeculture.xml:2293
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:2288
+#: freeculture.xml:2302
msgid "Winer, Dave"
msgstr ""
#. PAGE BREAK 57
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2291
+#: freeculture.xml:2305
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2301 freeculture.xml:2354
+#: freeculture.xml:2315 freeculture.xml:2368
msgid "CNN"
msgstr ""
#. f19
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2309
+#: freeculture.xml:2323
msgid "Telephone interview with David Winer, 16 April 2003."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2303
+#: freeculture.xml:2317
msgid ""
"These conflicts become more important as media becomes more concentrated "
"(more on this below). A concentrated media can hide more from the public "
"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.\")"
+"warranted, they told her <emphasis>that</emphasis> they were writing \"the "
+"story.\")"
msgstr ""
#. f20
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2327
+#: freeculture.xml:2341
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 "
+"Online,\" <citetitle>New York Times</citetitle>, 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:2319
+#: freeculture.xml:2333
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2346
-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\"/>"
+#: freeculture.xml:2360
+msgid ""
+"See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" "
+"<citetitle>New York Times</citetitle>, 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 <citetitle>Houston Chronicle</citetitle> "
+"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:2339
+#: freeculture.xml:2353
msgid ""
"Winer is optimistic about the future of journalism infected with "
"blogs. \"It's going to become an essential skill,\" Winer predicts, for "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2366
+#: freeculture.xml:2380
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:2382
+#: freeculture.xml:2396
msgid "Brown, John Seely"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2385
+#: freeculture.xml:2399
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2390
+#: freeculture.xml:2404
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 "
#. PAGE BREAK 59
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2397
+#: freeculture.xml:2411
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2410
+#: freeculture.xml:2424
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2417
+#: freeculture.xml:2431
msgid ""
"This opportunity creates a \"completely new kind of learning platform,\" as "
"Brown describes. \"As soon as you start doing that, you . . . unleash a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2425
+#: freeculture.xml:2439
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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2434
+#: freeculture.xml:2448
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, "
#. PAGE BREAK 60
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2446
+#: freeculture.xml:2460
msgid ""
"Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just "
"Think! teach: that this tinkering with culture teaches as well as "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2454
+#: freeculture.xml:2468
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 "
#. f22
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2469
+#: freeculture.xml:2483
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."
+"Control Interferes with Noninfringing Scholarship,\" "
+"<citetitle>Communications of the Association for Computer "
+"Machinery</citetitle> 43 (2000): 9."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2463
+#: freeculture.xml:2477
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2477
+#: freeculture.xml:2491
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2482
+#: freeculture.xml:2496
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2490
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2496
+#: 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:2502
+#: freeculture.xml:2516
msgid "CHAPTER THREE: Catalogs"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2504
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2511
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2519
+#: 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 "
#. PAGE BREAK 62
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2526
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2538
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2547
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2559
+#: 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 "
#. PAGE BREAK 63
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2566
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2575
+#: freeculture.xml:2589
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2590
+#: freeculture.xml:2604
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2599
+#: freeculture.xml:2613
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."
+"in a way that would make it easier to use\"—again, a <emphasis>search "
+"engine</emphasis>, 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:2611
+#: 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 "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2631
+#: freeculture.xml:2649
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."
+"Alleges $97.8 Billion in Damages,\" <citetitle>Professional Media Group "
+"LCC</citetitle> 6 (2003): 5, available at 2003 WL 55179443."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2622
+#: freeculture.xml:2637
msgid ""
"Similar lawsuits were brought against three other students: one other "
"student at RPI, one at Michigan Technical University, and one at "
"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\" "
+"States to award the plaintiffs close to $100 "
+"<emphasis>billion</emphasis>—six times the <emphasis>total</emphasis> "
+"profit of the film industry in 2001.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2637
+#: freeculture.xml:2655
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2644
+#: freeculture.xml:2662
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 "
#. PAGE BREAK 65
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2655
+#: freeculture.xml:2673
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2665
+#: freeculture.xml:2683
msgid ""
"So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or "
"$12,000 and a settlement."
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2677
+#: freeculture.xml:2695
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)."
+"the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000)."
msgstr ""
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:2685
+#: freeculture.xml:2703
msgid ""
-"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" Wall "
-"Street Journal, 10 September 2003, A24."
+"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" "
+"<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2669
+#: freeculture.xml:2687
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2690
+#: freeculture.xml:2708
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:2697
+#: freeculture.xml:2715
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2704
+#: freeculture.xml:2722
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:2713
+#: freeculture.xml:2731
msgid "CHAPTER FOUR: \"Pirates\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:2715
+#: freeculture.xml:2733
msgid ""
"If \"piracy\" means using the creative property of others without their "
"permission—if \"if value, then right\" is true—then the history "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:2723
+#: freeculture.xml:2741
msgid "Film"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2727
+#: freeculture.xml:2745
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. <placeholder type=\"indexterm\" id=\"0\"/>"
+"history. See also Siva Vaidhyanathan, <citetitle>Copyrights and "
+"Copywrongs</citetitle>, 87–93, which details Edison's \"adventures\" "
+"
with copyright and patent. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. PAGE BREAK 67
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2725
+#: freeculture.xml:2743
msgid ""
"The film industry of Hollywood was built by fleeing pirates.<placeholder "
"type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2743
+#: freeculture.xml:2761
msgid "As one commentator tells one part of the story,"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:2747
+#: freeculture.xml:2765
msgid ""
"A January 1909 deadline was set for all companies to comply with the "
"license. By February, unlicensed outlaws, who referred to themselves as "
#. f2
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:2767
+#: freeculture.xml:2785
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 "
+"J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent "
+"Motion Picture Producers</citetitle> (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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><indexterm><primary>
-#: freeculture.xml:2778
+#: freeculture.xml:2796
msgid "General Film Company"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2779 freeculture.xml:3022 freeculture.xml:4121 freeculture.xml:9469
+#: freeculture.xml:2797 freeculture.xml:3042 freeculture.xml:4129 freeculture.xml:9448
msgid "Picker, Randal C."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:2756
+#: freeculture.xml:2774
msgid ""
"With the country experiencing a tremendous expansion in the number of "
"nickelodeons, the Patents Company reacted to the independent movement by "
#. f3
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2789
+#: freeculture.xml:2807
msgid ""
-"Marc Wanamaker, \"The First Studios,\" The Silents Majority, archived at "
-"<ulink url=\"http://free-culture.cc/notes/\">link #12</ulink>."
+"Marc Wanamaker, \"The First Studios,\" <citetitle>The Silents "
+"Majority</citetitle>, archived at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #12</ulink>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2783
+#: freeculture.xml:2801
msgid ""
"The Napsters of those days, the \"independents,\" were companies like "
"Fox. And no less than today, these independents were vigorously resisted. "
#. PAGE BREAK 68
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2799
+#: freeculture.xml:2817
msgid ""
"Of course, California grew quickly, and the effective enforcement of federal "
"law eventually spread west. But because patents grant the patent holder a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:2810
+#: freeculture.xml:2828
msgid "Recorded Music"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2812
+#: freeculture.xml:2830
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:2816
+#: freeculture.xml:2834
msgid ""
"At the time that Edison and Henri Fourneaux invented machines for "
"reproducing music (Edison the phonograph, Fourneaux the player piano), the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:2825 freeculture.xml:2967
+#: freeculture.xml:2843 freeculture.xml:2987
msgid "Beatles"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2827
+#: freeculture.xml:2845
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 "
#. PAGE BREAK 69
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2845
+#: freeculture.xml:2863
msgid ""
"The composers (and publishers) were none too happy about this capacity to "
"pirate. As South Dakota senator Alfred Kittredge put it,"
#. f4
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:2859
+#: freeculture.xml:2877
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)."
+"chairman), reprinted in <citetitle>Legislative History of the Copyright "
+"Act</citetitle>, 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:2852
+#: freeculture.xml:2870
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 "
#. f5
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2873
+#: freeculture.xml:2891
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
#. f6
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2879
+#: freeculture.xml:2897
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
#. f7
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2886
+#: freeculture.xml:2904
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:2869
+#: freeculture.xml:2887
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 "
#. f8
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2899
+#: freeculture.xml:2917
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 283–84 "
"(statement of Albert Walker, representative of the Auto-Music Perforating "
#. f9
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2910
+#: freeculture.xml:2928
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared "
"memorandum of Philip Mauro, general patent counsel of the American "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2891
+#: freeculture.xml:2909
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 "
#. PAGE BREAK 70
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2916
+#: freeculture.xml:2934
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."
+"The law soon resolved this battle in favor of the composer "
+"<emphasis>and</emphasis> 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:2930
+#: freeculture.xml:2949
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:2945 freeculture.xml:13722
+#: freeculture.xml:2964 freeculture.xml:13703
msgid "Grisham, John"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2938
+#: freeculture.xml:2957
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 "
#. f10
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:2961
+#: freeculture.xml:2981
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)."
+"<citetitle>Legislative History of the 1909 Copyright Act</citetitle>, "
+"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:2948
+#: freeculture.xml:2967
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\"/> <placeholder "
+"effect, the law <emphasis>subsidizes</emphasis> 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\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2970
+#: freeculture.xml:2990
msgid ""
"While the recording industry has been quite coy about this recently, "
"historically it has been quite a supporter of the statutory license for "
#. f11
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:2992
+#: 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:2977
+#: freeculture.xml:2997
msgid ""
"the record producers argued vigorously that the compulsory license system "
"must be retained. They asserted that the record industry is a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:2999
+#: 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:3004 freeculture.xml:4086
+#: freeculture.xml:3024 freeculture.xml:4094
msgid "Radio"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3006
+#: freeculture.xml:3026
msgid "Radio was also born of piracy."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3021
+#: freeculture.xml:3041
msgid "Hand, Learned"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3012
-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. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
-"type=\"indexterm\" id=\"1\"/>"
+#: freeculture.xml:3032
+msgid ""
+"See 17 <citetitle>United States Code</citetitle>, 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 "
+"<citetitle>RCA Manufacturing "
+"Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 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,\" "
+"<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281. "
+"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
+"id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3009
+#: freeculture.xml:3029
msgid ""
"When a radio station plays a record on the air, that constitutes a \"public "
"performance\" of the composer's work.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:3038 freeculture.xml:8564 freeculture.xml:9022 freeculture.xml:11921
+#: freeculture.xml:3059 freeculture.xml:8547 freeculture.xml:9003 freeculture.xml:11893
msgid "Lovett, Lyle"
msgstr ""
#. PAGE BREAK 72
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3029
+#: freeculture.xml:3049
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. <placeholder type=\"indexterm\" id=\"0\"/>"
+"of the <emphasis>composer's</emphasis> work. The radio station is also "
+"performing a copy of the <emphasis>recording artist's</emphasis> 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. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3043
+#: freeculture.xml:3064
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:3051 freeculture.xml:3535 freeculture.xml:5939
+#: freeculture.xml:3072 freeculture.xml:3557 freeculture.xml:5931
msgid "Madonna"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3054
+#: freeculture.xml:3075
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3060
+#: freeculture.xml:3081
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."
+"station thus gets to <emphasis>pirate</emphasis> the value of Madonna's work "
+"without paying her anything."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3070
+#: freeculture.xml:3092
msgid ""
"No doubt, one might argue that, on balance, the recording artists "
"benefit. On average, the promotion they get is worth more than the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:3079 freeculture.xml:4092
+#: freeculture.xml:3101 freeculture.xml:4100
msgid "Cable TV"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3082
+#: freeculture.xml:3104
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:3085
+#: freeculture.xml:3107
msgid ""
"When cable entrepreneurs first started wiring communities with cable "
"television in 1948, most refused to pay broadcasters for the content that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:3095
+#: freeculture.xml:3117
msgid "Anello, Douglas"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:3096
+#: freeculture.xml:3118
msgid "Burdick, Quentin"
msgstr ""
#. f13
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3102
+#: freeculture.xml:3124
msgid ""
"Copyright Law Revision—CATV: Hearing on S. 1006 Before the "
"Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee "
#. f14
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3113
+#: freeculture.xml:3135
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:3098
+#: freeculture.xml:3120
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 "
#. f15
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:3124
+#: freeculture.xml:3146
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:3120
+#: freeculture.xml:3142
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3130
+#: freeculture.xml:3152
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:3139
+#: freeculture.xml:3161
msgid ""
"Copyright Law Revision—CATV, 169 (joint statement of Arthur B. Krim, "
"president of United Artists Corp., and John Sinn, president of United "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:3134
+#: freeculture.xml:3156
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 "
#. f17
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3150
+#: freeculture.xml:3172
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:3146
+#: freeculture.xml:3168
msgid ""
"These were \"free-ride[rs],\" Screen Actor's Guild president Charlton Heston "
"said, who were \"depriving actors of compensation.\"<placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3155
+#: freeculture.xml:3177
msgid ""
"But again, there was another side to the debate. As Assistant Attorney "
"General Edwin Zimmerman put it,"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><indexterm><primary>
-#: freeculture.xml:3171 freeculture.xml:3173
+#: freeculture.xml:3193 freeculture.xml:3195
msgid "Zimmerman, Edwin"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:3169
+#: freeculture.xml:3191
msgid ""
"Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, "
"acting assistant attorney general). <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:3160
+#: freeculture.xml:3182
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3177
+#: freeculture.xml:3199
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:3181
+#: freeculture.xml:3203
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 "
#. f19
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3198
+#: freeculture.xml:3220
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.\""
+"See, for example, National Music Publisher's Association, <citetitle>The "
+"Engine of Free Expression: Copyright on the Internet—The Myth of Free "
+"Information</citetitle>, 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:3193
+#: freeculture.xml:3215
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."
+"type=\"footnote\" id=\"0\"/> — then <emphasis>every</emphasis> "
+"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:3215
+#: freeculture.xml:3237
msgid "CHAPTER FIVE: \"Piracy\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:3217
+#: freeculture.xml:3239
msgid ""
"There is piracy of copyrighted material. Lots of it. This piracy comes in "
"many forms. The most significant is commercial piracy, the unauthorized "
#. PAGE BREAK 76
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:3225
+#: freeculture.xml:3247
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:3235
+#: freeculture.xml:3257
msgid "Piracy I"
msgstr ""
#. f1
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3243
+#: freeculture.xml:3265
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."
+"See IFPI (International Federation of the Phonographic Industry), "
+"<citetitle>The Recording Industry Commercial Piracy Report 2003</citetitle>, "
+"July 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
+"#14</ulink>. See also Ben Hunt, \"Companies Warned on Music Piracy Risk,\" "
+"<citetitle>Financial Times</citetitle>, 14 February 2003, 11."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3237
+#: freeculture.xml:3259
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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3253
+#: freeculture.xml:3275
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3259
+#: freeculture.xml:3281
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3268
+#: freeculture.xml:3290
msgid ""
"That excuse isn't terribly strong. Technically, our law did not ban the "
"taking of foreign works. It explicitly limited itself to American "
#. PAGE BREAK 77
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3279
+#: freeculture.xml:3301
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 "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3306 freeculture.xml:12198 freeculture.xml:12627 freeculture.xml:12634
+#: freeculture.xml:3328 freeculture.xml:12172 freeculture.xml:12598 freeculture.xml:12605
msgid "Drahos, Peter"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3292
-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\"/>"
+#: freeculture.xml:3314
+msgid ""
+"See Peter Drahos with John Braithwaite, Information Feudalism: "
+"<citetitle>Who Owns the Knowledge Economy?</citetitle> (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:3287
+#: freeculture.xml:3309
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3326 freeculture.xml:3582 freeculture.xml:14245
+#: freeculture.xml:3348 freeculture.xml:3604 freeculture.xml:14230
msgid "Liebowitz, Stan"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3319
+#: freeculture.xml:3341
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. <placeholder type=\"indexterm\" id=\"0\"/>"
+"Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (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. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3313
+#: freeculture.xml:3335
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3330
+#: freeculture.xml:3352
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 "
#. PAGE BREAK 78
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3343
+#: freeculture.xml:3365
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."
+"right of a very special sort, it <emphasis>is</emphasis> 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><indexterm><primary>
-#: freeculture.xml:3372
+#: freeculture.xml:3394
msgid "Windows"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3361
+#: freeculture.xml:3383
msgid ""
"Finally, we could try to excuse this piracy with the argument that the "
"piracy actually helps the copyright owner. When the Chinese \"steal\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3375
+#: freeculture.xml:3397
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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3383
+#: freeculture.xml:3405
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 "
#. PAGE BREAK 79
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3397
+#: freeculture.xml:3419
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3407
+#: freeculture.xml:3429
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3416
+#: freeculture.xml:3438
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3422
+#: freeculture.xml:3444
msgid ""
"For (1) like the original Hollywood, p2p sharing escapes an overly "
"controlling industry; and (2) like the original recording industry, it "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3428
+#: freeculture.xml:3450
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:3434
+#: freeculture.xml:3456
msgid "Piracy II"
msgstr ""
#. f4
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3439
-msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777)."
+#: freeculture.xml:3461
+msgid ""
+"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 "
+"Eng. Rep. 1274 (1777)."
msgstr ""
#. PAGE BREAK 80
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3436
+#: freeculture.xml:3458
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:3461 freeculture.xml:7998
+#: freeculture.xml:3483 freeculture.xml:7980
msgid "Christensen, Clayton M."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3453
-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. <placeholder type=\"indexterm\" "
-"id=\"0\"/>"
+#: freeculture.xml:3475
+msgid ""
+"See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
+"Revolutionary National Bestseller That Changed the Way We Do "
+"Business</citetitle> (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, <citetitle>Future</citetitle>, "
+"89–92, 139. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:3464
+#: freeculture.xml:3486
msgid "Fanning, Shawn"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3448
+#: freeculture.xml:3470
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 "
#. f6
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3472
+#: freeculture.xml:3494
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."
+"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" "
+"<citetitle>San Francisco Chronicle</citetitle>, 24 September 2002, A1; "
+"\"Rock 'n' Roll Suicide,\" <citetitle>New Scientist</citetitle>, 6 July "
+"2002, 42; Benny Evangelista, \"Napster Names CEO, Secures New Financing,\" "
+"<citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1; \"Napster's "
+"Wake-Up Call,\" <citetitle>Economist</citetitle>, 24 June 2000, 23; John "
+"Naughton, \"Hollywood at War with the Internet\" (London) "
+"<citetitle>Times</citetitle>, 26 July 2002, 18."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3467
+#: freeculture.xml:3489
msgid ""
"The result was spontaneous combustion. Launched in July 1999, Napster "
"amassed over 10 million users within nine months. After eighteen months, "
#. f7
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3494
+#: freeculture.xml:3516
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."
+"See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music "
+"Distribution</citetitle> (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:3503
+#: freeculture.xml:3525
msgid ""
-"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" New York "
-"Times, 6 June 2003, A1."
+"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" "
+"<citetitle>New York Times</citetitle>, 6 June 2003, A1."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3488
+#: freeculture.xml:3510
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."
+"by the NPD group quoted in <citetitle>The New York Times</citetitle> "
+"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:3512
+#: freeculture.xml:3534
msgid ""
"Some of this enjoying involves copyright infringement. Some of it does "
"not. And even among the part that is technically copyright infringement, "
#. PAGE BREAK 81
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3522
+#: freeculture.xml:3544
msgid ""
"File sharers share different kinds of content. We can divide these different "
"kinds into four types."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3528
+#: freeculture.xml:3550
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, "
#. B.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3539
+#: freeculture.xml:3561
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 "
#. C.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3550
+#: freeculture.xml:3572
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 "
#. PAGE BREAK 82
#. D.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:3567
+#: freeculture.xml:3589
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:3573
+#: freeculture.xml:3595
msgid "How do these different types of sharing balance out?"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3581
+#: freeculture.xml:3603
msgid ""
-"See Liebowitz, Rethinking the Network Economy,148–49. <placeholder "
-"type=\"indexterm\" id=\"0\"/>"
+"See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, "
+"148–49. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3576
+#: freeculture.xml:3598
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3592
+#: freeculture.xml:3614
msgid ""
"Whether on balance sharing is harmful depends importantly on how harmful "
"type A sharing is. Just as Edison complained about Hollywood, composers "
#. f10
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3607
+#: freeculture.xml:3629
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."
+"See Cap Gemini Ernst & Young, <citetitle>Technology Evolution and the "
+"Music Industry's Business Model Crisis</citetitle> (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, <citetitle>Copyright and Home "
+"Copying: Technology Challenges the Law</citetitle>, 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:3600
+#: freeculture.xml:3622
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 "
#. f11
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3633
-msgid "U.S. Congress, Copyright and Home Copying, 4."
+#: freeculture.xml:3655
+msgid "U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3625
+#: freeculture.xml:3647
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3637
+#: freeculture.xml:3659
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."
+"whether type A sharing is harmful. The question is also "
+"<emphasis>how</emphasis> 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:3647
+#: freeculture.xml:3669
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 "
"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."
+"little <emphasis>static</emphasis> reason to resist them."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3656
+#: freeculture.xml:3680
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 "
#. f12
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3666
-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).\""
+#: freeculture.xml:3689
+msgid ""
+"See Recording Industry Association of America, <citetitle>2002 Yearend "
+"Statistics</citetitle>, 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, <citetitle>Some Facts About Music Piracy</citetitle>, 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:3693
+#: freeculture.xml:3716
msgid "Black, Jane"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3690
+#: freeculture.xml:3713
msgid ""
"Jane Black, \"Big Music's Broken Record,\" BusinessWeek online, 13 February "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3662
+#: freeculture.xml:3685
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 "
"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\"/>"
+"also account for some of the decline. As Jane Black of "
+"<citetitle>BusinessWeek</citetitle> notes, \"The soundtrack to the film "
+"<citetitle>High Fidelity</citetitle> 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:3707
+#: freeculture.xml:3731
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3716
+#: freeculture.xml:3739
msgid ""
"There are too many different things happening at the same time to explain "
"these numbers definitively, but one conclusion is unavoidable: The recording "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3734
+#: freeculture.xml:3754
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 "
#. f15
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3747
+#: freeculture.xml:3766
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3741
+#: freeculture.xml:3760
msgid ""
"One benefit is type C sharing—making available content that is "
"technically still under copyright but is no longer commercially available. "
"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."
+"<emphasis>to the company</emphasis> to make it available."
msgstr ""
#. f16
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3772
+#: freeculture.xml:3786
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>."
+"an increase of 20 percent since 1993. See Book Hunter Press, <citetitle>The "
+"Quiet Revolution: The Expansion of the Used Book Market</citetitle> (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:3766
+#: freeculture.xml:3780
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."
+"sell this content, <emphasis>even if the content is still under "
+"copyright</emphasis>, 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:3793
+#: freeculture.xml:3806
msgid "Bernstein, Leonard"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3795
+#: freeculture.xml:3808
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3808
+#: freeculture.xml:3821
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 "
#. PAGE BREAK 86
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3816
+#: freeculture.xml:3829
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!)"
+"for example, released his first novel, <citetitle>Down and Out in the Magic "
+"Kingdom</citetitle>, 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:3833
+#: freeculture.xml:3846
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3839
+#: freeculture.xml:3852
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3846
+#: freeculture.xml:3859
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3859
+#: freeculture.xml:3872
msgid ""
"\"But isn't the war just a war against illegal sharing? Isn't the target "
"just what you call type A sharing?\""
#. f17
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3876
+#: freeculture.xml:3889
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."
+"account of the litigation and its toll on Napster, see Joseph Menn, "
+"<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's "
+"Napster</citetitle> (New York: Crown Business, 2003), 269–82."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3863
+#: freeculture.xml:3876
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3886
+#: freeculture.xml:3900
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3897
+#: freeculture.xml:3911
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3908
+#: freeculture.xml:3920
msgid ""
"So, as we've seen, when \"mechanical reproduction\" threatened the interests "
"of composers, Congress balanced the rights of composers against the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3921
+#: freeculture.xml:3932
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, "
#. PAGE BREAK 88
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3931
+#: freeculture.xml:3942
msgid ""
"This compromise, like the compromise affecting records and player pianos, "
"served two important goals—indeed, the two central goals of any "
"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)."
+"cable. Thus Congress chose a path that would assure "
+"<emphasis>compensation</emphasis> without giving the past (broadcasters) "
+"control over the future (cable)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:3949
+#: freeculture.xml:3957
msgid "Betamax"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3951
+#: freeculture.xml:3959
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 "
#. PAGE BREAK 89
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3964
+#: freeculture.xml:3972
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 "
#. f18
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3986
+#: freeculture.xml:3994
msgid ""
"Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 "
"Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., "
#. f19
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:3998
+#: freeculture.xml:4006
msgid "Copyright Infringements (Audio and Video Recorders), 475."
msgstr ""
#. f20
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4003
+#: freeculture.xml:4011
msgid ""
-"Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, "
-"(C.D. Cal., 1979)."
+"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony "
+"Corp. of America</citetitle>, 480 F. Supp. 429, (C.D. Cal., 1979)."
msgstr ""
#. f21
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4014
+#: freeculture.xml:4022
msgid ""
"Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack "
"Valenti)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:3979
+#: freeculture.xml:3987
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 "
#. f22
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4030
+#: freeculture.xml:4039
msgid ""
-"Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th "
-"Cir. 1981)."
+"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony "
+"Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir. 1981)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4019
+#: freeculture.xml:4027
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 "
"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\"/>"
+"(worse yet, it was a <emphasis>Japanese</emphasis> 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:4035
+#: freeculture.xml:4044
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 "
#. f23
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:4054
+#: freeculture.xml:4063
msgid ""
-"Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 "
-"(1984)."
+"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
+"Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:4044
+#: freeculture.xml:4053
msgid ""
"Sound policy, as well as history, supports our consistent deference to "
"Congress when major technological innovations alter the market for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4059
+#: freeculture.xml:4068
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><title>
-#: freeculture.xml:4068
+#: freeculture.xml:4076
msgid "Table"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4072
+#: freeculture.xml:4080
msgid "CASE"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4073
+#: freeculture.xml:4081
msgid "WHOSE VALUE WAS \"PIRATED\""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4074
+#: freeculture.xml:4082
msgid "RESPONSE OF THE COURTS"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:4075
+#: freeculture.xml:4083
msgid "RESPONSE OF CONGRESS"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4080
+#: freeculture.xml:4088
msgid "Recordings"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4081
+#: freeculture.xml:4089
msgid "Composers"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4082 freeculture.xml:4094 freeculture.xml:4100
+#: freeculture.xml:4090 freeculture.xml:4102 freeculture.xml:4108
msgid "No protection"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4083 freeculture.xml:4095
+#: freeculture.xml:4091 freeculture.xml:4103
msgid "Statutory license"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4087
+#: freeculture.xml:4095
msgid "Recording artists"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4088
+#: freeculture.xml:4096
msgid "N/A"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4089 freeculture.xml:4101
+#: freeculture.xml:4097 freeculture.xml:4109
msgid "Nothing"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4093
+#: freeculture.xml:4101
msgid "Broadcasters"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4098
+#: freeculture.xml:4106
msgid "VCR"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:4099
+#: freeculture.xml:4107
msgid "Film creators"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4111
+#: freeculture.xml:4119
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. <placeholder type=\"indexterm\" "
+"<citetitle>United States Code</citetitle>), 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, <citetitle>Future</citetitle>, 71. See also Picker, \"From Edison to "
+"the Broadcast Flag,\" <citetitle>University of Chicago Law "
+"Review</citetitle> 70 (2003): 293–96. <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4108
+#: freeculture.xml:4116
msgid ""
"In each case throughout our history, a new technology changed the way "
"content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each "
#. PAGE BREAK 91
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4128
+#: freeculture.xml:4136
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."
+"In <emphasis>none</emphasis> of these cases did either the courts or "
+"Congress eliminate all free riding. In <emphasis>none</emphasis> 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:4140
+#: freeculture.xml:4148
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 "
#. f25
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4157
-msgid "Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984)."
+#: freeculture.xml:4165
+msgid ""
+"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
+"Studios, Inc</citetitle>., 464 U.S. 417, (1984)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4152
+#: freeculture.xml:4160
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 "
"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."
+"exclusive right creates. And this balancing has historically been done "
+"<emphasis>after</emphasis> 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:4169
+#: freeculture.xml:4176
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 "
#. f26
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:4196
+#: freeculture.xml:4200
msgid ""
"John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes "
-"Past Efforts,\" New York Times, 22 September 2003, C3."
+"Past Efforts,\" <citetitle>New York Times</citetitle>, 22 September 2003, "
+"C3."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4186
+#: freeculture.xml:4192
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 "
+"\"potential public benefits,\" as John Schwartz writes in <citetitle>The New "
+"York Times</citetitle>, \"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 "
+"<emphasis>property</emphasis>. 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:4210
+#: freeculture.xml:4214
msgid ""
-"\"It is our property,\" the warriors insist. \"And it should be protected "
-"just as any other property is protected.\""
+"\"It is <emphasis>our property</emphasis>,\" the warriors insist. \"And it "
+"should be protected just as any other property is protected.\""
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:4218
+#: freeculture.xml:4222
msgid "\"PROPERTY\""
msgstr ""
#. PAGE BREAK 94
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4222
+#: freeculture.xml:4226
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4229
+#: freeculture.xml:4233
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?"
+"you don't have it. But what am I taking when I take the good "
+"<emphasis>idea</emphasis> 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:4254
+#: freeculture.xml:4258
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."
+"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in "
+"<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew "
+"A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333–34."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4241
+#: freeculture.xml:4245
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4260
+#: freeculture.xml:4264
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 "
#. f2
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:4275
+#: freeculture.xml:4277
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."
+"Is Property? Putting the Pieces Back Together,\" <citetitle>Arizona Law "
+"Review</citetitle> 45 (2003): 373, 429 n. 241."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4268
+#: freeculture.xml:4272
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 "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:4288
+#: freeculture.xml:4287
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:4302
+#: freeculture.xml:4299
msgid "CHAPTER SIX: Founders"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4304
+#: freeculture.xml:4301
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.\""
+"William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> 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:4320
+#: freeculture.xml:4316
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."
+"handsome \"definitive editions\" of classic works. In addition to "
+"<citetitle>Romeo and Juliet</citetitle>, 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,\" <citetitle>American "
+"Scholar</citetitle> 61:3 (1992): 424–31."
msgstr ""
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4331
+#: freeculture.xml:4327
msgid ""
-"Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: "
-"Vanderbilt University Press, 1968), 151–52."
+"Lyman Ray Patterson, <citetitle>Copyright in Historical "
+"Perspective</citetitle> (Nashville: Vanderbilt University Press, 1968), "
+"151–52."
msgstr ""
#. PAGE BREAK 97
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4316
+#: freeculture.xml:4312
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 "
+"In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4353
+#: freeculture.xml:4349
msgid ""
"As Siva Vaidhyanathan nicely argues, it is erroneous to call this a "
-"\"copyright law.\" See Vaidhyanathan, Copyrights and Copywrongs, 40. "
-"<placeholder type=\"indexterm\" id=\"0\"/>"
+"\"copyright law.\" See Vaidhyanathan, <citetitle>Copyrights and "
+"
Copywrongs</citetitle>, 40. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4344
+#: freeculture.xml:4340
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 "
"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?"
+"type=\"footnote\" id=\"0\"/> Under this law, <citetitle>Romeo and "
+"Juliet</citetitle> 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:4361
+#: freeculture.xml:4357
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4372
+#: freeculture.xml:4368
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."
+"There was no <emphasis>positive</emphasis> 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:4389
+#: freeculture.xml:4380
msgid ""
"This question was important to the publishers, or \"booksellers,\" as they "
"were called, because there was growing competition from foreign "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4401
+#: freeculture.xml:4392
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4411
+#: freeculture.xml:4401
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?"
+"limit they set, but why would they limit the right <emphasis>at "
+"all?</emphasis>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4416
+#: freeculture.xml:4407
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?"
+"strong claim. Take <citetitle>Romeo and Juliet</citetitle> 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:4428
+#: freeculture.xml:4418
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 "
#. PAGE BREAK 99
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4435
+#: freeculture.xml:4424
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 "
"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."
+"did not control any more generally how a work could be "
+"<emphasis>used</emphasis>. 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:4452
+#: freeculture.xml:4439
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4464
+#: freeculture.xml:4451
msgid ""
"Even that limited right was viewed with skepticism by the British. They had "
"had a long and ugly experience with \"exclusive rights,\" especially "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4480
+#: freeculture.xml:4467
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 "
#. f4
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4504
+#: freeculture.xml:4493
msgid ""
-"Philip Wittenberg, The Protection and Marketing of Literary Property (New "
-"York: J. Messner, Inc., 1937), 31."
+"Philip Wittenberg, <citetitle>The Protection and Marketing of Literary "
+"Property</citetitle> (New York: J. Messner, Inc., 1937), 31."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4491
+#: freeculture.xml:4478
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. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4509
+#: freeculture.xml:4498
msgid ""
"Many believed the power the booksellers exercised over the spread of "
"knowledge was harming that spread, just at the time the Enlightenment was "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4518
+#: freeculture.xml:4506
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4530
+#: freeculture.xml:4518
msgid ""
"When 1731 (1710 + 21) came along, however, the booksellers were getting "
"anxious. They saw the consequences of more competition, and like every "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4539
+#: freeculture.xml:4527
msgid ""
"Parliament rejected their requests. As one pamphleteer put it, in words that "
"echo today,"
#. f5
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:4554
+#: freeculture.xml:4542
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)."
+"Curiae of Tyler T. Ochoa et al., 8, <citetitle>Eldred</citetitle> "
+"v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618)."
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:4544
+#: freeculture.xml:4532
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4565
+#: freeculture.xml:4553
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4586
+#: freeculture.xml:4574
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. <placeholder type=\"indexterm\" id=\"0\"/>"
+"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" "
+"<citetitle>Vanderbilt Law Review</citetitle> 40 (1987): 28. For a "
+"wonderfully compelling account, see Vaidhyanathan, 37–48. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4580
+#: freeculture.xml:4568
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 "
#. f7
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4599
+#: freeculture.xml:4587
msgid ""
-"For a compelling account, see David Saunders, Authorship and Copyright "
-"(London: Routledge, 1992), 62–69."
+"For a compelling account, see David Saunders, <citetitle>Authorship and "
+"Copyright</citetitle> (London: Routledge, 1992), 62–69."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4595
+#: freeculture.xml:4583
msgid ""
"The booksellers' argument was not accepted without a fight. The hero of "
"this fight was a Scottish bookseller named Alexander Donaldson.<placeholder "
#. f8
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4609
+#: freeculture.xml:4597
msgid ""
-"Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), "
-"92."
+"Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard "
+"University Press, 1993), 92."
msgstr ""
#. f9
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4619
+#: freeculture.xml:4607
msgid "Ibid., 93."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4621
+#: freeculture.xml:4609
msgid "Erskine, Andrew"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4604
+#: freeculture.xml:4592
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 "
#. f10
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4630
+#: freeculture.xml:4618
msgid ""
-"Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting "
-"Borwell)."
+"Lyman Ray Patterson, <citetitle>Copyright in Historical "
+"Perspective</citetitle>, 167 (quoting Borwell)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4624
+#: freeculture.xml:4612
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4638
+#: freeculture.xml:4626
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."
+"the most important early victory being <citetitle>Millar</citetitle> "
+"v. <citetitle>Taylor</citetitle>."
msgstr ""
#. f11
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4650
+#: freeculture.xml:4638
msgid ""
"Howard B. Abrams, \"The Historic Foundation of American Copyright Law: "
-"Exploding the Myth of Common Law Copyright,\" Wayne Law Review 29 (1983): "
-"1152."
+"Exploding the Myth of Common Law Copyright,\" <citetitle>Wayne Law "
+"Review</citetitle> 29 (1983): 1152."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4643
+#: freeculture.xml:4631
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4659
+#: freeculture.xml:4647
msgid ""
"Astonishingly to modern lawyers, one of the greatest judges in English "
"history, Lord Mansfield, agreed with the booksellers. Whatever protection "
#. PAGE BREAK 103
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4670
+#: freeculture.xml:4658
msgid ""
"Considered as a matter of abstract justice—reasoning as if justice "
"were just a matter of logical deduction from first "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4685
+#: freeculture.xml:4673
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:4688
+#: freeculture.xml:4676
msgid "Beckett, Thomas"
msgstr ""
#. f12
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:4694
+#: freeculture.xml:4682
msgid "Ibid., 1156."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4690
+#: freeculture.xml:4678
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."
+"decision in <citetitle>Millar</citetitle>, 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:4704
+#: freeculture.xml:4692
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."
+"As few legal cases ever do, <citetitle>Donaldson</citetitle> "
+"v. <citetitle>Beckett</citetitle> 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:4714
+#: freeculture.xml:4702
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 "
#. PAGE BREAK 104
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4721
+#: freeculture.xml:4709
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4739
+#: freeculture.xml:4727
msgid "Bacon, Francis"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4740
+#: freeculture.xml:4728
msgid "Bunyan, John"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4741
+#: freeculture.xml:4729
msgid "Johnson, Samuel"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4742
+#: freeculture.xml:4730
msgid "Milton, John"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:4743
+#: freeculture.xml:4731
msgid "Shakespeare, William"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4731
+#: freeculture.xml:4719
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\"/>"
+"\"The public domain.\" Before the case of <citetitle>Donaldson</citetitle> "
+"v. <citetitle>Beckett</citetitle>, 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:4756
+#: freeculture.xml:4744
msgid "Rose, 97."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4746
+#: freeculture.xml:4734
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\"/>"
+"in the streets. As the <citetitle>Edinburgh Advertiser</citetitle> 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:4760
+#: freeculture.xml:4748
msgid ""
"In London, however, at least among publishers, the reaction was equally "
-"strong in the opposite direction. The Morning Chronicle reported:"
+"strong in the opposite direction. The <citetitle>Morning "
+"Chronicle</citetitle> reported:"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:4766
+#: freeculture.xml:4754
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 "
#. PAGE BREAK 105
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4781
+#: freeculture.xml:4769
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."
+"and develop. Culture in England was thereafter <emphasis>free</emphasis>. "
+"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 <emphasis>free</emphasis> 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 <emphasis>competitive context</emphasis>, 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:4801
+#: freeculture.xml:4790
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:4809
+#: freeculture.xml:4798
msgid "CHAPTER SEVEN: Recorders"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4811
+#: freeculture.xml:4800
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4818
+#: freeculture.xml:4807
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><indexterm><primary>
-#: freeculture.xml:4829 freeculture.xml:4898
+#: freeculture.xml:4818 freeculture.xml:4887
msgid "San Francisco Opera"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4823
+#: freeculture.xml:4812
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 "
#. PAGE BREAK 107
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4832
+#: freeculture.xml:4821
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."
+"played Wagner, was <citetitle>The Simpsons</citetitle>. 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:4841
+#: freeculture.xml:4830
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."
+"attempted to clear the rights for those few seconds of <citetitle>The "
+"Simpsons</citetitle>. 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><indexterm><primary>
-#: freeculture.xml:4853 freeculture.xml:4861
+#: freeculture.xml:4842 freeculture.xml:4850
msgid "Gracie Films"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4848
+#: freeculture.xml:4837
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. <placeholder type=\"indexterm\" "
-"id=\"0\"/>"
+"Else called <citetitle>Simpsons</citetitle> 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. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4856
+#: freeculture.xml:4845
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4864
+#: freeculture.xml:4853
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.\""
+"four-point-five seconds of . . . entirely unsolicited "
+"<citetitle>Simpsons</citetitle> which was in the corner of the shot.\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4872
+#: freeculture.xml:4861
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 "
#. PAGE BREAK 108
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4880
+#: freeculture.xml:4869
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.\""
+"of <citetitle>The Simpsons</citetitle> 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><indexterm><primary>
-#: freeculture.xml:4899
+#: freeculture.xml:4888
msgid "Day After Trinity, The"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4892
+#: freeculture.xml:4881
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. <placeholder type=\"indexterm\" id=\"0\"/> "
-"<placeholder type=\"indexterm\" id=\"1\"/>"
+"with a clip from another film that he had worked on, <citetitle>The Day "
+"After Trinity</citetitle>, from ten years before. <placeholder "
+"
type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4902
+#: freeculture.xml:4891
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."
+"copyright to <citetitle>The Simpsons</citetitle>. 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 <citetitle>Simpsons</citetitle> 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:4913
+#: freeculture.xml:4902
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."
+"For example, \"public performance\" is a use of <citetitle>The "
+"Simpsons</citetitle> 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 <citetitle>Simpsons</citetitle>,\" 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:4925
+#: freeculture.xml:4914
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."
+"William F. Patry, \"Fair Use and Statutory Reform in the Wake of "
+"<citetitle>Eldred</citetitle>\" (draft on file with author), University of "
+"Chicago Law School, 5 August 2003."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4922
+#: freeculture.xml:4911
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."
+"4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle> episode "
+"is clearly a fair use of <citetitle>The Simpsons</citetitle>—and fair "
+"use does not require the permission of anyone."
msgstr ""
#. PAGE BREAK 109
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4937
+#: freeculture.xml:4926
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:4941
+#: freeculture.xml:4930
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:"
+"The <citetitle>Simpsons</citetitle> 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:4951
+#: freeculture.xml:4940
msgid ""
"Before our films can be broadcast, the network requires that we buy Errors "
"and Omissions insurance. The carriers require a detailed \"visual cue "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para><indexterm><primary>
-#: freeculture.xml:4968
+#: freeculture.xml:4957
msgid "Lucas, George"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:4959
+#: freeculture.xml:4948
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. <placeholder type=\"indexterm\" "
-"id=\"0\"/>"
+"stopping unlicensed <citetitle>Simpsons</citetitle> usage, just as George "
+"Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> "
+"usage. So I decided to play by the book, thinking that we would be granted "
+"free or cheap license to four seconds of <citetitle>Simpsons</citetitle>. 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. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. 3.
#. PAGE BREAK 110
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:4972
+#: freeculture.xml:4961
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 "
#. 4.
#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:4982
+#: freeculture.xml:4971
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:4989
+#: freeculture.xml:4978
msgid ""
"In theory, fair use means you need no permission. The theory therefore "
"supports free culture and insulates against a permission culture. But in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:4997
+#: freeculture.xml:4986
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:5006
+#: freeculture.xml:4995
msgid "CHAPTER EIGHT: Transformers"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5007
+#: freeculture.xml:4996
msgid "Allen, Paul"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:5008 freeculture.xml:5016 freeculture.xml:5027 freeculture.xml:5042 freeculture.xml:5051 freeculture.xml:5056 freeculture.xml:5108 freeculture.xml:5124 freeculture.xml:5147 freeculture.xml:5209 freeculture.xml:9571
+#: freeculture.xml:4997 freeculture.xml:5005 freeculture.xml:5016 freeculture.xml:5031 freeculture.xml:5040 freeculture.xml:5045 freeculture.xml:5097 freeculture.xml:5113 freeculture.xml:5136 freeculture.xml:5199 freeculture.xml:9551
msgid "Alben, Alex"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5010
+#: freeculture.xml:4999
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5018
+#: freeculture.xml:5007
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5029
+#: freeculture.xml:5018
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 "
#. PAGE BREAK 112
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5036
+#: freeculture.xml:5025
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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5044
+#: freeculture.xml:5033
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,\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5053
+#: freeculture.xml:5042
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:5069
+#: freeculture.xml:5058
msgid "artists"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><secondary>
-#: freeculture.xml:5070
+#: freeculture.xml:5059
msgid "publicity rights on images of"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5064
+#: freeculture.xml:5053
msgid ""
"Technically, the rights that Alben had to clear were mainly those of "
"publicity—rights an artist has to control the commercial exploitation "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5058
+#: freeculture.xml:5047
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5075
+#: freeculture.xml:5064
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5082
+#: freeculture.xml:5071
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5088
+#: freeculture.xml:5077
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."
+"going to use the \"Make my day\" clip from <citetitle>Dirty "
+"Harry</citetitle>. 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:5097
+#: freeculture.xml:5086
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5110
+#: freeculture.xml:5099
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5121
+#: freeculture.xml:5110
msgid ""
-"It was one year later—\"and even then we weren't sure whether we were "
-"totally in the clear.\""
+"It was one <emphasis>year</emphasis> 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:5126
+#: freeculture.xml:5115
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5132
+#: freeculture.xml:5121
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, "
#. PAGE BREAK 114
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5144
+#: freeculture.xml:5133
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:5148
+#: freeculture.xml:5137
msgid "Drucker, Peter"
msgstr ""
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5156
+#: freeculture.xml:5145
msgid ""
-"U.S. Department of Commerce Office of Acquisition Management, Seven Steps to "
-"Performance-Based Services Acquisition, available at <ulink "
+"U.S. Department of Commerce Office of Acquisition Management, "
+"<citetitle>Seven Steps to Performance-Based Services "
+"Acquisition</citetitle>, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #22</ulink>."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5150
+#: freeculture.xml:5139
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5164
+#: freeculture.xml:5153
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5172
+#: freeculture.xml:5161
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5180
+#: freeculture.xml:5169
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?"
+"Or at least, is this <emphasis>how</emphasis> 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:5190
+#: freeculture.xml:5180
msgid ""
"Absolutely. I think that if there were some fair-licensing "
"mechanism—where you weren't subject to hold-ups and you weren't "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5211
+#: freeculture.xml:5201
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 "
#. PAGE BREAK 116
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5228
+#: freeculture.xml:5218
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. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5238
+#: freeculture.xml:5228
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."
+"century, all framed around the idea of a <citetitle>60 Minutes</citetitle> "
+"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:5243
+#: freeculture.xml:5233
msgid "Nimmer, David"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5245
+#: freeculture.xml:5235
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5252
+#: freeculture.xml:5242
msgid "Boies, David"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5254
+#: freeculture.xml:5244
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5269
+#: freeculture.xml:5259
msgid ""
"We live in a \"cut and paste\" culture enabled by technology. Anyone "
"building a presentation knows the extraordinary freedom that the cut and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5285
+#: freeculture.xml:5275
msgid "Camp Chaos"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5276
+#: freeculture.xml:5266
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5288
+#: freeculture.xml:5278
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5295
+#: freeculture.xml:5285
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5310
+#: freeculture.xml:5300
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 "
#. PAGE BREAK 118
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5316
+#: freeculture.xml:5306
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.\""
+"the comic genius of <citetitle>Saturday Night Live</citetitle> 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:5328
+#: freeculture.xml:5318
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5337
+#: freeculture.xml:5327
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5347
+#: freeculture.xml:5337
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:5362
+#: freeculture.xml:5352
msgid "CHAPTER NINE: Collectors"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5364
+#: freeculture.xml:5354
msgid ""
"In April 1996, millions of \"bots\"—computer codes designed to "
"\"spider,\" or automatically search the Internet and copy "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5373
+#: freeculture.xml:5363
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5381
+#: freeculture.xml:5371
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."
+"the dystopia described in <citetitle>1984</citetitle>, 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:5389
+#: freeculture.xml:5379
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5394
+#: freeculture.xml:5384
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 "
#. f1
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5407
+#: freeculture.xml:5397
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5401
+#: freeculture.xml:5391
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5415
+#: freeculture.xml:5405
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5426
+#: freeculture.xml:5416
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."
+"it. That's not quite correct. We <emphasis>all</emphasis> 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:5435
+#: freeculture.xml:5425
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5446
+#: freeculture.xml:5436
msgid ""
"Brewster Kahle is the founder of the Internet Archive. He was a very "
"successful Internet entrepreneur after he was a successful computer "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5456
+#: freeculture.xml:5446
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 "
#. PAGE BREAK 122
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5474
+#: freeculture.xml:5464
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. . . ."
+"between the two, the <citetitle>60 Minutes</citetitle> 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:5486
+#: freeculture.xml:5476
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5494
+#: freeculture.xml:5484
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 "
#. f2
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5511
+#: freeculture.xml:5501
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."
+"Library of Congress,\" <citetitle>Film Library Quarterly</citetitle> 13 "
+"nos. 2–3 (1980): 5; Anthony Slide, <citetitle>Nitrate Won't Wait: A "
+"History of Film Preservation in the United States</citetitle> ( Jefferson, "
+"N.C.: McFarland & Co., 1992), 36."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5502
+#: freeculture.xml:5492
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5519
+#: freeculture.xml:5509
msgid ""
"The same is generally true about television. Television broadcasts were "
"originally not copyrighted—there was no way to capture the broadcasts, "
#. PAGE BREAK 123
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5530
+#: freeculture.xml:5520
msgid ""
"Kahle was eager to correct this. Before September 11, 2001, he and his "
"allies had started capturing television. They selected twenty stations from "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5557
+#: freeculture.xml:5547
msgid "Movie Archive"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5541
+#: freeculture.xml:5531
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5560
+#: freeculture.xml:5550
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5568
+#: freeculture.xml:5558
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 "
#. PAGE BREAK 124
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5576
+#: freeculture.xml:5566
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5588
+#: freeculture.xml:5578
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 "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:5600
+#: freeculture.xml:5590
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."
+"Owner Starts a New Chapter by Adopting Business,\" <citetitle>Chicago "
+"Tribune</citetitle>, 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,\" "
+"<citetitle>Boston College Law Review</citetitle> 44 (2003): 593 n. 51."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5597
+#: freeculture.xml:5587
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5614
+#: freeculture.xml:5604
msgid ""
"Yet increasingly, any assumption about a stable second life for creative "
"property does not hold true with the most important components of popular "
#. PAGE BREAK 125
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5625
+#: freeculture.xml:5615
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5637
+#: freeculture.xml:5627
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5645
+#: freeculture.xml:5635
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5652
+#: freeculture.xml:5642
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, "
#. PAGE BREAK 126
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5666
+#: freeculture.xml:5656
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."
+"libraries or archives could be. <emphasis>When</emphasis> 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 "
+"<emphasis>for</emphasis> 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:5681
+#: freeculture.xml:5671
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:5691
+#: freeculture.xml:5681
msgid "CHAPTER TEN: \"Property\""
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5700
+#: freeculture.xml:5690
msgid "Johnson, Lyndon"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5693
+#: freeculture.xml:5683
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5713
+#: freeculture.xml:5703
msgid "Disney, Inc."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5714
+#: freeculture.xml:5704
msgid "Sony Pictures Entertainment"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5715
+#: freeculture.xml:5705
msgid "MGM"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5716
+#: freeculture.xml:5706
msgid "Paramount Pictures"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5717
+#: freeculture.xml:5707
msgid "Twentieth Century Fox"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5718
+#: freeculture.xml:5708
msgid "Universal Pictures"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:5719
+#: freeculture.xml:5709
msgid "Warner Brothers"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5703
+#: freeculture.xml:5693
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 "
#. PAGE BREAK 128
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5723
+#: freeculture.xml:5713
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5735
+#: freeculture.xml:5725
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5744
+#: freeculture.xml:5734
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:5758
+#: freeculture.xml:5748
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:5749
+#: freeculture.xml:5739
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\"/>"
+"animates this entire debate: <emphasis>Creative property owners must be "
+"accorded the same rights and protection resident in all other property "
+"owners in the nation</emphasis>. 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:5768
+#: freeculture.xml:5758
msgid ""
"The strategy of this rhetoric, like the strategy of most of Valenti's "
"rhetoric, is brilliant and simple and brilliant because simple. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5779
+#: freeculture.xml:5769
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."
+"made by <emphasis>anyone</emphasis> 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 <emphasis>no</emphasis> "
+"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:5794
+#: freeculture.xml:5784
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."
+"<citetitle>Private Property and the Constitution</citetitle> (New Haven: "
+"Yale University Press, 1977), 26–27."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5791
+#: freeculture.xml:5781
msgid ""
"While \"creative property\" is certainly \"property\" in a nerdy and precise "
"sense that lawyers are trained to understand,<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5809
+#: freeculture.xml:5799
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 "
#. PAGE BREAK 130
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5817
+#: freeculture.xml:5807
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5832
+#: freeculture.xml:5822
msgid ""
"Organizations such as the MPAA, whose board includes the most powerful of "
"the old guard, have little interest, their rhetoric notwithstanding, in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5844
+#: freeculture.xml:5834
msgid ""
"The framers of our Constitution loved \"property.\" Indeed, so strongly did "
"they love property that they built into the Constitution an important "
"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."
+"property is, in a certain sense, sacred. It cannot <emphasis>ever</emphasis> "
+"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:5855
+#: freeculture.xml:5845
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."
+"create \"creative property,\" the Constitution <emphasis>requires</emphasis> "
+"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:5870
+#: freeculture.xml:5860
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5879
+#: freeculture.xml:5869
msgid ""
"Arguing for a change in our Constitution is not necessarily wrong. There "
"was much in our original Constitution that was plainly wrong. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5891
+#: freeculture.xml:5881
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?"
+"try to understand <emphasis>why</emphasis>. 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:5898
+#: freeculture.xml:5889
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."
+"war: Not <emphasis>whether</emphasis> creative property should be protected, "
+"but how. Not <emphasis>whether</emphasis> we will enforce the rights the law "
+"gives to creative-property owners, but what the particular mix of rights "
+"ought to be. Not <emphasis>whether</emphasis> 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:5912
+#: freeculture.xml:5904
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:"
+"narrow language of the law allows. In <citetitle>Code and Other Laws of "
+"Cyberspace</citetitle>, 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:5921
+#: freeculture.xml:5913
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:5922 freeculture.xml:6097 freeculture.xml:6398
+#: freeculture.xml:5914 freeculture.xml:6089 freeculture.xml:6390
msgid "<graphic fileref=\"images/1331.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5925
+#: freeculture.xml:5917
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5942
+#: freeculture.xml:5934
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5953
+#: freeculture.xml:5945
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5963
+#: freeculture.xml:5955
msgid ""
"Finally, and for the moment, perhaps, most mysteriously, "
"\"architecture\"—the physical world as one finds it—is a "
#. PAGE BREAK 134
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5980
+#: freeculture.xml:5972
msgid ""
"So the first point about these four modalities of regulation is obvious: "
"They interact. Restrictions imposed by one might be reinforced by "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5986
+#: freeculture.xml:5978
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:5995
+#: freeculture.xml:5987
msgid "driving speed, constraints on"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:5998
+#: freeculture.xml:5990
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 "
#. f3
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:6016
+#: freeculture.xml:6008
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."
+"more timidly expressed. See Lawrence Lessig, <citetitle>Code: And Other "
+"Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95; "
+"Lawrence Lessig, \"The New Chicago School,\" <citetitle>Journal of Legal "
+"Studies</citetitle>, June 1998."
msgstr ""
#. PAGE BREAK 135
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:6012
+#: freeculture.xml:6004
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><figure><title>
-#: freeculture.xml:6040
+#: freeculture.xml:6032
msgid "Law has a special role in affecting the three."
msgstr ""
#. type: Content of: <book><chapter><sect1><figure>
-#: freeculture.xml:6041
+#: freeculture.xml:6033
msgid "<graphic fileref=\"images/1361.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6080
+#: freeculture.xml:6072
msgid "Commons, John R."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:6052
+#: freeculture.xml:6044
msgid ""
"Some people object to this way of talking about \"liberty.\" They object "
"because their focus when considering the constraints that exist at any "
"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\"/>"
+"liberty. As I argued in <citetitle>Code</citetitle>, 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, <citetitle>On Liberty</citetitle> "
+"(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., <citetitle>John R. Commons: Selected "
+"Essays</citetitle> (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 <citetitle>United States Code</citetitle>, "
+"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:6044
+#: freeculture.xml:6036
msgid ""
"These constraints can thus change, and they can be changed. To understand "
"the effective protection of liberty or protection of property at any "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6084
+#: freeculture.xml:6076
msgid "Why Hollywood Is Right"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6086
+#: freeculture.xml:6078
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6092
+#: freeculture.xml:6084
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:6096 freeculture.xml:6397
+#: freeculture.xml:6088 freeculture.xml:6389
msgid "Copyright's regulation before the Internet."
msgstr ""
#. PAGE BREAK 136
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6101
+#: freeculture.xml:6093
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6113
+#: freeculture.xml:6105
msgid ""
"Enter the Internet, or, more precisely, technologies such as MP3s and p2p "
"sharing. Now the constraint of architecture changes dramatically, as does "
#. PAGE BREAK 137
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6121
+#: freeculture.xml:6113
msgid ""
"Thus the sense of, and justification for, the warriors' response. "
"Technology has changed, the warriors say, and the effect of this change, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6131
+#: freeculture.xml:6123
msgid "effective state of anarchy after the Internet."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6132
+#: freeculture.xml:6124
msgid "<graphic fileref=\"images/1381.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6135
+#: freeculture.xml:6127
msgid ""
"Neither this analysis nor the conclusions that follow are new to the "
"warriors. Indeed, in a \"White Paper\" prepared by the Commerce Department "
#. PAGE BREAK 138
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6147
+#: freeculture.xml:6139
msgid ""
"This mixed strategy is just what copyright needed—if it was to "
"preserve the particular balance that existed before the change induced by "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6164
+#: freeculture.xml:6156
msgid ""
"Thus, there's nothing wrong or surprising in the content industry's campaign "
"to protect itself from the harmful consequences of a technological "
#. f5
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6180
+#: freeculture.xml:6172
msgid ""
"See Geoffrey Smith, \"Film vs. Digital: Can Kodak Build a Bridge?\" "
"BusinessWeek online, 2 August 1999, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6172
+#: freeculture.xml:6164
msgid ""
"But just because a particular interest asks for government support, it "
"doesn't follow that support should be granted. And just because technology "
"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?)"
+"trucks from roads <emphasis>for the purpose of</emphasis> 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:6212
-msgid "Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71."
+#: freeculture.xml:6204
+msgid ""
+"Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, "
+"1994), 170–71."
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:6221 freeculture.xml:12601
+#: freeculture.xml:6213 freeculture.xml:12572
msgid "Gates, Bill"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6202
+#: freeculture.xml:6194
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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6224
+#: freeculture.xml:6216
msgid ""
"Thus, while it is understandable for industries threatened with new "
"technologies that change the way they do business to look to the government "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6234
+#: freeculture.xml:6226
msgid ""
"In the context of laws regulating speech—which include, obviously, "
"copyright law—that duty is even stronger. When the industry "
#. PAGE BREAK 140
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6248
+#: freeculture.xml:6240
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6257
+#: freeculture.xml:6249
msgid "Here's the metaphor that will capture the argument to follow."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:6260
+#: freeculture.xml:6252
msgid "DDT"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:6268
+#: freeculture.xml:6260
msgid "Müller, Paul Hermann"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6263
+#: freeculture.xml:6255
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6271
+#: freeculture.xml:6263
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:6275 freeculture.xml:6281
+#: freeculture.xml:6267 freeculture.xml:6273
msgid "Carson, Rachel"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:6282
+#: freeculture.xml:6274
msgid "Silent Sprint (Carson)"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6277
+#: freeculture.xml:6269
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. <placeholder type=\"indexterm\" "
-"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
+"But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, "
+"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. <placeholder "
+"
type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6285
+#: freeculture.xml:6277
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 "
#. f7
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6298
+#: freeculture.xml:6290
msgid ""
"See, for example, James Boyle, \"A Politics of Intellectual Property: "
-"Environmentalism for the Net?\" Duke Law Journal 47 (1997): 87."
+"Environmentalism for the Net?\" <citetitle>Duke Law Journal</citetitle> 47 "
+"(1997): 87."
msgstr ""
#. PAGE BREAK 141
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6294
+#: freeculture.xml:6286
msgid ""
"It is to this image precisely that Duke University law professor James Boyle "
"appeals when he argues that we need an \"environmentalism\" for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6315
+#: freeculture.xml:6307
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6326
+#: freeculture.xml:6318
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:6333
+#: freeculture.xml:6325
msgid "Beginnings"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6335
+#: freeculture.xml:6327
msgid ""
"America copied English copyright law. Actually, we copied and improved "
"English copyright law. Our Constitution makes the purpose of \"creative "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6341
+#: freeculture.xml:6333
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, "
#. PAGE BREAK 142
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6346
+#: freeculture.xml:6338
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."
+"that Congress has the power <emphasis>to promote progress</emphasis>. 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:6359
+#: freeculture.xml:6351
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6368
+#: freeculture.xml:6360
msgid ""
"The design of the Progress Clause reflects something about the "
"Constitution's design in general. To avoid a problem, the framers built "
"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."
+"select the president. In each case, a <emphasis>structure</emphasis> 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:6383
+#: freeculture.xml:6375
msgid ""
"I doubt the framers would recognize the regulation we call \"copyright\" "
"today. The scope of that regulation is far beyond anything they ever "
#. PAGE BREAK 143
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6390
+#: freeculture.xml:6382
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6401
+#: freeculture.xml:6393
msgid "We will end here:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6404
+#: freeculture.xml:6396
msgid ""Copyright" today."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6405
+#: freeculture.xml:6397
msgid "<graphic fileref=\"images/1442.png\"></graphic>"
msgstr ""
#. PAGE BREAK 144
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6408
+#: freeculture.xml:6400
msgid "Let me explain how."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6413
+#: freeculture.xml:6405
msgid "Law: Duration"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6428
+#: freeculture.xml:6421
msgid "Crosskey, William W."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6423
+#: freeculture.xml:6415
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\"/>"
+"William W. Crosskey, <citetitle>Politics and the Constitution in the History "
+"of the United States</citetitle> (London: Cambridge University Press, 1953), "
+"vol. 1, 485–86: \"extinguish[ing], by plain implication of `the "
+"supreme Law of the Land,' <emphasis>the perpetual rights which authors had, "
+"or were supposed by some to have, under the Common Law</emphasis>\" "
+"(emphasis added). <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6415
+#: freeculture.xml:6407
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6438
+#: freeculture.xml:6431
msgid ""
"That uncertainty ended after Congress passed legislation granting "
"copyrights. Because federal law overrides any contrary state law, federal "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6446
+#: freeculture.xml:6439
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 "
#. f9
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6461
+#: freeculture.xml:6454
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 "
+"1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A "
+"History of Book Publishing in the United States</citetitle>, vol. 1, "
+"<citetitle>The Creation of an Industry, 1630–1865</citetitle> (New "
+"York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only "
+"twelve were copyrighted under the 1790 act; William J. Maher, "
+"<citetitle>Copyright Term, Retrospective Extension and the Copyright Law of "
+"1790 in Historical Context</citetitle>, 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6453
+#: freeculture.xml:6446
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 "
#. PAGE BREAK 145
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6477
+#: freeculture.xml:6470
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 "
#. f10
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6492
+#: freeculture.xml:6485
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."
+"\"Study No. 31: Renewal of Copyright,\" <citetitle>Studies on "
+"Copyright</citetitle>, 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,\" "
+"<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, "
+"498–501, and accompanying figures."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6486
+#: freeculture.xml:6479
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 "
#. f11
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6507
+#: freeculture.xml:6500
msgid "See Ringer, ch. 9, n. 2."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6503
+#: freeculture.xml:6496
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."
+"books are no longer <emphasis>effectively</emphasis> 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:6515
+#: freeculture.xml:6508
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6523
+#: freeculture.xml:6516
msgid ""
"Then, beginning in 1962, Congress started a practice that has defined "
"copyright law since. Eleven times in the last forty years, Congress has "
#. PAGE BREAK 146
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6533
+#: freeculture.xml:6526
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6544
+#: freeculture.xml:6537
msgid ""
"The effect of these extensions has been exacerbated by another, "
"little-noticed change in the copyright law. Remember I said that the framers "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6554
+#: freeculture.xml:6547
msgid ""
"The United States abandoned this sensible system in 1976. For all works "
"created after 1978, there was only one copyright term—the maximum "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6564
+#: freeculture.xml:6557
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 "
#. f12
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6581
+#: freeculture.xml:6574
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6573
+#: freeculture.xml:6566
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6590
+#: freeculture.xml:6583
msgid "Law: Scope"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6592
+#: freeculture.xml:6585
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6598
+#: freeculture.xml:6591
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6611
+#: freeculture.xml:6604
msgid ""
"This, too, has changed dramatically. While the contours of copyright today "
"are extremely hard to describe simply, in general terms, the right covers "
#. PAGE BREAK 148
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6626
+#: freeculture.xml:6619
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 "
"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."
+"<emphasis>copyright</emphasis>. 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:6639
+#: freeculture.xml:6633
msgid ""
"The reason for the registration requirement was the sensible understanding "
"that for most works, no copyright was required. Again, in the first ten "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6653
+#: freeculture.xml:6647
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6661
+#: freeculture.xml:6655
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:6672
+#: freeculture.xml:6666
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)."
+"American Literature,\" 29 <citetitle>New York University Journal of "
+"International Law and Politics</citetitle> 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:6665
+#: freeculture.xml:6659
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 "
#. PAGE BREAK 149
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6685
+#: freeculture.xml:6678
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6695
+#: freeculture.xml:6687
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."
+"note to your spouse, every doodle, <emphasis>every</emphasis> 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:6704
+#: freeculture.xml:6696
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6709
+#: freeculture.xml:6701
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6723
+#: freeculture.xml:6715
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6746
+#: freeculture.xml:6737
msgid ""
-"Jonathan Zittrain, \"The Copyright Cage,\" Legal Affairs, July/August 2003, "
-"available at <ulink url=\"http://free-culture.cc/notes/\">link #26</ulink>. "
-"<placeholder type=\"indexterm\" id=\"0\"/>"
+"Jonathan Zittrain, \"The Copyright Cage,\" <citetitle>Legal "
+"Affairs</citetitle>, July/August 2003, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #26</ulink>. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6736
+#: freeculture.xml:6727
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."
+"work. But whatever <emphasis>that</emphasis> 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:6762
+#: freeculture.xml:6752
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)."
+"<citetitle>Yale Law Journal</citetitle> 112 (2002): 1–60 (see "
+"especially pp. 53–59)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6756
+#: freeculture.xml:6747
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6773
+#: freeculture.xml:6763
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6782
+#: freeculture.xml:6772
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:6790
+#: freeculture.xml:6780
msgid "Law and Architecture: Reach"
msgstr ""
#. f16
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6797
+#: freeculture.xml:6787
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."
+"a copy; 17 <citetitle>United States Code</citetitle>, section 106(4). And it "
+"certainly sometimes doesn't regulate a \"copy\"; 17 <citetitle>United States "
+"Code</citetitle>, section 112(a). But the presumption under the existing law "
+"(which regulates \"copies;\" 17 <citetitle>United States Code</citetitle>, "
+"section 102) is that if there is a copy, there is a right."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6792
+#: freeculture.xml:6782
msgid ""
"Whereas originally the law regulated only publishers, the change in "
"copyright's scope means that the law today regulates publishers, users, and "
#. PAGE BREAK 151
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6809
+#: freeculture.xml:6799
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 "
+"\"Copies.\" That certainly sounds like the obvious thing for "
+"<emphasis>copy</emphasis>right 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 "
+"<emphasis>obvious</emphasis> 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."
+"that in the world with the Internet, copies should <emphasis>not</emphasis> "
+"be the trigger for copyright law. More precisely, they should not "
+"<emphasis>always</emphasis> be the trigger for copyright law."
msgstr ""
#. f17
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6825
+#: freeculture.xml:6817
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6820
+#: freeculture.xml:6812
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6836
+#: freeculture.xml:6828
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:6840
+#: freeculture.xml:6832
msgid "All potential uses of a book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6841
+#: freeculture.xml:6833
msgid "<graphic fileref=\"images/1521.png\"></graphic>"
msgstr ""
#. PAGE BREAK 152
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6845
+#: freeculture.xml:6837
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."
+"its potential <emphasis>uses</emphasis>. 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:6858
+#: freeculture.xml:6850
msgid "Examples of unregulated uses of a book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6859
+#: freeculture.xml:6851
msgid "<graphic fileref=\"images/1531.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6862
+#: freeculture.xml:6854
msgid ""
"Obviously, however, some uses of a copyrighted book are regulated by "
"copyright law. Republishing the book, for example, makes a copy. It is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6870
+#: freeculture.xml:6862
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:6875
+#: freeculture.xml:6867
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:6876
+#: freeculture.xml:6868
msgid "<graphic fileref=\"images/1541.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6879
+#: freeculture.xml:6871
msgid ""
"These are uses that themselves involve copying, but which the law treats as "
"unregulated because public policy demands that they remain unregulated. You "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6890
+#: freeculture.xml:6882
msgid "Unregulated copying considered "fair uses.""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6891
+#: freeculture.xml:6883
msgid "<graphic fileref=\"images/1542.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:6895
+#: freeculture.xml:6887
msgid ""
"Uses that before were presumptively unregulated are now presumptively "
"regulated."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:6896
+#: freeculture.xml:6888
msgid "<graphic fileref=\"images/1551.png\"></graphic>"
msgstr ""
#. PAGE BREAK 154
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6900
+#: freeculture.xml:6892
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 "
#. f18
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:6908
+#: freeculture.xml:6900
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6905
+#: freeculture.xml:6897
msgid ""
"Enter the Internet—a distributed, digital network where every use of a "
"copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> "
#. PAGE BREAK 155
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6929
+#: freeculture.xml:6921
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."
+"plausible <emphasis>copyright</emphasis>-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:6942
+#: freeculture.xml:6934
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."
+"only once a month, then <emphasis>copyright law</emphasis> 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:6956
+#: freeculture.xml:6946
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6962
+#: freeculture.xml:6952
msgid ""
"First, making category 1 disappear is not anything any policy maker ever "
"intended. Congress did not think through the collapse of the presumptively "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:6972
+#: freeculture.xml:6960
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."
+"commercial piracy. But the law now purports to regulate "
+"<emphasis>any</emphasis> 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:6988
+#: freeculture.xml:6972
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7003
+#: freeculture.xml:6987
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."
+"when the vast majority of uses are <emphasis>unregulated</emphasis>. 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:7014
+#: freeculture.xml:6997
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7021
+#: freeculture.xml:7004
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 "
#. PAGE BREAK 157
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7033
+#: freeculture.xml:7016
msgid ""
"In 1998, Video Pipeline informed Disney and other film distributors that it "
"intended to distribute the trailers through the Internet (rather than "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7050
+#: freeculture.xml:7033
msgid ""
"Disney countersued—for $100 million in damages. Those damages were "
"predicated upon a claim that Video Pipeline had \"willfully infringed\" on "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7062
+#: freeculture.xml:7045
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7071
+#: freeculture.xml:7054
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 "
#. PAGE BREAK 158
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7086
+#: freeculture.xml:7069
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7101
+#: freeculture.xml:7084
msgid ""
"Again, my aim so far is simply to map the changes that this changed "
"architecture enables. Enabling technology to enforce the control of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:7110
+#: freeculture.xml:7093
msgid "Architecture and Law: Force"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7112
+#: freeculture.xml:7095
msgid ""
"The disappearance of unregulated uses would be change enough, but a second "
"important change brought about by the Internet magnifies its "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7118
+#: freeculture.xml:7101
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, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7125
+#: freeculture.xml:7108
msgid "Casablanca"
msgstr ""
#. f19
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7134
+#: freeculture.xml:7117
msgid ""
-"See David Lange, \"Recognizing the Public Domain,\" Law and Contemporary "
-"Problems 44 (1981): 172–73."
+"See David Lange, \"Recognizing the Public Domain,\" <citetitle>Law and "
+"Contemporary Problems</citetitle> 44 (1981): 172–73."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7127
+#: freeculture.xml:7110
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\"/>"
+"Brothers. The Marxes intended to make a parody of "
+"<citetitle>Casablanca</citetitle>. 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 ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7143
+#: freeculture.xml:7126
msgid ""
-"Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. "
-"<placeholder type=\"indexterm\" id=\"0\"/>"
+"Ibid. See also Vaidhyanathan, <citetitle>Copyrights and "
+"Copywrongs</citetitle>, 1–3. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7139
+#: freeculture.xml:7122
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."
+"<citetitle>brothers</citetitle>, and if Warner Brothers insisted on trying "
+"to control <citetitle>Casablanca</citetitle>, then the Marx Brothers would "
+"insist on control over <citetitle>brothers</citetitle>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7151
+#: freeculture.xml:7134
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7157
+#: freeculture.xml:7140
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: "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7168
+#: freeculture.xml:7151
msgid "Consider the life of my Adobe eBook Reader."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7171
+#: freeculture.xml:7154
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7178
+#: freeculture.xml:7161
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:7182
+#: freeculture.xml:7165
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."
+"<citetitle>Middlemarch</citetitle>, for example, is in the public domain. "
+"Some of them reproduce content that is not in the public domain: My own book "
+"<citetitle>The Future of Ideas</citetitle> is not yet within the public "
+"domain. Consider <citetitle>Middlemarch</citetitle> first. If you click on "
+"my e-book copy of <citetitle>Middlemarch</citetitle>, 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:7193
+#: freeculture.xml:7176
msgid "Picture of an old version of Adobe eBook Reader"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7194
+#: freeculture.xml:7177
msgid "<graphic fileref=\"images/1611.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7197
+#: freeculture.xml:7180
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:7201
+#: freeculture.xml:7184
msgid "List of the permissions that the publisher purports to grant."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7202
+#: freeculture.xml:7185
msgid "<graphic fileref=\"images/1612.png\"></graphic>"
msgstr ""
#. PAGE BREAK 161
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7206
+#: freeculture.xml:7189
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."
+"button to hear <citetitle>Middlemarch</citetitle> read aloud through the "
+"computer."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7222
+#: freeculture.xml:7197
msgid ""
"Here's the e-book for another work in the public domain (including the "
-"translation): Aristotle's Politics."
+"translation): Aristotle's <citetitle>Politics</citetitle>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7226
+#: freeculture.xml:7201
msgid "E-book of Aristotle;s "Politics""
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7227
+#: freeculture.xml:7202
msgid "<graphic fileref=\"images/1621.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7230
+#: freeculture.xml:7205
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:7235
+#: freeculture.xml:7210
msgid "List of the permissions for Aristotle;s "Politics"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7236
+#: freeculture.xml:7211
msgid "<graphic fileref=\"images/1622.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7239
+#: freeculture.xml:7214
msgid ""
"Finally (and most embarrassingly), here are the permissions for the original "
-"e-book version of my last book, The Future of Ideas:"
+"e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7244
+#: freeculture.xml:7219
msgid "List of the permissions for "The Future of Ideas"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7245
+#: freeculture.xml:7220
msgid "<graphic fileref=\"images/1631.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7248
+#: freeculture.xml:7223
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:7258
+#: freeculture.xml:7233
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7251
+#: freeculture.xml:7226
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."
+"id=\"0\"/> When my e-book of <citetitle>Middlemarch</citetitle> 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:7273
+#: freeculture.xml:7248
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 "
#. PAGE BREAK 163
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7291
+#: freeculture.xml:7266
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."
+"These are <emphasis>controls</emphasis>, 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:7296
+#: freeculture.xml:7272
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."
+"This is the future of copyright law: not so much copyright "
+"<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. 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:7304
+#: freeculture.xml:7281
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7312
+#: freeculture.xml:7289
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:7316
+#: freeculture.xml:7293
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:"
+"Adobe site was a copy of <citetitle>Alice's Adventures in "
+"Wonderland</citetitle>. 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:7324
+#: freeculture.xml:7301
msgid "List of the permissions for "Alice's Adventures in Wonderland"."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7326
+#: freeculture.xml:7303
msgid "<graphic fileref=\"images/1641.png\"></graphic>"
msgstr ""
#. PAGE BREAK 164
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7330
+#: freeculture.xml:7307
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\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7337
+#: freeculture.xml:7314
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; "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7345
+#: freeculture.xml:7322
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7358
+#: freeculture.xml:7335
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7366
+#: freeculture.xml:7343
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:7370
+#: freeculture.xml:7347
msgid "Aibo robotic dog"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7373
+#: freeculture.xml:7350
msgid ""
"Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns "
"tricks, cuddles, and follows you around. It eats only electricity and that "
#. PAGE BREAK 165
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7378
+#: freeculture.xml:7355
msgid ""
"The Aibo is expensive and popular. Fans from around the world have set up "
"clubs to trade stories. One fan in particular set up a Web site to enable "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7387
+#: freeculture.xml:7364
msgid ""
"\"Teach\" here has a special meaning. Aibos are just cute computers. You "
"teach a computer how to do something by programming it differently. So to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7395
+#: freeculture.xml:7372
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."
+"If you're not a programmer or don't know many programmers, the word "
+"<citetitle>hack</citetitle> 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, "
+"<citetitle>hack</citetitle> is a much more positive "
+"term. <citetitle>Hack</citetitle> 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:7407
+#: freeculture.xml:7384
msgid ""
"Some hacks are easy. Some are unbelievably hard. Hackers as a community like "
"to challenge themselves and others with increasingly difficult "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7414
+#: freeculture.xml:7391
msgid ""
"The Aibo fan was displaying a bit of both when he hacked the program and "
"offered to the world a bit of code that would enable the Aibo to dance "
#. PAGE BREAK 166
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7422
+#: freeculture.xml:7399
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 "
"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?"
+"that the owner of aibopet.com thought, <emphasis>What possible problem could "
+"there be with teaching a robot dog to dance?</emphasis>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7438
+#: freeculture.xml:7415
msgid ""
"Let's put the dog to sleep for a minute, and turn to a pony show— not "
"literally a pony show, but rather a paper that a Princeton academic named Ed "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:7461 freeculture.xml:9883
+#: freeculture.xml:7438 freeculture.xml:9864
msgid "Electronic Frontier Foundation"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7451
+#: freeculture.xml:7428
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 "
+"<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, \"Play "
+"Dead: Sony Muzzles the Techies Who Teach a Robot Dog New Tricks,\" "
+"<citetitle>American Prospect</citetitle>, January 2002; \"Court Dismisses "
+"Computer Scientists' Challenge to DMCA,\" <citetitle>Intellectual Property "
+"Litigation Reporter</citetitle>, 11 December 2001; Bill Holland, \"Copyright "
+"Act Raising Free-Speech Concerns,\" <citetitle>Billboard</citetitle>, May "
+"2001; Janelle Brown, \"Is the RIAA Running Scared?\" Salon.com, April 2001; "
+"Electronic Frontier Foundation, \"Frequently Asked Questions about "
+"<citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> "
"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:7449
+#: freeculture.xml:7426
msgid ""
"But Felten's bravery was really tested in April 2001.<placeholder "
"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7469
+#: freeculture.xml:7446
msgid ""
"The SDMI coalition had as its goal a technology to enable content owners to "
"exercise much better control over their content than the Internet, as it "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7479
+#: freeculture.xml:7456
msgid ""
"When SDMI thought it was close to a standard, it set up a competition. In "
"exchange for providing contestants with the code to an SDMI-encrypted bit of "
#. PAGE BREAK 167
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7486
+#: freeculture.xml:7463
msgid ""
"Felten and his team figured out the encryption system quickly. He and the "
"team saw the weakness of this system as a type: Many encryption systems "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7492
+#: freeculture.xml:7469
msgid ""
"Let's review just what Felten was doing. Again, this is the United "
"States. We have a principle of free speech. We have this principle not just "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7500
+#: freeculture.xml:7477
msgid ""
"What Felten and his colleagues were doing was publishing a paper describing "
"the weakness in a technology. They were not spreading free music, or "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7508
+#: freeculture.xml:7485
msgid ""
"What links these two, aibopet.com and Felten, is the letters they then "
"received. Aibopet.com received a letter from Sony about the aibopet.com "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7515
+#: freeculture.xml:7492
msgid ""
"Your site contains information providing the means to circumvent AIBO-ware's "
"copy protection protocol constituting a violation of the anti-circumvention "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7521
+#: freeculture.xml:7498
msgid ""
"And though an academic paper describing the weakness in a system of "
"encryption should also be perfectly legal, Felten received a letter from an "
#. PAGE BREAK 168
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7527
+#: freeculture.xml:7504
msgid ""
"Any disclosure of information gained from participating in the Public "
"Challenge would be outside the scope of activities permitted by the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7535
+#: freeculture.xml:7512
msgid ""
"In both cases, this weirdly Orwellian law was invoked to control the spread "
"of information. The Digital Millennium Copyright Act made spreading such "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7540
+#: freeculture.xml:7517
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."
+"were designed as <emphasis>code</emphasis> to modify the original "
+"<emphasis>code</emphasis> of the Internet, to reestablish some protection "
+"for copyright owners."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7549
+#: freeculture.xml:7528
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."
+"designed to protect copyrighted material. It was, we could say, "
+"<emphasis>legal code</emphasis> intended to buttress <emphasis>software "
+"code</emphasis> which itself was intended to support the <emphasis>legal "
+"code of copyright</emphasis>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7555
+#: freeculture.xml:7535
msgid ""
"But the DMCA was not designed merely to protect copyrighted works to the "
"extent copyright law protected them. Its protection, that is, did not end at "
#. PAGE BREAK 169
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7564
+#: freeculture.xml:7544
msgid ""
"Aibopet.com and Felten make the point. The Aibo hack circumvented a "
"copyright protection system for the purpose of enabling the dog to dance "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7576
+#: freeculture.xml:7556
msgid ""
"The threat against Felten was more attenuated, but it followed the same line "
"of reasoning. By publishing a paper describing how a copyright protection "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7584
+#: freeculture.xml:7564
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."
+"\"<citetitle>Mr. Rogers</citetitle>,\" 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:7610
+#: freeculture.xml:7590
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 "
+"<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal "
+"City Studios, Inc</citetitle>., 464 U.S. 417, 455 fn. 27 (1984). Rogers "
+"never changed his view about the VCR. See James Lardner, <citetitle>Fast "
+"Forward: Hollywood, the Japanese, and the Onslaught of the VCR</citetitle> "
"(New York: W. W. Norton, 1987), 270–71."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7595
+#: freeculture.xml:7575
msgid ""
"Some public stations, as well as commercial stations, program the "
"\"Neighborhood\" at hours when some children cannot use it. I think that "
#. PAGE BREAK 170
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7619
+#: freeculture.xml:7599
msgid ""
"Even though there were uses that were legal, because there were some uses "
"that were illegal, the court held the companies producing the VCR "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7624
+#: freeculture.xml:7604
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:7628
+#: freeculture.xml:7608
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:7631
+#: freeculture.xml:7611
msgid ""
"The anticircumvention provisions of the DMCA target copyright circumvention "
"technologies. Circumvention technologies can be used for different "
#. PAGE BREAK 171
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7639
+#: freeculture.xml:7619
msgid ""
"A handgun can be used to shoot a police officer or a child. Most would agree "
"such a use is bad. Or a handgun can be used for target practice or to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7647
+#: freeculture.xml:7627
msgid "VCR/handgun cartoon."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7648
+#: freeculture.xml:7628
msgid "<graphic fileref=\"images/1711.png\"></graphic>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7651
+#: freeculture.xml:7631
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."
+"technologies) are illegal. Flash: <emphasis>No one ever died from copyright "
+"circumvention</emphasis>. 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:7659
+#: freeculture.xml:7639
msgid ""
"The Aibo and RIAA examples demonstrate how copyright owners are changing the "
"balance that copyright law grants. Using code, copyright owners restrict "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7667
+#: freeculture.xml:7647
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."
+"This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. 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:7677
+#: freeculture.xml:7659
msgid ""
"There is one final aspect of the interaction between architecture and law "
"that contributes to the force of copyright's regulation. This is the ease "
#. f24
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7696
+#: freeculture.xml:7678
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."
+"Copyright, Fan Fiction, and a New Common Law,\" <citetitle>Loyola of Los "
+"Angeles Entertainment Law Journal</citetitle> 17 (1997): 651."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7690
+#: freeculture.xml:7672
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\"/>"
+"For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan "
+"club. You gathered every month to share trivia, and maybe to enact a kind of "
+"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:7702
+#: freeculture.xml:7684
msgid ""
"Before the Internet, this was, in effect, a totally unregulated activity. "
"No matter what happened inside your club room, you would never be interfered "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7709
+#: freeculture.xml:7691
msgid ""
"But if you moved your club onto the Internet, and made it generally "
"available for others to join, the story would be very different. Bots "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7719
+#: freeculture.xml:7701
msgid ""
"This change in the effective force of the law is caused by a change in the "
"ease with which the law can be enforced. That change too shifts the law's "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:7728
+#: freeculture.xml:7710
msgid "Market: Concentration"
msgstr ""
#. PAGE BREAK 173
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7730
+#: freeculture.xml:7712
msgid ""
"So copyright's duration has increased dramatically—tripled in the past "
"thirty years. And copyright's scope has increased as well—from "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7748
+#: freeculture.xml:7730
msgid ""
"Still, in my view, all of these changes would not matter much if it weren't "
"for one more change that we must also consider. This is a change that is in "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7755
+#: freeculture.xml:7737
msgid ""
"This is the change in the concentration and integration of the media. In "
"the past twenty years, the nature of media ownership has undergone a radical "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7766
+#: freeculture.xml:7748
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:7769
+#: freeculture.xml:7751
msgid "BMG"
msgstr ""
#. f25
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7775
+#: freeculture.xml:7757
msgid ""
"FCC Oversight: Hearing Before the Senate Commerce, Science and "
"Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement "
#. f26
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7782
+#: freeculture.xml:7764
msgid ""
"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" "
-"New York Times, 23 December 2002."
+"<citetitle>New York Times</citetitle>, 23 December 2002."
msgstr ""
#. f27
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7788
+#: freeculture.xml:7770
msgid ""
-"Molly Ivins, \"Media Consolidation Must Be Stopped,\" Charleston Gazette, 31 "
-"May 2003."
+"Molly Ivins, \"Media Consolidation Must Be Stopped,\" <citetitle>Charleston "
+"Gazette</citetitle>, 31 May 2003."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:7791
+#: freeculture.xml:7773
msgid "McCain, John"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7771
+#: freeculture.xml:7753
msgid ""
"Changes in scope are the easier ones to describe. As Senator John McCain "
"summarized the data produced in the FCC's review of media ownership, \"five "
#. PAGE BREAK 174
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7794
+#: freeculture.xml:7776
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."
+"seventy-five stations. Today <emphasis>one</emphasis> 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:7805
+#: freeculture.xml:7787
msgid ""
"Newspaper ownership is becoming more concentrated as well. Today, there are "
"six hundred fewer daily newspapers in the United States than there were "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:7819 freeculture.xml:7836
+#: freeculture.xml:7801 freeculture.xml:7818
msgid "Fallows, James"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7816
+#: freeculture.xml:7798
msgid ""
"Concentration in size alone is one thing. The more invidious change is in "
"the nature of that concentration. As author James Fallows put it in a recent "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:7834
+#: freeculture.xml:7816
msgid ""
-"James Fallows, \"The Age of Murdoch,\" Atlantic Monthly (September 2003): "
-"89. <placeholder type=\"indexterm\" id=\"0\"/>"
+"James Fallows, \"The Age of Murdoch,\" <citetitle>Atlantic "
+"Monthly</citetitle> (September 2003): 89. <placeholder type=\"indexterm\" "
+"id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:7823
+#: freeculture.xml:7805
msgid ""
"Murdoch's companies now constitute a production system unmatched in its "
"integration. They supply content—Fox movies . . . Fox TV shows "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7841
+#: freeculture.xml:7823
msgid ""
"The pattern with Murdoch is the pattern of modern media. Not just large "
"companies owning many radio stations, but a few companies owning as many "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure><title>
-#: freeculture.xml:7847
+#: freeculture.xml:7829
msgid "Pattern of modern media ownership."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><figure>
-#: freeculture.xml:7848
+#: freeculture.xml:7830
msgid "<graphic fileref=\"images/1761.png\"></graphic>"
msgstr ""
#. PAGE BREAK 175
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7852
+#: freeculture.xml:7834
msgid ""
"Does this concentration matter? Will it affect what is made, or what is "
"distributed? Or is it merely a more efficient way to produce and distribute "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7857
+#: freeculture.xml:7839
msgid ""
"My view was that concentration wouldn't matter. I thought it was nothing "
"more than a more efficient financial structure. But now, after reading and "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7863
+#: freeculture.xml:7845
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:7866
+#: freeculture.xml:7848
msgid "Lear, Norman"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7868 freeculture.xml:7932
+#: freeculture.xml:7850 freeculture.xml:7914
msgid "All in the Family"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7870
+#: freeculture.xml:7852
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."
+"In 1969, Norman Lear created a pilot for <citetitle>All in the "
+"Family</citetitle>. He took the pilot to ABC. The network didn't like it. It "
+"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:7882
+#: freeculture.xml:7864
msgid ""
"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center "
"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7877
+#: freeculture.xml:7859
msgid ""
"Rather than comply, Lear simply took the show elsewhere. CBS was happy to "
"have the series; ABC could not stop Lear from walking. The copyrights that "
#. PAGE BREAK 176
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7894
+#: freeculture.xml:7876
msgid ""
"The network did not control those copyrights because the law forbade the "
"networks from controlling the content they syndicated. The law required a "
#. f30
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7913
+#: freeculture.xml:7895
msgid ""
"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
"Ownership Before the Senate Commerce Committee, 108th Cong., 1st "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7903
+#: freeculture.xml:7885
msgid ""
"In 1994, the FCC abandoned the rules that required this independence. After "
"that change, the networks quickly changed the balance. In 1985, there were "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7934
+#: freeculture.xml:7916
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."
+"Today, another Norman Lear with another <citetitle>All in the "
+"Family</citetitle> 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><indexterm><primary>
-#: freeculture.xml:7943
+#: freeculture.xml:7925
msgid "Diller, Barry"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:7944
+#: freeculture.xml:7926
msgid "Moyers, Bill"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7940
+#: freeculture.xml:7922
msgid ""
"While the number of channels has increased dramatically, the ownership of "
"those channels has narrowed to an ever smaller and smaller few. As Barry "
#. f32
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:7957
+#: freeculture.xml:7939
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>."
+"\"Barry Diller Takes on Media Deregulation,\" <citetitle>Now with Bill "
+"Moyers</citetitle>, 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:7948
+#: freeculture.xml:7930
msgid ""
"Well, if you have companies that produce, that finance, that air on their "
"channel and then distribute worldwide everything that goes through their "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7964
+#: freeculture.xml:7946
msgid ""
"This narrowing has an effect on what is produced. The product of such large "
"and concentrated networks is increasingly homogenous. Increasingly "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:7975
+#: freeculture.xml:7957
msgid "Clark, Kim B."
msgstr ""
#. f33
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:7984
+#: freeculture.xml:7966
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)."
+"Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
+"Revolutionary National Bestseller that Changed the Way We Do "
+"Business</citetitle> (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,\" <citetitle>Research "
+"Policy</citetitle> 14 (1985): 235–51. For a more recent study, see "
+"Richard Foster and Sarah Kaplan, <citetitle>Creative Destruction: Why "
+"Companies That Are Built to Last Underperform the Market—and How to "
+"Successfully Transform Them</citetitle> (New York: Currency/Doubleday, "
+"2001)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:7977
+#: freeculture.xml:7959
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the \"Innovator's "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8001
+#: freeculture.xml:7983
msgid ""
"I don't think we know enough about the economics of the media market to say "
"with certainty what concentration and integration will do. The efficiencies "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8007
+#: freeculture.xml:7989
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:8011
+#: freeculture.xml:7993
msgid ""
"In addition to the copyright wars, we're in the middle of the drug "
"wars. Government policy is strongly directed against the drug cartels; "
#. PAGE BREAK 178
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8016
+#: freeculture.xml:7998
msgid ""
"Let me hereby disqualify myself from any possible appointment to any "
"position in government by saying I believe this war is a profound mistake. I "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8035
+#: freeculture.xml:8017
msgid ""
"You may not be convinced. That's fine. We live in a democracy, and it is "
"through votes that we are to choose policy. But to do that, we depend "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8041
+#: freeculture.xml:8023
msgid ""
"Beginning in 1998, the Office of National Drug Control Policy launched a "
"media campaign as part of the \"war on drugs.\" The campaign produced scores "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8053
+#: freeculture.xml:8035
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:8057
+#: freeculture.xml:8039
msgid ""
"But let's say you think it is a wrong message, and you'd like to run a "
"countercommercial. Say you want to run a series of ads that try to "
#. PAGE BREAK 179
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8063
+#: freeculture.xml:8045
msgid ""
"Well, obviously, these ads cost lots of money. Assume you raise the "
"money. Assume a group of concerned citizens donates all the money in the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8104
+#: freeculture.xml:8086
msgid "Comcast"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8105
+#: freeculture.xml:8087
msgid "Marijuana Policy Project"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8106
+#: freeculture.xml:8088
msgid "WJOA"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8080
+#: freeculture.xml:8062
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 "
"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 "
+"from TV Networks,\" <citetitle>New York Times</citetitle>, 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,\" <citetitle>Yale Law and Policy "
+"Review</citetitle> 6 (1988): 449–79, and for a more recent summary of "
+"the stance of the FCC and the courts, see <citetitle>Radio-Television News "
+"Directors Association</citetitle> v. <citetitle>FCC</citetitle>, 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.\" <placeholder type=\"indexterm\" "
"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8070
+#: freeculture.xml:8052
msgid ""
"No. You cannot. Television stations have a general policy of avoiding "
"\"controversial\" ads. Ads sponsored by the government are deemed "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8110
+#: freeculture.xml:8092
msgid ""
"I'd be happy to defend the networks' rights, as well—if we lived in a "
"media market that was truly diverse. But concentration in the media throws "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:8122
+#: freeculture.xml:8104
msgid "Together"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8124
+#: freeculture.xml:8106
msgid ""
"There is something innocent and obvious about the claim of the copyright "
"warriors that the government should \"protect my property.\" In the "
#. PAGE BREAK 180
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8130
+#: freeculture.xml:8112
msgid ""
"But when we see how dramatically this \"property\" has changed— when "
"we recognize how it might now interact with both technology and markets to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8146
+#: freeculture.xml:8128
msgid ""
"Not starkly. Or absolutely. My point is not that we should abolish copyright "
"or go back to the eighteenth century. That would be a total mistake, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8152
+#: freeculture.xml:8134
msgid ""
"But there is a space between zero and one, Internet culture "
"notwithstanding. And these massive shifts in the effective power of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8164
+#: freeculture.xml:8146
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 "
"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."
+"similar changes in the future. And these changes have to be "
+"<emphasis>reductions</emphasis> 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:8176
+#: freeculture.xml:8158
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."
+"together they produce an astonishing conclusion: <emphasis>Never in our "
+"history have fewer had a legal right to control more of the development of "
+"our culture than now</emphasis>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8199
+#: freeculture.xml:8182
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:8185
+#: freeculture.xml:8167
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\"/>"
+"networks. <emphasis>Never</emphasis> 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:8205
+#: freeculture.xml:8188
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:8208
+#: freeculture.xml:8191
msgid ""
"At the start of this book, I distinguished between commercial and "
"noncommercial culture. In the course of this chapter, I have distinguished "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:8221 freeculture.xml:8259
+#: freeculture.xml:8204 freeculture.xml:8242
msgid "PUBLISH"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:8222 freeculture.xml:8260 freeculture.xml:8299 freeculture.xml:8332
+#: freeculture.xml:8205 freeculture.xml:8243 freeculture.xml:8282 freeculture.xml:8315
msgid "TRANSFORM"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8227 freeculture.xml:8265 freeculture.xml:8304 freeculture.xml:8337
+#: freeculture.xml:8210 freeculture.xml:8248 freeculture.xml:8287 freeculture.xml:8320
msgid "Commercial"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8228 freeculture.xml:8266 freeculture.xml:8267 freeculture.xml:8305 freeculture.xml:8306 freeculture.xml:8338 freeculture.xml:8339 freeculture.xml:8343 freeculture.xml:8344
+#: freeculture.xml:8211 freeculture.xml:8249 freeculture.xml:8250 freeculture.xml:8288 freeculture.xml:8289 freeculture.xml:8321 freeculture.xml:8322 freeculture.xml:8326 freeculture.xml:8327
msgid "©"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8229 freeculture.xml:8233 freeculture.xml:8234 freeculture.xml:8271 freeculture.xml:8272 freeculture.xml:8311
+#: freeculture.xml:8212 freeculture.xml:8216 freeculture.xml:8217 freeculture.xml:8254 freeculture.xml:8255 freeculture.xml:8294
msgid "Free"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8232 freeculture.xml:8270 freeculture.xml:8309 freeculture.xml:8342
+#: freeculture.xml:8215 freeculture.xml:8253 freeculture.xml:8292 freeculture.xml:8325
msgid "Noncommercial"
msgstr ""
#. PAGE BREAK 182
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8241
+#: freeculture.xml:8224
msgid ""
"The act of publishing a map, chart, and book was regulated by copyright "
"law. Nothing else was. Transformations were free. And as copyright attached "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8250
+#: freeculture.xml:8233
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:8279
+#: freeculture.xml:8262
msgid ""
"Derivative works were now regulated by copyright law—if published, "
"which again, given the economics of publishing at the time, means if offered "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8285
+#: freeculture.xml:8268
msgid ""
"In 1909 the law changed to regulate copies, not publishing, and after this "
"change, the scope of the law was tied to technology. As the technology of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry>
-#: freeculture.xml:8298 freeculture.xml:8331
+#: freeculture.xml:8281 freeculture.xml:8314
msgid "COPY"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry>
-#: freeculture.xml:8310
+#: freeculture.xml:8293
msgid "©/Free"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8318
+#: freeculture.xml:8301
msgid ""
"The law was interpreted to reach noncommercial copying through, say, copy "
"machines, but still much of copying outside of the commercial market "
#. PAGE BREAK 183
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8351
+#: freeculture.xml:8334
msgid ""
"Every realm is governed by copyright law, whereas before most creativity was "
"not. The law now regulates the full range of creativity— commercial or "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8359
+#: freeculture.xml:8342
msgid ""
"Obviously, copyright law is not the enemy. The enemy is regulation that does "
"no good. So the question that we should be asking just now is whether "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8365
+#: freeculture.xml:8348
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 "
#. f36
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8381
+#: freeculture.xml:8364
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)."
+"Property,\" in <citetitle>Nomos XXII: Property</citetitle>, 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:8375
+#: freeculture.xml:8358
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, "
"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."
+"\"copyright\" did not control <emphasis>at all</emphasis> 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:8398
+#: freeculture.xml:8381
msgid ""
"We achieved that free culture because our law respected important limits on "
"the scope of the interests protected by \"property.\" The very birth of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8417
+#: freeculture.xml:8400
msgid ""
"Free culture is increasingly the casualty in this war on piracy. In response "
"to a real, if not yet quantified, threat that the technologies of the "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:8434
+#: freeculture.xml:8417
msgid "PUZZLES"
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:8438
+#: freeculture.xml:8421
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8440
+#: freeculture.xml:8423
msgid "chimeras"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8443
+#: freeculture.xml:8426
msgid "Wells, H. G."
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:8446
+#: freeculture.xml:8429
msgid ""Country of the Blind, The" (Wells)"
msgstr ""
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:8454
+#: freeculture.xml:8437
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)."
+"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, "
+"<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael "
+"Sherborne, ed. (New York: Oxford University Press, 1996)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8450
+#: freeculture.xml:8433
msgid ""
"In a well-known short story by H. G. Wells, a mountain climber named Nunez "
"trips (literally, down an ice slope) into an unknown and isolated valley in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8466
+#: freeculture.xml:8449
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!'\""
+"They don't have the word <citetitle>blind</citetitle>. 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:8478
+#: freeculture.xml:8461
msgid ""
"The villagers don't leave him alone. Nor do they see (so to speak) the "
"virtue of his special power. Not even the ultimate target of his affection, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8489
+#: freeculture.xml:8472
msgid ""
"When Nunez announces his desire to marry his \"mysteriously delighted\" "
"love, the father and the village object. \"You see, my dear,\" her father "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8495
+#: freeculture.xml:8478
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:8499
+#: freeculture.xml:8482
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:8504
+#: freeculture.xml:8487
msgid ""
"The doctor continues: \"I think I may say with reasonable certainty that in "
"order to cure him completely, all that we need to do is a simple and easy "
#. PAGE BREAK 188
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8510
+#: freeculture.xml:8493
msgid ""
"\"Thank Heaven for science!\" says the father to the doctor. They inform "
"Nunez of this condition necessary for him to be allowed his bride. (You'll "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8527
+#: freeculture.xml:8510
msgid ""
"Before I had read about chimeras, I would have said they were impossible. A "
"single person can't have two sets of DNA. The very idea of DNA is that it is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8535
+#: freeculture.xml:8518
msgid ""
"The more I work to understand the current struggle over copyright and "
"culture, which I've sometimes called unfairly, and sometimes not unfairly "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8549
+#: freeculture.xml:8532
msgid ""
"But the description is also false in part. For when my p2p server is on a "
"p2p network through which anyone can get access to my music, then sure, my "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8558
+#: freeculture.xml:8541
msgid ""
"Likewise, when the other side says, \"File sharing is just like walking into "
"a Tower Records and taking a CD off the shelf and walking out with it,\" "
#. PAGE BREAK 189
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8569
+#: freeculture.xml:8552
msgid ""
"But it is not quite stealing from Tower. After all, when I take a CD from "
"Tower Records, Tower has one less CD to sell. And when I take a CD from "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8579
+#: freeculture.xml:8562
msgid ""
"The point is not that it is as neither side describes. The point is that it "
"is both—both as the RIAA describes it and as Kazaa describes it. It is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8625 freeculture.xml:9328
+#: freeculture.xml:8608 freeculture.xml:9308
msgid "Berman, Howard L."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:8595
+#: freeculture.xml:8578
msgid ""
"For an excellent summary, see the report prepared by GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School, \"Copyright "
"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 "
+"\"House Bill Aims to Up Stakes on Piracy,\" <citetitle>Los Angeles "
+"Times</citetitle>, 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 "
+"<citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In "
+"re. Verizon Internet Services)</citetitle>, 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,\" "
+"<citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #36</ulink>. <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8586
+#: freeculture.xml:8569
msgid ""
"We could respond by simply pretending that it is not a chimera. We could, "
"with the RIAA, decide that every act of file sharing should be a felony. We "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8631
+#: freeculture.xml:8614
msgid ""
"Alternatively, we could respond to file sharing the way many kids act as "
"though we've responded. We could totally legalize it. Let there be no "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8638
+#: freeculture.xml:8621
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."
+"<emphasis>either</emphasis> 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:8650
+#: freeculture.xml:8633
msgid ""
"Yet zero tolerance is increasingly our government's policy. In the middle of "
"the chaos that the Internet has created, an extraordinary land grab is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8658
+#: freeculture.xml:8641
msgid ""
"I'm not talking about the opportunities for kids to \"steal\" music. My "
"focus instead is the commercial and cultural innovation that this war will "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:8671
+#: freeculture.xml:8654
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:8675
+#: freeculture.xml:8658
msgid ""
"But building a technology fortress that locks in the clout of the major "
"labels is by no means the only way to protect copyright interests, nor is it "
#. f3.
#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para>
-#: freeculture.xml:8693
+#: freeculture.xml:8676
msgid ""
"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
"Entertainment on the Internet and Other Media: Hearing Before the "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:8683
+#: freeculture.xml:8666
msgid ""
"This is a critical point. The choices that industry sectors make with "
"respect to these systems will in many ways directly shape the market for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:8707 freeculture.xml:9058
+#: freeculture.xml:8690 freeculture.xml:9039
msgid "Vivendi Universal"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8704
+#: freeculture.xml:8687
msgid ""
"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the "
"major labels.\" Its position on these matters has now changed. <placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8710
+#: freeculture.xml:8693
msgid ""
"Reversing our tradition of tolerance now will not merely quash piracy. It "
"will sacrifice values that are important to this culture, and will kill "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:8718
+#: freeculture.xml:8701
msgid "CHAPTER TWELVE: Harms"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8721
+#: freeculture.xml:8704
msgid ""
"To fight \"piracy,\" to protect \"property,\" the content industry has "
"launched a war. Lobbying and lots of campaign contributions have now brought "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8729
+#: freeculture.xml:8712
msgid ""
"My aim so far has been to describe the consequences of this war, in "
"particular, the consequences for \"free culture.\" But my aim now is to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8736
+#: freeculture.xml:8719
msgid ""
"In my view, it is not. There is no good reason why this time, for the first "
"time, the law should defend the old against the new, just when the power of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8744
+#: freeculture.xml:8727
msgid ""
"Yet \"common sense\" does not see it this way. Common sense is still on the "
"side of the Causbys and the content industry. The extreme claims of control "
#. PAGE BREAK 193
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:8751
+#: freeculture.xml:8734
msgid ""
"There will be many consequences of continuing this war. I want to describe "
"just three. All three might be said to be unintended. I am quite confident "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:8758
+#: freeculture.xml:8741
msgid "Constraining Creators"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8760
+#: freeculture.xml:8743
msgid ""
"In the next ten years we will see an explosion of digital technologies. "
"These technologies will enable almost anyone to capture and share "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8775
+#: freeculture.xml:8758
msgid ""
"This digital \"capturing and sharing\" is in part an extension of the "
"capturing and sharing that has always been integral to our culture, and in "
#. PAGE BREAK 194
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8786
+#: freeculture.xml:8769
msgid ""
"Technology has thus given us an opportunity to do something with culture "
"that has only ever been possible for individuals in small groups, isolated "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8796
+#: freeculture.xml:8779
msgid ""
"Yet all this is possible only if the activity is presumptively legal. In the "
"current regime of legal regulation, it is not. Forget file sharing for a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:8824 freeculture.xml:8845
+#: freeculture.xml:8807 freeculture.xml:8828
msgid "Worldcom"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8819
+#: freeculture.xml:8802
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>. <placeholder "
-"type=\"indexterm\" id=\"0\"/>"
+"See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at "
+"WorldCom</citetitle> (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>. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8840
+#: freeculture.xml:8823
msgid "Bush, George W."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8831
+#: freeculture.xml:8814
msgid ""
"The bill, modeled after California's tort reform model, was passed in the "
"House of Representatives but defeated in a Senate vote in July 2003. For an "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8807
+#: freeculture.xml:8790
msgid ""
"That presumption will increasingly chill creativity, as the examples of "
"extreme penalties for vague infringements continue to proliferate. It is "
#. f3.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:8868
+#: freeculture.xml:8850
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>."
+"See Danit Lidor, \"Artists Just Wanna Be Free,\" "
+"<citetitle>Wired</citetitle>, 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:8848
+#: freeculture.xml:8831
msgid ""
"The consequence of this legal uncertainty, tied to these extremely high "
"penalties, is that an extraordinary amount of creativity will either never "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8879
+#: freeculture.xml:8860
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8890
+#: freeculture.xml:8871
msgid ""
"Never in our history has a painter had to worry about whether his painting "
"infringed on someone else's work; but the modern-day painter, using the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8901
+#: freeculture.xml:8882
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, "
#. PAGE BREAK 196
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8910
+#: freeculture.xml:8891
msgid ""
"But fair use in America simply means the right to hire a lawyer to defend "
"your right to create. And as lawyers love to forget, our system for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8920
+#: freeculture.xml:8901
msgid ""
"Judges and lawyers can tell themselves that fair use provides adequate "
"\"breathing room\" between regulation by the law and the access the law "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8931
+#: freeculture.xml:8912
msgid ""
"For in a world that threatens $150,000 for a single willful infringement of "
"a copyright, and which demands tens of thousands of dollars to even defend "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8942
+#: freeculture.xml:8923
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:8946
+#: freeculture.xml:8927
msgid ""
"We're losing [creative] opportunities right and left. Creative people are "
"being forced not to express themselves. Thoughts are not being "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:8959
+#: freeculture.xml:8940
msgid "Constraining Innovators"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8961
+#: freeculture.xml:8942
msgid ""
"The story of the last section was a crunchy-lefty story—creativity "
"quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8969
+#: freeculture.xml:8950
msgid ""
"But there's an aspect of this story that is not lefty in any sense. Indeed, "
"it is an aspect that could be written by the most extreme promarket "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8978
+#: freeculture.xml:8959
msgid ""
"The charge I've been making about the regulation of culture is the same "
"charge free marketers make about regulating markets. Everyone, of course, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:8990 freeculture.xml:9096
+#: freeculture.xml:8971 freeculture.xml:9077
msgid "Barry, Hank"
msgstr ""
#. PAGE BREAK 198
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:8992
+#: freeculture.xml:8973
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9004
+#: freeculture.xml:8985
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."
+"<citetitle>The Future of Ideas</citetitle> 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:9009
+#: freeculture.xml:8990
msgid ""
"In 1997, Michael Roberts launched a company called MP3.com. MP3.com was "
"keen to remake the music business. Their goal was not just to facilitate new "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9017
+#: freeculture.xml:8998
msgid ""
"To make this system work, however, MP3.com needed a reliable way to "
"recommend music to its users. The idea behind this alternative was to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9025
+#: freeculture.xml:9006
msgid ""
"This idea required a simple way to gather data about user preferences. "
"MP3.com came up with an extraordinarily clever way to gather this preference "
#. PAGE BREAK 199
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9037
+#: freeculture.xml:9018
msgid ""
"No doubt some could use this system to illegally copy content. But that "
"opportunity existed with or without MP3.com. The aim of the my.mp3.com "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9046
+#: freeculture.xml:9027
msgid ""
"To make this system function, however, MP3.com needed to copy 50,000 CDs to "
"a server. (In principle, it could have been the user who uploaded the music, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9061
+#: freeculture.xml:9042
msgid ""
"Nine days after MP3.com launched its service, the five major labels, headed "
"by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9071
+#: freeculture.xml:9052
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:9074
+#: freeculture.xml:9055
msgid ""
"After Vivendi purchased MP3.com, Vivendi turned around and filed a "
"malpractice lawsuit against the lawyers who had advised it that they had a "
#. PAGE BREAK 200
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9084
+#: freeculture.xml:9065
msgid ""
"The clear purpose of this lawsuit (which was settled for an unspecified "
"amount shortly after the story was no longer covered in the press) was to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:9095
+#: freeculture.xml:9076
msgid "Hummer, John"
msgstr ""
#. f4.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9104
+#: freeculture.xml:9085
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."
+"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" <citetitle>Los "
+"Angeles Times</citetitle>, 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,\" <citetitle>Los Angeles "
+"Times</citetitle>, 28 May 2001."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9098
+#: freeculture.xml:9079
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 "
"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:"
+"that touch content. In an article in <citetitle>Business 2.0</citetitle>, "
+"Rafe Needleman describes a discussion with BMW:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><indexterm><primary>
-#: freeculture.xml:9125
+#: freeculture.xml:9106
msgid "BMW"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9140
+#: freeculture.xml:9121
msgid "Needleman, Rafe"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:9136
+#: freeculture.xml:9117
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\"/>"
+"Rafe Needleman, \"Driving in Cars with MP3s,\" <citetitle>Business "
+"2.0</citetitle>, 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:9127
+#: freeculture.xml:9108
msgid ""
"I asked why, with all the storage capacity and computer power in the car, "
"there was no way to play MP3 files. I was told that BMW engineers in Germany "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9145
+#: freeculture.xml:9126
msgid ""
"This is the world of the mafia—filled with \"your money or your life\" "
"offers, governed in the end not by courts but by the threats that the law "
#. PAGE BREAK 201
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9155
+#: freeculture.xml:9136
msgid ""
"The point is not that businesses should have a right to start illegal "
"enterprises. The point is the definition of \"illegal.\" The law is a mess "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9170
+#: freeculture.xml:9151
msgid ""
"The point is directly parallel to the crunchy-lefty point about fair "
"use. Whatever the \"real\" law is, realism about the effect of law in both "
#. PAGE BREAK 202
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9182
+#: freeculture.xml:9163
msgid ""
"The building of a permission culture, rather than a free culture, is the "
"first important way in which the changes I have described will burden "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9204
+#: freeculture.xml:9185
msgid ""
"The motivation for this response is obvious. The Internet enables the "
"efficient spread of content. That efficiency is a feature of the Internet's "
#. f6.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9218
+#: freeculture.xml:9199
msgid ""
"\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School (2003), "
#. f7.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9234
+#: freeculture.xml:9215
msgid "GartnerG2, 26–27."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9214
+#: freeculture.xml:9195
msgid ""
"The examples of this form of legislation are many. At the urging of the "
"content industry, some in Congress have threatened legislation that would "
#. PAGE BREAK 203
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9239
+#: freeculture.xml:9220
msgid ""
"In one sense, these solutions seem sensible. If the problem is the code, why "
"not regulate the code to remove the problem. But any regulation of technical "
#. f8.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9253
+#: freeculture.xml:9234
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:9250
+#: freeculture.xml:9231
msgid ""
"In March 2002, a broad coalition of technology companies, led by Intel, "
"tried to get Congress to see the harm that such legislation would "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9261
+#: freeculture.xml:9242
msgid ""
"There is one more obvious way in which this war has harmed "
"innovation—again, a story that will be quite familiar to the free "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9267
+#: freeculture.xml:9248
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 "
#. f9.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9276
-msgid "Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001)."
+#: freeculture.xml:9257
+msgid ""
+"Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: "
+"Prometheus Books, 2001)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9273
+#: freeculture.xml:9254
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."
+"Litman in her book <citetitle>Digital Copyright</citetitle>,<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:9286
+#: freeculture.xml:9267
msgid ""
"But that pattern of deference to new technologies has now changed with the "
"rise of the Internet. Rather than striking a balance between the claims of a "
#. f10.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9294
+#: freeculture.xml:9276
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."
+"The only circuit court exception is found in <citetitle>Recording Industry "
+"Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia "
+"Systems</citetitle>, 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 "
+"<citetitle>Metro-Goldwyn-Mayer Studios, "
+"Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 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 ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9314
+#: freeculture.xml:9294
msgid ""
"For example, in July 2002, Representative Howard Berman introduced the "
"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9293
+#: freeculture.xml:9274
msgid ""
"The response by the courts has been fairly universal.<placeholder "
"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
#. PAGE BREAK 204
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9336
+#: freeculture.xml:9316
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9346
+#: freeculture.xml:9326
msgid ""
"The reasoning behind this balance struck by Congress makes some sense. The "
"justification was that radio was a kind of advertising. The recording artist "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9357
+#: freeculture.xml:9337
msgid ""
"Enter Internet radio. Like regular radio, Internet radio is a technology to "
"stream content from a broadcaster to a listener. The broadcast travels "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9366
+#: freeculture.xml:9346
msgid ""
"This feature of the architecture of Internet radio means that there are "
"potentially an unlimited number of radio stations that a user could tune in "
#. PAGE BREAK 205
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9381
+#: freeculture.xml:9361
msgid ""
"Internet radio is thus to radio what FM was to AM. It is an improvement "
"potentially vastly more significant than the FM improvement over AM, since "
#. f12.
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:9405
+#: freeculture.xml:9385
msgid "Lessing, 239."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9391
+#: freeculture.xml:9371
msgid ""
"An almost unlimited number of FM stations was possible in the shortwaves, "
"thus ending the unnatural restrictions imposed on radio in the crowded "
#. f13.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9415
+#: freeculture.xml:9395
msgid "Ibid., 229."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9410
+#: freeculture.xml:9390
msgid ""
"This potential for FM radio was never realized—not because Armstrong "
"was wrong about the technology, but because he underestimated the power of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9420
+#: freeculture.xml:9400
msgid ""
"Now the very same claim could be made about Internet radio. For again, there "
"is no technical limitation that could restrict the number of Internet radio "
#. PAGE BREAK 206
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9428
+#: freeculture.xml:9408
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 "
"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."
+"<emphasis>Internet radio does</emphasis>. 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:9468
+#: freeculture.xml:9447
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9451
+#: freeculture.xml:9430
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 "
"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\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
+"Policy: The Case of Digital Distribution,\" <citetitle>Antitrust "
+"Bulletin</citetitle> (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\"/> <placeholder "
+"type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9444
+#: freeculture.xml:9423
msgid ""
"This financial burden is not slight. As Harvard law professor William Fisher "
"estimates, if an Internet radio station distributed adfree popular music to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9475
+#: freeculture.xml:9454
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:"
+"proposed, an Internet radio station (but not a terrestrial radio station) "
+"would have to collect the following data from <emphasis>every listening "
+"transaction</emphasis>:"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9482
+#: freeculture.xml:9462
msgid "name of the service;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9485
+#: freeculture.xml:9465
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9488
+#: freeculture.xml:9468
msgid "type of program (archived/looped/live);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9491
+#: freeculture.xml:9471
msgid "date of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9494
+#: freeculture.xml:9474
msgid "time of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9497
+#: freeculture.xml:9477
msgid "time zone of origination of transmission;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9500
+#: freeculture.xml:9480
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:9503
+#: freeculture.xml:9483
msgid "duration of transmission (to nearest second);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9506
+#: freeculture.xml:9486
msgid "sound recording title;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9509
+#: freeculture.xml:9489
msgid "ISRC code of the recording;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9512
+#: freeculture.xml:9492
msgid ""
"release year of the album per copyright notice and in the case of "
"compilation albums, the release year of the album and copy- right date of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9515
+#: freeculture.xml:9495
msgid "featured recording artist;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9518
+#: freeculture.xml:9498
msgid "retail album title;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9521
+#: freeculture.xml:9501
msgid "recording label;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9524
+#: freeculture.xml:9504
msgid "UPC code of the retail album;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9527
+#: freeculture.xml:9507
msgid "catalog number;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9530
+#: freeculture.xml:9510
msgid "copyright owner information;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9533
+#: freeculture.xml:9513
msgid "musical genre of the channel or program (station format);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9536
+#: freeculture.xml:9516
msgid "name of the service or entity;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9539
+#: freeculture.xml:9519
msgid "channel or program;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9542
+#: freeculture.xml:9522
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:9545
+#: freeculture.xml:9525
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:9548
+#: freeculture.xml:9528
msgid "time zone where the signal was received (user);"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9551
+#: freeculture.xml:9531
msgid "Unique User identifier;"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:9554
+#: freeculture.xml:9534
msgid "the country in which the user received the transmissions."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9559
+#: freeculture.xml:9539
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."
+"pay a <emphasis>type of copyright fee</emphasis> that terrestrial radio does "
+"not."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9567
+#: freeculture.xml:9547
msgid ""
"Why? What justifies this difference? Was there any study of the economic "
"consequences from Internet radio that would justify these differences? Was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9573
+#: freeculture.xml:9553
msgid ""
"In a rare bit of candor, one RIAA expert admitted what seemed obvious to "
"everyone at the time. As Alex Alben, vice president for Public Policy at "
#. PAGE BREAK 208
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9579
+#: freeculture.xml:9559
msgid ""
"The RIAA, which was representing the record labels, presented some testimony "
"about what they thought a willing buyer would pay to a willing seller, and "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9595
+#: freeculture.xml:9575
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.)"
+"with thousands of webcasters, <emphasis>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>.\" (Emphasis added.)"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9602
+#: freeculture.xml:9583
msgid ""
"Translation: The aim is to use the law to eliminate competition, so that "
"this platform of potentially immense competition, which would cause the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:9612
+#: freeculture.xml:9593
msgid "Corrupting Citizens"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9614
+#: freeculture.xml:9595
msgid ""
"Overregulation stifles creativity. It smothers innovation. It gives "
"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9620
+#: freeculture.xml:9601
msgid ""
"In addition to these important harms, there is one more that was important "
"to our forebears, but seems forgotten today. Overregulation corrupts "
#. f15.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9629
+#: freeculture.xml:9610
msgid ""
"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet "
"and American Life Project (24 April 2001), available at <ulink "
#. PAGE BREAK 209
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9625
+#: freeculture.xml:9606
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."
+"of citizens. According to <citetitle>The New York Times</citetitle>, 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:9663
+#: freeculture.xml:9644
msgid ""
-"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" Los "
-"Angeles Times, 10 September 2003, Business."
+"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" "
+"<citetitle>Los Angeles Times</citetitle>, 10 September 2003, Business."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9650
+#: freeculture.xml:9631
msgid ""
"The content industry's tactics exploit the failings of the American legal "
"system. When the RIAA brought suit against Jesse Jordan, it knew that in "
#. f17.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9685
+#: freeculture.xml:9666
msgid ""
"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During "
-"Prohibition,\" American Economic Review 81, no. 2 (1991): 242."
+"Prohibition,\" <citetitle>American Economic Review</citetitle> 81, no. 2 "
+"(1991): 242."
msgstr ""
#. f18.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9693
+#: freeculture.xml:9674
msgid ""
"National Drug Control Policy: Hearing Before the House Government Reform "
"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John "
#. f19.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9703
+#: freeculture.xml:9684
msgid ""
"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" "
-"Journal of Economic Literature 36 (1998): 818 (survey of compliance "
-"literature)."
+"<citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey "
+"of compliance literature)."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9675
+#: freeculture.xml:9656
msgid ""
"Wars of prohibition are nothing new in America. This one is just something "
"more extreme than anything we've seen before. We experimented with alcohol "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9712
+#: freeculture.xml:9693
msgid ""
"This state of affairs is not without consequence. It is a particularly "
"salient issue for teachers like me, whose job it is to teach law students "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9729
+#: freeculture.xml:9710
msgid ""
"The response to this general illegality is either to enforce the law more "
"severely or to change the law. We, as a society, have to learn how to make "
#. PAGE BREAK 211
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9742
+#: freeculture.xml:9723
msgid ""
"My point is not the idiotic one: Just because people violate a law, we "
"should therefore repeal it. Obviously, we could reduce murder statistics "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9749
+#: freeculture.xml:9730
msgid ""
"My point is instead one that democracies understood for generations, but "
"that we recently have learned to forget. The rule of law depends upon people "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9763
+#: freeculture.xml:9744
msgid ""
"When at least forty-three million citizens download content from the "
"Internet, and when they use tools to combine that content in ways "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9775
+#: freeculture.xml:9756
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:9778
+#: freeculture.xml:9759
msgid ""
"We all own CDs. Many of us still own phonograph records. These pieces of "
"plastic encode music that in a certain sense we have bought. The law "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9789
+#: freeculture.xml:9770
msgid ""
"But as the MP3 craze has demonstrated, there is another use of phonograph "
"records that is effectively free. Because these recordings were made without "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:9797
+#: freeculture.xml:9778
msgid "Adromeda"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9799
+#: freeculture.xml:9780
msgid ""
"This \"use\" of my records is certainly valuable. I have begun a large "
"process at home of ripping all of my and my wife's CDs, and storing them in "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9810
+#: freeculture.xml:9791
msgid ""
"This use is enabled by unprotected media—either CDs or records. But "
"unprotected media also enable file sharing. File sharing threatens (or so "
#. PAGE BREAK 213
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9820
+#: freeculture.xml:9801
msgid ""
"If these technologies took off, then the building of large archives of your "
"own music would become quite difficult. You might hang in hacker circles, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9834
+#: freeculture.xml:9815
msgid ""
"If the only way to assure that artists get paid were the elimination of the "
"ability to freely move content, then these technologies to interfere with "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9843
+#: freeculture.xml:9824
msgid ""
"My point just now is not to prove that there is such a system. I offer a "
"version of such a system in the last chapter of this book. For now, the only "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9854
+#: freeculture.xml:9835
msgid ""
"I believe there is a way to assure that artists are paid without turning "
"forty-three million Americans into felons. But the salient feature of this "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9863
+#: freeculture.xml:9844
msgid ""
"Except that this generation's buggy manufacturers have already saddled "
"Congress, and are riding the law to protect themselves against this new form "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9869
+#: freeculture.xml:9850
msgid ""
"It is understandable why they choose as they do. It is not understandable "
"why we as a democracy continue to choose as we do. Jack Valenti is charming; "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:9888 freeculture.xml:9997
+#: freeculture.xml:9869 freeculture.xml:9978
msgid "von Lohmann, Fred"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9886
+#: freeculture.xml:9867
msgid ""
"\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains, "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:9892
+#: freeculture.xml:9873
msgid ""
"then all of a sudden a lot of basic civil liberty protections evaporate to "
"one degree or another. . . . If you're a copyright infringer, how can you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9904
+#: freeculture.xml:9885
msgid ""
"And the consequence of this transformation of the American public into "
"criminals is that it becomes trivial, as a matter of due process, to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9909
+#: freeculture.xml:9890
msgid ""
"Users of the Internet began to see this generally in 2003 as the RIAA "
"launched its campaign to force Internet service providers to turn over the "
#. f20.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9927
+#: freeculture.xml:9908
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."
+"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" <citetitle>Washington "
+"Post</citetitle>, 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,\" "
+"<citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; "
+"Jefferson Graham, \"Recording Industry Sues Parents,\" <citetitle>USA "
+"Today</citetitle>, 15 September 2003, 4D; John Schwartz, \"She Says She's No "
+"Music Pirate. No Snoop Fan, Either,\" <citetitle>New York Times</citetitle>, "
+"25 September 2003, C1; Margo Varadi, \"Is Brianna a Criminal?\" "
+"<citetitle>Toronto Star</citetitle>, 18 September 2003, P7."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9918
+#: freeculture.xml:9899
msgid ""
"The RIAA then expanded this campaign, by announcing a general strategy to "
"sue individual users of the Internet who are alleged to have downloaded "
#. f21.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9945
+#: freeculture.xml:9926
msgid ""
"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some "
"Methods Used,\" CNN.com, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9941
+#: freeculture.xml:9922
msgid ""
"Even this understates the espionage that is being waged by the RIAA. A "
"report from CNN late last summer described a strategy the RIAA had adopted "
#. f22.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:9966
-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 "
+#: freeculture.xml:9947
+msgid ""
+"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" "
+"<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank "
+"Ahrens, \"Four Students Sued over Music Sites; Industry Group Targets File "
+"Sharing at Colleges,\" <citetitle>Washington Post</citetitle>, 4 April 2003, "
+"E1; Elizabeth Armstrong, \"Students `Rip, Mix, Burn' at Their Own Risk,\" "
+"<citetitle>Christian Science Monitor</citetitle>, 2 September 2003, 20; "
+"Robert Becker and Angela Rozas, \"Music Pirate Hunt Turns to Loyola; Two "
+"Students Names Are Handed Over; Lawsuit Possible,\" <citetitle>Chicago "
+"Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, \"RIAA Trains Antipiracy "
+"Guns on Universities,\" <citetitle>Internet News</citetitle>, 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,\" "
+"<citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; \"Raid, "
+"Letters Are Weapons at Universities,\" <citetitle>USA Today</citetitle>, 26 "
"September 2000, 3D."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9954
+#: freeculture.xml:9935
msgid ""
"So imagine the following not-implausible scenario: Imagine a friend gives a "
"CD to your daughter—a collection of songs just like the cassettes you "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:9985
+#: freeculture.xml:9966
msgid ""
"Now, of course, she'll have the right to defend herself. You can hire a "
"lawyer for her (at $300 per hour, if you're lucky), and she can plead that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:10001
+#: freeculture.xml:9982
msgid ""
"So when we're talking about numbers like forty to sixty million Americans "
"that are essentially copyright infringers, you create a situation where the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:10021
+#: freeculture.xml:10002
msgid ""
"When forty to sixty million Americans are considered \"criminals\" under the "
"law, and when the law could achieve the same objective— securing "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:10034
+#: freeculture.xml:10015
msgid "BALANCES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10038
+#: freeculture.xml:10019
msgid ""
"So here's the picture: You're standing at the side of the road. Your car is "
"on fire. You are angry and upset because in part you helped start the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10044
+#: freeculture.xml:10025
msgid ""
"As you ponder the mess, someone else comes along. In a panic, she grabs the "
"bucket. Before you have a chance to tell her to stop—or before she "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10052
+#: freeculture.xml:10033
msgid ""
"A war about copyright rages all around—and we're all focusing on the "
"wrong thing. No doubt, current technologies threaten existing businesses. "
#. PAGE BREAK 219
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10061
+#: freeculture.xml:10042
msgid ""
"Yet policy makers are not willing to leave this fire to itself. Primed with "
"plenty of lobbyists' money, they are keen to intervene to eliminate the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10069
+#: freeculture.xml:10050
msgid ""
"Somehow we have to find a way to turn attention to this more important and "
"fundamental issue. Somehow we have to find a way to avoid pouring gasoline "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10074
+#: freeculture.xml:10055
msgid ""
"We have not found that way yet. Instead, we seem trapped in a simpler, "
"binary view. However much many people push to frame this debate more "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:10080
+#: freeculture.xml:10061
msgid ""
"This challenge has been my life these last few years. It has also been my "
"failure. In the two chapters that follow, I describe one small brace of "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:10089
+#: freeculture.xml:10070
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10091
+#: freeculture.xml:10072
msgid ""
"In 1995, a father was frustrated that his daughters didn't seem to like "
"Hawthorne. No doubt there was more than one such father, but at least one "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10100
+#: freeculture.xml:10081
msgid ""
"It didn't work—at least for his daughters. They didn't find Hawthorne "
"any more interesting than before. But Eldred's experiment gave birth to a "
#. PAGE BREAK 221
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10107
+#: freeculture.xml:10088
msgid ""
"Eldred's library was not simply a copy of certain public domain works, "
"though even a copy would have been of great value to people across the world "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10118
+#: freeculture.xml:10099
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."
+"as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> 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 (<citetitle>Cinderella</citetitle>), sometimes not "
+"(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure "
+"Planet</citetitle>). These are all commercial publications of public domain "
+"works."
msgstr ""
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10141
+#: freeculture.xml:10122
msgid ""
"There's a parallel here with pornography that is a bit hard to describe, but "
"it's a strong one. One phenomenon that the Internet created was a world of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10130
+#: freeculture.xml:10111
msgid ""
"The Internet created the possibility of noncommercial publications of public "
"domain works. Eldred's is just one example. There are literally thousands of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10158
+#: freeculture.xml:10139
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."
+"of poems <citetitle>New Hampshire</citetitle> 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:10178
+#: freeculture.xml:10159
msgid ""
"The full text is: \"Sonny [Bono] wanted the term of copyright protection to "
"last forever. I am informed by staff that such a change would violate the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10173
+#: freeculture.xml:10154
msgid ""
"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in "
"memory of the congressman and former musician Sonny Bono, who, his widow, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10189
+#: freeculture.xml:10170
msgid ""
"Eldred decided to fight this law. He first resolved to fight it through "
"civil disobedience. In a series of interviews, Eldred announced that he "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10198
+#: freeculture.xml:10179
msgid ""
"It was here that I became involved in Eldred's battle. I was a "
"constitutional scholar whose first passion was constitutional "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:10209
+#: freeculture.xml:10190
msgid ""
"Congress has the power to promote the Progress of Science . . . by securing "
"for limited Times to Authors . . . exclusive Right to their "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10215
+#: freeculture.xml:10196
msgid ""
"As I've described, this clause is unique within the power-granting clause of "
"Article I, section 8 of our Constitution. Every other clause granting power "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:10234 freeculture.xml:11685
+#: freeculture.xml:10215 freeculture.xml:11657
msgid "Jaszi, Peter"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10225
+#: freeculture.xml:10206
msgid ""
"In the past forty years, Congress has gotten into the practice of extending "
"existing terms of copyright protection. What puzzled me about this was, if "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10237
+#: freeculture.xml:10218
msgid ""
"As an academic, my first response was to hit the books. I remember sitting "
"late at the office, scouring on-line databases for any serious consideration "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10248
+#: freeculture.xml:10229
msgid ""
"For this is the core of the corruption in our present system of "
"government. \"Corruption\" not in the sense that representatives are "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10257
+#: freeculture.xml:10238
msgid ""
"If that's not obvious to you, consider the following: Say you're one of the "
"very few lucky copyright owners whose copyright continues to make money one "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10267
+#: freeculture.xml:10248
msgid ""
"So imagine the Robert Frost estate is earning $100,000 a year from three of "
"Frost's poems. And imagine the copyright for those poems is about to "
#. PAGE BREAK 224
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10274
+#: freeculture.xml:10255
msgid ""
"\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C "
"will expire. That means that after next year, we will no longer be receiving "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10282
+#: freeculture.xml:10263
msgid ""
"\"There's a proposal in Congress, however,\" she continues, \"that could "
"change this. A few congressmen are floating a bill to extend the terms of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10288
+#: freeculture.xml:10269
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:10292
+#: freeculture.xml:10273
msgid ""
"\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the "
"campaigns of a number of representatives to try to assure that they support "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10297
+#: freeculture.xml:10278
msgid ""
"You hate politics. You hate contributing to campaigns. So you want to know "
"whether this disgusting practice is worth it. \"How much would we get if "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10303
+#: freeculture.xml:10284
msgid ""
"\"Well,\" the adviser says, \"if you're confident that you will continue to "
"get at least $100,000 a year from these copyrights, and you use the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10309
+#: freeculture.xml:10290
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:10313
+#: freeculture.xml:10294
msgid ""
"\"So you're saying it would be worth it for us to pay more than $1,000,000 "
"in campaign contributions if we were confident those contributions would "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10319
+#: freeculture.xml:10300
msgid ""
"\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute "
"up to the `present value' of the income you expect from these "
#. PAGE BREAK 225
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10325
+#: freeculture.xml:10306
msgid ""
"You quickly get the point—you as the member of the board and, I trust, "
"you the reader. Each time copyrights are about to expire, every beneficiary "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10336
+#: freeculture.xml:10317
msgid ""
"Thus a congressional perpetual motion machine: So long as legislation can be "
"bought (albeit indirectly), there will be all the incentive in the world to "
#. f3.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10349
+#: freeculture.xml:10329
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."
+"Effort; Congress OKs Bill Granting Creators 20 More Years,\" "
+"<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22."
msgstr ""
#. f4.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10356
+#: freeculture.xml:10336
msgid ""
"See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>."
#. f5.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10363
+#: freeculture.xml:10344
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>."
+"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" "
+"<citetitle>Congressional Quarterly This Week</citetitle>, 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:10342
+#: freeculture.xml:10322
msgid ""
"In the lobbying that led to the passage of the Sonny Bono Copyright Term "
"Extension Act, this \"theory\" about incentives was proved real. Ten of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10371
+#: freeculture.xml:10351
msgid ""
"Constitutional law is not oblivious to the obvious. Or at least, it need not "
"be. So when I was considering Eldred's complaint, this reality about the "
#. PAGE BREAK 226
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10384
+#: freeculture.xml:10364
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."
+"It was also my judgment that <emphasis>this</emphasis> Supreme Court would "
+"not allow Congress to extend existing terms. As anyone close to the Supreme "
+"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:10397
+#: freeculture.xml:10377
msgid ""
"Since 1937, the Supreme Court had interpreted Congress's granted powers very "
"broadly; so, while the Constitution grants Congress the power to regulate "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10407
+#: freeculture.xml:10387
msgid ""
"As the economy grew, this standard increasingly meant that there was no "
"limit to Congress's power to regulate, since just about every activity, when "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10416
+#: freeculture.xml:10394
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."
+"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. 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:10432
-msgid "United States v. Lopez, 514 U.S. 549, 564 (1995)."
+#: freeculture.xml:10409
+msgid ""
+"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 "
+"U.S. 549, 564 (1995)."
msgstr ""
#. f7.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10438
-msgid "United States v. Morrison, 529 U.S. 598 (2000)."
+#: freeculture.xml:10416
+msgid ""
+"<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 "
+"U.S. 598 (2000)."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10429
+#: freeculture.xml:10407
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\"/>"
+"<citetitle>Lopez</citetitle> was reaffirmed five years later in "
+"<citetitle>United States</citetitle> "
+"v. <citetitle>Morrison</citetitle>.<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""
#. f8.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10445
+#: freeculture.xml:10423
msgid ""
"If it is a principle about enumerated powers, then the principle carries "
"from one enumerated power to another. The animating point in the context of "
#. PAGE BREAK 227
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10443
+#: freeculture.xml:10420
msgid ""
"If a principle were at work here, then it should apply to the Progress "
"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10469
+#: freeculture.xml:10444
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 "
+"<emphasis>If</emphasis>, that is, the principle announced in "
+"<citetitle>Lopez</citetitle> stood for a principle. Many believed the "
+"decision in <citetitle>Lopez</citetitle> 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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10483
+#: freeculture.xml:10457
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."
+"<citetitle>Eldred</citetitle> 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:10506
+#: freeculture.xml:10480
msgid ""
-"Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 "
-"U.S. 186 (2003) (No. 01-618), n.10, available at <ulink "
+"Brief of the Nashville Songwriters Association, "
+"<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 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:10501
+#: freeculture.xml:10474
msgid ""
"Some people view the public domain with contempt. In their brief before the "
"Supreme Court, the Nashville Songwriters Association wrote that the public "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10516
+#: freeculture.xml:10490
msgid ""
"As we've seen, our constitutional system requires limits on copyright as a "
"way to assure that copyright holders do not too heavily influence the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10528
+#: freeculture.xml:10502
msgid ""
"It is valuable copyrights that are responsible for terms being extended. "
"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for "
#. f10.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10549
+#: freeculture.xml:10523
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 "
+"ranges. See Brief of Petitioners, <citetitle>Eldred</citetitle> "
+"v. <citetitle>Ashcroft</citetitle>, 7, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #52</ulink>."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10543
+#: freeculture.xml:10517
msgid ""
"If you look at the work created in the first twenty years (1923 to 1942) "
"affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that "
#. PAGE BREAK 229
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10558
+#: freeculture.xml:10532
msgid ""
"Think practically about the consequence of this extension—practically, "
"as a businessperson, and not as a lawyer eager for more legal work. In 1930, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10570
+#: freeculture.xml:10544
msgid ""
"Well, first, you'd have to determine which of the 9,873 books were still "
"under copyright. That requires going to a library (these data are not "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10578
+#: freeculture.xml:10552
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:10582
+#: freeculture.xml:10556
msgid ""
"Most people think that there must be a list of these copyright owners "
"somewhere. Practical people think this way. How could there be thousands and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10589
+#: freeculture.xml:10563
msgid ""
"But there is no list. There may be a name from 1930, and then in 1959, of "
"the person who registered the copyright. But just think practically about "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10598
+#: freeculture.xml:10572
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:10604
+#: freeculture.xml:10577
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."
+"Well, actually, if you think about it, there <emphasis>are</emphasis> plenty "
+"of lists of who owns what property. Think about deeds on houses, or titles "
+"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:10613
+#: freeculture.xml:10586
msgid ""
"So: You walk down a street and see a house. You can know who owns the house "
"by looking it up in the courthouse registry. If you see a car, there is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10628
+#: freeculture.xml:10601
msgid ""
"Compare this story to intangible property. You go into a library. The "
"library owns the books. But who owns the copyrights? As I've already "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10640
+#: freeculture.xml:10613
msgid ""
"The consequence with respect to old books is that they won't be digitized, "
"and hence will simply rot away on shelves. But the consequence for other "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10645
+#: freeculture.xml:10618
msgid "Agee, Michael"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10658
+#: freeculture.xml:10631
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."
+"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" "
+"<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, "
+"\"Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today "
+"on Striking Down Copyright Extension,\" <citetitle>Orlando Sentinel "
+"Tribune</citetitle>, 9 October 2002."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:10664
+#: freeculture.xml:10637
msgid "Lucky Dog, The"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10647
+#: freeculture.xml:10620
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\"/> <placeholder "
-"type=\"indexterm\" id=\"1\"/>"
+"1921 and 1951. Only one of these films, <citetitle>The Lucky "
+"Dog</citetitle>, 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\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10667
+#: freeculture.xml:10640
msgid ""
"Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this "
"culture: selflessness. He argued in a brief before the Supreme Court that "
#. PAGE BREAK 231
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10673
+#: freeculture.xml:10646
msgid ""
"His argument is straightforward. A tiny fraction of this work has any "
"continuing commercial value. The rest—to the extent it survives at "
#. f12.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10690
+#: freeculture.xml:10664
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 "
+"Petitoners, <citetitle>Eldred</citetitle> "
+"v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01- 618), "
+"12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the "
+"Internet Archive, <citetitle>Eldred</citetitle> "
+"v. <citetitle>Ashcroft</citetitle>, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #53</ulink>."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10684
+#: freeculture.xml:10657
msgid ""
"We can't know the benefits, but we do know a lot about the costs. For most "
"of the history of film, the costs of restoring film were very high; digital "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10700
+#: freeculture.xml:10674
msgid ""
"Restoration technology is not the only cost, nor the most important. "
"Lawyers, too, are a cost, and increasingly, a very important one. In "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10708
+#: freeculture.xml:10682
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."
+"Or more accurately, <emphasis>owners</emphasis>. As we've seen, there isn't "
+"only a single copyright associated with a film; there are many. There isn't "
+"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:10717
+#: freeculture.xml:10690
msgid ""
"\"But can't you just restore the film, distribute it, and then pay the "
"copyright owner when she shows up?\" Sure, if you want to commit a "
#. PAGE BREAK 232
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10728
+#: freeculture.xml:10701
msgid ""
"For some films, the benefit of releasing the film may well exceed these "
"costs. But for the vast majority of them, there is no way the benefit would "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10738
+#: freeculture.xml:10711
msgid ""
"But by the time the copyright for these films expires, the film will have "
"expired. These films were produced on nitrate-based stock, and nitrate stock "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10746
+#: freeculture.xml:10719
msgid ""
"Of all the creative work produced by humans anywhere, a tiny fraction has "
"continuing commercial value. For that tiny fraction, the copyright is a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10755
+#: freeculture.xml:10728
msgid ""
"But even for that tiny fraction, the actual time during which the creative "
"work has a commercial life is extremely short. As I've indicated, most books "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10765
+#: freeculture.xml:10738
msgid ""
"Yet that doesn't mean the life of the creative work ends. We don't keep "
"libraries of books in order to compete with Barnes & Noble, and we don't "
#. PAGE BREAK 233
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10778
+#: freeculture.xml:10751
msgid ""
"Copyrights in this context do not drive an engine of free expression. In "
"this context, there is no need for an exclusive right. Copyrights in this "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10785
+#: freeculture.xml:10758
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."
+"<emphasis>copyright-related use</emphasis> 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:10795
+#: freeculture.xml:10769
msgid ""
"The same was effectively true of film. Because the costs of restoring a "
"film—the real economic costs, not the lawyer costs—were so high, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10804
+#: freeculture.xml:10778
msgid ""
"In other words, though copyright has been relatively short for most of our "
"history, long copyrights wouldn't have mattered for the works that lost "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10810
+#: freeculture.xml:10784
msgid "But this situation has now changed."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10813
+#: freeculture.xml:10787
msgid ""
"One crucially important consequence of the emergence of digital technologies "
"is to enable the archive that Brewster Kahle dreams of. Digital "
#. PAGE BREAK 234
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10826
+#: freeculture.xml:10800
msgid ""
"And now copyright law does get in the way. Every step of producing this "
"digital archive of our culture infringes on the exclusive right of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10836
+#: freeculture.xml:10810
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 "
+"the way. And it doesn't get in the way for any useful "
+"<emphasis>copyright</emphasis> 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 <emphasis>at all</emphasis> 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:10847
+#: freeculture.xml:10821
msgid ""
"You may well ask, \"But if digital technologies lower the costs for Brewster "
"Kahle, then they will lower the costs for Random House, too. So won't "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10853
+#: freeculture.xml:10827
msgid ""
"Maybe. Someday. But there is absolutely no evidence to suggest that "
"publishers would be as complete as libraries. If Barnes & Noble offered "
#. f13.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:10876
+#: freeculture.xml:10850
msgid ""
"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 "
"December 2002, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10864
+#: freeculture.xml:10838
msgid ""
"I would be the first to agree that it should do as much as it can: We should "
"rely upon the market as much as possible to spread and enable culture. My "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10883
+#: freeculture.xml:10857
msgid ""
"In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal "
"district court in Washington, D.C., asking the court to declare the Sonny "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10891
+#: freeculture.xml:10865
msgid ""
"The district court dismissed our claims without even hearing an argument. A "
"panel of the Court of Appeals for the D.C. Circuit also dismissed our "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10898
+#: freeculture.xml:10872
msgid ""
"Judge David Sentelle said the CTEA violated the requirement that copyrights "
"be for \"limited Times\" only. His argument was as elegant as it was simple: "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10909
+#: freeculture.xml:10883
msgid ""
"We asked the Court of Appeals for the D.C. Circuit as a whole to hear the "
"case. Cases are ordinarily heard in panels of three, except for important "
#. PAGE BREAK 236
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10915
+#: freeculture.xml:10889
msgid ""
"The Court of Appeals rejected our request to hear the case en banc. This "
"time, Judge Sentelle was joined by the most liberal member of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10924
+#: freeculture.xml:10898
msgid ""
"It was here that most expected Eldred v. Ashcroft would die, for the Supreme "
"Court rarely reviews any decision by a court of appeals. (It hears about one "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10931
+#: freeculture.xml:10905
msgid ""
"But in February 2002, the Supreme Court surprised the world by granting our "
"petition to review the D.C. Circuit opinion. Argument was set for October of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10937
+#: freeculture.xml:10911
msgid ""
"It is over a year later as I write these words. It is still astonishingly "
"hard. If you know anything at all about this story, you know that we lost "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10947
+#: freeculture.xml:10921
msgid ""
"But my client and these friends were wrong. This case could have been "
"won. It should have been won. And no matter how hard I try to retell this "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10952 freeculture.xml:10966
+#: freeculture.xml:10926 freeculture.xml:10940
msgid "Steward, Geoffrey"
msgstr ""
#. PAGE BREAK 237
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10954
+#: freeculture.xml:10928
msgid ""
"The mistake was made early, though it became obvious only at the very "
"end. Our case had been supported from the very beginning by an extraordinary "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10964 freeculture.xml:11305 freeculture.xml:11320 freeculture.xml:11414 freeculture.xml:11628 freeculture.xml:11659 freeculture.xml:11747
+#: freeculture.xml:10938 freeculture.xml:11278 freeculture.xml:11293 freeculture.xml:11386 freeculture.xml:11600 freeculture.xml:11631 freeculture.xml:11719
msgid "Ayer, Don"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:10965
+#: freeculture.xml:10939
msgid "Bromberg, Dan"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10968
+#: freeculture.xml:10942
msgid ""
"There were three key lawyers on the case from Jones Day. Geoff Stewart was "
"the first, but then Dan Bromberg and Don Ayer became quite "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10978
+#: freeculture.xml:10952
msgid ""
"I hate this view of the law. Of course I thought the Sonny Bono Act was a "
"dramatic harm to free speech and free culture. Of course I still think it "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:10999
+#: freeculture.xml:10973
msgid ""
"In any case, I thought, the Court must already see the danger and the harm "
"caused by this sort of law. Why else would they grant review? There was no "
#. PAGE BREAK 238
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11007
+#: freeculture.xml:10981
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 "
"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."
+"views. To show that this claim against the CTEA was grounded in "
+"<emphasis>law</emphasis> 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><indexterm><primary>
-#: freeculture.xml:11038 freeculture.xml:11061
+#: freeculture.xml:11012 freeculture.xml:11035
msgid "Eagle Forum"
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11039
+#: freeculture.xml:11013
msgid "Schlafly, Phyllis"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11026
+#: freeculture.xml:11000
msgid ""
"The first step happened all by itself. Phyllis Schlafly's organization, "
"Eagle Forum, had been an opponent of the CTEA from the very beginning. "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11042
+#: freeculture.xml:11016
msgid ""
"In the Court of Appeals, Eagle Forum was eager to file a brief supporting "
"our position. Their brief made the argument that became the core claim in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11050
+#: freeculture.xml:11024
msgid ""
"In the Supreme Court, the briefs on our side were about as diverse as it "
"gets. They included an extraordinary historical brief by the Free Software "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11064
+#: freeculture.xml:11038
msgid ""
"Those briefs framed a legal argument. Then to support the legal argument, "
"there were a number of powerful briefs by libraries and archives, including "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11070
+#: freeculture.xml:11044
msgid ""
"But two briefs captured the policy argument best. One made the argument I've "
"already described: A brief by Hal Roach Studios argued that unless the law "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11076
+#: freeculture.xml:11050
msgid "Akerlof, George"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11077
+#: freeculture.xml:11051
msgid "Arrow, Kenneth"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11078
+#: freeculture.xml:11052
msgid "Buchanan, James"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11079
+#: freeculture.xml:11053
msgid "Coase, Ronald"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11080
+#: freeculture.xml:11054
msgid "Friedman, Milton"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11082
+#: freeculture.xml:11056
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11105 freeculture.xml:11118 freeculture.xml:11311 freeculture.xml:11664
+#: freeculture.xml:11079 freeculture.xml:11092 freeculture.xml:11284 freeculture.xml:11636
msgid "Fried, Charles"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11093
+#: freeculture.xml:11067
msgid ""
"The same effort at balance was reflected in the legal team we gathered to "
"write our briefs in the case. The Jones Day lawyers had been with us from "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11108
+#: freeculture.xml:11082
msgid ""
"Fried was a special victory for our side. Every other former solicitor "
"general was hired by the other side to defend Congress's power to give media "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11121
+#: freeculture.xml:11095
msgid ""
"The government, in defending the statute, had its collection of friends, as "
"well. Significantly, however, none of these \"friends\" included historians "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11128
+#: freeculture.xml:11102
msgid ""
"The media companies were not surprising. They had the most to gain from the "
"law. The congressmen were not surprising either—they were defending "
#. f14.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:11144
+#: freeculture.xml:11118
msgid ""
-"Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. "
-"(2003) (No. 01-618), 19."
+"Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> "
+"v. <citetitle>Ashcroft</citetitle>, 537 U.S. (2003) (No. 01-618), 19."
msgstr ""
#. f15.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:11152
+#: freeculture.xml:11126
msgid ""
"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
-"the Fray,\" New York Times, 28 March 1998, B7."
+"the Fray,\" <citetitle>New York Times</citetitle>, 28 March 1998, B7."
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11159
+#: freeculture.xml:11133
msgid "Gershwin, George"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11137
+#: freeculture.xml:11111
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 "
"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. <placeholder type=\"indexterm\" id=\"2\"/>"
+"license <citetitle>Porgy and Bess</citetitle> 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. <placeholder "
+"type=\"indexterm\" id=\"2\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11162
+#: freeculture.xml:11136
msgid ""
"This argument made clear a theme that is rarely noticed in this debate. "
"When Congress decides to extend the term of existing copyrights, Congress is "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11174
+#: freeculture.xml:11148
msgid ""
"We argued as much in a final brief. Not only would upholding the CTEA mean "
"that there was no limit to the power of Congress to extend "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11183
+#: freeculture.xml:11157
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."
+"<citetitle>Lopez/Morrison</citetitle> 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:11192 freeculture.xml:11216 freeculture.xml:11557 freeculture.xml:11569
+#: freeculture.xml:11166 freeculture.xml:11190 freeculture.xml:11529 freeculture.xml:11541
msgid "Breyer, Stephen"
msgstr ""
#. PAGE BREAK 242
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11194
+#: freeculture.xml:11168
msgid ""
"The Rest were the four Justices who had strongly opposed limits on "
"Congress's power. These four—Justice Stevens, Justice Souter, Justice "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11206
+#: freeculture.xml:11180
msgid ""
"In particular, the least likely was Justice Ginsburg's. In addition to her "
"general view about deference to Congress (except where issues of gender are "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11218
+#: freeculture.xml:11192
msgid ""
"Close behind Justice Ginsburg were two justices whom we also viewed as "
"unlikely allies, though possible surprises. Justice Souter strongly favored "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11226
+#: freeculture.xml:11200
msgid ""
"The only vote we could be confident about was that of Justice "
"Stevens. History will record Justice Stevens as one of the greatest judges "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11234
+#: freeculture.xml:11208
msgid ""
"This analysis of \"the Rest\" showed most clearly where our focus had to be: "
"on the Conservatives. To win this case, we had to crack open these five and "
#. PAGE BREAK 243
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11244
+#: freeculture.xml:11218
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."
+"responsible. We would get the Court to see that just as with the "
+"<citetitle>Lopez</citetitle> 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 <citetitle>Eldred</citetitle> with "
+"<citetitle>Lopez</citetitle>: 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:11257
+#: freeculture.xml:11232
msgid ""
"The argument on the government's side came down to this: Congress has done "
"it before. It should be allowed to do it again. The government claimed that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11266
+#: freeculture.xml:11239
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 "
#. PAGE BREAK 244
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11273
+#: freeculture.xml:11246
msgid ""
"But this \"consistency\" should be kept in perspective. Congress extended "
"existing terms once in the first hundred years of the Republic. It then "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11296
+#: freeculture.xml:11269
msgid ""
"I was convinced that to win, I had to keep the Court focused on a single "
"point: that if this extension is permitted, then there is no limit to the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11307
+#: freeculture.xml:11280
msgid ""
"One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He "
"had served in the Reagan Justice Department with Solicitor General Charles "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11314
+#: freeculture.xml:11287
msgid ""
"\"I'm just afraid that unless they really see the harm, they won't be "
"willing to upset this practice that the government says has been a "
#. PAGE BREAK 245
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11322
+#: freeculture.xml:11295
msgid ""
"He may have argued many cases before this Court, I thought, but he didn't "
"understand its soul. As a clerk, I had seen the Justices do the right "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11339
+#: freeculture.xml:11312
msgid ""
"Not everyone has to wait in line. People who know the Justices can ask for "
"seats they control. (I asked Justice Scalia's chambers for seats for my "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11354
+#: freeculture.xml:11327
msgid ""
"When the Chief Justice called me to begin my argument, I began where I "
"intended to stay: on the question of the limits on Congress's power. This "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11360
+#: freeculture.xml:11333
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:11365
+#: freeculture.xml:11338
msgid ""
"justice o'connor: Congress has extended the term so often through the years, "
"and if you are right, don't we run the risk of upsetting previous extensions "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11372
+#: freeculture.xml:11345
msgid ""
"She was quite willing to concede \"that this flies directly in the face of "
"what the framers had in mind.\" But my response again and again was to "
#. PAGE BREAK 246
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11378
+#: freeculture.xml:11351
msgid ""
"mr. lessig: Well, if it flies in the face of what the framers had in mind, "
"then the question is, is there a way of interpreting their words that gives "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11386
+#: freeculture.xml:11359
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:11392
+#: freeculture.xml:11365
msgid ""
"justice kennedy: Well, I suppose implicit in the argument that the '76 act, "
"too, should have been declared void, and that we might leave it alone "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11400
+#: freeculture.xml:11373
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:11406
+#: freeculture.xml:11379
msgid ""
"mr. lessig: Justice, we are not making an empirical claim at all. Nothing "
"in our Copyright Clause claim hangs upon the empirical assertion about "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11416
+#: freeculture.xml:11388
msgid ""
"That was a correct answer, but it wasn't the right answer. The right answer "
"was instead that there was an obvious and profound harm. Any number of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11423
+#: freeculture.xml:11395
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."
+"crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> "
+"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:11428
+#: freeculture.xml:11400
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:11436
+#: freeculture.xml:11407
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:11440
+#: freeculture.xml:11411
msgid ""
"mr. lessig: We want the right to copy verbatim works that should be in the "
"public domain and would be in the public domain but for a statute that "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11449
+#: freeculture.xml:11420
msgid ""
"Things went better for us when the government gave its argument; for now the "
"Court picked up on the core of our claim. As Justice Scalia asked Solicitor "
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11455
+#: freeculture.xml:11426
msgid ""
"justice scalia: You say that the functional equivalent of an unlimited time "
"would be a violation [of the Constitution], but that's precisely the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11463
+#: freeculture.xml:11434
msgid ""
"When Olson was finished, it was my turn to give a closing rebuttal. Olson's "
"flailing had revived my anger. But my anger still was directed to the "
#. PAGE BREAK 248
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11476
+#: freeculture.xml:11447
msgid ""
"As I left the court that day, I knew there were a hundred points I wished I "
"could remake. There were a hundred questions I wished I had answered "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11484
+#: freeculture.xml:11455
msgid ""
"The government had been asked over and over again, what is the limit? Over "
"and over again, it had answered there is no limit. This was precisely the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11499
+#: freeculture.xml:11470
msgid ""
"The morning of January 15, 2003, I was five minutes late to the office and "
"missed the 7:00 A.M. call from the Supreme Court clerk. Listening to the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11506
+#: freeculture.xml:11477
msgid ""
"A few seconds later, the opinions arrived by e-mail. I took the phone off "
"the hook, posted an announcement to our blog, and sat down to see where I "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11511
+#: freeculture.xml:11482
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."
+"My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money "
+"in the world against <emphasis>reasoning</emphasis>. And here was the last "
+"naïve law professor, scouring the pages, looking for reasoning."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11516
+#: freeculture.xml:11488
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."
+"principle in this case from the principle in "
+"<citetitle>Lopez</citetitle>. 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:11525
+#: freeculture.xml:11497
msgid ""
"Justice Ginsburg simply ignored the enumerated powers argument. Consistent "
"with her view that Congress's power was not limited generally, she had found "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11530
+#: freeculture.xml:11502
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."
+"Souter. Neither believes in <citetitle>Lopez</citetitle>. 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:11536
+#: freeculture.xml:11508
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."
+"simply <emphasis>by not addressing the argument</emphasis>. There was no "
+"inconsistency because they would not talk about the two together. There was "
+"therefore no principle that followed from the <citetitle>Lopez</citetitle> "
+"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:11547
+#: freeculture.xml:11519
msgid ""
"Yet by what right did they get to choose which of the framers' values they "
"would respect? By what right did they—the silent five—get to "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11559
+#: freeculture.xml:11531
msgid ""
"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
"was crafted internal to the law: He argued that the tradition of "
#. PAGE BREAK 250
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11572
+#: freeculture.xml:11544
msgid ""
"Justice Breyer's opinion, perhaps the best opinion he has ever written, was "
"external to the Constitution. He argued that the term of copyrights has "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11583
+#: freeculture.xml:11555
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."
+"neither believed in the <citetitle>Lopez</citetitle> 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 <citetitle>Hamlet</citetitle> without the "
+"Prince."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11590
+#: freeculture.xml:11562
msgid ""
"Defeat brings depression. They say it is a sign of health when depression "
"gives way to anger. My anger came quickly, but it didn't cure the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11595
+#: freeculture.xml:11567
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?"
+"thing for them to have explained why the principle of "
+"<citetitle>Lopez</citetitle> 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 "
+"<citetitle>Lopez</citetitle> and many other \"originalist\" rulings. Where "
+"was their \"originalism\" now?"
msgstr ""
#. PAGE BREAK 251
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11608
+#: freeculture.xml:11580
msgid ""
"Here, they had joined an opinion that never once tried to explain what the "
"framers had meant by crafting the Progress Clause as they did; they joined "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11623
+#: freeculture.xml:11595
msgid ""
"My anger with the Conservatives quickly yielded to anger with myself. For I "
"had let a view of the law that I liked interfere with a view of the law as "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11630
+#: freeculture.xml:11602
msgid ""
"Most lawyers, and most law professors, have little patience for idealism "
"about courts in general and this Supreme Court in particular. Most have a "
#. PAGE BREAK 252
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11641
+#: freeculture.xml:11613
msgid ""
"As I read back over the transcript from that argument in October, I can see "
"a hundred places where the answers could have taken the conversation in "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11661
+#: freeculture.xml:11633
msgid ""
"Would it have been different if I had argued it differently? Would it have "
"been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11667
+#: freeculture.xml:11639
msgid ""
"My friends huddled around me to insist it would not. The Court was not "
"ready, my friends insisted. This was a loss that was destined. It would take "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11673
+#: freeculture.xml:11645
msgid ""
"Maybe, but I doubt it. These Justices have no financial interest in doing "
"anything except the right thing. They are not lobbied. They have little "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11680
+#: freeculture.xml:11652
msgid ""
"And even if I couldn't, then that doesn't excuse what happened in "
"January. For at the start of this case, one of America's leading "
#. PAGE BREAK 253
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11688
+#: freeculture.xml:11660
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, "
"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,"
+"law. <citetitle>The New York Times</citetitle> wrote in its editorial,"
msgstr ""
#. type: Content of: <book><chapter><sect1><blockquote><para>
-#: freeculture.xml:11709
+#: freeculture.xml:11681
msgid ""
"In effect, the Supreme Court's decision makes it likely that we are seeing "
"the beginning of the end of public domain and the birth of copyright "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11723
+#: freeculture.xml:11695
msgid "Bolling, Ruben"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11718
+#: freeculture.xml:11690
msgid ""
"The best responses were in the cartoons. There was a gaggle of hilarious "
"images—of Mickey in jail and the like. The best, from my view of the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11726
+#: freeculture.xml:11698
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."
+"<citetitle>The New York Times</citetitle>. 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:11737
+#: freeculture.xml:11709
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11739
+#: freeculture.xml:11711
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."
+"The day <citetitle>Eldred</citetitle> was decided, fate would have it that I "
+"was to travel to Washington, D.C. (The day the rehearing petition in "
+"<citetitle>Eldred</citetitle> 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:11749
+#: freeculture.xml:11721
msgid ""
"It was an act of contrition. During the whole of the flight from San "
"Francisco to Washington, I had heard over and over again in my head the same "
#. PAGE BREAK 256
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11759
+#: freeculture.xml:11731
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."
+"<citetitle>The New York Times</citetitle> published the piece. In it, I "
+"proposed a simple fix: Fifty years after a work has been published, the "
+"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:11767
+#: freeculture.xml:11739
msgid ""
"We called this the Eldred Act, but that was just to give it a name. Eric "
"Eldred was kind enough to let his name be used once again, but as he said "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11772
+#: freeculture.xml:11744
msgid ""
"Or another two names. For depending upon your perspective, this is either "
"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11780 freeculture.xml:11979
+#: freeculture.xml:11752 freeculture.xml:11951
msgid "Forbes, Steve"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11782
+#: freeculture.xml:11754
msgid ""
"The reaction to this idea was amazingly strong. Steve Forbes endorsed it in "
"an editorial. I received an avalanche of e-mail and letters expressing "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11794
+#: freeculture.xml:11766
msgid ""
"Indeed, many recognized the obvious benefit of the registration "
"requirement. For one of the hardest things about the current system for "
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11804
+#: freeculture.xml:11776
msgid "Berlin Act (1908)"
msgstr ""
#. type: Content of: <book><chapter><sect1><indexterm><primary>
-#: freeculture.xml:11805 freeculture.xml:11844
+#: freeculture.xml:11777 freeculture.xml:11816
msgid "Berne Convention (1908)"
msgstr ""
#. f1.
#. type: Content of: <book><chapter><sect1><para><footnote><para>
-#: freeculture.xml:11812
+#: freeculture.xml:11784
msgid ""
"Until the 1908 Berlin Act of the Berne Convention, national copyright "
"legislation sometimes made protection depend upon compliance with "
"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."
+"of anonymous or pseudonymous works. Paul Goldstein, <citetitle>International "
+"Intellectual Property Law, Cases and Materials</citetitle> (New York: "
+"Foundation Press, 2001), 153–54."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11808
+#: freeculture.xml:11780
msgid ""
"As I described in chapter 10, formalities in copyright law were removed in "
"1976, when Congress followed the Europeans by abandoning any formal "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11838
+#: freeculture.xml:11810
msgid ""
"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
"copyright policy. It is absurd especially for authors, because a world "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11846
+#: freeculture.xml:11818
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."
+"Dickens character ran all copyright offices, and the failure to dot an "
+"<citetitle>i</citetitle> or cross a <citetitle>t</citetitle> resulted in the "
+"loss of widows' only income."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11856
+#: freeculture.xml:11828
msgid ""
"These complaints were real and sensible. And the strictness of the "
"formalities, especially in the United States, was absurd. The law should "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11864
+#: freeculture.xml:11836
msgid ""
"Even that would have been resisted, however, because registration in the "
"nineteenth and twentieth centuries was still expensive. It was also a "
#. PAGE BREAK 258
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11872
+#: freeculture.xml:11844
msgid ""
"In addition to the practical complaint of authors in 1908, there was a moral "
"claim as well. There was no reason that creative property should be a "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11884
+#: freeculture.xml:11856
msgid ""
"This argument is correct, but its implications are misleading. For the "
"argument in favor of formalities does not depend upon creative property "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11893
+#: freeculture.xml:11865
msgid ""
"No one thinks, for example, that land is second-class property just because "
"you have to register a deed with a court if your sale of land is to be "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11909
+#: freeculture.xml:11881
msgid ""
"It is similarly special physics that makes formalities important in "
"copyright law. Unlike a carpenter's table, there's nothing in nature that "
"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. "
-"<placeholder type=\"indexterm\" id=\"0\"/>"
+"formalities. Complex, expensive, <emphasis>lawyer</emphasis> transactions "
+"
take their place. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11924
+#: freeculture.xml:11896
msgid ""
"This was the understanding of the problem with the Sonny Bono Act that we "
"tried to demonstrate to the Court. This was the part it didn't \"get.\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11934
+#: freeculture.xml:11906
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."
+"in a way that has never been seen before <emphasis>because there are no "
+"formalities</emphasis>."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11943
+#: freeculture.xml:11915
msgid ""
"The Eldred Act was designed to respond to exactly this problem. If it is "
"worth $1 to you, then register your work and you can get the longer "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11950
+#: freeculture.xml:11922
msgid ""
"If it isn't worth it to you to register to get the benefit of an extended "
"term, then it shouldn't be worth it for the government to defend your "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11957
+#: freeculture.xml:11929
msgid ""
"Some worry about the burden on authors. Won't the burden of registering the "
"work mean that the $1 is really misleading? Isn't the hassle worth more than "
#. PAGE BREAK 260
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11963
+#: freeculture.xml:11935
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?"
+"the real problem of <emphasis>governments</emphasis> 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:11981
+#: freeculture.xml:11953
msgid ""
"When Steve Forbes endorsed the idea, some in Washington began to pay "
"attention. Many people contacted me pointing to representatives who might be "
msgstr ""
#. type: Content of: <book><chapter><sect1><para><indexterm><primary>
-#: freeculture.xml:11994
+#: freeculture.xml:11966
msgid "Lofgren, Zoe"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11987
+#: freeculture.xml:11959
msgid ""
"One representative, Zoe Lofgren of California, went so far as to get the "
"bill drafted. The draft solved any problem with international law. It "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:11997
+#: freeculture.xml:11969
msgid ""
"But at this stage, the lobbyists began to intervene. Jack Valenti and the "
"MPAA general counsel came to the congresswoman's office to give the view of "
#. PAGE BREAK 261
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12005
+#: freeculture.xml:11977
msgid ""
"The MPAA argued first that Congress had \"firmly rejected the central "
"concept in the proposed bill\"—that copyrights be renewed. That was "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12026
+#: freeculture.xml:11998
msgid ""
"Finally, the MPAA argued that existing law enabled copyright owners to do "
"this if they wanted. But the whole point is that there are thousands of "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12034
+#: freeculture.xml:12006
msgid ""
"At the beginning of this book, I told two stories about the law reacting to "
"changes in technology. In the one, common sense prevailed. In the other, "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12044
+#: freeculture.xml:12016
msgid ""
"I used these two cases as a way to frame the war that this book has been "
"about. For here, too, a new technology is forcing the law to react. And "
#. PAGE BREAK 262
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12053
+#: freeculture.xml:12025
msgid ""
"When the issue is piracy, it is right for the law to back the copyright "
"owners. The commercial piracy that I described is wrong and harmful, and the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12064
+#: freeculture.xml:12036
msgid ""
"But when the copyright owners oppose a proposal such as the Eldred Act, "
"then, finally, there is an example that lays bare the naked selfinterest "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12074
+#: freeculture.xml:12046
msgid "What does this industry really want?"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12077
+#: freeculture.xml:12049
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."
+"<emphasis>their</emphasis> 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 "
+"<emphasis>their</emphasis> permission first."
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12087
+#: freeculture.xml:12060
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."
+"is not simply to protect what is theirs. <emphasis>Their aim is to assure "
+"that all there is is what is theirs</emphasis>."
msgstr ""
#. PAGE BREAK 263
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12094
+#: freeculture.xml:12068
msgid ""
"It is not hard to understand why the warriors take this view. It is not hard "
"to see why it would benefit them if the competition of the public domain "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12106
+#: freeculture.xml:12080
msgid ""
"What is hard to understand is why the public takes this view. It is as if "
"the law made airplanes trespassers. The MPAA stands with the Causbys and "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12113
+#: freeculture.xml:12087
msgid ""
"All this seems to follow easily from this untroubled acceptance of the "
"\"property\" in intellectual property. Common sense supports it, and so long "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:12125
+#: freeculture.xml:12099
msgid "CONCLUSION"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12127
+#: freeculture.xml:12101
msgid ""
"There are more than 35 million people with the AIDS virus "
"worldwide. Twenty-five million of them live in sub-Saharan Africa. "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12134
+#: freeculture.xml:12108
msgid ""
"There is no cure for AIDS, but there are drugs to slow its progression. "
"These antiretroviral therapies are still experimental, but they have already "
#. f1.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12149
+#: freeculture.xml:12123
msgid ""
"Commission on Intellectual Property Rights, \"Final Report: Integrating "
"Intellectual Property Rights and Development Policy\" (London, 2002), "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12142
+#: freeculture.xml:12116
msgid ""
"These drugs are expensive. When they were first introduced in the United "
"States, they cost between $10,000 and $15,000 per person per year. Today, "
#. PAGE BREAK 265
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12160
+#: freeculture.xml:12134
msgid ""
"These prices are not high because the ingredients of the drugs are "
"expensive. These prices are high because the drugs are protected by "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12168
+#: freeculture.xml:12142
msgid ""
"There are many who are skeptical of patents, especially drug patents. I am "
"not. Indeed, of all the areas of research that might be supported by "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12179
+#: freeculture.xml:12153
msgid ""
"But it is one thing to support patents, even drug patents. It is another "
"thing to determine how best to deal with a crisis. And as African leaders "
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12197 freeculture.xml:12628
+#: freeculture.xml:12171 freeculture.xml:12599
msgid "Braithwaite, John"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12195
+#: freeculture.xml:12169
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\"/>"
+"See Peter Drahos with John Braithwaite, Information Feudalism: "
+"<citetitle>Who Owns the Knowledge Economy?</citetitle> (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:12186
+#: freeculture.xml:12160
msgid ""
"In 1997, South Africa tried one tack. It passed a law to allow the "
"importation of patented medicines that had been produced or sold in another "
#. f3.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12207
+#: freeculture.xml:12182
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)."
+"International Intellectual Property Institute (IIPI), <citetitle>Patent "
+"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
+"Report Prepared for the World Intellectual Property Organization</citetitle> "
+"(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:12239
+#: freeculture.xml:12209
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."
+"International Intellectual Property Institute (IIPI), <citetitle>Patent "
+"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
+"Report Prepared for the World Intellectual Property Organization</citetitle> "
+"(Washington, D.C., 2000), 15."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12202
+#: freeculture.xml:12176
msgid ""
"However, the United States government opposed the bill. Indeed, more than "
"opposed. As the International Intellectual Property Association "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12245
+#: freeculture.xml:12215
msgid ""
"We should place the intervention by the United States in context. No doubt "
"patents are not the most important reason that Africans don't have access to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12255
+#: freeculture.xml:12225
msgid ""
"By stopping the flow of HIV treatment into Africa, the United States "
"government was not saving drugs for United States citizens. This is not "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12263
+#: freeculture.xml:12233
msgid ""
"Nor was the intervention by the United States going to protect the profits "
"of United States drug companies—at least, not substantially. It was "
#. f5.
#. PAGE BREAK 333
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12278
+#: freeculture.xml:12248
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 "
+"Odds with Firms' Profit Motive,\" <citetitle>San Francisco "
+"Chronicle</citetitle>, 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,\" <citetitle>Foreign Policy in "
+"Focus</citetitle> 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."
+"Rights and Compassion, a Synopsis,\" <citetitle>Widener Law Symposium "
+"Journal</citetitle> (Spring 2001): 175."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12272
+#: freeculture.xml:12242
msgid ""
"Instead, the argument in favor of restricting this flow of information, "
"which was needed to save the lives of millions, was an argument about the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12299
+#: freeculture.xml:12269
msgid ""
"Now just step back for a moment. There will be a time thirty years from now "
"when our children look back at us and ask, how could we have let this "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12309
+#: freeculture.xml:12279
msgid ""
"Some blame the drug companies. I don't. They are corporations. Their "
"managers are ordered by law to make money for the corporation. They push a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12317
+#: freeculture.xml:12287
msgid ""
"The corruption is our own politicians' failure of integrity. For the drug "
"companies would love—they say, and I believe them—to sell their "
#. PAGE BREAK 268
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12325
+#: freeculture.xml:12295
msgid ""
"A different problem, however, could not be overcome. This is the fear of the "
"grandstanding politician who would call the presidents of the drug companies "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12340
+#: freeculture.xml:12310
msgid ""
"So when the common sense of your child confronts you, what will you say? "
"When the common sense of a generation finally revolts against what we have "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12346
+#: freeculture.xml:12316
msgid ""
"A sensible patent policy could endorse and strongly support the patent "
"system without having to reach everyone everywhere in exactly the same "
#. PAGE BREAK 269
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12358
+#: freeculture.xml:12328
msgid ""
"But we as a culture have lost this sense of balance. We have lost the "
"critical eye that helps us see the difference between truth and extremism. "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12378
+#: freeculture.xml:12348
msgid ""
"So far, common sense sleeps. There is no revolt. Common sense does not yet "
"see what there could be to revolt about. The extremism that now dominates "
#. f6.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12395
+#: freeculture.xml:12365
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>."
+"Jonathan Krim, \"The Quiet War over Open-Source,\" <citetitle>Washington "
+"Post</citetitle>, 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,\" "
+"<citetitle>National Journal's Technology Daily</citetitle>, 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,\" "
+"<citetitle>National Journal's Technology Daily</citetitle>, 19 August 2003, "
+"available at <ulink url=\"http://free-culture.cc/notes/\">link #61</ulink>."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:12423 freeculture.xml:13143
+#: freeculture.xml:12393 freeculture.xml:13115
msgid "PLoS (Public Library of Science)"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12392
+#: freeculture.xml:12362
msgid ""
"In August 2003, a fight broke out in the United States about a decision by "
"the World Intellectual Property Organization to cancel a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12426
+#: freeculture.xml:12396
msgid ""
"The aim of the meeting was to consider this wide range of projects from one "
"common perspective: that none of these projects relied upon intellectual "
#. f7.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12434
+#: freeculture.xml:12404
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:12433
+#: freeculture.xml:12403
msgid ""
"From the perspective of this book, then, the conference was "
"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its "
#. PAGE BREAK 271
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12444
+#: freeculture.xml:12414
msgid ""
"Indeed, I was once publicly scolded for not recognizing this fact about "
"WIPO. In February 2003, I delivered a keynote address to a preparatory "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12468
+#: freeculture.xml:12438
msgid ""
"So whether or not WSIS can discuss balance in intellectual property, I had "
"thought it was taken for granted that WIPO could and should. And thus the "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12474
+#: freeculture.xml:12444
msgid ""
"But there is one project within that list that is highly controversial, at "
"least among lobbyists. That project is \"open source and free software.\" "
#. f8.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12496
+#: freeculture.xml:12466
msgid ""
"Microsoft's position about free and open source software is more "
"sophisticated. As it has repeatedly asserted, it has no problem with \"open "
"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 "
+"the Marketplace to Decide,\" <citetitle>Government Policy Toward Open Source "
+"Software</citetitle> (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, <citetitle>The Commercial Software "
+"Model</citetitle>, 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:12485
+#: freeculture.xml:12455
msgid ""
"I don't mean to enter that debate here. It is important only to make clear "
"that the distinction is not between commercial and noncommercial "
#. PAGE BREAK 272
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12514
+#: freeculture.xml:12484
msgid ""
"More important for our purposes, to support \"open source and free "
"software\" is not to oppose copyright. \"Open source and free software\" is "
#. f9.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12540
+#: freeculture.xml:12510
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:12532
+#: freeculture.xml:12502
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."
+"to Jonathan Krim of the <citetitle>Washington Post</citetitle>, 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:12546
+#: freeculture.xml:12516
msgid ""
"I don't blame Microsoft for doing what it can to advance its own interests, "
"consistent with the law. And lobbying governments is plainly consistent with "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12554
+#: freeculture.xml:12524
msgid ""
"What was surprising was the United States government's reason for opposing "
"the meeting. Again, as reported by Krim, Lois Boland, acting director of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12564
+#: freeculture.xml:12534
msgid "These statements are astonishing on a number of levels."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12568
+#: freeculture.xml:12538
msgid ""
"First, they are just flat wrong. As I described, most open source and free "
"software relies fundamentally upon the intellectual property right called "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12578
+#: freeculture.xml:12548
msgid ""
"Second, who ever said that WIPO's exclusive aim was to \"promote\" "
"intellectual property maximally? As I had been scolded at the preparatory "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12591
+#: freeculture.xml:12561
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. <placeholder type=\"indexterm\" id=\"0\"/>"
+"those rights because, again, they are <emphasis>their</emphasis> 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 <emphasis>their</emphasis> property. <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. PAGE BREAK 274
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12604
+#: freeculture.xml:12575
msgid ""
"When Ms. Boland says that there is something wrong with a meeting \"which "
"has as its purpose to disclaim or waive such rights,\" she's saying that "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12616
+#: freeculture.xml:12587
msgid ""
"There is a history of just such a property system that is well known in the "
"Anglo-American tradition. It is called \"feudalism.\" Under feudalism, not "
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12633
+#: freeculture.xml:12604
msgid ""
-"See Drahos with Braithwaite, Information Feudalism, 210–20. "
-"<placeholder type=\"indexterm\" id=\"0\"/>"
+"See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, "
+"
210–20. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12630
+#: freeculture.xml:12601
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."
+"only choice now is whether that information society will be "
+"<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is "
+"toward the feudal."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12641
+#: freeculture.xml:12613
msgid ""
"When this battle broke, I blogged it. A spirited debate within the comment "
"section ensued. Ms. Boland had a number of supporters who tried to show why "
#. PAGE BREAK 275
#. type: Content of: <book><chapter><blockquote><para>
-#: freeculture.xml:12648
+#: freeculture.xml:12620
msgid ""
"George, you misunderstand Lessig: He's only talking about the world as it "
"should be (\"the goal of WIPO, and the goal of any government, should be to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12660
+#: freeculture.xml:12632
msgid ""
"I missed the irony the first time I read it. I read it quickly and thought "
"the poster was supporting the idea that seeking balance was what our "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12670
+#: freeculture.xml:12642
msgid ""
"Obviously, however, the poster was not supporting that idea. Instead, the "
"poster was ridiculing the very idea that in the real world, the \"goal\" of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12678
+#: freeculture.xml:12650
msgid ""
"I understand criticism of academic utopianism. I think utopianism is silly, "
"too, and I'd be the first to poke fun at the absurdly unrealistic ideals of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12684
+#: freeculture.xml:12656
msgid ""
"But when it has become silly to suppose that the role of our government "
"should be to \"seek balance,\" then count me with the silly, for that means "
#. PAGE BREAK 276
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12695
+#: freeculture.xml:12667
msgid ""
"It might be crazy to expect a high government official to speak the "
"truth. It might be crazy to believe that government policy will be something "
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:12714
+#: freeculture.xml:12686
msgid "Turner, Ted"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12704
+#: freeculture.xml:12676
msgid ""
"If this is crazy, then let there be more crazies. Soon. There are moments "
"of hope in this struggle. And moments that surprise. When the FCC was "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12718
+#: freeculture.xml:12690
msgid ""
"This activism did not stop the FCC, but soon after, a broad coalition in the "
"Senate voted to reverse the FCC decision. The hostile hearings leading up to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12726
+#: freeculture.xml:12698
msgid ""
"But even this movement misses an important piece of the puzzle. Largeness "
"as such is not bad. Freedom is not threatened just because some become very "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12733
+#: freeculture.xml:12705
msgid ""
"The danger in media concentration comes not from the concentration, but "
"instead from the feudalism that this concentration, tied to the change in "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12743
+#: freeculture.xml:12715
msgid ""
"It is therefore significant that so many would rally to demand competition "
"and increased diversity. Still, if the rally is understood as being about "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12750
+#: freeculture.xml:12722
msgid ""
"It would be something new, and something very important, if an equal number "
"could be rallied to fight the increasing extremism built within the idea of "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12758
+#: freeculture.xml:12730
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:12761
+#: freeculture.xml:12733
msgid "Dylan, Bob"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12766
+#: freeculture.xml:12738
msgid ""
"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"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 "
+"261 Cited as Sharers,\" <citetitle>New York Daily News</citetitle>, 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,\" "
+"<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean, "
+"\"Schoolgirl Settles with RIAA,\" <citetitle>Wired News</citetitle>, 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:12784
+#: freeculture.xml:12756
msgid ""
"Jon Wiederhorn, \"Eminem Gets Sued . . . by a Little Old Lady,\" mtv.com, 17 "
"September 2003, available at <ulink "
#. f13.
#. PAGE BREAK 334
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12791
+#: freeculture.xml:12763
msgid ""
"Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan "
"Songs,\" Kansascity.com, 9 July 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12763
+#: freeculture.xml:12735
msgid ""
"As I write these final words, the news is filled with stories about the RIAA "
"lawsuits against almost three hundred individuals.<placeholder "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:12808 freeculture.xml:13159
+#: freeculture.xml:12780 freeculture.xml:13131
msgid "Creative Commons"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12809
+#: freeculture.xml:12781
msgid "Gil, Gilberto"
msgstr ""
#. f14.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12814
+#: freeculture.xml:12786
msgid ""
"\"BBC Plans to Open Up Its Archive to the Public,\" BBC press release, 24 "
"August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. f15.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12823
+#: freeculture.xml:12795
msgid ""
"\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>."
#. PAGE BREAK 278
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12811
+#: freeculture.xml:12783
msgid ""
"Yet on the other side of the Atlantic, the BBC has just announced that it "
"will build a \"Creative Archive,\" from which British citizens can download "
#. PAGE BREAK 279
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12837
+#: freeculture.xml:12809
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:12845
+#: freeculture.xml:12817
msgid "AFTERWORD"
msgstr ""
#. PAGE BREAK 280
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12849
+#: freeculture.xml:12821
msgid ""
"At least some who have read this far will agree with me that something must "
"be done to change where we are heading. The balance of this book maps what "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12854
+#: freeculture.xml:12826
msgid ""
"I divide this map into two parts: that which anyone can do now, and that "
"which requires the help of lawmakers. If there is one lesson that we can "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12860
+#: freeculture.xml:12832
msgid ""
"That means this movement must begin in the streets. It must recruit a "
"significant number of parents, teachers, librarians, creators, authors, "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12867
+#: freeculture.xml:12839
msgid ""
"Once this movement has its effect in the streets, it has some hope of having "
"an effect in Washington. We are still a democracy. What people think "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:12876
+#: freeculture.xml:12848
msgid "US, NOW"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12878
+#: freeculture.xml:12850
msgid ""
"Common sense is with the copyright warriors because the debate so far has "
"been framed at the extremes—as a grand either/or: either property or "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12884
+#: freeculture.xml:12856
msgid ""
"The mistake here is the error of the excluded middle. There are extremes in "
"this debate, but the extremes are not all that there is. There are those who "
#. PAGE BREAK 282
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12894
+#: freeculture.xml:12866
msgid ""
"When the Internet was first born, its initial architecture effectively "
"tilted in the \"no rights reserved\" direction. Content could be copied "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12906
+#: freeculture.xml:12878
msgid ""
"This initial character produced a reaction (opposite, but not quite equal) "
"by copyright owners. That reaction has been the topic of this book. Through "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:12920
+#: freeculture.xml:12892
msgid ""
"What's needed is a way to say something in the middle—neither \"all "
"rights reserved\" nor \"no rights reserved\" but \"some rights "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:12929
+#: freeculture.xml:12901
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12931
+#: freeculture.xml:12903
msgid ""
"If you step back from the battle I've been describing here, you will "
"recognize this problem from other contexts. Think about privacy. Before the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12941
+#: freeculture.xml:12913
msgid "What made it assured?"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12945
+#: freeculture.xml:12917
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:12959
+#: freeculture.xml:12931
msgid "Amazon"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12961
+#: freeculture.xml:12933
msgid ""
"Enter the Internet, where the cost of tracking browsing in particular has "
"become quite tiny. If you're a customer at Amazon, then as you browse the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:12971
+#: freeculture.xml:12943
msgid ""
"Amazon, of course, is not the problem. But we might begin to worry about "
"libraries. If you're one of those crazy lefties who thinks that people "
#. f1.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:12987
+#: freeculture.xml:12959
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)."
+"Architecture of Privacy (What Larry Doesn't Get),\" <citetitle>Stanford "
+"Technology Law Review</citetitle> 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, <citetitle>The Naked Crowd: Reclaiming Security and Freedom in an "
+"Anxious Age</citetitle> (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:12981
+#: freeculture.xml:12953
msgid ""
"It is this reality that explains the push of many to define \"privacy\" on "
"the Internet. It is the recognition that technology can remove what friction "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13005
+#: freeculture.xml:12977
msgid ""
"A similar story could be told about the birth of the free software "
"movement. When computers with software were first made available "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary>
-#: freeculture.xml:13012
+#: freeculture.xml:12984
msgid "Stallman, Richard"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13014
+#: freeculture.xml:12986
msgid ""
"That was the world Richard Stallman was born into, and while he was a "
"researcher at MIT, he grew to love the community that developed when one was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13022
+#: freeculture.xml:12994
msgid ""
"In an academic setting, at least, that's not a terribly radical idea. In a "
"math department, anyone would be free to tinker with a proof that someone "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13034
+#: freeculture.xml:13006
msgid ""
"No one answered that question. Instead, the architecture of revenue for "
"computing changed. As it became possible to import programs from one system "
#. PAGE BREAK 285
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13043
+#: freeculture.xml:13015
msgid ""
"Thus, the practice of proprietary code began to spread, and by the early "
"1980s, Stallman found himself surrounded by proprietary code. The world of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13052
+#: freeculture.xml:13024
msgid ""
"Therefore, in 1984, Stallman began a project to build a free operating "
"system, so that at least a strain of free software would survive. That was "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13058
+#: freeculture.xml:13030
msgid ""
"Stallman's technique was to use copyright law to build a world of software "
"that must be kept free. Software licensed under the Free Software "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13069
+#: freeculture.xml:13041
msgid ""
"Stallman was thus doing for software what privacy advocates now do for "
"privacy. He was seeking a way to rebuild a kind of freedom that was taken "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13077
+#: freeculture.xml:13049
msgid ""
"Finally, consider a very recent example that more directly resonates with "
"the story of this book. This is the shift in the way academic and scientific "
#. PAGE BREAK 286
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13082
+#: freeculture.xml:13054
msgid ""
"As digital technologies develop, it is becoming obvious to many that "
"printing thousands of copies of journals every month and sending them to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13098
+#: freeculture.xml:13070
msgid ""
"There's nothing wrong in general with this, and indeed, the ability to "
"charge for access to even public domain materials is a good incentive for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13107
+#: freeculture.xml:13079
msgid ""
"But what if the only way to get access to social and scientific data was "
"through proprietary services? What if no one had the ability to browse this "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13112
+#: freeculture.xml:13084
msgid ""
"As many are beginning to notice, this is increasingly the reality with "
"scientific journals. When these journals were distributed in paper form, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13124
+#: freeculture.xml:13096
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13132
+#: freeculture.xml:13104
msgid ""
"This shrinking freedom has led many to take affirmative steps to restore the "
"freedom that has been lost. The Public Library of Science (PLoS), for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13146
+#: freeculture.xml:13118
msgid ""
"This is one of many such efforts to restore a freedom taken for granted "
"before, but now threatened by changing technology and markets. There's no "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13157
+#: freeculture.xml:13129
msgid "Rebuilding Free Culture: One Idea"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13162
+#: freeculture.xml:13134
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:13166
+#: freeculture.xml:13138
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 "
+"aim is to build a layer of <emphasis>reasonable</emphasis> 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:13176
+#: freeculture.xml:13149
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."
+"<emphasis>Simple</emphasis>—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:13194
+#: freeculture.xml:13167
msgid ""
"These freedoms are beyond the freedoms promised by fair use. Their precise "
"contours depend upon the choices the creator makes. The creator can choose a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13205
+#: freeculture.xml:13178
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary>
-#: freeculture.xml:13226
+#: freeculture.xml:13199
msgid "Garlick, Mia"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13216
+#: freeculture.xml:13189
msgid ""
"This is just one project among many within the Creative Commons. And of "
"course, Creative Commons is not the only organization pursuing such "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13229
+#: freeculture.xml:13202
msgid ""
"The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to "
"complement them. The problems that the law creates for us as a culture are "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13241
+#: freeculture.xml:13214
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."
+"fiction author. His first novel, <citetitle>Down and Out in the Magic "
+"Kingdom</citetitle>, 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:13248
+#: freeculture.xml:13221
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 "
"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."
+"will probably <emphasis>increase</emphasis> sales of Cory's book."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13260
+#: freeculture.xml:13233
msgid ""
"Indeed, the experience of his publisher clearly supports that conclusion. "
"The book's first printing was exhausted months before the publisher had "
#. PAGE BREAK 290
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13266
+#: freeculture.xml:13239
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."
+"book about the free software movement titled <citetitle>Free for "
+"All</citetitle>, 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:13292
+#: freeculture.xml:13266
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>."
+"<citetitle>Willful Infringement: A Report from the Front Lines of the Real "
+"Culture Wars</citetitle> (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:13277
+#: freeculture.xml:13250
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 "
"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."
+"others. Because the <emphasis>legal</emphasis> 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:13301
+#: freeculture.xml:13275
msgid ""
"Finally, there are many who mark their content with a Creative Commons "
"license just because they want to express to others the importance of "
#. PAGE BREAK 291
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13313
+#: freeculture.xml:13287
msgid ""
"In the first six months of the Creative Commons experiment, over 1 million "
"objects were licensed with these free-culture licenses. The next step is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13323
+#: freeculture.xml:13297
msgid ""
"These are first steps to rebuilding a public domain. They are not mere "
"arguments; they are action. Building a public domain is the first step to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13331
+#: freeculture.xml:13305
msgid ""
"Creative Commons is just one example of voluntary efforts by individuals and "
"creators to change the mix of rights that now govern the creative field. The "
msgstr ""
#. type: Content of: <book><chapter><sect1><title>
-#: freeculture.xml:13345
+#: freeculture.xml:13319
msgid "THEM, SOON"
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:13347
+#: freeculture.xml:13321
msgid ""
"We will not reclaim a free culture by individual action alone. It will also "
"take important reforms of laws. We have a long way to go before the "
msgstr ""
#. type: Content of: <book><chapter><sect1><para>
-#: freeculture.xml:13354
+#: freeculture.xml:13328
msgid ""
"In this chapter, I outline five kinds of changes: four that are general, and "
"one that's specific to the most heated battle of the day, music. Each is a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13361
+#: freeculture.xml:13335
msgid "1. More Formalities"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13363
+#: freeculture.xml:13337
msgid ""
"If you buy a house, you have to record the sale in a deed. If you buy land "
"upon which to build a house, you have to record the purchase in a deed. If "
#. PAGE BREAK 293
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13370
+#: freeculture.xml:13344
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:13375
+#: freeculture.xml:13349
msgid ""
"In contrast, under current copyright law, you automatically get a copyright, "
"regardless of whether you comply with any formality. You don't have to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13381
+#: freeculture.xml:13355
msgid "Why?"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13384
+#: freeculture.xml:13358
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13392
+#: freeculture.xml:13366
msgid ""
"But the Internet changes all this. Formalities today need not be a "
"burden. Rather, the world without formalities is the world that burdens "
"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."
+"any work that builds upon our past. And thus, the <emphasis>lack</emphasis> "
+"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:13406
+#: freeculture.xml:13380
msgid ""
"The proposal I am advancing here would apply to American works only. "
"Obviously, I believe it would be beneficial for the same idea to be adopted "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13404
+#: freeculture.xml:13378
msgid ""
"The law should therefore change this requirement<placeholder "
"type=\"footnote\" id=\"0\"/>—but it should not change it by going back "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13414
+#: freeculture.xml:13388
msgid ""
"The important formalities are three: marking copyrighted work, registering "
"copyrights, and renewing the claim to copyright. Traditionally, the first of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><title>
-#: freeculture.xml:13426
+#: freeculture.xml:13400
msgid "REGISTRATION AND RENEWAL"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13428
+#: freeculture.xml:13402
msgid ""
"Under the old system, a copyright owner had to file a registration with the "
"Copyright Office to register or renew a copyright. When filing that "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13441
+#: freeculture.xml:13415
msgid ""
"Yet it is always astonishing to me that we, who come from a tradition of "
"extraordinary innovation in governmental design, can no longer think "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13450
+#: freeculture.xml:13424
msgid ""
"In the context of registration, one obvious model is the Internet. There "
"are at least 32 million Web sites registered around the world. Domain name "
#. PAGE BREAK 295
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13460
+#: freeculture.xml:13434
msgid ""
"We should adopt a similar model for the registration and renewal of "
"copyrights. The Copyright Office may well serve as the central registry, but "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><title>
-#: freeculture.xml:13475
+#: freeculture.xml:13449
msgid "MARKING"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13477
+#: freeculture.xml:13451
msgid ""
"It used to be that the failure to include a copyright notice on a creative "
"work meant that the copyright was forfeited. That was a harsh punishment for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13487
+#: freeculture.xml:13461
msgid ""
"The aim of marking is to signal to the public that this work is copyrighted "
"and that the author wants to enforce his rights. The mark also makes it easy "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13493
+#: freeculture.xml:13467
msgid ""
"One of the problems the copyright system confronted early on was that "
"different copyrighted works had to be differently marked. It wasn't clear "
#. f2.
#. type: Content of: <book><chapter><sect1><sect2><sect3><para><footnote><para>
-#: freeculture.xml:13510
+#: freeculture.xml:13484
msgid ""
"There would be a complication with derivative works that I have not solved "
"here. In my view, the law of derivatives creates a more complicated system "
#. PAGE BREAK 296
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13503
+#: freeculture.xml:13477
msgid ""
"Let's start with the last point. If a copyright owner allows his work to be "
"published without a copyright notice, the consequence of that failure need "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13523
+#: freeculture.xml:13497
msgid ""
"That in turn raises the question about how work should best be marked. Here "
"again, the system needs to adjust as the technologies evolve. The best way "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13530
+#: freeculture.xml:13504
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."
+"and it would base that choice <emphasis>solely</emphasis> 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:13541
+#: freeculture.xml:13516
msgid ""
"Finally, marking content clearly would simplify registration requirements. "
"If photographs were marked by author and year, there would be little reason "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13549
+#: freeculture.xml:13524
msgid ""
"The objective of formalities is to make things clear. The existing system "
"does nothing to make things clear. Indeed, it seems designed to make things "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><sect3><para>
-#: freeculture.xml:13554
+#: freeculture.xml:13529
msgid ""
"If formalities such as registration were reinstated, one of the most "
"difficult aspects of relying upon the public domain would be removed. It "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13566
+#: freeculture.xml:13541
msgid "2. Shorter Terms"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13568
+#: freeculture.xml:13543
msgid ""
"The term of copyright has gone from fourteen years to ninety-five years for "
"corporate authors, and life of the author plus seventy years for natural "
#. f3.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13580
+#: freeculture.xml:13556
msgid ""
-"\"A Radical Rethink,\" Economist, 366:8308 (25 January 2003): 15, available "
-"at <ulink url=\"http://free-culture.cc/notes/\">link #74</ulink>."
+"\"A Radical Rethink,\" <citetitle>Economist</citetitle>, 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:13573
+#: freeculture.xml:13548
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\"/> "
+"In <citetitle>The Future of Ideas</citetitle>, 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 <citetitle>Eldred</citetitle> "
+"v. <citetitle>Ashcroft</citetitle>, the proposals became even more "
+"radical. <citetitle>The Economist</citetitle> 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:13587
+#: freeculture.xml:13563
msgid ""
"I agree with those who believe that we need a radical change in copyright's "
"term. But whether fourteen years or seventy-five, there are four principles "
#. (1)
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13595
+#: freeculture.xml:13571
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."
+"<emphasis>Keep it short:</emphasis> The term should be as long as necessary "
+"to give incentives to create, but no longer. If it were tied to very strong "
+"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:13603
+#: freeculture.xml:13580
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."
+"<emphasis>Keep it simple:</emphasis> 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:13623
+#: freeculture.xml:13601
msgid ""
"Department of Veterans Affairs, Veteran's Application for Compensation "
"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><indexterm><primary>
-#: freeculture.xml:13631
+#: freeculture.xml:13609
msgid "veterans' pensions"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13616
-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. <placeholder "
-"type=\"indexterm\" id=\"1\"/>"
+#: freeculture.xml:13593
+msgid ""
+"<emphasis>Keep it alive:</emphasis> 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. <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. (4)
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13635
+#: freeculture.xml:13613
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."
+"<emphasis>Keep it prospective:</emphasis> 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:13650
+#: freeculture.xml:13629
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."
+"These changes together should produce an <emphasis>average</emphasis> "
+"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:13655
+#: freeculture.xml:13635
msgid ""
"No doubt the extremists will call these ideas \"radical.\" (After all, I "
"call them \"extremists.\") But again, the term I recommended was longer than "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13665
+#: freeculture.xml:13645
msgid "3. Free Use Vs. Fair Use"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13667
+#: freeculture.xml:13647
msgid ""
"As I observed at the beginning of this book, property law originally granted "
"property owners the right to control their property from the ground to the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13675
+#: freeculture.xml:13655
msgid ""
"Our Constitution gives Congress the power to give authors \"exclusive "
"right\" to \"their writings.\" Congress has given authors an exclusive right "
#. f5.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13688
+#: freeculture.xml:13668
msgid ""
-"Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia "
-"University Press, 1967), 32."
+"Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New "
+"York: Columbia University Press, 1967), 32."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13684
+#: freeculture.xml:13664
msgid ""
"Congress granted the beginnings of this right in 1870, when it expanded the "
"exclusive right of copyright to include a right to control translations and "
#. f6.
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para>
-#: freeculture.xml:13701
+#: freeculture.xml:13681
msgid "Ibid., 56."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><blockquote><para>
-#: freeculture.xml:13697
+#: freeculture.xml:13677
msgid ""
"So inured have we become to the extension of the monopoly to a large range "
"of so-called derivative works, that we no longer sense the oddity of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13706
+#: freeculture.xml:13686
msgid ""
"I think it's time to recognize that there are airplanes in this field and "
"the expansiveness of these rights of derivative use no longer make "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13713
+#: freeculture.xml:13693
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. <placeholder type=\"indexterm\" id=\"0\"/>"
+"<emphasis>Term:</emphasis> If Congress wants to grant a derivative right, "
+"then that right should be for a much shorter term. It makes sense to protect "
+"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. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13725
+#: freeculture.xml:13706
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."
+"<emphasis>Scope:</emphasis> 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:13737
+#: freeculture.xml:13719
msgid ""
"This was the point that Alben made when describing the making of the Clint "
"Eastwood CD. While it makes sense to require negotiation for foreseeable "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:13753
+#: freeculture.xml:13735
msgid "Goldstein, Paul"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13751
+#: freeculture.xml:13733
msgid ""
-"Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox "
-"(Stanford: Stanford University Press, 2003), 187–216. <placeholder "
-"type=\"indexterm\" id=\"0\"/>"
+"Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the "
+"Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), "
+"187–216. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13745
+#: freeculture.xml:13727
msgid ""
"In each of these cases, the law should mark the uses that are protected, and "
"the presumption should be that other uses are not protected. This is the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13759
+#: freeculture.xml:13741
msgid ""
"Goldstein's analysis would make perfect sense if the cost of the legal "
"system were small. But as we are currently seeing in the context of the "
#. PAGE BREAK 301
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13766
+#: freeculture.xml:13748
msgid ""
"The law could remedy this problem either by removing protection beyond the "
"part explicitly drawn or by granting reuse rights upon certain statutory "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:13776
+#: freeculture.xml:13758
msgid "4. Liberate the Music—Again"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13778
+#: freeculture.xml:13760
msgid ""
"The battle that got this whole war going was about music, so it wouldn't be "
"fair to end this book without addressing the issue that is, to most people, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13785
+#: freeculture.xml:13767
msgid ""
"The appeal of file-sharing music was the crack cocaine of the Internet's "
"growth. It drove demand for access to the Internet more powerfully than any "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13794
+#: freeculture.xml:13776
msgid ""
"The aim of copyright, with respect to content in general and music in "
"particular, is to create the incentives for music to be composed, performed, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13801
+#: freeculture.xml:13783
msgid ""
"File-sharing networks complicate this model by enabling the spread of "
"content for which the performer has not been paid. But of course, that's not "
#. A.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13809
+#: freeculture.xml:13791
msgid ""
"There are some who are using sharing networks as substitutes for purchasing "
"CDs."
#. B.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13814
+#: freeculture.xml:13796
msgid ""
"There are also some who are using sharing networks to sample, on the way to "
"purchasing CDs."
#. PAGE BREAK 302
#. C.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13820
+#: freeculture.xml:13802
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is no longer sold but is still under copyright or that would have been "
#. D.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:13826
+#: freeculture.xml:13808
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is not copyrighted or to get access that the copyright owner plainly "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13832
+#: freeculture.xml:13814
msgid ""
"Any reform of the law needs to keep these different uses in focus. It must "
"avoid burdening type D even if it aims to eliminate type A. The eagerness "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13840
+#: freeculture.xml:13822
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 "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13847
+#: freeculture.xml:13829
msgid ""
"Nonetheless, there is a crucial fact about the current technological context "
"that we must keep in mind if we are to understand how the law should "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13852
+#: freeculture.xml:13834
msgid ""
"Today, file sharing is addictive. In ten years, it won't be. It is addictive "
"today because it is the easiest way to gain access to a broad range of "
#. PAGE BREAK 303
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13864
+#: freeculture.xml:13846
msgid ""
"But it will become a reality, and that means the way we get access to the "
"Internet today is a technology in transition. Policy makers should not make "
#. f8.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:13896
+#: freeculture.xml:13879
msgid ""
"See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April "
"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13879
+#: freeculture.xml:13861
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 "
+"point: When it is <emphasis>extremely</emphasis> easy to connect to services "
+"that give access to content, it will be <emphasis>easier</emphasis> to "
+"connect to services that give you access to content than it will be to "
+"download and store content <emphasis>on the many devices you will have for "
+"playing content</emphasis>. 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 "
#. PAGE BREAK 304
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13903
+#: freeculture.xml:13886
msgid ""
"This point about the future is meant to suggest a perspective on the "
"present: It is emphatically temporary. The \"problem\" with file "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13919
+#: freeculture.xml:13902
msgid ""
"The answer begins with recognizing that there are different \"problems\" "
"here to solve. Let's start with type D content—uncopyrighted content "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13930
+#: freeculture.xml:13913
msgid ""
"Type C content raises a different \"problem.\" This is content that was, at "
"one time, published and is no longer available. It may be unavailable "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13939
+#: freeculture.xml:13922
msgid ""
"Again, the model here is the used book store. Once a book goes out of print, "
"it may still be available in libraries and used book stores. But libraries "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13949
+#: freeculture.xml:13932
msgid ""
"The model of used book stores suggests that the law could simply deem "
"out-of-print music fair game. If the publisher does not make copies of the "
#. PAGE BREAK 305
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13960
+#: freeculture.xml:13943
msgid ""
"Alternatively, the law could create a statutory license that would ensure "
"that artists get something from the trade of their work. For example, if the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13970
+#: freeculture.xml:13953
msgid ""
"This system would also create an incentive for publishers to keep works "
"available commercially. Works that are available commercially would not be "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13980
+#: freeculture.xml:13963
msgid ""
"The hard case is content of types A and B, and again, this case is hard only "
"because the extent of the problem will change over time, as the technologies "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:13988
+#: freeculture.xml:13971
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:13992
+#: freeculture.xml:13975
msgid ""
"Stripped of the rhetoric about the sanctity of property, the basic claim of "
"the content industry is this: A new technology (the Internet) has harmed a "
#. PAGE BREAK 306
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14003
+#: freeculture.xml:13986
msgid ""
"I love the Internet, and so I don't like likening it to tobacco or "
"asbestos. But the analogy is a fair one from the perspective of the law. "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary>
-#: freeculture.xml:14047
+#: freeculture.xml:14032
msgid "Fisher, William"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:14014
-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 "
+#: freeculture.xml:13998
+msgid ""
+"William Fisher, <citetitle>Digital Music: Problems and "
+"Possibilities</citetitle> (last revised: 10 October 2000), available at "
+"<ulink url=\"http://free-culture.cc/notes/\">link #77</ulink>; William "
+"Fisher, <citetitle>Promises to Keep: Technology, Law, and the Future of "
+"Entertainment</citetitle> (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\"/>"
+"see Lawrence Lessig, \"Who's Holding Back Broadband?\" <citetitle>Washington "
+"Post</citetitle>, 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, "
+"<citetitle>A Quick Case for Intellectual Property Use Fee "
+"(IPUF)</citetitle>, 3 March 2002, available at <ulink "
+"url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson Graham, "
+"\"Kazaa, Verizon Propose to Pay Artists Directly,\" <citetitle>USA "
+"Today</citetitle>, 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:14011
+#: freeculture.xml:13994
msgid ""
"The idea would be a modification of a proposal that has been floated by "
"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14060
+#: freeculture.xml:14045
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."
+"questions, most of which he answers well in his upcoming book, "
+"<citetitle>Promises to Keep</citetitle>. 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:14075
+#: freeculture.xml:14060
msgid ""
"Fisher would balk at the idea of allowing the system to lapse. His aim is "
"not just to ensure that artists are paid, but also to ensure that the system "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14088
+#: freeculture.xml:14073
msgid ""
"No doubt it would be difficult to calculate the proper measure of \"harm\" "
"to an industry. But the difficulty of making that calculation would be "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14103
+#: freeculture.xml:14088
msgid ""
"This competition has already occurred against the background of \"free\" "
"music from p2p systems. As the sellers of cable television have known for "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14115
+#: freeculture.xml:14100
msgid ""
"This regime of competition, with a backstop to assure that artists don't "
"lose, would facilitate a great deal of innovation in the delivery of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14124
+#: freeculture.xml:14109
msgid "In summary, then, my proposal is this:"
msgstr ""
#. PAGE BREAK 308
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14129
+#: freeculture.xml:14114
msgid ""
"The Internet is in transition. We should not be regulating a technology in "
"transition. We should instead be regulating to minimize the harm to "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14136
+#: freeculture.xml:14121
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:14142
+#: freeculture.xml:14127
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""
#. 2.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:14146
+#: freeculture.xml:14131
msgid ""
"permitting noncommercial type C sharing without liability, and commercial "
"type C sharing at a low and fixed rate set by statute;"
#. 3.
#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para>
-#: freeculture.xml:14152
+#: freeculture.xml:14137
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:14157
+#: freeculture.xml:14142
msgid ""
"But what if \"piracy\" doesn't disappear? What if there is a competitive "
"market providing content at a low cost, but a significant number of "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14163
+#: freeculture.xml:14148
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."
+"percent secure and produces a market of size <citetitle>x</citetitle>, or "
+"(b) to have a technology that is 50 percent secure but produces a market of "
+"five times <citetitle>x</citetitle>? 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:14177
+#: freeculture.xml:14162
msgid ""
"But we're a long way away from whittling the problem down to this subset of "
"type A sharers. And our focus until we're there should not be on finding "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><title>
-#: freeculture.xml:14188
+#: freeculture.xml:14173
msgid "5. Fire Lots of Lawyers"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14190
+#: freeculture.xml:14175
msgid ""
"I'm a lawyer. I make lawyers for a living. I believe in the law. I believe "
"in the law of copyright. Indeed, I have devoted my life to working in law, "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14196
+#: freeculture.xml:14181
msgid ""
"Yet much of this book has been a criticism of lawyers, or the role lawyers "
"have played in this debate. The law speaks to ideals, but it is my view that "
#. f10.
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:14213
+#: freeculture.xml:14198
msgid ""
"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer "
-"Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70."
+"Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, "
+"1069–70."
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14204
+#: freeculture.xml:14189
msgid ""
"The evidence of this bending is compelling. I'm attacked as a \"radical\" by "
"many within the profession, yet the positions that I am advocating are "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14219
+#: freeculture.xml:14204
msgid ""
"However, my criticism of the role that lawyers have played in this debate is "
"not just about a professional bias. It is more importantly about our failure "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para>
-#: freeculture.xml:14229
+#: freeculture.xml:14214
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. <placeholder type=\"indexterm\" id=\"0\"/>"
+"again. Compare Stan J. Liebowitz, <citetitle>Rethinking the Network "
+"Economy: The True Forces That Drive the Digital Marketplace</citetitle> (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, <citetitle>Rethinking</citetitle>, 174–76. "
+"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14224
+#: freeculture.xml:14209
msgid ""
"Economists are supposed to be good at reckoning costs and benefits. But "
"more often than not, economists, with no clue about how the legal system "
#. PAGE BREAK 310
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14253
+#: freeculture.xml:14238
msgid ""
"But the legal system doesn't work. Or more accurately, it doesn't work for "
"anyone except those with the most resources. Not because the system is "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14261
+#: freeculture.xml:14246
msgid ""
"These costs distort free culture in many ways. A lawyer's time is billed at "
"the largest firms at more than $400 per hour. How much time should such a "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14271
+#: freeculture.xml:14256
msgid ""
"The costliness and clumsiness and randomness of this system mock our "
"tradition. And lawyers, as well as academics, should consider it their duty "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14279
+#: freeculture.xml:14264
msgid ""
"But until that reform is complete, we as a society should keep the law away "
"from areas that we know it will only harm. And that is precisely what the "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14285
+#: freeculture.xml:14270
msgid ""
"Think about the amazing things your kid could do or make with digital "
"technology—the film, the music, the Web page, the blog. Or think about "
#. PAGE BREAK 311
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14294
+#: freeculture.xml:14279
msgid ""
"The law should regulate in certain areas of culture—but it should "
"regulate culture only where that regulation does good. Yet lawyers rarely "
msgstr ""
#. type: Content of: <book><chapter><sect1><sect2><para>
-#: freeculture.xml:14303
+#: freeculture.xml:14288
msgid ""
"We should ask, \"Why?\" Show me why your regulation of culture is "
"needed. Show me how it does good. And until you can show me both, keep your "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14312
+#: freeculture.xml:14297
msgid "NOTES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14314
+#: freeculture.xml:14299
msgid ""
"Throughout this text, there are references to links on the World Wide "
"Web. As anyone who has tried to use the Web knows, these links can be highly "
msgstr ""
#. type: Content of: <book><chapter><title>
-#: freeculture.xml:14329
+#: freeculture.xml:14314
msgid "ACKNOWLEDGMENTS"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14331
+#: freeculture.xml:14316
msgid ""
"This book is the product of a long and as yet unsuccessful struggle that "
"began when I read of Eric Eldred's war to keep books free. Eldred's work "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14337
+#: freeculture.xml:14322
msgid ""
"I received guidance in various places from friends and academics, including "
"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and "
#. PAGE BREAK 337
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14350
+#: freeculture.xml:14335
msgid ""
"Yuko Noguchi helped me to understand the laws of Japan as well as its "
"culture. I am thankful to her, and to the many in Japan who helped me "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14361
+#: freeculture.xml:14346
msgid ""
"These are the traditional sorts of help that academics regularly draw "
"upon. But in addition to them, the Internet has made it possible to receive "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14381
+#: freeculture.xml:14366
msgid ""
"Richard Stallman and Michael Carroll each read the whole book in draft, and "
"each provided extremely helpful correction and advice. Michael helped me to "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14390
+#: freeculture.xml:14375
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 "
TODO
* indexterm primary
* replace '. . .' with something else
- * emphasis ?
* quotes ?
-->
<!DOCTYPE book PUBLIC "-//OASIS//DTD DocBook XML V4.2//EN"
<legalnotice>
<para>
-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
+This version of <citetitle>Free Culture</citetitle> 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>
</para>
</legalnotice>
</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.
+<citetitle>The New York Times</citetitle>, January 16, 2003. Copyright
+© 2003 by The New York Times Co. Reprinted with permission.
</para>
<para>
Cartoon in <xref linkend="fig-1711"/> by Paul Conrad, copyright Tribune
<primary>Pogue, David</primary>
</indexterm>
<para>
-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:
+At the end of his review of my first book, <citetitle>Code: And Other
+Laws of Cyberspace</citetitle>, David Pogue, a brilliant writer and
+author of countless technical and computer-related texts, wrote this:
</para>
<blockquote>
<para>
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.<footnote id="preface01"><para>
-David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.
+David Pogue, "Don't Just Chat, Do Something," <citetitle>New York Times</citetitle>, 30 January 2000.
</para></footnote>
</para>
</blockquote>
</para>
<para>
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
+But even if he was right then, the point is not right now:
+<citetitle>Free Culture</citetitle> is about the troubles the Internet
+causes even after the modem is turned
<!-- PAGE BREAK 12 -->
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
</para>
<indexterm startref="idxpoguedavid" class='endofrange'/>
<para>
-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.
+But unlike <citetitle>Code</citetitle>, 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.
</para>
<para>
That tradition is the way our culture gets made. As I explain in the
"free" as in "free beer" (to borrow a phrase from the founder of the
free software movement<footnote>
<para>
-Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002).
+Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 (Joshua Gay, ed. 2002).
</para></footnote>), 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
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy.<footnote><para> William Safire,
-"The Great Media Gulp," New York Times, 22 May 2003.
+"The Great Media Gulp," <citetitle>New York Times</citetitle>, 22 May 2003.
<indexterm><primary>Safire, William</primary></indexterm>
</para></footnote>
</para>
</blockquote>
<para>
-This idea is an element of the argument of Free Culture, though my
+This idea is an element of the argument of <citetitle>Free Culture</citetitle>, 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
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
+Stallman's own work, especially the essays in <citetitle>Free Software, Free
+Society</citetitle>, 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.
</para>
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."<footnote><para>
-St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.:
+St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
</para></footnote>
For many
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),
+Authorship," <citetitle>Stanford Law Review</citetitle> 48 (1996): 1293, 1333. See also Paul
+Goldstein, <citetitle>Real Property</citetitle> (Mineola, N.Y.: Foundation Press, 1984),
1112–13.
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
and guitar number were performed. . . . The music was projected with a
live-ness rarely if ever heard before from a radio "music
box."<footnote><para>
-Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong
+Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
</para>
<para>
This rough divide between the free and the controlled has now
been erased.<footnote><para>
-See Jessica Litman, Digital Copyright (New York: Prometheus Books,
+See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: Prometheus Books,
2001), ch. 13.
</para></footnote>
The Internet has set the stage for this erasure and, pushed by big
Motion Picture Association of America (MPAA) president Jack Valenti
calls his "own terrorist war"<footnote><para>
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.
+Use New Tools to Turn the Net into an Illicit Video Club," <citetitle>New York
+Times</citetitle>, 17 January 2002.
</para></footnote>—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
control. The First Amendment protected creators against state control.
And as Professor Neil Netanel powerfully argues,<footnote>
<para>
-Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law
-Journal 106 (1996): 283.
+Neil W. Netanel, "Copyright and a Democratic Civil Society," <citetitle>Yale Law
+Journal</citetitle> 106 (1996): 283.
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
</para></footnote>
copyright law, properly balanced, protected creators against private
rob the author of the profit, by multiplying copies and disposing
of them for his own use.<footnote><para>
<!-- f1 -->
-Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).
+<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777) (Mansfield).
</para></footnote>
</para>
<indexterm startref="idxmansfield1" class='endofrange'/>
"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
-<emphasis>thieves</empasis>!
+<emphasis>thieves</emphasis>!
</para>
<para>
There's no doubt that "piracy" is wrong, and that pirates should be
theory of creative property<footnote><para>
<!-- f2 -->
See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
-in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.
+in the Pepsi Generation," <citetitle>Notre Dame Law Review</citetitle> 65 (1990): 397.
</para></footnote>
—if there is value, then someone must have a
right to that value. It is the perspective that led a composers' rights
songs that girls sang around Girl Scout campfires.<footnote><para>
<!-- f3 -->
Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
-Up," Wall Street Journal, 21 August 1996, available at
+Up," <citetitle>Wall Street Journal</citetitle>, 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.
+Speech, No One Wins," <citetitle>Boston Globe</citetitle>, 24 November 2002.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
There was "value" (the songs) so there must have been a
be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote>
<para>
<!-- f4 -->
-In The Rise of the Creative Class (New York: Basic Books, 2002),
+In <citetitle>The Rise of the Creative Class</citetitle> (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
<title>CHAPTER ONE: Creators</title>
<para>
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.
+made his debut in May of that year, in a silent flop called <citetitle>Plane Crazy</citetitle>.
In November, in New York City's Colony Theater, in the first widely
-distributed cartoon synchronized with sound, Steamboat Willie brought
+distributed cartoon synchronized with sound, <citetitle>Steamboat Willie</citetitle> brought
to life the character that would become Mickey Mouse.
</para>
<para>
Synchronized sound had been introduced to film a year earlier in the
-movie The Jazz Singer. That success led Walt Disney to copy the
+movie <citetitle>The Jazz Singer</citetitle>. 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.
and ran the action again. It was terrible, but it was wonderful! And
it was something new!<footnote><para>
<!-- f1 -->
-Leonard Maltin, Of Mice and Magic: A History of American Animated
-Cartoons (New York: Penguin Books, 1987), 34–35.
+Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated
+Cartoons</citetitle> (New York: Penguin Books, 1987), 34–35.
</para></footnote>
</para>
</blockquote>
creativity, was built upon the work of others.
</para>
<para>
-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.
+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 <citetitle>Steamboat Bill, Jr</citetitle>.
</para>
<para>
-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.
+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. <citetitle>Steamboat Bill,
+Jr</citetitle>. 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.
</para>
<para>
-Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie.
+<citetitle>Steamboat Bill, Jr</citetitle>. appeared before Disney's cartoon Steamboat
+Willie.
<!-- PAGE BREAK 36 -->
The coincidence of titles is not coincidental. Steamboat Willie is a
direct cartoon parody of Steamboat Bill,<footnote><para>
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
+use the music for five songs in <citetitle>Steamboat Willie</citetitle>: "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.
</para></footnote>
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
+the invention of synchronized sound in <citetitle>The Jazz Singer</citetitle> that we
+get <citetitle>Steamboat Willie</citetitle>. 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.
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
+work of others is astonishing when set together: <citetitle>Snow White</citetitle>
+(1937), <citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> (1940), <citetitle>Dumbo</citetitle>
+(1941), <citetitle>Bambi</citetitle> (1942), <citetitle>Song of the South</citetitle> (1946),
+<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in Wonderland</citetitle> (1951), <citetitle>Robin
+Hood</citetitle> (1952), <citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the Tramp</citetitle>
<!-- PAGE BREAK 37 -->
-(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.
+(1955), <citetitle>Mulan</citetitle> (1998), <citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101
+Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> (1963), and
+<citetitle>The Jungle Book</citetitle> (1967)—not to mention a recent example
+that we should perhaps quickly forget, <citetitle>Treasure Planet</citetitle>
+(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.
</para>
<para>
This is a kind of creativity. It is a creativity that we should
</para>
<para>
Consider, for example, a form of creativity that seems strange to many
-Americans but that is inescapable within Japanese culture: manga, or
+Americans but that is inescapable within Japanese culture: <citetitle>manga</citetitle>, 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
from a Disney perspective is quite familiar.
</para>
<para>
-This is the phenomenon of doujinshi. Doujinshi are also comics, but
+This is the phenomenon of <citetitle>doujinshi</citetitle>. 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
+doujinshi. It is not doujinshi if it is <emphasis>just</emphasis> a
+copy; the artist must make a contribution to the art he copies, by
+transforming it either subtly or
<!-- PAGE BREAK 39 -->
significantly. A doujinshi comic can thus take a mainstream comic and
develop it differently—with a different story line. Or the comic can
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.
+creations of others, as Walt Disney did with <citetitle>Steamboat Bill,
+Jr</citetitle>. 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.
</para>
<indexterm id="idxwinickjudd" class='startofrange'>
<primary>Winick, Judd</primary>
books and not tracing them, but looking at them and copying them"
and building from them.<footnote><para>
<!-- f5 -->
-For an excellent history, see Scott McCloud, Reinventing Comics (New
+For an excellent history, see Scott McCloud, <citetitle>Reinventing Comics</citetitle> (New
York: Perennial, 2000).
</para></footnote>
</para>
banned, so the law does not ban doujinshi.<footnote><para>
<!-- f6 -->
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
+Why All the Comics My Kid Watches Are Japanese Imports?" <citetitle>Rutgers Law
+Review</citetitle> 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
believe in the value of that weird form of property that lawyers call
"intellectual property."<footnote><para>
<!-- f7 -->
-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
+The term <citetitle>intellectual property</citetitle> is of relatively recent origin. See
+Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 11 (New York: New York
+University Press, 2001). See also Lawrence Lessig, <citetitle>The Future of Ideas</citetitle>
(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
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.
+permission from anyone. (Does <emphasis>anyone</emphasis> 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.
</para>
<para>
Creators here and everywhere are always and at all times building
<!-- PAGE BREAK 43 -->
</para>
<para>
-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?
+The hard question is therefore not <emphasis>whether</emphasis> a
+culture is free. All cultures are free to some degree. The hard
+question instead is "<emphasis>How</emphasis> 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?
</para>
<para>
Free cultures are cultures that leave a great deal open for others to
marketed on the basis of its simplicity. "You press the button and we
do the rest."<footnote><para>
<!-- f1 -->
-Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112.
-</para></footnote> As he described in The Kodak Primer:
+Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: Johns Hopkins University Press, 1975), 112.
+</para></footnote> As he described in <citetitle>The Kodak Primer</citetitle>:
</para>
<blockquote>
<para>
chemicals.<footnote>
<para>
<!-- f2 -->
-Brian Coe, The Birth of Photography (New York: Taplinger Publishing,
+Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: Taplinger Publishing,
1977), 53.
<indexterm><primary>Coe, Brian</primary></indexterm>
</para></footnote>
required permission before he could capture and print whatever image
he wanted. Their answer was no.<footnote><para>
<!-- f6 -->
-For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E.
+For illustrative cases, see, for example, <citetitle>Pavesich</citetitle>
+v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905);
+<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, 123090 S.W. 364, 366
+(Ky. 1909); <citetitle>Corliss</citetitle> v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass.
+Dist. Ct. 1894).
</para></footnote>
</para>
<para>
<para>
<!-- f7 -->
Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
-Harvard Law Review 4 (1890): 193.
+<citetitle>Harvard Law Review</citetitle> 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
+<citetitle>Steamboat Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be
free to capture an image without compensating the source.
</para>
<para>
us. But in the ordinary case, the image can be captured without
clearing the rights to do the capturing.<footnote><para>
<!-- f8 -->
-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
+See Melville B. Nimmer, "The Right of Publicity," <citetitle>Law and Contemporary
+Problems</citetitle> 19 (1954): 203; William L. Prosser, "Privacy," <citetitle>California Law
+Review</citetitle> 48 (1960) 398–407; <citetitle>White</citetitle> v. <citetitle>Samsung Electronics America,
+Inc</citetitle>., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
(1993).
</para></footnote>)
</para>
television commercials per year, or between 20,000 and 45,000
commercials generally,<footnote><para>
<!-- f10 -->
-Judith Van Evra, Television and Child Development (Hillsdale, N.J.:
+Judith Van Evra, <citetitle>Television and Child Development</citetitle> (Hillsdale, N.J.:
Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
-Study," Denver Post, 25 May 1997, B6.
+Study," <citetitle>Denver Post</citetitle>, 25 May 1997, B6.
</para></footnote>
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
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.
+can do well. Yet neither is text a form in which
+<emphasis>these</emphasis> ideas can be expressed well. The power of
+this message depended upon its connection to this form of expression.
</para>
<para>
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
+the term in his book <citetitle>Cyber Rights</citetitle>, around a news event that had
captured the attention of the world. There was ABC and CBS, but there
was also the Internet.
</para>
spread practically instantaneously.
</para>
<para>
-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.
+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 <citetitle>Jerry Springer</citetitle>, available anywhere in the world.
</para>
<para>
But in the United States, blogs have taken on a very different
least, they had to agree upon a unanimous result for the process to
come to an end.<footnote><para>
<!-- f15 -->
-See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans.
-Henry Reeve (New York: Bantam Books, 2000), ch. 16.
+See, for example, Alexis de Tocqueville, <citetitle>Democracy in America</citetitle>,
+bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16.
</para></footnote>
</para>
<para>
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.<footnote><para>
<!-- f16 -->
-Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of
-Political Philosophy 10 (2) (2002): 129.
+Bruce Ackerman and James Fishkin, "Deliberation Day," <citetitle>Journal of
+Political Philosophy</citetitle> 10 (2) (2002): 129.
</para></footnote>
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
politics with people you disagree with. Political discourse becomes
isolated, and isolated discourse becomes more extreme.<footnote><para>
<!-- f17 -->
-Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001),
+Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton University Press, 2001),
65–80, 175, 182, 183, 192.
</para></footnote> We say what our friends want to hear, and hear very
little beyond what our friends say.
<!-- f19 -->
Telephone interview with David Winer, 16 April 2003.
</para></footnote>
-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.")
+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 <emphasis>that</emphasis> they were writing "the story.")
</para>
<para> Blog space gives amateurs a way to enter the
debate—"amateur" not in the sense of inexperienced, but in the
had seen.<footnote><para>
<!-- f20 -->
John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
-Information Online," New York Times, 2 February 2003, A28; Staci
+Information Online," <citetitle>New York Times</citetitle>, 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>.
have been told to curtail their blogging.<footnote>
<para>
<!-- f21 -->
-See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New
-York Times, 29 September 2003, C4. ("Not all news organizations have
+See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" <citetitle>New
+York Times</citetitle>, 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
+request. Last year Steve Olafson, a <citetitle>Houston Chronicle</citetitle> 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>
general.<footnote><para>
<!-- f22 -->
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.
+Control Interferes with Noninfringing Scholarship," <citetitle>Communications
+of the Association for Computer Machinery</citetitle> 43 (2000): 9.
</para></footnote>
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.
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.
+easier to use"—again, a <emphasis>search engine</emphasis>,
+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.
</para>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
Jesse pay them at least $15,000,000.
</para>
<para>
-Similar lawsuits were brought against three other students: one
-other student at RPI, one at Michigan Technical University, and one at
+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.<footnote><para>
+the United States to award the plaintiffs close to $100
+<emphasis>billion</emphasis>—six times the
+<emphasis>total</emphasis> profit of the film industry in
+2001.<footnote><para>
+
<!-- f1 -->
Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
-Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6
+Suit Alleges $97.8 Billion in Damages," <citetitle>Professional Media Group LCC</citetitle> 6
(2003): 5, available at 2003 WL 55179443.
</para></footnote>
</para>
<!-- f2 -->
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).
+the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000).
</para></footnote>
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?<footnote><para>
<!-- f3 -->
Douglas Lichtman makes a related point in "KaZaA and Punishment,"
-Wall Street Journal, 10 September 2003, A24.
+<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24.
</para></footnote>
</para>
<para>
The film industry of Hollywood was built by fleeing pirates.<footnote><para>
<!-- f1 -->
I am grateful to Peter DiMauro for pointing me to this extraordinary
-history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93,
+history. See also Siva Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 87–93,
which details Edison's "adventures" with copyright and patent.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
the independent William Fox who defied the Trust even after his
license was revoked.<footnote><para>
<!-- f2 -->
-J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion
-Picture Producers (Cobblestone Entertainment, 2000) and expanded texts
+J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent Motion
+Picture Producers</citetitle> (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
`accidents' resulting in loss of negatives, equipment, buildings and
sometimes life and limb frequently occurred."<footnote><para>
<!-- f3 -->
-Marc Wanamaker, "The First Studios," The Silents Majority, archived at
+Marc Wanamaker, "The First Studios," <citetitle>The Silents Majority</citetitle>, archived at
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
That led the independents to flee the East
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
+of South Dakota, chairman), reprinted in <citetitle>Legislative History of the
+Copyright Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South
Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
</para>
</para></footnote>
</para>
<para>
-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
+The law soon resolved this battle in favor of the composer
+<emphasis>and</emphasis> 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
<!-- PAGE BREAK 70 -->
copyright law that makes cover songs possible. Once a composer
</para>
<para>
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
+thus, in effect, the law <emphasis>subsidizes</emphasis> 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.<footnote><para>
+
<!-- f10 -->
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
+in <citetitle>Legislative History of the 1909 Copyright Act</citetitle>, E. Fulton Brylawski and
Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
</para></footnote>
<indexterm><primary>Beatles</primary></indexterm>
When a radio station plays a record on the air, that constitutes a
"public performance" of the composer's work.<footnote><para>
<!-- f12 -->
-See 17 United States Code, sections 106 and 110. At the beginning,
+See 17 <citetitle>United States Code</citetitle>, 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
+station. See <citetitle>RCA Manufacturing Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 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.
+Copyright," <citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.
<indexterm><primary>Hand, Learned</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
</para>
<para>
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.
+copy of the <emphasis>composer's</emphasis> work. The radio station is
+also performing a copy of the <emphasis>recording artist's</emphasis>
+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.
<indexterm><primary>Lovett, Lyle</primary></indexterm>
<!-- PAGE BREAK 72 -->
<para>
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
+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.
+"protected" right. The radio station thus gets to
+<emphasis>pirate</emphasis> the value of Madonna's work without paying
+her anything.
</para>
<indexterm startref="idxmadonna" class='endofrange'/>
<para>
from that creator—as it is increasingly described
today<footnote><para>
<!-- f19 -->
-See, for example, National Music Publisher's Association, The Engine
+See, for example, National Music Publisher's Association, <citetitle>The Engine
of Free Expression: Copyright on the Internet—The Myth of Free
-Information, available at
+Information</citetitle>, 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."
</para></footnote>
-— 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.
+— then <emphasis>every</emphasis> 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.
</para>
<!-- PAGE BREAK 75 -->
</sect2>
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy<footnote><para>
<!-- f1 -->
-See IFPI (International Federation of the Phonographic Industry), The
-Recording Industry Commercial Piracy Report 2003, July 2003, available
+See IFPI (International Federation of the Phonographic Industry), <citetitle>The
+Recording Industry Commercial Piracy Report 2003</citetitle>, 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.
+also Ben Hunt, "Companies Warned on Music Piracy Risk," <citetitle>Financial
+Times</citetitle>, 14 February 2003, 11.
</para></footnote>
(that works out to one in three CDs sold worldwide). The MPAA
estimates that it loses $3 billion annually worldwide to piracy.
these nations live gives them some opportunities to escape the burden
of intellectual property law.<footnote><para>
<!-- f2 -->
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13,
+See Peter Drahos with John Braithwaite, Information Feudalism: <citetitle>Who
+Owns the Knowledge Economy?</citetitle> (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
less money than they otherwise would have had.<footnote><para>
<!-- f3 -->
For an analysis of the economic impact of copying technology, see Stan
-Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002),
+Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (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
</para>
<para>
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
+property right of a very special sort, it <emphasis>is</emphasis> 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
<!-- PAGE BREAK 78 -->
The key to the "piracy" that the law aims to quash is a use that "rob[s]
the author of [his] profit."<footnote><para>
<!-- f4 -->
-Bach v. Longman, 98 Eng. Rep. 1274 (1777).
+<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777).
</para></footnote>
This means we must determine whether
and how much p2p sharing harms before we know how strongly the
innovations. Like every great advance in innovation on the Internet
(and, arguably, off the Internet as well<footnote><para>
<!-- f5 -->
-See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary
-National Bestseller That Changed the Way We Do Business (New York:
+See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The Revolutionary
+National Bestseller That Changed the Way We Do Business</citetitle> (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.
+Christensen's ideas, see Lawrence Lessig, <citetitle>Future</citetitle>, 89–92, 139.
<indexterm><primary>Christensen, Clayton M.</primary></indexterm>
</para></footnote>), Shawn Fanning and crew had simply
put together components that had been developed independently.
eighteen months, there were close to 80 million registered users of the
system.<footnote><para>
<!-- f6 -->
-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.
+See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," <citetitle>San
+Francisco Chronicle</citetitle>, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
+<citetitle>New Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
+Secures New Financing," <citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1;
+"Napster's Wake-Up Call," <citetitle>Economist</citetitle>, 24 June 2000, 23; John Naughton,
+"Hollywood at War with the Internet" (London) <citetitle>Times</citetitle>, 26 July 2002, 18.
</para></footnote>
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
music—28 percent of Americans older than 12.<footnote><para>
<!-- f7 -->
-See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution
+See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music Distribution</citetitle>
(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.
</para></footnote>
-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.<footnote><para>
+A survey by the NPD group quoted in <citetitle>The New York Times</citetitle>
+estimated that 43 million citizens used file-sharing networks to
+
exchange content in May 2003.<footnote><para>
<!-- f8 -->
-Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New
-York Times, 6 June 2003, A1.
+Amy Harmon, "Industry Offers a Carrot in Online Music Fight," <citetitle>New
+York Times</citetitle>, 6 June 2003, A1.
</para></footnote>
The vast majority of these are not kids. Whatever the actual figure, a
massive quantity of content is being "taken" on these networks. The
perspective of economics, only type A sharing is clearly
harmful.<footnote><para>
<!-- f9 -->
-See Liebowitz, Rethinking the Network Economy,148–49.
+See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, 148–49.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
Type B sharing is illegal but plainly beneficial. Type C sharing is
& Young put it, "Rather than exploiting this new, popular
technology, the labels fought it."<footnote><para>
<!-- f10 -->
-See Cap Gemini Ernst & Young, Technology Evolution and the
-Music Industry's Business Model Crisis (2003), 3. This report
+See Cap Gemini Ernst & Young, <citetitle>Technology Evolution and the
+Music Industry's Business Model Crisis</citetitle> (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
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,
+Assessment, <citetitle>Copyright and Home Copying: Technology Challenges the Law</citetitle>,
OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office,
October 1989), 145–56. </para></footnote>
The labels claimed that every album taped was an album unsold, and
being]—but had to a large extent resulted from stagnation in musical
innovation at the major labels."<footnote><para>
<!-- f11 -->
-U.S. Congress, Copyright and Home Copying, 4.
+U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4.
</para></footnote>
</para>
<para>
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.
+harmful. The question is also <emphasis>how</emphasis> harmful type A
+sharing is, and how beneficial the other types of sharing are.
</para>
<para>
-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.
+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.
+networks would actually benefit music companies on balance. They would
+therefore have little <emphasis>static</emphasis> reason to resist
+them.
+
</para>
<para>
-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.
+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.
</para>
<para>
-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.<footnote><para>
+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.<footnote><para>
<!-- f12 -->
-See Recording Industry Association of America, 2002 Yearend Statistics,
+See Recording Industry Association of America, <citetitle>2002 Yearend Statistics</citetitle>,
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
+<ulink url="http://free-culture.cc/notes/">link #15</ulink>. A later
+report indicates even greater losses. See Recording Industry
+Association of America, <citetitle>Some Facts About Music Piracy</citetitle>, 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)."
+to a $32 billion industry in 2002 (based on U.S. dollar value of
+shipments)."
</para></footnote>
-This confirms a trend over the past few years. The RIAA blames
- Internet
-piracy for the trend, though there are many other causes that
+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
+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."<footnote>
<!-- f13 -->
<indexterm><primary>Black, Jane</primary></indexterm>
</para>
</footnote>
-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."<footnote><para>
+Competition from other forms of media could also account for some of
+the decline. As Jane Black of <citetitle>BusinessWeek</citetitle> notes, "The
+soundtrack to the film <citetitle>High Fidelity</citetitle> has a list price of
+$18.98. You could get the whole movie [on DVD] for
+$19.99."<footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<para>
<!-- PAGE BREAK 84 -->
-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
+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
+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.
</para>
<para>
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
+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."
+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."
</para>
<para>
-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?
+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?
</para>
<para>
-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.<footnote><para>
+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.<footnote><para>
<!-- f15 -->
-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>.
-</para></footnote>
-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.
+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>.
+</para></footnote>
+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 <emphasis>to the company</emphasis> to make it available.
</para>
<para>
In real space—long before the Internet—the market had a simple
<!-- PAGE BREAK 85 -->
-response to this problem: used book and record stores. There are
- thousands
-
of used book and used record stores in America today.<footnote><para>
+response to this problem: used book and record stores. There are
+thousands of used book and used record stores in America
+today.<footnote><para>
<!-- f16 -->
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
+an increase of 20 percent since 1993. See Book Hunter Press, <citetitle>The Quiet
+Revolution: The Expansion of the Used Book Market</citetitle> (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
available at
<ulink url="http://free-culture.cc/notes/">link #20</ulink>.
</para></footnote>
-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.
+These stores buy content from owners, then sell the content they
+buy. And under American copyright law, when they buy and sell this
+content, <emphasis>even if the content is still under
+copyright</emphasis>, 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.
</para>
<indexterm><primary>Bernstein, Leonard</primary></indexterm>
<para>
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
+Cory Doctorow, for example, released his first novel, <citetitle>Down and Out in
+the Magic Kingdom</citetitle>, both free on-line and in bookstores on the same
<!-- PAGE BREAK 86 -->
day. His (and his publisher's) thinking was that the on-line distribution
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.
+
+<ulink url="http://free-culture.cc/notes/">link #21</ulink>. For an
+account of the litigation and its toll on Napster, see Joseph Menn,
+<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's Napster</citetitle> (New
+York: Crown Business, 2003), 269–82.
</para></footnote>
</para>
<para>
<para>
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.
+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.
</para>
<para>
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.
+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.
</para>
<para>
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.
+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.
</para>
<para>
<!-- PAGE BREAK 88 -->
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).
+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
+<emphasis>compensation</emphasis> without giving the past
+(broadcasters) control over the future (cable).
</para>
<indexterm><primary>Betamax</primary></indexterm>
<para>
Indeed, as surveys would later show,
percent of VCR owners had movie libraries of ten videos or more<footnote><para>
<!-- f20 -->
-Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429,
+<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 480 F. Supp. 429,
(C.D. Cal., 1979).
</para></footnote>
— a use the Court would later hold was not "fair." By
<para>
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
+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 <emphasis>Japanese</emphasis> Boston Strangler of the
+American film industry)—was an illegal
technology.<footnote><para>
<!-- f22 -->
-Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir.
+<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir.
1981).
</para></footnote>
</para>
implicated
by such new technology.<footnote><para>
<!-- f23 -->
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
+<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984).
</para></footnote>
</para>
</blockquote>
<para>
-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:
+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:
</para>
<table id="t1">
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.
+1992 (Title 17 of the <citetitle>United States Code</citetitle>), 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.
+Lessig, <citetitle>Future</citetitle>, 71. See also Picker, "From Edison to the Broadcast Flag,"
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 293–96.
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
work.
</para>
<para>
-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.
+In <emphasis>none</emphasis> of these cases did either the courts or
+Congress eliminate all free riding. In <emphasis>none</emphasis> 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.
<!-- PAGE BREAK 91 -->
</para>
<para>
copyright "has never accorded the copyright owner complete control
over all possible uses of his work."<footnote><para>
<!-- f25 -->
-Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,
+<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417,
(1984).
</para></footnote>
-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.
+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 <emphasis>after</emphasis> a
+technology has matured, or settled into the mix of technologies that
+facilitate the distribution of content.
</para>
<para>
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.
+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.
</para>
<para>
<!-- PAGE BREAK 92 -->
-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."<footnote><para>
+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 <citetitle>The New York Times</citetitle>, "could be delayed in the P2P
+fight."<footnote><para>
<!-- f26 -->
John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
-Echoes Past Efforts," New York Times, 22 September 2003, C3.
+Echoes Past Efforts," <citetitle>New York Times</citetitle>, 22 September 2003, C3.
</para></footnote>
-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?"
+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 <emphasis>property</emphasis>. 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?"
</para>
<para>
-"It is our property," the warriors insist. "And it should be protected
-just as any other property is protected."
+"It is <emphasis>our property</emphasis>," the warriors insist. "And
+it should be protected just as any other property is protected."
</para>
<!-- PAGE BREAK 93 -->
</sect2>
</para>
<para>
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?
+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 <emphasis>idea</emphasis> 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?
</para>
<para>
The point is not just about the thingness of picnic tables versus
lights his taper at mine, receives light without darkening me."<footnote><para>
<!-- f1 -->
Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
-The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert
+<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew A. Lipscomb and Albert
Ellery Bergh, eds., 1903), 330, 333–34.
</para></footnote>
</para>
property.
</para>
<para>
-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.<footnote><para>
+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.<footnote><para>
<!-- f2 -->
-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.
-</para></footnote>
-</para>
-<para>
-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.
+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,"
+<citetitle>Arizona Law Review</citetitle> 45 (2003): 373, 429 n. 241.
+</para></footnote>
+</para>
+<para>
+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.
</para>
<!-- PAGE BREAK 96 -->
<sect1 id="founders">
<title>CHAPTER SIX: Founders</title>
<para>
-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."
+William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> 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."
</para>
<para>
-In 1774, almost 180 years after Romeo and Juliet was written, the
+In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> 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.<footnote><para>
<!-- f1 -->
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
+handsome "definitive editions" of classic works. In addition to <citetitle>Romeo and
+Juliet</citetitle>, 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.
+Bookseller," <citetitle>American Scholar</citetitle> 61:3 (1992): 424–31.
</para></footnote>
Tonson was the most prominent of a small group of publishers called
the Conger<footnote><para>
<!-- f2 -->
-Lyman Ray Patterson, Copyright in Historical Perspective (Nashville:
+Lyman Ray Patterson, <citetitle>Copyright in Historical Perspective</citetitle> (Nashville:
Vanderbilt University Press, 1968), 151–52.
</para></footnote>
who controlled bookselling in England during the eighteenth
additional years.<footnote><para>
<!-- f3 -->
As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
-"copyright law." See Vaidhyanathan, Copyrights and Copywrongs, 40.
+"copyright law." See Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
-</para></footnote> Under this law, Romeo and Juliet should have been
+</para></footnote> Under this law, <citetitle>Romeo and Juliet</citetitle> should have been
free in 1731. So why was there any issue about it still being under
Tonson's control in 1774?
</para>
books.
</para>
<para>
-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.
+There was no <emphasis>positive</emphasis> 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.
</para>
<para>
This question was important to the publishers, or "booksellers," as
resulted in the Statute of Anne.
</para>
<para>
-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.
+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.
</para>
<para>
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?
+Parliament limit the exclusive right? Not why would they limit it to
+the particular limit they set, but why would they limit the right
+<emphasis>at all?</emphasis>
</para>
<para>
-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
+For the booksellers, and the authors whom they represented, had a very
+strong claim. Take <citetitle>Romeo and Juliet</citetitle> 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?
+(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?
</para>
<para>
-The answer comes in two parts. We first need to see something
- special
+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."
</para>
<para>
-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
+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
<!-- PAGE BREAK 99 -->
-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.
+a work could be <emphasis>used</emphasis>. 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.
</para>
<para>
So, for example, even if the copyright to Shakespeare's works were
Booksellers sound quaint and harmless to us. They were not viewed
as harmless in seventeenth-century England. Members of the Conger
<!-- PAGE BREAK 100 -->
-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."<footnote><para>
+
+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."<footnote><para>
+
<!-- f4 -->
-Philip Wittenberg, The Protection and Marketing of Literary Property (New
-York: J. Messner, Inc., 1937), 31.
+Philip Wittenberg, <citetitle>The Protection and Marketing of Literary
+Property</citetitle> (New York: J. Messner, Inc., 1937), 31.
</para></footnote>
</para>
<para>
-Many believed the power the booksellers exercised over the spread
-of knowledge was harming that spread, just at the time the
- Enlightenment
+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.
+generally. The idea that knowledge should be free was a hallmark of
+the time, and these powerful commercial interests were interfering
+with that idea.
</para>
<para>
To balance this power, Parliament decided to increase competition
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).
+al., 8, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618).
</para></footnote>
</para>
</blockquote>
"The publishers . . . had as much concern for authors as a cattle
rancher has for cattle."<footnote><para>
<!-- f6 -->
-Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt
-Law Review 40 (1987): 28. For a wonderfully compelling account, see
+Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," <citetitle>Vanderbilt
+Law Review</citetitle> 40 (1987): 28. For a wonderfully compelling account, see
Vaidhyanathan, 37–48.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
The hero of this fight was a Scottish bookseller named Alexander
Donaldson.<footnote><para>
<!-- f7 -->
-For a compelling account, see David Saunders, Authorship and Copyright
+For a compelling account, see David Saunders, <citetitle>Authorship and Copyright</citetitle>
(London: Routledge, 1992), 62–69.
</para></footnote>
</para>
reprints "of standard works whose copyright term had expired," at least
under the Statute of Anne.<footnote><para>
<!-- f8 -->
-Mark Rose, Authors and Owners (Cambridge: Harvard University Press,
+Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard University Press,
1993), 92.
</para></footnote>
Donaldson's publishing house prospered
of the supposed common law right of Literary
Property."<footnote><para>
<!-- f10 -->
-Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting
+Lyman Ray Patterson, <citetitle>Copyright in Historical Perspective</citetitle>, 167 (quoting
Borwell).
</para></footnote>
His books undercut the Conger prices by 30 to 50 percent, and he
<para>
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.
+the most important early victory being <citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>.
</para>
<para>
Millar was a bookseller who in 1729 had purchased the rights to James
law right, the Statute of Anne notwithstanding.<footnote><para>
<!-- f11 -->
Howard B. Abrams, "The Historic Foundation of American Copyright Law:
-Exploding the Myth of Common Law Copyright," Wayne Law Review 29
+Exploding the Myth of Common Law Copyright," <citetitle>Wayne Law Review</citetitle> 29
(1983): 1152.
</para></footnote>
</para>
Ibid., 1156.
</para></footnote>
Donaldson then released an unauthorized edition
-of Thomson's works. Beckett, on the strength of the decision in Millar,
+of Thomson's works. Beckett, on the strength of the decision in <citetitle>Millar</citetitle>,
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.
</para>
<para>
-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.
+As few legal cases ever do, <citetitle>Donaldson</citetitle> v. <citetitle>Beckett</citetitle> 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.
</para>
<para>
The House of Lords was an odd institution. Legal questions were
passed into the public domain.
</para>
<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
-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.
+"The public domain." Before the case of <citetitle>Donaldson</citetitle>
+v. <citetitle>Beckett</citetitle>, 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.
<indexterm><primary>Bacon, Francis</primary></indexterm>
<indexterm><primary>Bunyan, John</primary></indexterm>
<indexterm><primary>Johnson, Samuel</primary></indexterm>
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
+celebrated the decision in the streets. As the <citetitle>Edinburgh Advertiser</citetitle>
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
</para>
<para>
In London, however, at least among publishers, the reaction was
-equally strong in the opposite direction. The Morning Chronicle
+equally strong in the opposite direction. The <citetitle>Morning Chronicle</citetitle>
reported:
</para>
<blockquote>
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
+<emphasis>free</emphasis>. 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 <emphasis>free</emphasis> 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 <emphasis>competitive
+context</emphasis>, 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.
</para>
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
+and the opera company played Wagner, was <citetitle>The Simpsons</citetitle>. As Else judged
<!-- PAGE BREAK 107 -->
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
</para>
<para>
Years later, when he finally got funding to complete the film, Else
-attempted to clear the rights for those few seconds of The Simpsons.
+attempted to clear the rights for those few seconds of <citetitle>The Simpsons</citetitle>.
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.
</para>
<para>
-Else called Simpsons creator Matt Groening's office to get permission.
+Else called <citetitle>Simpsons</citetitle> 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
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."
+<citetitle>Simpsons</citetitle> which was in the corner of the shot."
</para>
<para>
Else was certain there was a mistake. He worked his way up to someone
<para>
"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
+clip of <citetitle>The Simpsons</citetitle> in the corner of a shot in a documentary film
about
<!-- PAGE BREAK 108 -->
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.
+<citetitle>The Day After Trinity</citetitle>, from ten years before.
<indexterm><primary>San Francisco Opera</primary></indexterm>
<indexterm><primary>Day After Trinity, The</primary></indexterm>
</para>
<para>
There's no doubt that someone, whether Matt Groening or Fox, owns the
-copyright to The Simpsons. That copyright is their property. To use
+copyright to <citetitle>The Simpsons</citetitle>. 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
+<citetitle>Simpsons</citetitle> 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.
</para>
<para>
-For example, "public performance" is a use of The Simpsons that the
+For example, "public performance" is a use of <citetitle>The Simpsons</citetitle> 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
+Favorite <citetitle>Simpsons</citetitle>," 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.
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
+Wake of <citetitle>Eldred</citetitle>" (draft on file with author), University of Chicago
Law School, 5 August 2003.
</para></footnote>
-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
+Else's use of just 4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle>
+episode is clearly a fair use of <citetitle>The Simpsons</citetitle>—and fair use does
not require the permission of anyone.
</para>
<para>
</para>
<blockquote>
<para>
-The Simpsons fiasco was for me a great lesson in the gulf between what
+The <citetitle>Simpsons</citetitle> 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
<!-- 2. -->
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
+tracking down and stopping unlicensed <citetitle>Simpsons</citetitle> usage, just as George
+Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> 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
+license to four seconds of <citetitle>Simpsons</citetitle>. 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.
<para>
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
+course we were going to use the "Make my day" clip from <citetitle>Dirty
+Harry</citetitle>. 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.
</para>
career.
</para>
<para>
-It was one year later—"and even then we weren't sure whether we
-were totally in the clear."
+It was one <emphasis>year</emphasis> later—"and even then we
+weren't sure whether we were totally in the clear."
</para>
<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
nothing so useless as doing efficiently that which should not be done
at all."<footnote><para>
<!-- f2 -->
-U.S. Department of Commerce Office of Acquisition Management, Seven
-Steps to Performance-Based Services Acquisition, available at
+U.S. Department of Commerce Office of Acquisition Management, <citetitle>Seven
+Steps to Performance-Based Services Acquisition</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #22</ulink>.
</para></footnote>
Did it make sense, I asked Alben, that this is the way a new work
</para>
</blockquote>
<para>
-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?
+Or at least, is this <emphasis>how</emphasis> 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?
</para>
<blockquote>
<para>
</para>
<para>
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.
+twentieth century, all framed around the idea of a <citetitle>60 Minutes</citetitle> episode.
The execution was perfect, down to the sixty-minute stopwatch. The
judges loved every minute of it.
</para>
</para>
<para>
In February 2003, DreamWorks studios announced an agreement with Mike
-Myers, the comic genius of Saturday Night Live and
+Myers, the comic genius of <citetitle>Saturday Night Live</citetitle> and
<!-- PAGE BREAK 118 -->
Austin Powers. According to the announcement, Myers and Dream-Works
would work together to form a "unique filmmaking pact." Under the
</para>
<para>
This is the thing about the Internet that Orwell would have
-appreciated. In the dystopia described in 1984, old newspapers were
+appreciated. In the dystopia described in <citetitle>1984</citetitle>, 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.
</para>
<para>
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.
+repeat it. That's not quite correct. We <emphasis>all</emphasis>
+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.
</para>
<para>
The Internet was an exception to this presumption. Until the Internet
original back and forth exchanges between the two, the
<!-- PAGE BREAK 122 -->
-60 Minutes episode that came out after it . . . it would be almost
+<citetitle>60 Minutes</citetitle> episode that came out after it . . . it would be almost
impossible. . . . Those materials are almost unfindable. . . .
</para>
</blockquote>
all—in the library archive of the film company.<footnote><para>
<!-- f2 -->
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 &
+the Library of Congress," <citetitle>Film Library Quarterly</citetitle> 13 nos. 2–3
+(1980): 5; Anthony Slide, <citetitle>Nitrate Won't Wait: A History of Film
+Preservation in the United States</citetitle> ( Jefferson, N.C.: McFarland &
Co., 1992), 36.
</para></footnote>
</para>
very quickly (the average today is after about a year<footnote><para>
<!-- f3 -->
Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
-Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune,
+Bar Owner Starts a New Chapter by Adopting Business," <citetitle>Chicago Tribune</citetitle>,
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.
+"The First Sale Doctrine in the Era of Digital Networks," <citetitle>Boston
+College Law Review</citetitle> 44 (2003): 593 n. 51.
</para></footnote>). 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
<para>
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;
+libraries or archives could be. <emphasis>When</emphasis> 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;
<!-- PAGE BREAK 126 -->
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.
+future <emphasis>for</emphasis> our past. The technology of digital
+arts could make the dream of the Library of Alexandria real again.
</para>
<para>
Technologists have thus removed the economic costs of building such an
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.<footnote><para>
+theme which animates this entire debate: <emphasis>Creative property
+owners must be accorded the same rights and protection resident in all
+other property owners in the nation</emphasis>. 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.<footnote><para>
<!-- f1 -->
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
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.
+extreme a claim made by <emphasis>anyone</emphasis> 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 <emphasis>no</emphasis> 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.
</para>
<para>
While "creative property" is certainly "property" in a nerdy and
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.
+"lawyer talk," see Bruce Ackerman, <citetitle>Private Property and the
+Constitution</citetitle> (New Haven: Yale University Press, 1977), 26–27.
</para></footnote> 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
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.
+sacred. It cannot <emphasis>ever</emphasis> be taken from the property
+owner unless the government pays for the privilege.
</para>
<para>
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
+power to create "creative property," the Constitution
+<emphasis>requires</emphasis> 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
<!-- PAGE BREAK 131 -->
requires that you lose your "creative property" right without any
compensation at all.
</para>
<para>
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?
+least try to understand <emphasis>why</emphasis>. 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?
</para>
<para>
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.
+should be at the core of this war: Not <emphasis>whether</emphasis>
+creative property should be protected, but how. Not
+<emphasis>whether</emphasis> we will enforce the rights the law gives
+to creative-property owners, but what the particular mix of rights
+ought to be. Not <emphasis>whether</emphasis> artists should be paid,
+but whether institutions designed to assure that artists get paid need
+also control how culture develops.
</para>
<para>
<!-- PAGE BREAK 132 -->
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
+than the narrow language of the law allows. In <citetitle>Code and Other Laws of
+Cyberspace</citetitle>, 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:
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,
+other three is more timidly expressed. See Lawrence Lessig, <citetitle>Code: And
+Other Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95;
+Lawrence Lessig, "The New Chicago School," <citetitle>Journal of Legal Studies</citetitle>,
June 1998.
</para></footnote>
The law, in other words, sometimes operates to increase or decrease
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
+of liberty. As I argued in <citetitle>Code</citetitle>, 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:
+fear of government prosecution; John Stuart Mill, <citetitle>On Liberty</citetitle> (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:
+J. Samuels, eds., <citetitle>John R. Commons: Selected Essays</citetitle> (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
+places easier; 42 <citetitle>United States Code</citetitle>, 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
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?)
+railroads. Does anyone think we should ban trucks from roads
+<emphasis>for the purpose of</emphasis> 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?)
</para>
<para>
The obvious answer to these obviously rhetorical questions is no.
1991, in a memo criticizing software patents, "established companies
have an interest in excluding future competitors."<footnote><para>
<!-- f6 -->
-Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71.
+Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, 1994), 170–71.
</para></footnote>
And relative to a
startup, established companies also have the means. (Think RCA and
</para>
<indexterm><primary>Carson, Rachel</primary></indexterm>
<para>
-But in 1962, Rachel Carson published Silent Spring, which argued that
+But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, 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.
culture.<footnote><para>
<!-- f7 -->
See, for example, James Boyle, "A Politics of Intellectual Property:
-Environmentalism for the Net?" Duke Law Journal 47 (1997): 87.
+Environmentalism for the Net?" <citetitle>Duke Law Journal</citetitle> 47 (1997): 87.
</para></footnote>
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
<!-- PAGE BREAK 142 -->
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.
+"creative property rights." It says that Congress has the power
+<emphasis>to promote progress</emphasis>. 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.
</para>
<para>
The Progress Clause expressly limits the term of copyrights. As we saw
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.
+case, a <emphasis>structure</emphasis> built checks and balances into
+the constitutional frame, structured to prevent otherwise inevitable
+concentrations of power.
</para>
<para>
I doubt the framers would recognize the regulation we call "copyright"
authorship.<footnote>
<para>
<!-- f8 -->
-William W. Crosskey, Politics and the Constitution in the History of
-the United States (London: Cambridge University Press, 1953), vol. 1,
+William W. Crosskey, <citetitle>Politics and the Constitution in the History of
+the United States</citetitle> (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).
+Law of the Land,' <emphasis>the perpetual rights which authors had, or
+were supposed by some to have, under the Common Law</emphasis>"
+(emphasis added).
<indexterm><primary>Crosskey, William W.</primary></indexterm>
</para></footnote>
This meant that there was no guaranteed public domain in the United
likely within fourteen years.<footnote><para>
<!-- f9 -->
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
+to 1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A
+History of Book Publishing in the United States</citetitle>, vol. 1, <citetitle>The Creation
+of an Industry, 1630–1865</citetitle> (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),
+1790 act; William J. Maher, <citetitle>Copyright Term, Retrospective Extension
+and the Copyright Law of 1790 in Historical Context</citetitle>, 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
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,
+<citetitle>Studies on Copyright</citetitle>, 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
+<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, 498–501, and
accompanying figures. </para></footnote>
</para>
<para>
<!-- f11 -->
See Ringer, ch. 9, n. 2. </para></footnote> 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.
+no longer <emphasis>effectively</emphasis> 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.
</para>
<para>
In the first hundred years of the Republic, the term of copyright was
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.
+famous © or the word <emphasis>copyright</emphasis>. 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.
</para>
<para>
The reason for the registration requirement was the sensible
so as to prevent that kind of unfair competition. In 1790, there were
174 publishers in the United States.<footnote><para>
<!-- f13 -->
-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).
+See Thomas Bender and David Sampliner, "Poets, Pirates, and the
+Creation of American Literature," 29 <citetitle>New York University Journal of
+International Law and Politics</citetitle> 255 (1997), and James Gilraeth, ed.,
+Federal Copyright Records, 1790–1800 (U.S. G.P.O., 1987).
+
</para></footnote>
The Copyright Act was thus a tiny
regulation of a tiny proportion of a tiny part of the creative market in
</para>
<para>
<!-- PAGE BREAK 149 -->
-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.
+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.
</para>
<para>
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.
+every note to your spouse, every doodle, <emphasis>every</emphasis>
+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.
</para>
<para>
That protection gives you the right (subject to a narrow range of
those slight modifications as well as the verbatim original work.
</para>
<para>
-
<!-- PAGE BREAK 150 -->
-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.<footnote><para>
+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
+<emphasis>that</emphasis> 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.<footnote><para>
<!-- f14 -->
-Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August
+Jonathan Zittrain, "The Copyright Cage," <citetitle>Legal Affairs</citetitle>, July/August
2003, available at
<ulink url="http://free-culture.cc/notes/">link #26</ulink>.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
the wrong of direct piracy.
</para>
<para>
-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.<footnote><para>
+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.<footnote><para>
<!-- f15 -->
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).
+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," <citetitle>Yale Law Journal</citetitle> 112 (2002):
+1–60 (see especially pp. 53–59).
</para></footnote>
These two different uses of my creative work are
treated the same.
and authors. It regulates them because all three are capable of making
copies, and the core of the regulation of copyright law is copies.<footnote><para>
<!-- f16 -->
-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.
+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 <citetitle>United States Code</citetitle>, section
+106(4). And it certainly sometimes doesn't regulate a "copy"; 17
+<citetitle>United States Code</citetitle>, section 112(a). But the presumption under the
+existing law (which regulates "copies;" 17 <citetitle>United States Code</citetitle>, section
+102) is that if there is a copy, there is a right.
</para></footnote>
</para>
<para>
<!-- PAGE BREAK 151 -->
-"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.
+"Copies." That certainly sounds like the obvious thing for
+<emphasis>copy</emphasis>right 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
+<emphasis>obvious</emphasis> 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 <emphasis>not</emphasis> be the trigger for copyright
+law. More precisely, they should not <emphasis>always</emphasis> be
+the trigger for copyright law.
</para>
<para>
This is perhaps the central claim of this book, so let me take this
<para>
<!-- PAGE BREAK 152 -->
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.
+all its potential <emphasis>uses</emphasis>. 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.
</para>
<figure id="fig-1531">
<title>Examples of unregulated uses of a book.</title>
</para>
<para>
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
+Internet, if you purchased a book and read it ten times, there would
+be no plausible <emphasis>copyright</emphasis>-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
<!-- PAGE BREAK 155 -->
night before you went to bed. None of those instances of use—reading—
could be regulated by copyright law because none of those uses
a copy.
</para>
<para>
-But the same book as an e-book is effectively governed by a
- different
+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.
+only once or only once a month, then <emphasis>copyright
+law</emphasis> 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.
</para>
<para>
There are some people who think this makes perfect sense. My aim
</para>
<para>
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.
-</para>
-<para>
-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.
+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.
+</para>
+<para>
+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
+<emphasis>any</emphasis> 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.
</para>
<para>
Third, this shift from category 1 to category 2 puts an extraordinary
</para>
<para>
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.
+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
+<emphasis>unregulated</emphasis>. But when everything becomes
+presumptively regulated, then the protections of fair use are not
+enough.
</para>
<para>
The case of Video Pipeline is a good example. Video Pipeline was
There's a famous story about a battle between the Marx Brothers
and Warner Brothers. The Marxes intended to make a parody of
<!-- PAGE BREAK 159 -->
-Casablanca. Warner Brothers objected. They wrote a nasty letter to the
+<citetitle>Casablanca</citetitle>. 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.<footnote><para>
<!-- f19 -->
-See David Lange, "Recognizing the Public Domain," Law and
-Contemporary Problems 44 (1981): 172–73.
+See David Lange, "Recognizing the Public Domain," <citetitle>Law and
+Contemporary Problems</citetitle> 44 (1981): 172–73.
</para></footnote>
</para>
<para>
Warner Brothers that the Marx Brothers "were brothers long before
you were."<footnote><para>
<!-- f20 -->
-Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3.
+Ibid. See also Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 1–3.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
-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.
+The Marx Brothers therefore owned the word <citetitle>brothers</citetitle>,
+and if Warner Brothers insisted on trying to control <citetitle>Casablanca</citetitle>, then
+the Marx Brothers would insist on control over <citetitle>brothers</citetitle>.
</para>
<para>
An absurd and hollow threat, of course, because Warner Brothers,
<para>
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.
+public domain: <citetitle>Middlemarch</citetitle>, 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
+own book <citetitle>The Future of Ideas</citetitle> is not yet within the public domain.
+Consider <citetitle>Middlemarch</citetitle> first. If you click on my e-book copy of
<!-- PAGE BREAK 160 -->
-Middlemarch, you'll see a fancy cover, and then a button at the bottom
+<citetitle>Middlemarch</citetitle>, you'll see a fancy cover, and then a button at the bottom
called Permissions.
</para>
<figure id="fig-1611">
</figure>
<para>
<!-- PAGE BREAK 161 -->
-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.
+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 <citetitle>Middlemarch</citetitle>
+read aloud through the computer.
</para>
<para>
Here's the e-book for another work in the public domain (including the
-translation): Aristotle's Politics.
+translation): Aristotle's <citetitle>Politics</citetitle>.
</para>
<figure id="fig-1621">
<title>E-book of Aristotle;s "Politics"</title>
</figure>
<para>
Finally (and most embarrassingly), here are the permissions for the
-original e-book version of my last book, The Future of Ideas:
+original e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:
</para>
<!-- PAGE BREAK 162 -->
<figure id="fig-1631">
contract, not from copyright law, and the obligations of contract would
not necessarily pass to anyone who subsequently acquired the book.
</para></footnote>
-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.
+When my e-book of <citetitle>Middlemarch</citetitle> 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.
</para>
<para>
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.
+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.
</para>
<para>
<!-- PAGE BREAK 163 -->
-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.
+These are <emphasis>controls</emphasis>, 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.
</para>
<para>
-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.
+This is the future of copyright law: not so much copyright
+<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. 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.
</para>
<para>
How significant is this? Isn't it always possible to get around the
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.
+free on the Adobe site was a copy of <citetitle>Alice's Adventures in Wonderland</citetitle>.
This wonderful book is in the public domain. Yet when you clicked on
Permissions for that book, you got the following report:
</para>
</para>
<para>
If you're not a programmer or don't know many programmers, the
-word hack has a particularly unfriendly connotation. Nonprogrammers
+word <citetitle>hack</citetitle> 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
+worse. But to programmers, or coders, as I call them, <citetitle>hack</citetitle> is a much
+more positive term. <citetitle>Hack</citetitle> 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
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?
+thought, <emphasis>What possible problem could there be with teaching
+a robot dog to dance?</emphasis>
</para>
<para>
Let's put the dog to sleep for a minute, and turn to a pony show—
But Felten's bravery was really tested in April 2001.<footnote><para>
<!-- f22 -->
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,
+<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
+the Techies Who Teach a Robot Dog New Tricks," <citetitle>American Prospect</citetitle>,
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,
+DMCA," <citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 December 2001; Bill
+Holland, "Copyright Act Raising Free-Speech Concerns," <citetitle>Billboard</citetitle>,
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
+Questions about <citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> Legal Case," available at
<ulink url="http://free-culture.cc/notes/">link #27</ulink>.
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para></footnote>
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.
+These new technologies would be copyright protection
+technologies— technologies to control the replication and
+distribution of copyrighted material. They were designed as
+<emphasis>code</emphasis> to modify the original
+<emphasis>code</emphasis> of the Internet, to reestablish some
+protection for copyright owners.
</para>
<para>
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.
+<emphasis>legal code</emphasis> intended to buttress
+<emphasis>software code</emphasis> which itself was intended to
+support the <emphasis>legal code of copyright</emphasis>.
</para>
<para>
But the DMCA was not designed merely to protect copyrighted works to
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
+that were legal: Fred Rogers, aka "<citetitle>Mr. Rogers</citetitle>," for example, had
testified in that case that he wanted people to feel free to tape
Mr. Rogers' Neighborhood.
</para>
in the control of his or her life, in a healthy way, is
important.<footnote><para>
<!-- f23 -->
-Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417,
+<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 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.
+James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
+the VCR</citetitle> (New York: W. W. Norton, 1987), 270–71.
</para></footnote>
</para>
</blockquote>
<para>
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.
+circumvention technologies) are illegal. Flash: <emphasis>No one ever
+died from copyright circumvention</emphasis>. 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.
</para>
<para>
The Aibo and RIAA examples demonstrate how copyright owners are
law of the DMCA backs up that erasing.
</para>
<para>
-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.
+This is how <emphasis>code</emphasis> becomes
+<emphasis>law</emphasis>. 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.
</para>
<para>
There is one final aspect of the interaction between architecture and
<para>
<!-- PAGE BREAK 172 -->
-For example, imagine you were part of a Star Trek fan club. You
+For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan club. You
gathered every month to share trivia, and maybe to enact a kind of 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.<footnote><para>
<!-- f24 -->
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.
+Copyright, Fan Fiction, and a New Common Law," <citetitle>Loyola of Los Angeles
+Entertainment Law Journal</citetitle> 17 (1997): 651.
</para></footnote>
</para>
<para>
U.S. music market.<footnote><para>
<!-- f26 -->
Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
-Slide," New York Times, 23 December 2002.
+Slide," <citetitle>New York Times</citetitle>, 23 December 2002.
</para></footnote>
The "five largest cable companies pipe
programming to 74 percent of the cable subscribers nationwide."<footnote><para>
<!-- f27 -->
-Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette,
+Molly Ivins, "Media Consolidation Must Be Stopped," <citetitle>Charleston Gazette</citetitle>,
31 May 2003.
</para></footnote>
<indexterm><primary>McCain, John</primary></indexterm>
The story with radio is even more dramatic. Before deregulation,
the nation's largest radio broadcasting conglomerate owned fewer than
<!-- PAGE BREAK 174 -->
-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.
+seventy-five stations. Today <emphasis>one</emphasis> 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.
</para>
<para>
Newspaper ownership is becoming more concentrated as well. Today,
Murdoch becomes DirecTV's largest single owner, that system will serve
the same function in the United States.<footnote><para>
<!-- f28 -->
-James Fallows, "The Age of Murdoch," Atlantic Monthly (September
+James Fallows, "The Age of Murdoch," <citetitle>Atlantic Monthly</citetitle> (September
2003): 89.
<indexterm><primary>Fallows, James</primary></indexterm>
</para></footnote>
<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>All in the Family</primary></indexterm>
<para>
-In 1969, Norman Lear created a pilot for All in the Family. He took
+In 1969, Norman Lear created a pilot for <citetitle>All in the Family</citetitle>. He took
the pilot to ABC. The network didn't like it. It 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.
</para>
<indexterm><primary>All in the Family</primary></indexterm>
<para>
-Today, another Norman Lear with another All in the Family would
+Today, another Norman Lear with another <citetitle>All in the Family</citetitle> 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.
companies producing television programs. Now you have less than a
handful.<footnote><para>
<!-- f32 -->
-"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill
+"Barry Diller Takes on Media Deregulation," <citetitle>Now with Bill Moyers</citetitle>, Bill
Moyers, 25 April 2003, edited transcript available at
<ulink url="http://free-culture.cc/notes/">link #31</ulink>.
</para></footnote>
The same analysis could help explain why large, traditional media
companies would find it rational to ignore new cultural trends.<footnote><para>
<!-- f33 -->
-Clayton M. Christensen, The Innovator's Dilemma: The
-Revolutionary National Bestseller that Changed the Way We Do Business
+Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The
+Revolutionary National Bestseller that Changed the Way We Do Business</citetitle>
(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):
+Concepts in Technological Evolution," <citetitle>Research Policy</citetitle> 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
+Kaplan, <citetitle>Creative Destruction: Why Companies That Are Built to Last
+Underperform the Market—and How to Successfully Transform Them</citetitle>
(New York: Currency/Doubleday, 2001). </para></footnote>
Lumbering giants not only don't, but should not, sprint. Yet if the
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
+an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," <citetitle>New
+York Times</citetitle>, 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
+Radio," <citetitle>Yale Law and Policy Review</citetitle> 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
+<citetitle>Radio-Television News Directors Association</citetitle> v. <citetitle>FCC</citetitle>, 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
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.
+future. And these changes have to be <emphasis>reductions</emphasis>
+in the scope of copyright, in response to the extraordinary increase
+in control that technology and the market enable.
</para>
<para>
For the single point that is lost in this war on pirates is a point that
<!-- PAGE BREAK 181 -->
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.
+<emphasis>Never in our history have fewer had a legal right to control
+more of the development of our culture than now</emphasis>.
</para>
<para>
Not when copyrights were perpetual, for when copyrights were
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.<footnote><para>
+were independent of the networks. <emphasis>Never</emphasis> 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.<footnote><para>
<!-- f35 -->
Siva Vaidhyanathan captures a similar point in his "four surrenders" of
copyright law in the digital age. See Vaidhyanathan, 159–60.
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
+Disintegration of Property," in <citetitle>Nomos XXII: Property</citetitle>, J. Roland
Pennock and John W. Chapman, eds. (New York: New York University
Press, 1980).
</para></footnote>)
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.
+did not control <emphasis>at all</emphasis> 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.
</para>
<para>
We achieved that free culture because our law respected important
isolated valley in the Peruvian Andes.<footnote><para>
<!-- f1. -->
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
+<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael Sherborne, ed. (New
York: Oxford University Press, 1996).
</para></footnote>
The valley is extraordinarily beautiful, with "sweet water, pasture,
<para>
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.
+"blind." They don't have the word <citetitle>blind</citetitle>. 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
(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
+Stakes on Piracy," <citetitle>Los Angeles Times</citetitle>, 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
+through a family computer, see <citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In
+re. Verizon Internet Services)</citetitle>, 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
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
+Name Students," <citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at
<ulink url="http://free-culture.cc/notes/">link #36</ulink>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
</para></footnote>
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.
+zero-tolerance extreme. I believe <emphasis>either</emphasis> extreme
+would be worse than a reasonable alternative. But I believe the
+zero-tolerance solution would be the worse of the two extremes.
</para>
<para>
of over $200 billion—received a fine of a mere $750
million.<footnote><para>
<!-- f1. -->
-See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom
+See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at WorldCom</citetitle>
(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
</para>
<para>
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
+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
<!-- PAGE BREAK 195 -->
-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.<footnote><para>
-<!-- f3. --> See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003,
- available
-at
+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.<footnote><para>
+<!-- f3. -->
+
+See Danit Lidor, "Artists Just Wanna Be Free," <citetitle>Wired</citetitle>, 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>.
</para></footnote>
</para>
<para>
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
+I told in <citetitle>The Future of Ideas</citetitle> and which has progressed in a way that
even I (pessimist extraordinaire) would never have predicted.
</para>
<para>
its development, its cofounder ( John Hummer), and general partner
(Hank Barry).<footnote><para>
<!-- f4. -->
-See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles
-Times, 23 April 2003. For a parallel argument about the effects on
+See Joseph Menn, "Universal, EMI Sue Napster Investor," <citetitle>Los Angeles
+Times</citetitle>, 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.
+See also Jon Healey, "Online Music Services Besieged," <citetitle>Los Angeles
+Times</citetitle>, 28 May 2001.
</para></footnote>
The claim here, as well, was that the VC should have recognized the
right of the content industry to control how the industry should
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:
+afraid of technologies that touch content. In an article in <citetitle>Business
+2.0</citetitle>, Rafe Needleman describes a discussion with BMW:
</para>
<blockquote>
<indexterm><primary>BMW</primary></indexterm>
United States with bona fide MP3 players. . . . <footnote>
<para>
<!-- f5. -->
-Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June
+Rafe Needleman, "Driving in Cars with MP3s," <citetitle>Business 2.0</citetitle>, 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.
<para>
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,<footnote><para>
-<!-- f9. --> Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books,
+Litman in her book
<citetitle>Digital Copyright</citetitle>,<footnote><para>
+<!-- f9. --> Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: Prometheus Books,
2001).
</para></footnote>
overall this history of copyright
</para>
<para>
The response by the courts has been fairly universal.<footnote><para>
-<!-- f10. --> 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.
-</para></footnote>
- It has been
-mirrored in the responses threatened and actually implemented by
-Congress. I won't catalog all of those responses here.<footnote><para>
+<!-- f10. -->
+The only circuit court exception is found in <citetitle>Recording Industry
+Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 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
+<citetitle>Metro-Goldwyn-Mayer Studios, Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 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.
+</para></footnote>
+It has been mirrored in the responses threatened and actually
+implemented by Congress. I won't catalog all of those responses
+here.<footnote><para>
<!-- f11. -->
For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
new industry. The recording artists, on the other hand, have a very
<!-- PAGE BREAK 206 -->
-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.
+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, <emphasis>Internet radio
+does</emphasis>. Not only is the law not neutral toward Internet
+radio—the law actually burdens Internet radio more than it
+burdens terrestrial radio.
</para>
<para>
This financial burden is not slight. As Harvard law professor
<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
+Distribution," <citetitle>Antitrust Bulletin</citetitle> (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
</para>
<para>
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:
+proposed, an Internet radio station (but not a terrestrial radio
+station) would have to collect the following data from <emphasis>every
+listening transaction</emphasis>:
</para>
<!-- PAGE BREAK 207 -->
<orderedlist numeration="arabic">
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.
+Internet radio has to pay a <emphasis>type of copyright fee</emphasis>
+that terrestrial radio does not.
</para>
<para>
Why? What justifies this difference? Was there any study of the
of business. . . ."
</para>
<para>
-And the RIAA experts said, "Well, we don't really model this
-as an industry with thousands of webcasters, we think it should be
+And the RIAA experts said, "Well, we don't really model this as an
+industry with thousands of webcasters, <emphasis>we think it should be
an industry with, you know, five or seven big players who can pay a
-high rate and it's a stable, predictable market." (Emphasis added.)
+high rate and it's a stable, predictable market</emphasis>." (Emphasis
+added.)
</para>
</blockquote>
<para>
<para>
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
+large number of citizens. According to <citetitle>The New York Times</citetitle>, 43 million
Americans downloaded music in May 2002.<footnote><para>
<!-- f15. --> Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
Internet and American Life Project (24 April 2001), available at
housing and a seventy-year-old man who had no idea what file sharing
was.<footnote><para>
<!-- f16. -->
-Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los
-Angeles Times, 10 September 2003, Business.
+Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," <citetitle>Los
+Angeles Times</citetitle>, 10 September 2003, Business.
</para></footnote>
As these scapegoats discovered, it will always cost more to defend
against these suits than it would cost to simply settle. (The twelve
number were criminals.<footnote><para>
<!-- f17. -->
Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
-Prohibition," American Economic Review 81, no. 2 (1991): 242.
+Prohibition," <citetitle>American Economic Review</citetitle> 81, no. 2 (1991): 242.
</para></footnote>
We have
<!-- PAGE BREAK 210 -->
cheat.<footnote><para>
<!-- f19. -->
See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
-Compliance," Journal of Economic Literature 36 (1998): 818 (survey of
+Compliance," <citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey of
compliance literature).
</para></footnote>
We pride ourselves on our "free society," but an endless array of
<!-- f20. -->
See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
-Washington Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+<citetitle>Washington Post</citetitle>, 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
+Being Sued," <citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; Jefferson
+Graham, "Recording Industry Sues Parents," <citetitle>USA Today</citetitle>, 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.
+Fan, Either," <citetitle>New York Times</citetitle>, 25 September 2003, C1; Margo Varadi, "Is
+Brianna a Criminal?" <citetitle>Toronto Star</citetitle>, 18 September 2003, P7.
</para></footnote>
</para>
to deploy,<footnote><para>
<!-- f22. -->
See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
-Boston Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+<citetitle>Boston Globe</citetitle>, 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
+Colleges," <citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth Armstrong,
+"Students `Rip, Mix, Burn' at Their Own Risk," <citetitle>Christian Science
+Monitor</citetitle>, 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
+Lawsuit Possible," <citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, "RIAA
+Trains Antipiracy Guns on Universities," <citetitle>Internet News</citetitle>, 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.
+Sharing," <citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; "Raid, Letters
+Are Weapons at Universities," <citetitle>USA Today</citetitle>, 26 September 2000, 3D.
</para></footnote>
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
</para>
<para>
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
+source as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> 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
+animated cartoons, sometimes successfully (<citetitle>Cinderella</citetitle>), sometimes not
+(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure Planet</citetitle>). These are all
commercial publications of public domain works.
</para>
<para>
</para>
<para>
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
+collection of poems <citetitle>New Hampshire</citetitle> 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
the copyright term extended.
</para>
<para>
-Thus a congressional perpetual motion machine: So long as
- legislation
+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.
</para>
contributions.<footnote><para>
<!-- f3. --> 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.
+<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22.
</para></footnote>
The RIAA and the MPAA are estimated to have spent over
$1.5 million lobbying in the 1998 election cycle. They paid out more
Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the
cycle.<footnote><para>
-<!-- f5. --> Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
- Congressional
-Quarterly This Week, 8 August 1990, available at
+<!-- f5. -->
+Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
+<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, available at
<ulink url="http://free-culture.cc/notes/">link #50</ulink>.
</para></footnote>
and again.
</para>
<para>
-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
+It was also my judgment that <emphasis>this</emphasis> Supreme Court
+would not allow Congress to extend existing terms. As anyone close to
+the Supreme 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
<!-- PAGE BREAK 226 -->
decision in 1995 to strike down a law that banned the possession of
commerce.
</para>
<para>
-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.
+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.
</para>
<para>
-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.
+The Supreme Court, under Chief Justice Rehnquist's command, changed
+that in <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. 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.
</para>
<para>
-"We pause to consider the implications of the government's
- arguments,"
+"We pause to consider the implications of the government's arguments,"
the Chief Justice wrote.<footnote><para>
-<!-- f6. --> United States v. Lopez, 514 U.S. 549, 564 (1995).
+<!-- f6. --> <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 U.S. 549, 564 (1995).
</para></footnote>
- 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.<footnote><para>
-<!-- f7. --> United States v. Morrison, 529 U.S. 598 (2000).
+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 <citetitle>Lopez</citetitle> was reaffirmed five years
+later in <citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>.<footnote><para>
+<!-- f7. -->
+<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 U.S. 598 (2000).
</para></footnote>
-
</para>
<para>
If a principle were at work here, then it should apply to the Progress
Clause as much as the Commerce Clause.<footnote><para>
-<!-- f8. --> 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.
-</para></footnote>
- And if it is applied to the
-Progress Clause, the principle should yield the conclusion that
- Congress
+<!-- f8. -->
+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.
+</para></footnote>
+And if it is applied to the Progress Clause, the principle should
+yield the conclusion that Congress
<!-- PAGE BREAK 227 -->
-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.
-</para>
-<para>
-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.
-</para>
-<para>
-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.
+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.
+</para>
+<para>
+<emphasis>If</emphasis>, that is, the principle announced in <citetitle>Lopez</citetitle>
+stood for a principle. Many believed the decision in <citetitle>Lopez</citetitle> 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.
+</para>
+<para>
+Now let's pause for a moment to make sure we understand what the
+argument in <citetitle>Eldred</citetitle> was not about. By insisting on the
+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.
</para>
<para>
Some people view the public domain with contempt. In their brief
<!-- PAGE BREAK 228 -->
before the Supreme Court, the Nashville Songwriters Association
wrote that the public domain is nothing more than "legal piracy."<footnote><para>
-<!-- f9. --> 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>.
+<!-- f9. -->
+Brief of the Nashville Songwriters Association, <citetitle>Eldred</citetitle>
+v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618), n.10, available
+at <ulink url="http://free-culture.cc/notes/">link #51</ulink>.
</para></footnote>
- 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.
+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.
</para>
<para>
As we've seen, our constitutional system requires limits on
<!-- f10. --> 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
+of Petitioners, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 7, available at
<ulink url="http://free-culture.cc/notes/">link #52</ulink>.
</para></footnote>
not necessarily the current owner. And we're just talking about 1930!
</para>
<para>
-"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?"
+"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?"
</para>
<para>
-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.
+Well, actually, if you think about it, there <emphasis>are</emphasis>
+plenty of lists of who owns what property. Think about deeds on
+houses, or titles 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.
</para>
<para>
So: You walk down a street and see a house. You can know who
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
+made between 1921 and 1951. Only one of these films, <citetitle>The Lucky Dog</citetitle>, 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
films."<footnote><para>
<!-- f11. -->
See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
-Los Angeles Times, 6 October 2002; David Streitfeld, "Classic Movies,
+<citetitle>Los Angeles Times</citetitle>, 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.
+Down Copyright Extension," <citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002.
</para></footnote>
<indexterm><primary>Lucky Dog, The</primary></indexterm>
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.<footnote><para>
-<!-- f12. --> 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
+<!-- f12. -->
+Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
+Supporting the Petitoners, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537
+U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
+filed on behalf of Petitioners by the Internet Archive, <citetitle>Eldred</citetitle>
+v. <citetitle>Ashcroft</citetitle>, available at
<ulink url="http://free-culture.cc/notes/">link #53</ulink>.
</para></footnote>
locate the copyright owner.
</para>
<para>
-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.
+Or more accurately, <emphasis>owners</emphasis>. As we've seen, there
+isn't only a single copyright associated with a film; there are
+many. There isn't 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.
</para>
<para>
"But can't you just restore the film, distribute it, and then pay the
<para>
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.
+<emphasis>copyright-related use</emphasis> 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.
</para>
<para>
The same was effectively true of film. Because the costs of restoring
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.
+<emphasis>copyright</emphasis> 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 <emphasis>at all</emphasis>
+related to the spread of knowledge. In this context, copyright is not
+an engine of free expression. Copyright is a brake.
</para>
<para>
You may well ask, "But if digital technologies lower the costs for
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
+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
+<emphasis>law</emphasis> 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.
</para>
domain, then people could use it to "glorify drugs or to create
pornography."<footnote><para>
<!-- f14. -->
-Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537
+Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537
U.S. (2003) (No. 01-618), 19.
</para></footnote>
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
+to license <citetitle>Porgy and Bess</citetitle> to anyone who refuses to use African
Americans in the cast.<footnote><para>
<!-- f15. -->
Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
-Mouse Joins the Fray," New York Times, 28 March 1998, B7.
+Mouse Joins the Fray," <citetitle>New York Times</citetitle>, 28 March 1998, B7.
</para></footnote>
That's
<!-- PAGE BREAK 241 -->
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
+five who had supported the <citetitle>Lopez/Morrison</citetitle> line of cases that said that
an enumerated power had to be interpreted to assure that Congress's
powers had limits.
</para>
</para>
<para>
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
+responsible. We would get the Court to see that just as with the
+<citetitle>Lopez</citetitle>
<!-- PAGE BREAK 243 -->
-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.
+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 <citetitle>Eldred</citetitle> with <citetitle>Lopez</citetitle>: If Congress's power to
+regulate commerce was limited, then so, too, must Congress's power to
+regulate copyright be limited.
</para>
<para>
-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.
+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.
</para>
<para>
There was some truth to the government's claim, but not much. We
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
+structural limit necessary to assure that what would be an effectively
perpetual term not be permitted under the copyright laws.
</para>
</blockquote>
softball; my answer was a swing and a miss.
</para>
<para>
-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.
+The second came from the Chief, for whom the whole case had been
+crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> ruling,
+and we hoped that he would see this case as its second cousin.
</para>
<para>
-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:
+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:
<!-- PAGE BREAK 247 -->
</para>
down to see where I had been wrong in my reasoning.
</para>
<para>
-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.
+My <emphasis>reasoning</emphasis>. Here was a case that pitted all the
+money in the world against <emphasis>reasoning</emphasis>. And here
+was the last naïve law professor, scouring the pages, looking for
+reasoning.
</para>
<para>
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
+<citetitle>Lopez</citetitle>. 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.
</para>
</para>
<para>
Her opinion was perfectly reasonable—for her, and for Justice
-Souter. Neither believes in Lopez. It would be too much to expect them
+Souter. Neither believes in <citetitle>Lopez</citetitle>. 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.
</para>
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.
+reconcile the two simply <emphasis>by not addressing the
+argument</emphasis>. There was no inconsistency because they would not
+talk about the two together. There was therefore no principle that
+followed from the <citetitle>Lopez</citetitle> case: In that context, Congress's power would
+be limited, but in this context it would not.
</para>
<para>
Yet by what right did they get to choose which of the framers' values
</para>
<para>
These two justices understood all the arguments we had made. But
-because neither believed in the Lopez case, neither was willing to push
+because neither believed in the <citetitle>Lopez</citetitle> 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.
+Sentelle. It was <citetitle>Hamlet</citetitle> without the Prince.
</para>
<para>
Defeat brings depression. They say it is a sign of health when
</para>
<para>
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
+one thing for them to have explained why the principle of <citetitle>Lopez</citetitle> 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
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
+<citetitle>Lopez</citetitle> and many other "originalist" rulings. Where was their
"originalism" now?
</para>
<para>
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,
+harmful law. <citetitle>The New York Times</citetitle> wrote in its editorial,
</para>
<blockquote>
<para>
</para>
<para>
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
+quote from <citetitle>The New York Times</citetitle>. 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
<sect1 id="eldred-ii">
<title>CHAPTER FOURTEEN: Eldred II</title>
<para>
-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
+The day <citetitle>Eldred</citetitle> was decided, fate would have it that I was to travel to
+Washington, D.C. (The day the rehearing petition in <citetitle>Eldred</citetitle> 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
finally, I turned to an argument of politics.
</para>
<para>
-The New York Times published the piece. In it, I proposed a simple
+<citetitle>The New York Times</citetitle> published the piece. In it, I proposed a simple
fix: Fifty years after a work has been published, the copyright owner
<!-- PAGE BREAK 256 -->
would be required to register the work and pay a small fee. If he paid
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
+anonymous or pseudonymous works. Paul Goldstein, <citetitle>International
+Intellectual Property Law, Cases and Materials</citetitle> (New York: Foundation
Press, 2001), 153–54. </para></footnote>
The Europeans are said to view copyright as a "natural right." Natural
rights don't need forms to exist. Traditions, like the Anglo-American
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.
+copyright offices, and the failure to dot an <citetitle>i</citetitle> or cross a
+<citetitle>t</citetitle> resulted in the loss of widows' only income.
</para>
<para>
These complaints were real and sensible. And the strictness of the
the author and what rights he has. Simple transactions are destroyed in
<!-- PAGE BREAK 259 -->
-a world without formalities. Complex, expensive, lawyer transactions
-take their place.
+a world without formalities. Complex, expensive,
+<emphasis>lawyer</emphasis> transactions take their place.
<indexterm><primary>Lovett, Lyle</primary></indexterm>
</para>
<para>
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.
+seen before <emphasis>because there are no formalities</emphasis>.
</para>
<para>
The Eldred Act was designed to respond to exactly this problem. If
<!-- PAGE BREAK 260 -->
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?
+address the real problem of <emphasis>governments</emphasis> 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?
</para>
<indexterm><primary>Forbes, Steve</primary></indexterm>
<para>
<para>
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.
+protecting <emphasis>their</emphasis> 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 <emphasis>their</emphasis> permission
+first.
</para>
<para>
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.
+tradition. Their aim is not simply to protect what is
+theirs. <emphasis>Their aim is to assure that all there is is what is
+theirs</emphasis>.
</para>
<para>
It is not hard to understand why the warriors take this view. It is not
permitted within the European Union.<footnote>
<para>
<!-- f2. -->
-See Peter Drahos with John Braithwaite, Information Feudalism: Who
-Owns the Knowledge Economy? (New York: The New Press, 2003), 37.
+See Peter Drahos with John Braithwaite, Information Feudalism: <citetitle>Who
+Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), 37.
<indexterm><primary>Braithwaite, John</primary></indexterm>
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
</para>
<para>
-However, the United States government opposed the bill. Indeed,
-more than opposed. As the International Intellectual Property
- Association
+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."<footnote><para>
-<!-- f3. --> 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).
-</para></footnote>
- 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.
+not to permit compulsory licensing or parallel
+imports."<footnote><para>
+<!-- f3. -->
+International Intellectual Property Institute (IIPI), <citetitle>Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
+Africa, a Report Prepared for the World Intellectual Property
+Organization</citetitle> (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).
+</para></footnote>
+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.
<!-- PAGE BREAK 266 -->
-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.<footnote><para>
+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.<footnote><para>
<!-- f4. -->
-International Intellectual Property Institute (IIPI), Patent
+International Intellectual Property Institute (IIPI), <citetitle>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. </para></footnote>
+Organization</citetitle> (Washington, D.C., 2000), 15. </para></footnote>
</para>
<para>
We should place the intervention by the United States in context. No
about the sanctity of property.<footnote><para>
<!-- f5. -->
See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
-Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24
+Needs at Odds with Firms' Profit Motive," <citetitle>San Francisco Chronicle</citetitle>, 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
+Medicines," <citetitle>Foreign Policy in Focus</citetitle> 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.
+Intellectual Property Rights and Compassion, a Synopsis," <citetitle>Widener Law
+Symposium Journal</citetitle> (Spring 2001): 175.
<!-- PAGE BREAK 333 -->
</para></footnote>
It was because "intellectual property" would be violated that these
In August 2003, a fight broke out in the United States about a
decision by the World Intellectual Property Organization to cancel a
meeting.<footnote><para>
-<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," Washington Post,
+<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," <citetitle>Washington Post</citetitle>,
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
+Shift on `Open Source' Meeting Spurs Stir," <citetitle>National Journal's Technology
+Daily</citetitle>, 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
+Opposes `Open Source' Talks at WIPO," <citetitle>National Journal's Technology
+Daily</citetitle>, 19 August 2003, available at
<ulink url="http://free-culture.cc/notes/">link #61</ulink>.
</para></footnote>
At the request of a wide range of interests, WIPO had decided to hold
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
+of Software: Enabling the Marketplace to Decide," <citetitle>Government Policy
+Toward Open Source Software</citetitle> (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
+Craig Mundie, Microsoft senior vice president, <citetitle>The Commercial Software
+Model</citetitle>, discussion at New York University Stern School of Business (3
May 2001), available at
<ulink url="http://free-culture.cc/notes/">link #63</ulink>.
</para></footnote>
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
+<citetitle>Washington Post</citetitle>, Microsoft's lobbyists succeeded in getting the United
States government to veto the meeting.<footnote><para>
<!-- f9. -->
Krim, "The Quiet War over Open-Source," available at <ulink
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.
+what to do with those rights because, again, they are
+<emphasis>their</emphasis> 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 <emphasis>their</emphasis> property.
<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
<!-- f10. -->
-See Drahos with Braithwaite, Information Feudalism, 210–20.
+See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, 210–20.
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote>
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.
+choice now is whether that information society will be
+<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is
+toward the feudal.
</para>
<para>
When this battle broke, I blogged it. A spirited debate within the
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
+N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," <citetitle>New York Daily News</citetitle>, 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,
+Defendants," <citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean,
+"Schoolgirl Settles with RIAA," <citetitle>Wired News</citetitle>, 10 September 2003,
available at
<ulink url="http://free-culture.cc/notes/">link #67</ulink>.
</para></footnote>
<!-- f1. -->
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
+Architecture of Privacy (What Larry Doesn't Get)," <citetitle>Stanford Technology
+Law Review</citetitle> 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
+also Jeffrey Rosen, <citetitle>The Naked Crowd: Reclaiming Security and Freedom
+in an Anxious Age</citetitle> (New York: Random House, 2004) (mapping tradeoffs
between technology and privacy).</para></footnote>
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
<para>
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.
-</para>
-<para>
-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
+Stanford University. Its aim is to build a layer of
+<emphasis>reasonable</emphasis> 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.
+</para>
+<para>
+<emphasis>Simple</emphasis>—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
<!-- PAGE BREAK 288 -->
machine-readable tags—constitute a Creative Commons license. A
Creative Commons license constitutes a grant of freedom to anyone who
<para>
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
+example, is a science fiction author. His first novel, <citetitle>Down and Out in
+the Magic Kingdom</citetitle>, was released on-line and for free, under a Creative
Commons license, on the same day that it went on sale in bookstores.
</para>
<para>
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.
+strategy of releasing Cory's book free on-line will probably
+<emphasis>increase</emphasis> sales of Cory's book.
</para>
<para>
Indeed, the experience of his publisher clearly supports that
The idea that free content might increase the value of nonfree content
was confirmed by the experience of another author. Peter Wayner,
<!-- PAGE BREAK 290 -->
-who wrote a book about the free software movement titled Free for All,
+who wrote a book about the free software movement titled <citetitle>Free for All</citetitle>,
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
well.
</para>
<para>
-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<footnote><para>
+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
+<emphasis>legal</emphasis> 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<footnote><para>
<!-- f2. -->
-Willful Infringement: A Report from the Front Lines of the Real
-Culture Wars (2003), produced by Jed Horovitz, directed by Greg
+<citetitle>Willful Infringement: A Report from the Front Lines of the Real
+Culture Wars</citetitle> (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>.
</para></footnote>),
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.
+past. And thus, the <emphasis>lack</emphasis> of formalities forces
+many into silence where they otherwise could speak.
</para>
<para>
The law should therefore change this requirement<footnote><para>
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.
+judged preferable, and it would base that choice
+<emphasis>solely</emphasis> 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.
</para>
<para>
Finally, marking content clearly would simplify registration
natural authors.
</para>
<para>
-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.<footnote><para>
+In <citetitle>The Future of Ideas</citetitle>, 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
+<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, the proposals became even more
+radical. <citetitle>The Economist</citetitle> endorsed a proposal for a fourteen-year
+copyright term.<footnote><para>
+
<!-- f3. -->
-"A Radical Rethink," Economist, 366:8308 (25 January 2003): 15,
+"A Radical Rethink," <citetitle>Economist</citetitle>, 366:8308 (25 January 2003): 15,
available at
<ulink url="http://free-culture.cc/notes/">link #74</ulink>.
</para></footnote>
<orderedlist numeration="arabic">
<listitem><para>
<!-- (1) -->
-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. </para></listitem>
+<emphasis>Keep it short:</emphasis> The term should be as long as
+necessary to give incentives to create, but no longer. If it were tied
+to very strong 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.
+</para></listitem>
<listitem><para>
<!-- (2) -->
-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.
+<emphasis>Keep it simple:</emphasis> 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.
<!-- PAGE BREAK 298 -->
</para></listitem>
<listitem><para>
<!-- (3) -->
-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.<footnote><para>
+<emphasis>Keep it alive:</emphasis> 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.<footnote><para>
<!-- f4. -->
Department of Veterans Affairs, Veteran's Application for Compensation
and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
</para></listitem>
<listitem><para>
<!-- (4) -->
-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. </para></listitem>
+<emphasis>Keep it prospective:</emphasis> 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. </para></listitem>
</orderedlist>
<para>
-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.
+These changes together should produce an <emphasis>average</emphasis>
+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.
</para>
<para>
No doubt the extremists will call these ideas "radical." (After all, I
expanded the exclusive right of copyright to include a right to
control translations and dramatizations of a work.<footnote><para>
<!-- f5. -->
-Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia
+Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New York: Columbia
University Press, 1967), 32.
</para></footnote>
The courts have expanded it slowly through judicial interpretation
Consider each limitation in turn.
</para>
<para>
-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
+<emphasis>Term:</emphasis> If Congress wants to grant a derivative
+right, then that right should be for a much shorter term. It makes
+sense to protect John
<!-- PAGE BREAK 300 -->
Grisham's right to sell the movie rights to his latest novel (or at least
<indexterm><primary>Grisham, John</primary></indexterm>
</para>
<para>
-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.
+<emphasis>Scope:</emphasis> 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.
</para>
<para>
This was the point that Alben made when describing the making of the
Paul Goldstein.<footnote>
<para>
<!-- f7. -->
-Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
-Jukebox (Stanford: Stanford University Press, 2003), 187–216.
+Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the Celestial
+Jukebox</citetitle> (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
service, where with the flip of a device, you are connected.
</para>
<para>
-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
+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 <emphasis>extremely</emphasis>
+easy to connect to services that give access to content, it will be
+<emphasis>easier</emphasis> to connect to services that give you
+access to content than it will be to download and store content
+<emphasis>on the many devices you will have for playing
+content</emphasis>. 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
The idea would be a modification of a proposal that has been
floated by Harvard law professor William Fisher.<footnote>
<para>
-<!-- f9. --> 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
+<!-- f9. -->
+William Fisher, <citetitle>Digital Music: Problems and Possibilities</citetitle> (last
+revised: 10 October 2000), available at
+<ulink url="http://free-culture.cc/notes/">link #77</ulink>; William
+Fisher, <citetitle>Promises to Keep: Technology, Law, and the Future of
+Entertainment</citetitle> (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
+Broadband?" <citetitle>Washington Post</citetitle>, 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 #80</ulink>; Serguei Osokine, <citetitle>A Quick Case for Intellectual Property
+Use Fee (IPUF)</citetitle>, 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
+"Kazaa, Verizon Propose to Pay Artists Directly," <citetitle>USA Today</citetitle>, 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
<para>
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
+<citetitle>Promises to Keep</citetitle>. 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
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,
+technology that is 95 percent secure and produces a market of size <citetitle>x</citetitle>,
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
+market of five times <citetitle>x</citetitle>? 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
Nimmer, thought it obvious.<footnote><para>
<!-- f10. -->
Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
-Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70.
+Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, 1069–70.
</para></footnote>
</para>
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
+J. Liebowitz, <citetitle>Rethinking the Network Economy: The True Forces That
+Drive the Digital Marketplace</citetitle> (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
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.
+<citetitle>Rethinking</citetitle>, 174–76.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
They see a system that has been around for hundreds of years, and they
projects / text-free-culture-lessig.git / commitdiff