msgid ""
msgstr ""
"Project-Id-Version: PACKAGE VERSION\n"
-"POT-Creation-Date: 2012-08-06 20:11+0300\n"
+"POT-Creation-Date: 2012-08-06 20:23+0300\n"
"PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n"
"Last-Translator: FULL NAME <EMAIL@ADDRESS>\n"
"Language-Team: LANGUAGE <LL@li.org>\n"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:424 freeculture.xml:12826
+#: freeculture.xml:424 freeculture.xml:12830
msgid "CodePink Women in Peace"
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:435 freeculture.xml:445 freeculture.xml:12839
+#: freeculture.xml:435 freeculture.xml:445 freeculture.xml:12843
msgid "Safire, William"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:530 freeculture.xml:543 freeculture.xml:574 freeculture.xml:593 freeculture.xml:996 freeculture.xml:1013 freeculture.xml:1059 freeculture.xml:8834 freeculture.xml:12222 freeculture.xml:12930
+#: freeculture.xml:530 freeculture.xml:543 freeculture.xml:574 freeculture.xml:593 freeculture.xml:996 freeculture.xml:1013 freeculture.xml:1059 freeculture.xml:8836 freeculture.xml:12226 freeculture.xml:12934
msgid "Causby, Thomas Lee"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:531 freeculture.xml:544 freeculture.xml:575 freeculture.xml:594 freeculture.xml:997 freeculture.xml:1014 freeculture.xml:1060 freeculture.xml:8835 freeculture.xml:12223 freeculture.xml:12931
+#: freeculture.xml:531 freeculture.xml:544 freeculture.xml:575 freeculture.xml:594 freeculture.xml:997 freeculture.xml:1014 freeculture.xml:1060 freeculture.xml:8837 freeculture.xml:12227 freeculture.xml:12935
msgid "Causby, Tinie"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:865 freeculture.xml:9374
+#: freeculture.xml:865 freeculture.xml:9377
msgid "Litman, Jessica"
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:960 freeculture.xml:14199
+#: freeculture.xml:960 freeculture.xml:14203
msgid "Netanel, Neil Weinstock"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:1110 freeculture.xml:4744
+#: freeculture.xml:1110 freeculture.xml:4746
msgid "Mansfield, William Murray, Lord"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1193 freeculture.xml:6842
+#: freeculture.xml:1193 freeculture.xml:6844
msgid "Zittrain, Jonathan"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:1635 freeculture.xml:2826 freeculture.xml:4455 freeculture.xml:4676 freeculture.xml:7222 freeculture.xml:8298
+#: freeculture.xml:1635 freeculture.xml:2826 freeculture.xml:4457 freeculture.xml:4678 freeculture.xml:7224 freeculture.xml:8300
msgid "Vaidhyanathan, Siva"
msgstr ""
#. f31
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:2096 freeculture.xml:3825 freeculture.xml:4863 freeculture.xml:8022
+#: freeculture.xml:2096 freeculture.xml:3827 freeculture.xml:4865 freeculture.xml:8024
msgid "Ibid."
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2204 freeculture.xml:7961 freeculture.xml:8197
+#: freeculture.xml:2204 freeculture.xml:7963 freeculture.xml:8199
msgid "ABC"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:2876 freeculture.xml:3128 freeculture.xml:4230 freeculture.xml:9566
+#: freeculture.xml:2876 freeculture.xml:3128 freeculture.xml:4232 freeculture.xml:9570
msgid "Picker, Randal C."
msgstr ""
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:3050 freeculture.xml:13868
+#: freeculture.xml:3050 freeculture.xml:13872
msgid "Grisham, John"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:3110 freeculture.xml:4195
+#: freeculture.xml:3110 freeculture.xml:4197
msgid "Radio"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:3145 freeculture.xml:8660 freeculture.xml:9117 freeculture.xml:12037
+#: freeculture.xml:3145 freeculture.xml:8662 freeculture.xml:9119 freeculture.xml:12041
msgid "Lovett, Lyle"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:3158 freeculture.xml:3657 freeculture.xml:6032
+#: freeculture.xml:3158 freeculture.xml:3659 freeculture.xml:6034
msgid "Madonna"
msgstr ""
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:3187 freeculture.xml:4201
+#: freeculture.xml:3187 freeculture.xml:4203
msgid "Cable TV"
msgstr ""
msgid "Burdick, Quentin"
msgstr ""
-#. f13
+#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
+#: freeculture.xml:3205 freeculture.xml:3216
+msgid "Hyde, Rosel H."
+msgstr ""
+
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3210
+#: freeculture.xml:3211
msgid ""
"Copyright Law Revision—CATV: Hearing on S. 1006 Before the "
"Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee "
"on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel "
-"H. Hyde, chairman of the Federal Communications Commission)."
+"H. Hyde, chairman of the Federal Communications Commission). <placeholder "
+"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. f14
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3221
+#: freeculture.xml:3223
msgid ""
"Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, "
"general counsel of the National Association of Broadcasters)."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3206
+#: freeculture.xml:3207
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><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:3232
+#: freeculture.xml:3234
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><part><chapter><section><blockquote><para>
-#: freeculture.xml:3228
+#: freeculture.xml:3230
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><part><chapter><section><para>
-#: freeculture.xml:3238
+#: freeculture.xml:3240
msgid "Again, the demand of the copyright holders seemed reasonable enough:"
msgstr ""
#. f16
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:3247
+#: freeculture.xml:3249
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><part><chapter><section><blockquote><para>
-#: freeculture.xml:3242
+#: freeculture.xml:3244
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3253 freeculture.xml:3261
+#: freeculture.xml:3255 freeculture.xml:3263
msgid "Heston, Charlton"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3259
+#: freeculture.xml:3261
msgid ""
"Copyright Law Revision—CATV, 209 (statement of Charlton Heston, "
"president of the Screen Actors Guild). <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3255
+#: freeculture.xml:3257
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><part><chapter><section><para>
-#: freeculture.xml:3266
+#: freeculture.xml:3268
msgid ""
"But again, there was another side to the debate. As Assistant Attorney "
"General Edwin Zimmerman put it,"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><indexterm><primary>
-#: freeculture.xml:3282 freeculture.xml:3284
+#: freeculture.xml:3284 freeculture.xml:3286
msgid "Zimmerman, Edwin"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:3280
+#: freeculture.xml:3282
msgid ""
"Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, "
"acting assistant attorney general). <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:3271
+#: freeculture.xml:3273
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><part><chapter><section><para>
-#: freeculture.xml:3288
+#: freeculture.xml:3290
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><part><chapter><section><para>
-#: freeculture.xml:3292
+#: freeculture.xml:3294
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3309
+#: freeculture.xml:3311
msgid ""
"See, for example, National Music Publisher's Association, <citetitle>The "
"Engine of Free Expression: Copyright on the Internet—The Myth of Free "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3304
+#: freeculture.xml:3306
msgid ""
"These separate stories sing a common theme. If \"piracy\" means using value "
"from someone else's creative property without permission from that "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:3326
+#: freeculture.xml:3328
msgid "CHAPTER FIVE: \"Piracy\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:3328
+#: freeculture.xml:3330
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><part><chapter><para>
-#: freeculture.xml:3336
+#: freeculture.xml:3338
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><part><chapter><section><title>
-#: freeculture.xml:3346
+#: freeculture.xml:3348
msgid "Piracy I"
msgstr ""
#. f1
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3354
+#: freeculture.xml:3356
msgid ""
"See IFPI (International Federation of the Phonographic Industry), "
"<citetitle>The Recording Industry Commercial Piracy Report 2003</citetitle>, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3348
+#: freeculture.xml:3350
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><part><chapter><section><para>
-#: freeculture.xml:3364
+#: freeculture.xml:3366
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><part><chapter><section><para>
-#: freeculture.xml:3370
+#: freeculture.xml:3372
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><part><chapter><section><para>
-#: freeculture.xml:3379
+#: freeculture.xml:3381
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><part><chapter><section><para>
-#: freeculture.xml:3390
+#: freeculture.xml:3392
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:3417 freeculture.xml:12317 freeculture.xml:12750 freeculture.xml:12757
+#: freeculture.xml:3419 freeculture.xml:12321 freeculture.xml:12754 freeculture.xml:12761
msgid "Drahos, Peter"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3403
+#: freeculture.xml:3405
msgid ""
"See Peter Drahos with John Braithwaite, Information Feudalism: "
"<citetitle>Who Owns the Knowledge Economy?</citetitle> (New York: The New "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3398
+#: freeculture.xml:3400
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><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3437 freeculture.xml:3704 freeculture.xml:14399
+#: freeculture.xml:3439 freeculture.xml:3706 freeculture.xml:14403
msgid "Liebowitz, Stan"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3430
+#: freeculture.xml:3432
msgid ""
"For an analysis of the economic impact of copying technology, see Stan "
"Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3424
+#: freeculture.xml:3426
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><part><chapter><section><para>
-#: freeculture.xml:3441
+#: freeculture.xml:3443
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><part><chapter><section><para>
-#: freeculture.xml:3454
+#: freeculture.xml:3456
msgid ""
"This argument is still very weak. However, although copyright is a property "
"right of a very special sort, it <emphasis>is</emphasis> a property "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:3483 freeculture.xml:3511 freeculture.xml:11165 freeculture.xml:12631 freeculture.xml:13183
+#: freeculture.xml:3485 freeculture.xml:3513 freeculture.xml:11169 freeculture.xml:12635 freeculture.xml:13187
msgid "GNU/Linux operating system"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:3484 freeculture.xml:3514 freeculture.xml:11167 freeculture.xml:12632 freeculture.xml:13184
+#: freeculture.xml:3486 freeculture.xml:3516 freeculture.xml:11171 freeculture.xml:12636 freeculture.xml:13188
msgid "Linux operating system"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3486
+#: freeculture.xml:3488
msgid "Microsoft"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><secondary>
-#: freeculture.xml:3487
+#: freeculture.xml:3489
msgid "Windows operating system of"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3489
+#: freeculture.xml:3491
msgid "Windows"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3472
+#: freeculture.xml:3474
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><part><chapter><section><para>
-#: freeculture.xml:3492
+#: freeculture.xml:3494
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><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3512
+#: freeculture.xml:3514
msgid "Internet Explorer"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3513
+#: freeculture.xml:3515
msgid "Netscape"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3500
+#: freeculture.xml:3502
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><part><chapter><section><para>
-#: freeculture.xml:3518
+#: freeculture.xml:3520
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><part><chapter><section><para>
-#: freeculture.xml:3528
+#: freeculture.xml:3530
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><part><chapter><section><para>
-#: freeculture.xml:3537
+#: freeculture.xml:3539
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><part><chapter><section><para>
-#: freeculture.xml:3543
+#: freeculture.xml:3545
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><part><chapter><section><para>
-#: freeculture.xml:3549
+#: freeculture.xml:3551
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><part><chapter><section><title>
-#: freeculture.xml:3555
+#: freeculture.xml:3557
msgid "Piracy II"
msgstr ""
#. f4
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3560
+#: freeculture.xml:3562
msgid ""
"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 "
"Eng. Rep. 1274 (1777)."
#. PAGE BREAK 80
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3557
+#: freeculture.xml:3559
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><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3583 freeculture.xml:8091
+#: freeculture.xml:3585 freeculture.xml:8093
msgid "Christensen, Clayton M."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3574
+#: freeculture.xml:3576
msgid ""
"See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
"Revolutionary National Bestseller That Changed the Way We Do "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:3586
+#: freeculture.xml:3588
msgid "Fanning, Shawn"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3569
+#: freeculture.xml:3571
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3594
+#: freeculture.xml:3596
msgid ""
"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" "
"<citetitle>San Francisco Chronicle</citetitle>, 24 September 2002, A1; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3589
+#: freeculture.xml:3591
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3616
+#: freeculture.xml:3618
msgid ""
"See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music "
"Distribution</citetitle> (September 2002), reporting that 28 percent of "
#. f8
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3625
+#: freeculture.xml:3627
msgid ""
"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" "
"<citetitle>New York Times</citetitle>, 6 June 2003, A1."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3610
+#: freeculture.xml:3612
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3634
+#: freeculture.xml:3636
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><part><chapter><section><para>
-#: freeculture.xml:3644
+#: freeculture.xml:3646
msgid ""
"File sharers share different kinds of content. We can divide these different "
"kinds into four types."
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:3650
+#: freeculture.xml:3652
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><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:3661
+#: freeculture.xml:3663
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><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:3672
+#: freeculture.xml:3674
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><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:3689
+#: freeculture.xml:3691
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><part><chapter><section><para>
-#: freeculture.xml:3695
+#: freeculture.xml:3697
msgid "How do these different types of sharing balance out?"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3703
+#: freeculture.xml:3705
msgid ""
"See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, "
"148–49. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3698
+#: freeculture.xml:3700
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><part><chapter><section><para>
-#: freeculture.xml:3714
+#: freeculture.xml:3716
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3729
+#: freeculture.xml:3731
msgid ""
"See Cap Gemini Ernst & Young, <citetitle>Technology Evolution and the "
"Music Industry's Business Model Crisis</citetitle> (2003), 3. This report "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3722
+#: freeculture.xml:3724
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3755
+#: freeculture.xml:3757
msgid "U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3747
+#: freeculture.xml:3749
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><part><chapter><section><para>
-#: freeculture.xml:3759
+#: freeculture.xml:3761
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3769
+#: freeculture.xml:3771
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3780
+#: freeculture.xml:3782
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3789
+#: freeculture.xml:3791
msgid ""
"See Recording Industry Association of America, <citetitle>2002 Yearend "
"Statistics</citetitle>, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:3816
+#: freeculture.xml:3818
msgid "Black, Jane"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3813
+#: freeculture.xml:3815
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><part><chapter><section><para>
-#: freeculture.xml:3785
+#: freeculture.xml:3787
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 "
#. PAGE BREAK 84
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3831
+#: freeculture.xml:3833
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><part><chapter><section><para>
-#: freeculture.xml:3839
+#: freeculture.xml:3841
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><part><chapter><section><para>
-#: freeculture.xml:3854
+#: freeculture.xml:3856
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3866
+#: freeculture.xml:3868
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><part><chapter><section><para>
-#: freeculture.xml:3860
+#: freeculture.xml:3862
msgid ""
"One benefit is type C sharing—making available content that is "
"technically still under copyright but is no longer commercially available. "
#. f16
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3886
+#: freeculture.xml:3888
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, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3880
+#: freeculture.xml:3882
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:3906
+#: freeculture.xml:3908
msgid "Bernstein, Leonard"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3908
+#: freeculture.xml:3910
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><part><chapter><section><para>
-#: freeculture.xml:3921
+#: freeculture.xml:3923
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><part><chapter><section><para>
-#: freeculture.xml:3929
+#: freeculture.xml:3931
msgid ""
"Finally, and perhaps most importantly, file-sharing networks enable type D "
"sharing to occur—the sharing of content that copyright owners want to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3946
+#: freeculture.xml:3948
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><part><chapter><section><para>
-#: freeculture.xml:3952
+#: freeculture.xml:3954
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><part><chapter><section><para>
-#: freeculture.xml:3959
+#: freeculture.xml:3961
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><part><chapter><section><para>
-#: freeculture.xml:3973
+#: freeculture.xml:3975
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:3990
+#: freeculture.xml:3992
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:3977
+#: freeculture.xml:3979
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><part><chapter><section><para>
-#: freeculture.xml:4001
+#: freeculture.xml:4003
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><part><chapter><section><para>
-#: freeculture.xml:4012
+#: freeculture.xml:4014
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><part><chapter><section><para>
-#: freeculture.xml:4021
+#: freeculture.xml:4023
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><part><chapter><section><para>
-#: freeculture.xml:4033
+#: freeculture.xml:4035
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><part><chapter><section><para>
-#: freeculture.xml:4043
+#: freeculture.xml:4045
msgid ""
"This compromise, like the compromise affecting records and player pianos, "
"served two important goals—indeed, the two central goals of any "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:4058
+#: freeculture.xml:4060
msgid "Betamax"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4060
+#: freeculture.xml:4062
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><part><chapter><section><para>
-#: freeculture.xml:4073
+#: freeculture.xml:4075
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4095
+#: freeculture.xml:4097
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4107
+#: freeculture.xml:4109
msgid "Copyright Infringements (Audio and Video Recorders), 475."
msgstr ""
#. f20
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4112
+#: freeculture.xml:4114
msgid ""
"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony "
"Corp. of America</citetitle>, 480 F. Supp. 429, (C.D. Cal., 1979)."
#. f21
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4123
+#: freeculture.xml:4125
msgid ""
"Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack "
"Valenti)."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4088
+#: freeculture.xml:4090
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4140
+#: freeculture.xml:4142
msgid ""
"<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><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:4143
+#: freeculture.xml:4145
msgid "Kozinski, Alex"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4128
+#: freeculture.xml:4130
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 "
#. PAGE BREAK 90
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4146
+#: freeculture.xml:4148
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><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:4165
+#: freeculture.xml:4167
msgid ""
"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
"Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984)."
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:4155
+#: freeculture.xml:4157
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><part><chapter><section><para>
-#: freeculture.xml:4170
+#: freeculture.xml:4172
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><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:4181
+#: freeculture.xml:4183
msgid "CASE"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:4182
+#: freeculture.xml:4184
msgid "WHOSE VALUE WAS \"PIRATED\""
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:4183
+#: freeculture.xml:4185
msgid "RESPONSE OF THE COURTS"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:4184
+#: freeculture.xml:4186
msgid "RESPONSE OF CONGRESS"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4189
+#: freeculture.xml:4191
msgid "Recordings"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4190
+#: freeculture.xml:4192
msgid "Composers"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4191 freeculture.xml:4203 freeculture.xml:4209
+#: freeculture.xml:4193 freeculture.xml:4205 freeculture.xml:4211
msgid "No protection"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4192 freeculture.xml:4204
+#: freeculture.xml:4194 freeculture.xml:4206
msgid "Statutory license"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4196
+#: freeculture.xml:4198
msgid "Recording artists"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4197
+#: freeculture.xml:4199
msgid "N/A"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4198 freeculture.xml:4210
+#: freeculture.xml:4200 freeculture.xml:4212
msgid "Nothing"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4202
+#: freeculture.xml:4204
msgid "Broadcasters"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4207
+#: freeculture.xml:4209
msgid "VCR"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:4208
+#: freeculture.xml:4210
msgid "Film creators"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4220
+#: freeculture.xml:4222
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4217
+#: freeculture.xml:4219
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><part><chapter><section><para>
-#: freeculture.xml:4237
+#: freeculture.xml:4239
msgid ""
"In <emphasis>none</emphasis> of these cases did either the courts or "
"Congress eliminate all free riding. In <emphasis>none</emphasis> of these "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4249
+#: freeculture.xml:4251
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4266
+#: freeculture.xml:4268
msgid ""
"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
"Studios, Inc</citetitle>., 464 U.S. 417, (1984)."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4261
+#: freeculture.xml:4263
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4277
+#: freeculture.xml:4279
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:4301
+#: freeculture.xml:4303
msgid ""
"John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes "
"Past Efforts,\" <citetitle>New York Times</citetitle>, 22 September 2003, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4293
+#: freeculture.xml:4295
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:4315
+#: freeculture.xml:4317
msgid ""
"\"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><part><title>
-#: freeculture.xml:4323
+#: freeculture.xml:4325
msgid "\"PROPERTY\""
msgstr ""
#. PAGE BREAK 94
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:4328
+#: freeculture.xml:4330
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><part><partintro><para>
-#: freeculture.xml:4335
+#: freeculture.xml:4337
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. "
#. f1
#. type: Content of: <book><part><partintro><para><footnote><para>
-#: freeculture.xml:4360
+#: freeculture.xml:4362
msgid ""
"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in "
"<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:4347
+#: freeculture.xml:4349
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><part><partintro><para>
-#: freeculture.xml:4366
+#: freeculture.xml:4368
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><part><partintro><para><footnote><para>
-#: freeculture.xml:4379
+#: freeculture.xml:4381
msgid ""
"As the legal realists taught American law, all property rights are "
"intangible. A property right is simply a right that an individual has "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:4374
+#: freeculture.xml:4376
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><part><partintro><para>
-#: freeculture.xml:4389
+#: freeculture.xml:4391
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><part><chapter><title>
-#: freeculture.xml:4402
+#: freeculture.xml:4404
msgid "CHAPTER SIX: Founders"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:4403
+#: freeculture.xml:4405
msgid "Henry V"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4405
+#: freeculture.xml:4407
msgid ""
"William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in "
"1595. The play was first published in 1597. It was the eleventh major play "
#. f1
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:4420
+#: freeculture.xml:4422
msgid ""
"Jacob Tonson is typically remembered for his associations with prominent "
"eighteenth-century literary figures, especially John Dryden, and for his "
#. f2
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:4431
+#: freeculture.xml:4433
msgid ""
"Lyman Ray Patterson, <citetitle>Copyright in Historical "
"Perspective</citetitle> (Nashville: Vanderbilt University Press, 1968), "
#. PAGE BREAK 97
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4416
+#: freeculture.xml:4418
msgid ""
"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 "
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:4453
+#: freeculture.xml:4455
msgid ""
"As Siva Vaidhyanathan nicely argues, it is erroneous to call this a "
"\"copyright law.\" See Vaidhyanathan, <citetitle>Copyrights and "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4444
+#: freeculture.xml:4446
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4470
+#: freeculture.xml:4472
msgid "Licensing Act (1662)"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4461
+#: freeculture.xml:4463
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><part><chapter><para>
-#: freeculture.xml:4473
+#: freeculture.xml:4475
msgid ""
"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 "
#. PAGE BREAK 98
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4485
+#: freeculture.xml:4487
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><part><chapter><para>
-#: freeculture.xml:4497
+#: freeculture.xml:4499
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><part><chapter><para>
-#: freeculture.xml:4506
+#: freeculture.xml:4508
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4512
+#: freeculture.xml:4514
msgid ""
"For the booksellers, and the authors whom they represented, had a very "
"strong claim. Take <citetitle>Romeo and Juliet</citetitle> as an example: "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4523
+#: freeculture.xml:4525
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><part><chapter><para>
-#: freeculture.xml:4529
+#: freeculture.xml:4531
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4544
+#: freeculture.xml:4546
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><part><chapter><indexterm><primary>
-#: freeculture.xml:4553
+#: freeculture.xml:4555
msgid "Henry VIII, King of England"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4555
+#: freeculture.xml:4557
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><part><chapter><para>
-#: freeculture.xml:4568
+#: freeculture.xml:4570
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><part><chapter><para><footnote><para>
-#: freeculture.xml:4592
+#: freeculture.xml:4594
msgid ""
"Philip Wittenberg, <citetitle>The Protection and Marketing of Literary "
"Property</citetitle> (New York: J. Messner, Inc., 1937), 31."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4577
+#: freeculture.xml:4579
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><part><chapter><para>
-#: freeculture.xml:4597
+#: freeculture.xml:4599
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><part><chapter><para>
-#: freeculture.xml:4605
+#: freeculture.xml:4607
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><part><chapter><para>
-#: freeculture.xml:4617
+#: freeculture.xml:4619
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><part><chapter><para>
-#: freeculture.xml:4626
+#: freeculture.xml:4628
msgid ""
"Parliament rejected their requests. As one pamphleteer put it, in words that "
"echo today,"
#. f5
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:4641
+#: freeculture.xml:4643
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 "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:4631
+#: freeculture.xml:4633
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><part><chapter><para>
-#: freeculture.xml:4652
+#: freeculture.xml:4654
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><part><chapter><para><footnote><para>
-#: freeculture.xml:4673
+#: freeculture.xml:4675
msgid ""
"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" "
"<citetitle>Vanderbilt Law Review</citetitle> 40 (1987): 28. For a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4667
+#: freeculture.xml:4669
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><part><chapter><para><footnote><para>
-#: freeculture.xml:4686
+#: freeculture.xml:4688
msgid ""
"For a compelling account, see David Saunders, <citetitle>Authorship and "
"Copyright</citetitle> (London: Routledge, 1992), 62–69."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4682
+#: freeculture.xml:4684
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><part><chapter><para><footnote><para>
-#: freeculture.xml:4696
+#: freeculture.xml:4698
msgid ""
"Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard "
"University Press, 1993), 92."
#. f9
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:4706
+#: freeculture.xml:4708
msgid "Ibid., 93."
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4708
+#: freeculture.xml:4710
msgid "Boswell, James"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4709
+#: freeculture.xml:4711
msgid "Erskine, Andrew"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4691
+#: freeculture.xml:4693
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><part><chapter><para><footnote><para>
-#: freeculture.xml:4718
+#: freeculture.xml:4720
msgid ""
"Lyman Ray Patterson, <citetitle>Copyright in Historical "
"Perspective</citetitle>, 167 (quoting Borwell)."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4712
+#: freeculture.xml:4714
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><part><chapter><para>
-#: freeculture.xml:4726
+#: freeculture.xml:4728
msgid ""
"The London booksellers quickly brought suit to block \"piracy\" like "
"Donaldson's. A number of actions were successful against the \"pirates,\" "
#. f11
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:4738
+#: freeculture.xml:4740
msgid ""
"Howard B. Abrams, \"The Historic Foundation of American Copyright Law: "
"Exploding the Myth of Common Law Copyright,\" <citetitle>Wayne Law "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4731
+#: freeculture.xml:4733
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><part><chapter><para>
-#: freeculture.xml:4747
+#: freeculture.xml:4749
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><part><chapter><para>
-#: freeculture.xml:4758
+#: freeculture.xml:4760
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><part><chapter><para>
-#: freeculture.xml:4773
+#: freeculture.xml:4775
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><part><chapter><indexterm><primary>
-#: freeculture.xml:4776
+#: freeculture.xml:4778
msgid "Beckett, Thomas"
msgstr ""
#. f12
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:4782
+#: freeculture.xml:4784
msgid "Ibid., 1156."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4778
+#: freeculture.xml:4780
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4792
+#: freeculture.xml:4794
msgid ""
"As few legal cases ever do, <citetitle>Donaldson</citetitle> "
"v. <citetitle>Beckett</citetitle> drew an enormous amount of attention "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4802
+#: freeculture.xml:4804
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><part><chapter><para>
-#: freeculture.xml:4809
+#: freeculture.xml:4811
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><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4827
+#: freeculture.xml:4829
msgid "Bacon, Francis"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4828
+#: freeculture.xml:4830
msgid "Bunyan, John"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4829
+#: freeculture.xml:4831
msgid "Johnson, Samuel"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4830
+#: freeculture.xml:4832
msgid "Milton, John"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4831
+#: freeculture.xml:4833
msgid "Shakespeare, William"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4819
+#: freeculture.xml:4821
msgid ""
"\"The public domain.\" Before the case of <citetitle>Donaldson</citetitle> "
"v. <citetitle>Beckett</citetitle>, there was no clear idea of a public "
#. f13
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:4844
+#: freeculture.xml:4846
msgid "Rose, 97."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4834
+#: freeculture.xml:4836
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4848
+#: freeculture.xml:4850
msgid ""
"In London, however, at least among publishers, the reaction was equally "
"strong in the opposite direction. The <citetitle>Morning "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:4854
+#: freeculture.xml:4856
msgid ""
"By the above decision … near 200,000 pounds worth of what was "
"honestly purchased at public sale, and which was yesterday thought property "
#. PAGE BREAK 105
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4869
+#: freeculture.xml:4871
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4890
+#: freeculture.xml:4892
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><part><chapter><title>
-#: freeculture.xml:4898
+#: freeculture.xml:4900
msgid "CHAPTER SEVEN: Recorders"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4900
+#: freeculture.xml:4902
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><part><chapter><para>
-#: freeculture.xml:4907
+#: freeculture.xml:4909
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><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4918 freeculture.xml:4987
+#: freeculture.xml:4920 freeculture.xml:4989
msgid "San Francisco Opera"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4912
+#: freeculture.xml:4914
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><part><chapter><para>
-#: freeculture.xml:4921
+#: freeculture.xml:4923
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4930
+#: freeculture.xml:4932
msgid ""
"Years later, when he finally got funding to complete the film, Else "
"attempted to clear the rights for those few seconds of <citetitle>The "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4942 freeculture.xml:4950
+#: freeculture.xml:4944 freeculture.xml:4952
msgid "Gracie Films"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4937
+#: freeculture.xml:4939
msgid ""
"Else called <citetitle>Simpsons</citetitle> creator Matt Groening's office "
"to get permission. Groening approved the shot. The shot was a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4945
+#: freeculture.xml:4947
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><part><chapter><para>
-#: freeculture.xml:4953
+#: freeculture.xml:4955
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4961
+#: freeculture.xml:4963
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><part><chapter><para>
-#: freeculture.xml:4969
+#: freeculture.xml:4971
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:4988
+#: freeculture.xml:4990
msgid "Day After Trinity, The"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4981
+#: freeculture.xml:4983
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:4991
+#: freeculture.xml:4993
msgid ""
"There's no doubt that someone, whether Matt Groening or Fox, owns the "
"copyright to <citetitle>The Simpsons</citetitle>. That copyright is their "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5002
+#: freeculture.xml:5004
msgid ""
"For example, \"public performance\" is a use of <citetitle>The "
"Simpsons</citetitle> that the copyright owner gets to control. If you take a "
#. f1
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:5014
+#: freeculture.xml:5016
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5011
+#: freeculture.xml:5013
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 "
#. PAGE BREAK 109
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5026
+#: freeculture.xml:5028
msgid "So I asked Else why he didn't just rely upon \"fair use.\" Here's his reply:"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:5030
+#: freeculture.xml:5032
msgid ""
"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 "
#. 1.
#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5040
+#: freeculture.xml:5042
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><part><chapter><blockquote><orderedlist><listitem><para><indexterm><primary>
-#: freeculture.xml:5057
+#: freeculture.xml:5059
msgid "Lucas, George"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5048
+#: freeculture.xml:5050
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 "
#. 3.
#. PAGE BREAK 110
#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5061
+#: freeculture.xml:5063
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 "
#. 4.
#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
-#: freeculture.xml:5071
+#: freeculture.xml:5073
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><part><chapter><para>
-#: freeculture.xml:5078
+#: freeculture.xml:5080
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><part><chapter><para>
-#: freeculture.xml:5086
+#: freeculture.xml:5088
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><part><chapter><title>
-#: freeculture.xml:5095
+#: freeculture.xml:5097
msgid "CHAPTER EIGHT: Transformers"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:5096
+#: freeculture.xml:5098
msgid "Allen, Paul"
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:5097 freeculture.xml:5105 freeculture.xml:5116 freeculture.xml:5131 freeculture.xml:5140 freeculture.xml:5145 freeculture.xml:5197 freeculture.xml:5213 freeculture.xml:5236 freeculture.xml:5299 freeculture.xml:9669
+#: freeculture.xml:5099 freeculture.xml:5107 freeculture.xml:5118 freeculture.xml:5133 freeculture.xml:5142 freeculture.xml:5147 freeculture.xml:5199 freeculture.xml:5215 freeculture.xml:5238 freeculture.xml:5301 freeculture.xml:9673
msgid "Alben, Alex"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5099
+#: freeculture.xml:5101
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><part><chapter><para>
-#: freeculture.xml:5107
+#: freeculture.xml:5109
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><part><chapter><para>
-#: freeculture.xml:5118
+#: freeculture.xml:5120
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><part><chapter><para>
-#: freeculture.xml:5125
+#: freeculture.xml:5127
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><part><chapter><para>
-#: freeculture.xml:5133
+#: freeculture.xml:5135
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><part><chapter><para>
-#: freeculture.xml:5142
+#: freeculture.xml:5144
msgid ""
"Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, "
"\"Well, what will it take?\""
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:5158
+#: freeculture.xml:5160
msgid "artists"
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><secondary>
-#: freeculture.xml:5159
+#: freeculture.xml:5161
msgid "publicity rights on images of"
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:5153
+#: freeculture.xml:5155
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><part><chapter><para>
-#: freeculture.xml:5147
+#: freeculture.xml:5149
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><part><chapter><para>
-#: freeculture.xml:5164
+#: freeculture.xml:5166
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><part><chapter><para>
-#: freeculture.xml:5171
+#: freeculture.xml:5173
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><part><chapter><blockquote><para>
-#: freeculture.xml:5177
+#: freeculture.xml:5179
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 "
#. PAGE BREAK 113
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:5186
+#: freeculture.xml:5188
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><part><chapter><para>
-#: freeculture.xml:5199
+#: freeculture.xml:5201
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><part><chapter><para>
-#: freeculture.xml:5210
+#: freeculture.xml:5212
msgid ""
"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><part><chapter><para>
-#: freeculture.xml:5215
+#: freeculture.xml:5217
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><part><chapter><blockquote><para>
-#: freeculture.xml:5221
+#: freeculture.xml:5223
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><part><chapter><para>
-#: freeculture.xml:5233
+#: freeculture.xml:5235
msgid ""
"And no doubt, the product itself was exceptionally good. Eastwood loved it, "
"and it sold very well."
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:5237
+#: freeculture.xml:5239
msgid "Drucker, Peter"
msgstr ""
#. f2
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:5245
+#: freeculture.xml:5247
msgid ""
"U.S. Department of Commerce Office of Acquisition Management, "
"<citetitle>Seven Steps to Performance-Based Services "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5239
+#: freeculture.xml:5241
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><part><chapter><para>
-#: freeculture.xml:5253
+#: freeculture.xml:5255
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><part><chapter><blockquote><para>
-#: freeculture.xml:5261
+#: freeculture.xml:5263
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5269
+#: freeculture.xml:5271
msgid ""
"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 "
#. PAGE BREAK 115
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:5280
+#: freeculture.xml:5282
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><part><chapter><para>
-#: freeculture.xml:5301
+#: freeculture.xml:5303
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><part><chapter><para>
-#: freeculture.xml:5318
+#: freeculture.xml:5320
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><part><chapter><para>
-#: freeculture.xml:5328
+#: freeculture.xml:5330
msgid ""
"The video was a brilliant collage of film from every period in the twentieth "
"century, all framed around the idea of a <citetitle>60 Minutes</citetitle> "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:5333
+#: freeculture.xml:5335
msgid "Nimmer, David"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5335
+#: freeculture.xml:5337
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><part><chapter><indexterm><primary>
-#: freeculture.xml:5342
+#: freeculture.xml:5344
msgid "Boies, David"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5344
+#: freeculture.xml:5346
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><part><chapter><para>
-#: freeculture.xml:5359
+#: freeculture.xml:5361
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><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5375
+#: freeculture.xml:5377
msgid "Camp Chaos"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5366
+#: freeculture.xml:5368
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><part><chapter><para>
-#: freeculture.xml:5378
+#: freeculture.xml:5380
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><part><chapter><para>
-#: freeculture.xml:5385
+#: freeculture.xml:5387
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><part><chapter><para>
-#: freeculture.xml:5400
+#: freeculture.xml:5402
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><part><chapter><para>
-#: freeculture.xml:5406
+#: freeculture.xml:5408
msgid ""
"In February 2003, DreamWorks studios announced an agreement with Mike Myers, "
"the comic genius of <citetitle>Saturday Night Live</citetitle> and Austin "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5418
+#: freeculture.xml:5420
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><part><chapter><para>
-#: freeculture.xml:5427
+#: freeculture.xml:5429
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><part><chapter><para>
-#: freeculture.xml:5437
+#: freeculture.xml:5439
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><part><chapter><title>
-#: freeculture.xml:5452
+#: freeculture.xml:5454
msgid "CHAPTER NINE: Collectors"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5454
+#: freeculture.xml:5456
msgid ""
"In April 1996, millions of \"bots\"—computer codes designed to "
"\"spider,\" or automatically search the Internet and copy "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5463
+#: freeculture.xml:5465
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><part><chapter><para>
-#: freeculture.xml:5471
+#: freeculture.xml:5473
msgid ""
"This is the thing about the Internet that Orwell would have appreciated. In "
"the dystopia described in <citetitle>1984</citetitle>, old newspapers were "
#. PAGE BREAK 120
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5479
+#: freeculture.xml:5481
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><part><chapter><para>
-#: freeculture.xml:5484
+#: freeculture.xml:5486
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><part><chapter><para><footnote><para>
-#: freeculture.xml:5497
+#: freeculture.xml:5499
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><part><chapter><para>
-#: freeculture.xml:5491
+#: freeculture.xml:5493
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><part><chapter><para>
-#: freeculture.xml:5505
+#: freeculture.xml:5507
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><part><chapter><para>
-#: freeculture.xml:5516
+#: freeculture.xml:5518
msgid ""
"It is said that those who fail to remember history are doomed to repeat "
"it. That's not quite correct. We <emphasis>all</emphasis> forget "
#. PAGE BREAK 121
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5525
+#: freeculture.xml:5527
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><part><chapter><para>
-#: freeculture.xml:5536
+#: freeculture.xml:5538
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><part><chapter><para>
-#: freeculture.xml:5546
+#: freeculture.xml:5548
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><part><chapter><blockquote><para>
-#: freeculture.xml:5564
+#: freeculture.xml:5566
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5576
+#: freeculture.xml:5578
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><part><chapter><para>
-#: freeculture.xml:5584
+#: freeculture.xml:5586
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><part><chapter><para><footnote><para>
-#: freeculture.xml:5601
+#: freeculture.xml:5603
msgid ""
"Doug Herrick, \"Toward a National Film Collection: Motion Pictures at the "
"Library of Congress,\" <citetitle>Film Library Quarterly</citetitle> 13 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5592
+#: freeculture.xml:5594
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><part><chapter><para>
-#: freeculture.xml:5609
+#: freeculture.xml:5611
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><part><chapter><para>
-#: freeculture.xml:5620
+#: freeculture.xml:5622
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><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5647
+#: freeculture.xml:5649
msgid "Movie Archive"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5631
+#: freeculture.xml:5633
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><part><chapter><para>
-#: freeculture.xml:5650
+#: freeculture.xml:5652
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><part><chapter><para>
-#: freeculture.xml:5658
+#: freeculture.xml:5660
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><part><chapter><para>
-#: freeculture.xml:5666
+#: freeculture.xml:5668
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><part><chapter><para>
-#: freeculture.xml:5678
+#: freeculture.xml:5680
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><part><chapter><para><footnote><para>
-#: freeculture.xml:5690
+#: freeculture.xml:5692
msgid ""
"Dave Barns, \"Fledgling Career in Antique Books: Woodstock Landlord, Bar "
"Owner Starts a New Chapter by Adopting Business,\" <citetitle>Chicago "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5687
+#: freeculture.xml:5689
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><part><chapter><para>
-#: freeculture.xml:5704
+#: freeculture.xml:5706
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><part><chapter><para>
-#: freeculture.xml:5715
+#: freeculture.xml:5717
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><part><chapter><para>
-#: freeculture.xml:5727
+#: freeculture.xml:5729
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><part><chapter><para>
-#: freeculture.xml:5735
+#: freeculture.xml:5737
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><part><chapter><blockquote><para>
-#: freeculture.xml:5742
+#: freeculture.xml:5744
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><part><chapter><para>
-#: freeculture.xml:5756
+#: freeculture.xml:5758
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5771
+#: freeculture.xml:5773
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><part><chapter><title>
-#: freeculture.xml:5781
+#: freeculture.xml:5783
msgid "CHAPTER TEN: \"Property\""
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5790
+#: freeculture.xml:5792
msgid "Johnson, Lyndon"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:5791 freeculture.xml:9441
+#: freeculture.xml:5793 freeculture.xml:9445
msgid "Kennedy, John F."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5783
+#: freeculture.xml:5785
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><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5804
+#: freeculture.xml:5806
msgid "Disney, Inc."
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5805
+#: freeculture.xml:5807
msgid "Sony Pictures Entertainment"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5806
+#: freeculture.xml:5808
msgid "MGM"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5807
+#: freeculture.xml:5809
msgid "Paramount Pictures"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5808
+#: freeculture.xml:5810
msgid "Twentieth Century Fox"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:5809
+#: freeculture.xml:5811
msgid "Universal Pictures"
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:5810 freeculture.xml:7200
+#: freeculture.xml:5812 freeculture.xml:7202
msgid "Warner Brothers"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5794
+#: freeculture.xml:5796
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><part><chapter><para>
-#: freeculture.xml:5814
+#: freeculture.xml:5816
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><part><chapter><para>
-#: freeculture.xml:5826
+#: freeculture.xml:5828
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><part><chapter><para>
-#: freeculture.xml:5835
+#: freeculture.xml:5837
msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:"
msgstr ""
#. f1
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:5849
+#: freeculture.xml:5851
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><part><chapter><blockquote><para>
-#: freeculture.xml:5840
+#: freeculture.xml:5842
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 "
#. PAGE BREAK 129
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5859
+#: freeculture.xml:5861
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><part><chapter><para>
-#: freeculture.xml:5870
+#: freeculture.xml:5872
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 "
#. f2
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:5885
+#: freeculture.xml:5887
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 "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5882
+#: freeculture.xml:5884
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><part><chapter><para>
-#: freeculture.xml:5900
+#: freeculture.xml:5902
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><part><chapter><para>
-#: freeculture.xml:5908
+#: freeculture.xml:5910
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><part><chapter><para>
-#: freeculture.xml:5923
+#: freeculture.xml:5925
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><part><chapter><para>
-#: freeculture.xml:5935
+#: freeculture.xml:5937
msgid ""
"The framers of our Constitution loved \"property.\" Indeed, so strongly did "
"they love property that they built into the Constitution an important "
#. PAGE BREAK 131
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5946
+#: freeculture.xml:5948
msgid ""
"Yet the very same Constitution speaks very differently about what Valenti "
"calls \"creative property.\" In the clause granting Congress the power to "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5961
+#: freeculture.xml:5963
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><part><chapter><para>
-#: freeculture.xml:5970
+#: freeculture.xml:5972
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><part><chapter><para>
-#: freeculture.xml:5982
+#: freeculture.xml:5984
msgid ""
"Instead, my argument is that because Jefferson did it, we should at least "
"try to understand <emphasis>why</emphasis>. Why did the framers, fanatical "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:5990
+#: freeculture.xml:5992
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 "
#. PAGE BREAK 132
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:6005
+#: freeculture.xml:6007
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 "
msgstr ""
#. type: Content of: <book><part><chapter><figure><title>
-#: freeculture.xml:6014
+#: freeculture.xml:6016
msgid ""
"How four different modalities of regulation interact to support or weaken "
"the right or regulation."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6015 freeculture.xml:6190 freeculture.xml:6492
+#: freeculture.xml:6017 freeculture.xml:6192 freeculture.xml:6494
msgid "<graphic fileref=\"images/1331.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:6018
+#: freeculture.xml:6020
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><part><chapter><para>
-#: freeculture.xml:6035
+#: freeculture.xml:6037
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><part><chapter><para>
-#: freeculture.xml:6046
+#: freeculture.xml:6048
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><part><chapter><para>
-#: freeculture.xml:6056
+#: freeculture.xml:6058
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><part><chapter><para>
-#: freeculture.xml:6073
+#: freeculture.xml:6075
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><part><chapter><para>
-#: freeculture.xml:6079
+#: freeculture.xml:6081
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><part><chapter><indexterm><primary>
-#: freeculture.xml:6088
+#: freeculture.xml:6090
msgid "driving speed, constraints on"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:6091
+#: freeculture.xml:6093
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><part><chapter><para><footnote><para>
-#: freeculture.xml:6109
+#: freeculture.xml:6111
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 "
#. PAGE BREAK 135
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:6105
+#: freeculture.xml:6107
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><part><chapter><figure><title>
-#: freeculture.xml:6133
+#: freeculture.xml:6135
msgid "Law has a special role in affecting the three."
msgstr ""
#. type: Content of: <book><part><chapter><figure>
-#: freeculture.xml:6134
+#: freeculture.xml:6136
msgid "<graphic fileref=\"images/1361.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6173
+#: freeculture.xml:6175
msgid "Commons, John R."
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:6145
+#: freeculture.xml:6147
msgid ""
"Some people object to this way of talking about \"liberty.\" They object "
"because their focus when considering the constraints that exist at any "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:6137
+#: freeculture.xml:6139
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><part><chapter><section><title>
-#: freeculture.xml:6177
+#: freeculture.xml:6179
msgid "Why Hollywood Is Right"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6179
+#: freeculture.xml:6181
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><part><chapter><section><para>
-#: freeculture.xml:6185
+#: freeculture.xml:6187
msgid "Let's say this is the picture of copyright's regulation before the Internet:"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:6189 freeculture.xml:6491
+#: freeculture.xml:6191 freeculture.xml:6493
msgid "Copyright's regulation before the Internet."
msgstr ""
#. PAGE BREAK 136
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6194
+#: freeculture.xml:6196
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><part><chapter><section><para>
-#: freeculture.xml:6206
+#: freeculture.xml:6208
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><part><chapter><section><para>
-#: freeculture.xml:6214
+#: freeculture.xml:6216
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><part><chapter><section><figure><title>
-#: freeculture.xml:6224
+#: freeculture.xml:6226
msgid "effective state of anarchy after the Internet."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6225
+#: freeculture.xml:6227
msgid "<graphic fileref=\"images/1381.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6228
+#: freeculture.xml:6230
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><part><chapter><section><para>
-#: freeculture.xml:6240
+#: freeculture.xml:6242
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><part><chapter><section><para>
-#: freeculture.xml:6257
+#: freeculture.xml:6259
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6273
+#: freeculture.xml:6275
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><part><chapter><section><para>
-#: freeculture.xml:6265
+#: freeculture.xml:6267
msgid ""
"But just because a particular interest asks for government support, it "
"doesn't follow that support should be granted. And just because technology "
#. f6
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6305
+#: freeculture.xml:6307
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:6314 freeculture.xml:12724
+#: freeculture.xml:6316 freeculture.xml:12728
msgid "Gates, Bill"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6295
+#: freeculture.xml:6297
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><part><chapter><section><para>
-#: freeculture.xml:6317
+#: freeculture.xml:6319
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><part><chapter><section><para>
-#: freeculture.xml:6327
+#: freeculture.xml:6329
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><part><chapter><section><para>
-#: freeculture.xml:6341
+#: freeculture.xml:6343
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><part><chapter><section><para>
-#: freeculture.xml:6350
+#: freeculture.xml:6352
msgid "Here's the metaphor that will capture the argument to follow."
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:6353
+#: freeculture.xml:6355
msgid "DDT"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:6361
+#: freeculture.xml:6363
msgid "Müller, Paul Hermann"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6356
+#: freeculture.xml:6358
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><part><chapter><section><para>
-#: freeculture.xml:6364
+#: freeculture.xml:6366
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><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:6368 freeculture.xml:6374
+#: freeculture.xml:6370 freeculture.xml:6376
msgid "Carson, Rachel"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:6375
+#: freeculture.xml:6377
msgid "Silent Sprint (Carson)"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6370
+#: freeculture.xml:6372
msgid ""
"But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, "
"which argued that DDT, whatever its primary benefits, was also having "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6378
+#: freeculture.xml:6380
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6391
+#: freeculture.xml:6393
msgid ""
"See, for example, James Boyle, \"A Politics of Intellectual Property: "
"Environmentalism for the Net?\" <citetitle>Duke Law Journal</citetitle> 47 "
#. PAGE BREAK 141
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6387
+#: freeculture.xml:6389
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><part><chapter><section><para>
-#: freeculture.xml:6408
+#: freeculture.xml:6410
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><part><chapter><section><para>
-#: freeculture.xml:6419
+#: freeculture.xml:6421
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><part><chapter><section><title>
-#: freeculture.xml:6426
+#: freeculture.xml:6428
msgid "Beginnings"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6428
+#: freeculture.xml:6430
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><part><chapter><section><para>
-#: freeculture.xml:6434
+#: freeculture.xml:6436
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><part><chapter><section><para>
-#: freeculture.xml:6439
+#: freeculture.xml:6441
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6452
+#: freeculture.xml:6454
msgid ""
"The Progress Clause expressly limits the term of copyrights. As we saw in "
"chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"founders\"/>, the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6462
+#: freeculture.xml:6464
msgid ""
"The design of the Progress Clause reflects something about the "
"Constitution's design in general. To avoid a problem, the framers built "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6477
+#: freeculture.xml:6479
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><part><chapter><section><para>
-#: freeculture.xml:6484
+#: freeculture.xml:6486
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><part><chapter><section><para>
-#: freeculture.xml:6495
+#: freeculture.xml:6497
msgid "We will end here:"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:6498
+#: freeculture.xml:6500
msgid ""Copyright" today."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6499
+#: freeculture.xml:6501
msgid "<graphic fileref=\"images/1442.png\"></graphic>"
msgstr ""
#. PAGE BREAK 144
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6502
+#: freeculture.xml:6504
msgid "Let me explain how."
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:6507
+#: freeculture.xml:6509
msgid "Law: Duration"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:6523
+#: freeculture.xml:6525
msgid "Crosskey, William W."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6517
+#: freeculture.xml:6519
msgid ""
"William W. Crosskey, <citetitle>Politics and the Constitution in the History "
"of the United States</citetitle> (London: Cambridge University Press, 1953), "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6509
+#: freeculture.xml:6511
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><part><chapter><section><para>
-#: freeculture.xml:6533
+#: freeculture.xml:6535
msgid ""
"That uncertainty ended after Congress passed legislation granting "
"copyrights. Because federal law overrides any contrary state law, federal "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6541
+#: freeculture.xml:6543
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6556
+#: freeculture.xml:6558
msgid ""
"Although 13,000 titles were published in the United States from 1790 to "
"1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6548
+#: freeculture.xml:6550
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><part><chapter><section><para>
-#: freeculture.xml:6572
+#: freeculture.xml:6574
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6587
+#: freeculture.xml:6589
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6581
+#: freeculture.xml:6583
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6602
+#: freeculture.xml:6604
msgid "See Ringer, ch. 9, n. 2."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6598
+#: freeculture.xml:6600
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6610
+#: freeculture.xml:6612
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><part><chapter><section><para>
-#: freeculture.xml:6618
+#: freeculture.xml:6620
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><part><chapter><section><para>
-#: freeculture.xml:6628
+#: freeculture.xml:6630
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><part><chapter><section><para>
-#: freeculture.xml:6639
+#: freeculture.xml:6641
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><part><chapter><section><para>
-#: freeculture.xml:6649
+#: freeculture.xml:6651
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><part><chapter><section><para>
-#: freeculture.xml:6659
+#: freeculture.xml:6661
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6676
+#: freeculture.xml:6678
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><part><chapter><section><para>
-#: freeculture.xml:6668
+#: freeculture.xml:6670
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><part><chapter><section><title>
-#: freeculture.xml:6685
+#: freeculture.xml:6687
msgid "Law: Scope"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6687
+#: freeculture.xml:6689
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><part><chapter><section><para>
-#: freeculture.xml:6693
+#: freeculture.xml:6695
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><part><chapter><section><para>
-#: freeculture.xml:6706
+#: freeculture.xml:6708
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><part><chapter><section><para>
-#: freeculture.xml:6721
+#: freeculture.xml:6723
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6735
+#: freeculture.xml:6737
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><part><chapter><section><para>
-#: freeculture.xml:6749
+#: freeculture.xml:6751
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><part><chapter><section><para>
-#: freeculture.xml:6757
+#: freeculture.xml:6759
msgid "Consider a practical example to understand the scope of these differences."
msgstr ""
#. f13
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6768
+#: freeculture.xml:6770
msgid ""
"See Thomas Bender and David Sampliner, \"Poets, Pirates, and the Creation of "
"American Literature,\" 29 <citetitle>New York University Journal of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6761
+#: freeculture.xml:6763
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><part><chapter><section><para>
-#: freeculture.xml:6780
+#: freeculture.xml:6782
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><part><chapter><section><para>
-#: freeculture.xml:6789
+#: freeculture.xml:6791
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6798
+#: freeculture.xml:6800
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><part><chapter><section><para>
-#: freeculture.xml:6803
+#: freeculture.xml:6805
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><part><chapter><section><para>
-#: freeculture.xml:6817
+#: freeculture.xml:6819
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6839
+#: freeculture.xml:6841
msgid ""
"Jonathan Zittrain, \"The Copyright Cage,\" <citetitle>Legal "
"Affairs</citetitle>, July/August 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6829
+#: freeculture.xml:6831
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 "
#. f15
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6854
+#: freeculture.xml:6856
msgid ""
"Professor Rubenfeld has presented a powerful constitutional argument about "
"the difference that copyright law should draw (from the perspective of the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6849
+#: freeculture.xml:6851
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><part><chapter><section><para>
-#: freeculture.xml:6865
+#: freeculture.xml:6867
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><part><chapter><section><para>
-#: freeculture.xml:6873
+#: freeculture.xml:6875
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><part><chapter><section><title>
-#: freeculture.xml:6880
+#: freeculture.xml:6882
msgid "Law and Architecture: Reach"
msgstr ""
#. f16
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6887
+#: freeculture.xml:6889
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6882
+#: freeculture.xml:6884
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><part><chapter><section><para>
-#: freeculture.xml:6899
+#: freeculture.xml:6901
msgid ""
"\"Copies.\" That certainly sounds like the obvious thing for "
"<emphasis>copy</emphasis>right law to regulate. But as with Jack Valenti's "
#. f17
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6917
+#: freeculture.xml:6919
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><part><chapter><section><para>
-#: freeculture.xml:6912
+#: freeculture.xml:6914
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><part><chapter><section><para>
-#: freeculture.xml:6928
+#: freeculture.xml:6930
msgid ""
"We can see this point abstractly by beginning with this largely empty "
"circle."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:6932
+#: freeculture.xml:6934
msgid "All potential uses of a book."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6933
+#: freeculture.xml:6935
msgid "<graphic fileref=\"images/1521.png\"></graphic>"
msgstr ""
#. PAGE BREAK 152
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6937
+#: freeculture.xml:6939
msgid ""
"Think about a book in real space, and imagine this circle to represent all "
"its potential <emphasis>uses</emphasis>. Most of these uses are unregulated "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:6950
+#: freeculture.xml:6952
msgid "Examples of unregulated uses of a book."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6951
+#: freeculture.xml:6953
msgid "<graphic fileref=\"images/1531.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6954
+#: freeculture.xml:6956
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><part><chapter><section><para>
-#: freeculture.xml:6962
+#: freeculture.xml:6964
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><part><chapter><section><figure><title>
-#: freeculture.xml:6967
+#: freeculture.xml:6969
msgid ""
"Republishing stands at the core of this circle of possible uses of a "
"copyrighted work."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6968
+#: freeculture.xml:6970
msgid "<graphic fileref=\"images/1541.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6971
+#: freeculture.xml:6973
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><part><chapter><section><figure><title>
-#: freeculture.xml:6981
+#: freeculture.xml:6983
msgid "Unregulated copying considered "fair uses.""
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6982
+#: freeculture.xml:6984
msgid "<graphic fileref=\"images/1542.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:6986
+#: freeculture.xml:6988
msgid ""
"Uses that before were presumptively unregulated are now presumptively "
"regulated."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:6987
+#: freeculture.xml:6989
msgid "<graphic fileref=\"images/1551.png\"></graphic>"
msgstr ""
#. PAGE BREAK 154
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:6991
+#: freeculture.xml:6993
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><part><chapter><section><para><footnote><para>
-#: freeculture.xml:6999
+#: freeculture.xml:7001
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><part><chapter><section><para>
-#: freeculture.xml:6996
+#: freeculture.xml:6998
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><part><chapter><section><para>
-#: freeculture.xml:7017
+#: freeculture.xml:7019
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7029
+#: freeculture.xml:7031
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7041
+#: freeculture.xml:7043
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><part><chapter><section><para>
-#: freeculture.xml:7047
+#: freeculture.xml:7049
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><part><chapter><section><para>
-#: freeculture.xml:7055
+#: freeculture.xml:7057
msgid ""
"Second, this shift is especially troubling in the context of transformative "
"uses of creative content. Again, we can all understand the wrong in "
#. PAGE BREAK 156
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7067
+#: freeculture.xml:7069
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><part><chapter><section><para>
-#: freeculture.xml:7081
+#: freeculture.xml:7083
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7091
+#: freeculture.xml:7093
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><part><chapter><section><para>
-#: freeculture.xml:7098
+#: freeculture.xml:7100
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><part><chapter><section><para>
-#: freeculture.xml:7107
+#: freeculture.xml:7109
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><part><chapter><section><para>
-#: freeculture.xml:7122
+#: freeculture.xml:7124
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><part><chapter><section><para>
-#: freeculture.xml:7132
+#: freeculture.xml:7134
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><part><chapter><section><para>
-#: freeculture.xml:7141
+#: freeculture.xml:7143
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><part><chapter><section><para>
-#: freeculture.xml:7156
+#: freeculture.xml:7158
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><part><chapter><section><para>
-#: freeculture.xml:7171
+#: freeculture.xml:7173
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><part><chapter><section><title>
-#: freeculture.xml:7180
+#: freeculture.xml:7182
msgid "Architecture and Law: Force"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7182
+#: freeculture.xml:7184
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><part><chapter><section><para>
-#: freeculture.xml:7188
+#: freeculture.xml:7190
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><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7195
+#: freeculture.xml:7197
msgid "Casablanca"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7197 freeculture.xml:7376
+#: freeculture.xml:7199 freeculture.xml:7378
msgid "Marx Brothers"
msgstr ""
#. f19
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7211
+#: freeculture.xml:7213
msgid ""
"See David Lange, \"Recognizing the Public Domain,\" <citetitle>Law and "
"Contemporary Problems</citetitle> 44 (1981): 172–73."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7203
+#: freeculture.xml:7205
msgid ""
"There's a famous story about a battle between the Marx Brothers and Warner "
"Brothers. The Marxes intended to make a parody of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7220
+#: freeculture.xml:7222
msgid ""
"Ibid. See also Vaidhyanathan, <citetitle>Copyrights and "
"Copywrongs</citetitle>, 1–3. <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7216
+#: freeculture.xml:7218
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7230
+#: freeculture.xml:7232
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><part><chapter><section><para>
-#: freeculture.xml:7236
+#: freeculture.xml:7238
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><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7249
+#: freeculture.xml:7251
msgid "Adobe eBook Reader"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7252
+#: freeculture.xml:7254
msgid "Consider the life of my Adobe eBook Reader."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7255
+#: freeculture.xml:7257
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><part><chapter><section><para>
-#: freeculture.xml:7262
+#: freeculture.xml:7264
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><part><chapter><section><para>
-#: freeculture.xml:7266
+#: freeculture.xml:7268
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: "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7279
+#: freeculture.xml:7281
msgid "Picture of an old version of Adobe eBook Reader"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7280
+#: freeculture.xml:7282
msgid "<graphic fileref=\"images/1611.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7283
+#: freeculture.xml:7285
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><part><chapter><section><figure><title>
-#: freeculture.xml:7287
+#: freeculture.xml:7289
msgid "List of the permissions that the publisher purports to grant."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7288
+#: freeculture.xml:7290
msgid "<graphic fileref=\"images/1612.png\"></graphic>"
msgstr ""
#. PAGE BREAK 161
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7292
+#: freeculture.xml:7294
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7302
+#: freeculture.xml:7304
msgid "Aristotle"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7303
+#: freeculture.xml:7305
msgid "<citetitle>Politics</citetitle>, (Aristotle)"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7300
+#: freeculture.xml:7302
msgid ""
"Here's the e-book for another work in the public domain (including the "
"translation): Aristotle's <citetitle>Politics</citetitle>. <placeholder "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7306
+#: freeculture.xml:7308
msgid "E-book of Aristotle;s "Politics""
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7307
+#: freeculture.xml:7309
msgid "<graphic fileref=\"images/1621.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7310
+#: freeculture.xml:7312
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><part><chapter><section><figure><title>
-#: freeculture.xml:7315
+#: freeculture.xml:7317
msgid "List of the permissions for Aristotle;s "Politics"."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7316
+#: freeculture.xml:7318
msgid "<graphic fileref=\"images/1622.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7319
+#: freeculture.xml:7321
msgid ""
"Finally (and most embarrassingly), here are the permissions for the original "
"e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:"
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7325
+#: freeculture.xml:7327
msgid "List of the permissions for "The Future of Ideas"."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7326
+#: freeculture.xml:7328
msgid "<graphic fileref=\"images/1631.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7329
+#: freeculture.xml:7331
msgid "No copying, no printing, and don't you dare try to listen to this book!"
msgstr ""
#. f21
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7339
+#: freeculture.xml:7341
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><part><chapter><section><para>
-#: freeculture.xml:7332
+#: freeculture.xml:7334
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7354
+#: freeculture.xml:7356
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7372
+#: freeculture.xml:7374
msgid ""
"These are <emphasis>controls</emphasis>, not permissions. Imagine a world "
"where the Marx Brothers sold word processing software that, when you tried "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7379
+#: freeculture.xml:7381
msgid ""
"This is the future of copyright law: not so much copyright "
"<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. The "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7388
+#: freeculture.xml:7390
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><part><chapter><section><para>
-#: freeculture.xml:7395
+#: freeculture.xml:7397
msgid ""
"We've only scratched the surface of this story. Return to the Adobe eBook "
"Reader."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7405
+#: freeculture.xml:7407
msgid "Alice's Adventures in Wonderland (Carroll)"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7399
+#: freeculture.xml:7401
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 "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7408
+#: freeculture.xml:7410
msgid "List of the permissions for "Alice's Adventures in Wonderland"."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7410
+#: freeculture.xml:7412
msgid "<graphic fileref=\"images/1641.png\"></graphic>"
msgstr ""
#. PAGE BREAK 164
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7414
+#: freeculture.xml:7416
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><part><chapter><section><para>
-#: freeculture.xml:7419
+#: freeculture.xml:7421
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><part><chapter><section><para>
-#: freeculture.xml:7427
+#: freeculture.xml:7429
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><part><chapter><section><para>
-#: freeculture.xml:7440
+#: freeculture.xml:7442
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><part><chapter><section><para>
-#: freeculture.xml:7449
+#: freeculture.xml:7451
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><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7453
+#: freeculture.xml:7455
msgid "Aibo robotic dog"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7456
+#: freeculture.xml:7458
msgid ""
"Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns "
"tricks, cuddles, and follows you around. It eats only electricity and that "
#. PAGE BREAK 165
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7461
+#: freeculture.xml:7463
msgid ""
"The Aibo is expensive and popular. Fans from around the world have set up "
"clubs to trade stories. One fan in particular set up a Web site to enable "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7470
+#: freeculture.xml:7472
msgid ""
"\"Teach\" here has a special meaning. Aibos are just cute computers. You "
"teach a computer how to do something by programming it differently. So to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7478
+#: freeculture.xml:7480
msgid ""
"If you're not a programmer or don't know many programmers, the word "
"<citetitle>hack</citetitle> has a particularly unfriendly "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7490
+#: freeculture.xml:7492
msgid ""
"Some hacks are easy. Some are unbelievably hard. Hackers as a community like "
"to challenge themselves and others with increasingly difficult "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7497
+#: freeculture.xml:7499
msgid ""
"The Aibo fan was displaying a bit of both when he hacked the program and "
"offered to the world a bit of code that would enable the Aibo to dance "
#. PAGE BREAK 166
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7505
+#: freeculture.xml:7507
msgid ""
"I've told this story in many contexts, both inside and outside the United "
"States. Once I was asked by a puzzled member of the audience, is it "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7521
+#: freeculture.xml:7523
msgid ""
"Let's put the dog to sleep for a minute, and turn to a pony show— not "
"literally a pony show, but rather a paper that a Princeton academic named Ed "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7544 freeculture.xml:9984
+#: freeculture.xml:7546 freeculture.xml:9988
msgid "Electronic Frontier Foundation"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7534
+#: freeculture.xml:7536
msgid ""
"See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" "
"<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, \"Play "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7532
+#: freeculture.xml:7534
msgid ""
"But Felten's bravery was really tested in April 2001.<placeholder "
"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7552
+#: freeculture.xml:7554
msgid ""
"The SDMI coalition had as its goal a technology to enable content owners to "
"exercise much better control over their content than the Internet, as it "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7562
+#: freeculture.xml:7564
msgid ""
"When SDMI thought it was close to a standard, it set up a competition. In "
"exchange for providing contestants with the code to an SDMI-encrypted bit of "
#. PAGE BREAK 167
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7569
+#: freeculture.xml:7571
msgid ""
"Felten and his team figured out the encryption system quickly. He and the "
"team saw the weakness of this system as a type: Many encryption systems "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7575
+#: freeculture.xml:7577
msgid ""
"Let's review just what Felten was doing. Again, this is the United "
"States. We have a principle of free speech. We have this principle not just "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7583
+#: freeculture.xml:7585
msgid ""
"What Felten and his colleagues were doing was publishing a paper describing "
"the weakness in a technology. They were not spreading free music, or "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7591
+#: freeculture.xml:7593
msgid ""
"What links these two, aibopet.com and Felten, is the letters they then "
"received. Aibopet.com received a letter from Sony about the aibopet.com "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7598
+#: freeculture.xml:7600
msgid ""
"Your site contains information providing the means to circumvent AIBO-ware's "
"copy protection protocol constituting a violation of the anti-circumvention "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7604
+#: freeculture.xml:7606
msgid ""
"And though an academic paper describing the weakness in a system of "
"encryption should also be perfectly legal, Felten received a letter from an "
#. PAGE BREAK 168
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7610
+#: freeculture.xml:7612
msgid ""
"Any disclosure of information gained from participating in the Public "
"Challenge would be outside the scope of activities permitted by the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7618
+#: freeculture.xml:7620
msgid ""
"In both cases, this weirdly Orwellian law was invoked to control the spread "
"of information. The Digital Millennium Copyright Act made spreading such "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7623
+#: freeculture.xml:7625
msgid ""
"The DMCA was enacted as a response to copyright owners' first fear about "
"cyberspace. The fear was that copyright control was effectively dead; the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7634
+#: freeculture.xml:7636
msgid ""
"The DMCA was a bit of law intended to back up the protection of this code "
"designed to protect copyrighted material. It was, we could say, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7641
+#: freeculture.xml:7643
msgid ""
"But the DMCA was not designed merely to protect copyrighted works to the "
"extent copyright law protected them. Its protection, that is, did not end at "
#. PAGE BREAK 169
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7650
+#: freeculture.xml:7652
msgid ""
"Aibopet.com and Felten make the point. The Aibo hack circumvented a "
"copyright protection system for the purpose of enabling the dog to dance "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7662
+#: freeculture.xml:7664
msgid ""
"The threat against Felten was more attenuated, but it followed the same line "
"of reasoning. By publishing a paper describing how a copyright protection "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7678 freeculture.xml:7713 freeculture.xml:7745
+#: freeculture.xml:7680 freeculture.xml:7715 freeculture.xml:7747
msgid "Conrad, Paul"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7670
+#: freeculture.xml:7672
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 "
#. f23
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:7697
+#: freeculture.xml:7699
msgid ""
"<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal "
"City Studios, Inc</citetitle>., 464 U.S. 417, 455 fn. 27 (1984). Rogers "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7682
+#: freeculture.xml:7684
msgid ""
"Some public stations, as well as commercial stations, program the "
"\"Neighborhood\" at hours when some children cannot use it. I think that "
#. PAGE BREAK 170
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7706
+#: freeculture.xml:7708
msgid ""
"Even though there were uses that were legal, because there were some uses "
"that were illegal, the court held the companies producing the VCR "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7711
+#: freeculture.xml:7713
msgid ""
"This led Conrad to draw the cartoon below, which we can adopt to the DMCA. "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7716
+#: freeculture.xml:7718
msgid "No argument I have can top this picture, but let me try to get close."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7719
+#: freeculture.xml:7721
msgid ""
"The anticircumvention provisions of the DMCA target copyright circumvention "
"technologies. Circumvention technologies can be used for different "
#. PAGE BREAK 171
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7727
+#: freeculture.xml:7729
msgid ""
"A handgun can be used to shoot a police officer or a child. Most would agree "
"such a use is bad. Or a handgun can be used for target practice or to "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7735
+#: freeculture.xml:7737
msgid "VCR/handgun cartoon."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7736
+#: freeculture.xml:7738
msgid "<graphic fileref=\"images/1711.png\"></graphic>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7739
+#: freeculture.xml:7741
msgid ""
"The obvious point of Conrad's cartoon is the weirdness of a world where guns "
"are legal, despite the harm they can do, while VCRs (and circumvention "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7748
+#: freeculture.xml:7750
msgid ""
"The Aibo and RIAA examples demonstrate how copyright owners are changing the "
"balance that copyright law grants. Using code, copyright owners restrict "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7756
+#: freeculture.xml:7758
msgid ""
"This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. The "
"controls built into the technology of copy and access protection become "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7768
+#: freeculture.xml:7770
msgid ""
"There is one final aspect of the interaction between architecture and law "
"that contributes to the force of copyright's regulation. This is the ease "
#. f24
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7787
+#: freeculture.xml:7789
msgid ""
"For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, "
"Copyright, Fan Fiction, and a New Common Law,\" <citetitle>Loyola of Los "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7781
+#: freeculture.xml:7783
msgid ""
"For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan "
"club. You gathered every month to share trivia, and maybe to enact a kind of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7793
+#: freeculture.xml:7795
msgid ""
"Before the Internet, this was, in effect, a totally unregulated activity. "
"No matter what happened inside your club room, you would never be interfered "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7800
+#: freeculture.xml:7802
msgid ""
"But if you moved your club onto the Internet, and made it generally "
"available for others to join, the story would be very different. Bots "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7810
+#: freeculture.xml:7812
msgid ""
"This change in the effective force of the law is caused by a change in the "
"ease with which the law can be enforced. That change too shifts the law's "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:7819
+#: freeculture.xml:7821
msgid "Market: Concentration"
msgstr ""
#. PAGE BREAK 173
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7821
+#: freeculture.xml:7823
msgid ""
"So copyright's duration has increased dramatically—tripled in the past "
"thirty years. And copyright's scope has increased as well—from "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7839
+#: freeculture.xml:7841
msgid ""
"Still, in my view, all of these changes would not matter much if it weren't "
"for one more change that we must also consider. This is a change that is in "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7846
+#: freeculture.xml:7848
msgid ""
"This is the change in the concentration and integration of the media. In "
"the past twenty years, the nature of media ownership has undergone a radical "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7857
+#: freeculture.xml:7859
msgid "These changes are of two sorts: the scope of concentration, and its nature."
msgstr ""
#. f25
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7865
+#: freeculture.xml:7867
msgid ""
"FCC Oversight: Hearing Before the Senate Commerce, Science and "
"Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement "
#. f26
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7872
+#: freeculture.xml:7874
msgid ""
"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" "
"<citetitle>New York Times</citetitle>, 23 December 2002."
#. f27
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7878
+#: freeculture.xml:7880
msgid ""
"Molly Ivins, \"Media Consolidation Must Be Stopped,\" <citetitle>Charleston "
"Gazette</citetitle>, 31 May 2003."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7881
+#: freeculture.xml:7883
msgid "BMG"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7882 freeculture.xml:9219
+#: freeculture.xml:7884 freeculture.xml:9222
msgid "EMI"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7883
+#: freeculture.xml:7885
msgid "McCain, John"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7884 freeculture.xml:9220
+#: freeculture.xml:7886 freeculture.xml:9223
msgid "Universal Music Group"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:7885
+#: freeculture.xml:7887
msgid "Warner Music Group"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7861
+#: freeculture.xml:7863
msgid ""
"Changes in scope are the easier ones to describe. As Senator John McCain "
"summarized the data produced in the FCC's review of media ownership, \"five "
#. PAGE BREAK 174
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7888
+#: freeculture.xml:7890
msgid ""
"The story with radio is even more dramatic. Before deregulation, the "
"nation's largest radio broadcasting conglomerate owned fewer than "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7899
+#: freeculture.xml:7901
msgid ""
"Newspaper ownership is becoming more concentrated as well. Today, there are "
"six hundred fewer daily newspapers in the United States than there were "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:7913 freeculture.xml:7930
+#: freeculture.xml:7915 freeculture.xml:7932
msgid "Fallows, James"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7910
+#: freeculture.xml:7912
msgid ""
"Concentration in size alone is one thing. The more invidious change is in "
"the nature of that concentration. As author James Fallows put it in a recent "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:7928
+#: freeculture.xml:7930
msgid ""
"James Fallows, \"The Age of Murdoch,\" <citetitle>Atlantic "
"Monthly</citetitle> (September 2003): 89. <placeholder type=\"indexterm\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:7917
+#: freeculture.xml:7919
msgid ""
"Murdoch's companies now constitute a production system unmatched in its "
"integration. They supply content—Fox movies … Fox TV shows "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7935
+#: freeculture.xml:7937
msgid ""
"The pattern with Murdoch is the pattern of modern media. Not just large "
"companies owning many radio stations, but a few companies owning as many "
msgstr ""
#. type: Content of: <book><part><chapter><section><figure><title>
-#: freeculture.xml:7941
+#: freeculture.xml:7943
msgid "Pattern of modern media ownership."
msgstr ""
#. type: Content of: <book><part><chapter><section><figure>
-#: freeculture.xml:7942
+#: freeculture.xml:7944
msgid "<graphic fileref=\"images/1761.png\"></graphic>"
msgstr ""
#. PAGE BREAK 175
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7946
+#: freeculture.xml:7948
msgid ""
"Does this concentration matter? Will it affect what is made, or what is "
"distributed? Or is it merely a more efficient way to produce and distribute "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7951
+#: freeculture.xml:7953
msgid ""
"My view was that concentration wouldn't matter. I thought it was nothing "
"more than a more efficient financial structure. But now, after reading and "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7957
+#: freeculture.xml:7959
msgid ""
"Here's a representative story that begins to suggest how this integration "
"may matter."
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7960
+#: freeculture.xml:7962
msgid "Lear, Norman"
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:7962 freeculture.xml:8025
+#: freeculture.xml:7964 freeculture.xml:8027
msgid "All in the Family"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7964
+#: freeculture.xml:7966
msgid ""
"In 1969, Norman Lear created a pilot for <citetitle>All in the "
"Family</citetitle>. He took the pilot to ABC. The network didn't like it. It "
#. f29
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:7976
+#: freeculture.xml:7978
msgid ""
"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center "
"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7971
+#: freeculture.xml:7973
msgid ""
"Rather than comply, Lear simply took the show elsewhere. CBS was happy to "
"have the series; ABC could not stop Lear from walking. The copyrights that "
#. PAGE BREAK 176
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7987
+#: freeculture.xml:7989
msgid ""
"The network did not control those copyrights because the law forbade the "
"networks from controlling the content they syndicated. The law required a "
#. f30
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8006
+#: freeculture.xml:8008
msgid ""
"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
"Ownership Before the Senate Commerce Committee, 108th Cong., 1st "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:7996
+#: freeculture.xml:7998
msgid ""
"In 1994, the FCC abandoned the rules that required this independence. After "
"that change, the networks quickly changed the balance. In 1985, there were "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8027
+#: freeculture.xml:8029
msgid ""
"Today, another Norman Lear with another <citetitle>All in the "
"Family</citetitle> would find that he had the choice either to make the show "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:8036
+#: freeculture.xml:8038
msgid "Diller, Barry"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:8037
+#: freeculture.xml:8039
msgid "Moyers, Bill"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8033
+#: freeculture.xml:8035
msgid ""
"While the number of channels has increased dramatically, the ownership of "
"those channels has narrowed to an ever smaller and smaller few. As Barry "
#. f32
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:8050
+#: freeculture.xml:8052
msgid ""
"\"Barry Diller Takes on Media Deregulation,\" <citetitle>Now with Bill "
"Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript available "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:8041
+#: freeculture.xml:8043
msgid ""
"Well, if you have companies that produce, that finance, that air on their "
"channel and then distribute worldwide everything that goes through their "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8057
+#: freeculture.xml:8059
msgid ""
"This narrowing has an effect on what is produced. The product of such large "
"and concentrated networks is increasingly homogenous. Increasingly "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:8068
+#: freeculture.xml:8070
msgid "Clark, Kim B."
msgstr ""
#. f33
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8077
+#: freeculture.xml:8079
msgid ""
"Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
"Revolutionary National Bestseller that Changed the Way We Do "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8070
+#: freeculture.xml:8072
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the \"Innovator's "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8094
+#: freeculture.xml:8096
msgid ""
"I don't think we know enough about the economics of the media market to say "
"with certainty what concentration and integration will do. The efficiencies "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8100
+#: freeculture.xml:8102
msgid ""
"But there is a quintessentially obvious example that does strongly suggest "
"the concern."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8104
+#: freeculture.xml:8106
msgid ""
"In addition to the copyright wars, we're in the middle of the drug "
"wars. Government policy is strongly directed against the drug cartels; "
#. PAGE BREAK 178
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8109
+#: freeculture.xml:8111
msgid ""
"Let me hereby disqualify myself from any possible appointment to any "
"position in government by saying I believe this war is a profound mistake. I "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8128
+#: freeculture.xml:8130
msgid ""
"You may not be convinced. That's fine. We live in a democracy, and it is "
"through votes that we are to choose policy. But to do that, we depend "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8134
+#: freeculture.xml:8136
msgid ""
"Beginning in 1998, the Office of National Drug Control Policy launched a "
"media campaign as part of the \"war on drugs.\" The campaign produced scores "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8146
+#: freeculture.xml:8148
msgid ""
"Fair enough. It's a good ad. Not terribly misleading. It delivers its "
"message well. It's a fair and reasonable message."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8150
+#: freeculture.xml:8152
msgid ""
"But let's say you think it is a wrong message, and you'd like to run a "
"countercommercial. Say you want to run a series of ads that try to "
#. PAGE BREAK 179
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8156
+#: freeculture.xml:8158
msgid ""
"Well, obviously, these ads cost lots of money. Assume you raise the "
"money. Assume a group of concerned citizens donates all the money in the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8198
+#: freeculture.xml:8200
msgid "Comcast"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8199
+#: freeculture.xml:8201
msgid "Marijuana Policy Project"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8200
+#: freeculture.xml:8202
msgid "NBC"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8201
+#: freeculture.xml:8203
msgid "WJOA"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8202
+#: freeculture.xml:8204
msgid "WRC"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8173
+#: freeculture.xml:8175
msgid ""
"The Marijuana Policy Project, in February 2003, sought to place ads that "
"directly responded to the Nick and Norm series on stations within the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8163
+#: freeculture.xml:8165
msgid ""
"No. You cannot. Television stations have a general policy of avoiding "
"\"controversial\" ads. Ads sponsored by the government are deemed "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8206
+#: freeculture.xml:8208
msgid ""
"I'd be happy to defend the networks' rights, as well—if we lived in a "
"media market that was truly diverse. But concentration in the media throws "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:8218
+#: freeculture.xml:8220
msgid "Together"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8220
+#: freeculture.xml:8222
msgid ""
"There is something innocent and obvious about the claim of the copyright "
"warriors that the government should \"protect my property.\" In the "
#. PAGE BREAK 180
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8226
+#: freeculture.xml:8228
msgid ""
"But when we see how dramatically this \"property\" has changed— when "
"we recognize how it might now interact with both technology and markets to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8242
+#: freeculture.xml:8244
msgid ""
"Not starkly. Or absolutely. My point is not that we should abolish copyright "
"or go back to the eighteenth century. That would be a total mistake, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8248
+#: freeculture.xml:8250
msgid ""
"But there is a space between zero and one, Internet culture "
"notwithstanding. And these massive shifts in the effective power of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8260
+#: freeculture.xml:8262
msgid ""
"Copyright law has not been a rock of Gibraltar. It's not a set of constant "
"commitments that, for some mysterious reason, teenagers and geeks now "
#. PAGE BREAK 181
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8272
+#: freeculture.xml:8274
msgid ""
"For the single point that is lost in this war on pirates is a point that we "
"see only after surveying the range of these changes. When you add together "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8296
+#: freeculture.xml:8298
msgid ""
"Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of "
"copyright law in the digital age. See Vaidhyanathan, 159–60. "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8281
+#: freeculture.xml:8283
msgid ""
"Not when copyrights were perpetual, for when copyrights were perpetual, they "
"affected only that precise creative work. Not when only publishers had the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8302
+#: freeculture.xml:8304
msgid "This has been a long chapter. Its point can now be briefly stated."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8305
+#: freeculture.xml:8307
msgid ""
"At the start of this book, I distinguished between commercial and "
"noncommercial culture. In the course of this chapter, I have distinguished "
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:8317 freeculture.xml:8354
+#: freeculture.xml:8319 freeculture.xml:8356
msgid "PUBLISH"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:8318 freeculture.xml:8355 freeculture.xml:8393 freeculture.xml:8425
+#: freeculture.xml:8320 freeculture.xml:8357 freeculture.xml:8395 freeculture.xml:8427
msgid "TRANSFORM"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8323 freeculture.xml:8360 freeculture.xml:8398 freeculture.xml:8430
+#: freeculture.xml:8325 freeculture.xml:8362 freeculture.xml:8400 freeculture.xml:8432
msgid "Commercial"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8324 freeculture.xml:8361 freeculture.xml:8362 freeculture.xml:8399 freeculture.xml:8400 freeculture.xml:8431 freeculture.xml:8432 freeculture.xml:8436 freeculture.xml:8437
+#: freeculture.xml:8326 freeculture.xml:8363 freeculture.xml:8364 freeculture.xml:8401 freeculture.xml:8402 freeculture.xml:8433 freeculture.xml:8434 freeculture.xml:8438 freeculture.xml:8439
msgid "©"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8325 freeculture.xml:8329 freeculture.xml:8330 freeculture.xml:8366 freeculture.xml:8367 freeculture.xml:8405
+#: freeculture.xml:8327 freeculture.xml:8331 freeculture.xml:8332 freeculture.xml:8368 freeculture.xml:8369 freeculture.xml:8407
msgid "Free"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8328 freeculture.xml:8365 freeculture.xml:8403 freeculture.xml:8435
+#: freeculture.xml:8330 freeculture.xml:8367 freeculture.xml:8405 freeculture.xml:8437
msgid "Noncommercial"
msgstr ""
#. PAGE BREAK 182
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8337
+#: freeculture.xml:8339
msgid ""
"The act of publishing a map, chart, and book was regulated by copyright "
"law. Nothing else was. Transformations were free. And as copyright attached "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8346
+#: freeculture.xml:8348
msgid "By the end of the nineteenth century, the law had changed to this:"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8374
+#: freeculture.xml:8376
msgid ""
"Derivative works were now regulated by copyright law—if published, "
"which again, given the economics of publishing at the time, means if offered "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8380
+#: freeculture.xml:8382
msgid ""
"In 1909 the law changed to regulate copies, not publishing, and after this "
"change, the scope of the law was tied to technology. As the technology of "
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
-#: freeculture.xml:8392 freeculture.xml:8424
+#: freeculture.xml:8394 freeculture.xml:8426
msgid "COPY"
msgstr ""
#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
-#: freeculture.xml:8404
+#: freeculture.xml:8406
msgid "©/Free"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8412
+#: freeculture.xml:8414
msgid ""
"The law was interpreted to reach noncommercial copying through, say, copy "
"machines, but still much of copying outside of the commercial market "
#. PAGE BREAK 183
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8444
+#: freeculture.xml:8446
msgid ""
"Every realm is governed by copyright law, whereas before most creativity was "
"not. The law now regulates the full range of creativity— commercial or "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8452
+#: freeculture.xml:8454
msgid ""
"Obviously, copyright law is not the enemy. The enemy is regulation that does "
"no good. So the question that we should be asking just now is whether "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8458
+#: freeculture.xml:8460
msgid ""
"I have no doubt that it does good in regulating commercial copying. But I "
"also have no doubt that it does more harm than good when regulating (as it "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8482
+#: freeculture.xml:8484
msgid "legal realist movement"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8476
+#: freeculture.xml:8478
msgid ""
"It was the single most important contribution of the legal realist movement "
"to demonstrate that all property rights are always crafted to balance public "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8470
+#: freeculture.xml:8472
msgid ""
"The issue is therefore not simply whether copyright is property. Of course "
"copyright is a kind of \"property,\" and of course, as with any property, "
#. PAGE BREAK 184
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8494
+#: freeculture.xml:8496
msgid ""
"We achieved that free culture because our law respected important limits on "
"the scope of the interests protected by \"property.\" The very birth of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8513
+#: freeculture.xml:8515
msgid ""
"Free culture is increasingly the casualty in this war on piracy. In response "
"to a real, if not yet quantified, threat that the technologies of the "
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:8530
+#: freeculture.xml:8532
msgid "PUZZLES"
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:8534
+#: freeculture.xml:8536
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8536
+#: freeculture.xml:8538
msgid "chimeras"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8539
+#: freeculture.xml:8541
msgid "Wells, H. G."
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:8542
+#: freeculture.xml:8544
msgid ""Country of the Blind, The" (Wells)"
msgstr ""
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:8550
+#: freeculture.xml:8552
msgid ""
"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, "
"<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8546
+#: freeculture.xml:8548
msgid ""
"In a well-known short story by H. G. Wells, a mountain climber named Nunez "
"trips (literally, down an ice slope) into an unknown and isolated valley in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8562
+#: freeculture.xml:8564
msgid ""
"Things don't go quite as he planned. He tries to explain the idea of sight "
"to the villagers. They don't understand. He tells them they are \"blind.\" "
#. PAGE BREAK 187
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8574
+#: freeculture.xml:8576
msgid ""
"The villagers don't leave him alone. Nor do they see (so to speak) the "
"virtue of his special power. Not even the ultimate target of his affection, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8585
+#: freeculture.xml:8587
msgid ""
"When Nunez announces his desire to marry his \"mysteriously delighted\" "
"love, the father and the village object. \"You see, my dear,\" her father "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8591
+#: freeculture.xml:8593
msgid ""
"After a careful examination, the doctor gives his opinion. \"His brain is "
"affected,\" he reports."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8595
+#: freeculture.xml:8597
msgid ""
"\"What affects it?\" the father asks. \"Those queer things that are called "
"the eyes … are diseased … in such a way as to affect his "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8600
+#: freeculture.xml:8602
msgid ""
"The doctor continues: \"I think I may say with reasonable certainty that in "
"order to cure him completely, all that we need to do is a simple and easy "
#. PAGE BREAK 188
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8606
+#: freeculture.xml:8608
msgid ""
"\"Thank Heaven for science!\" says the father to the doctor. They inform "
"Nunez of this condition necessary for him to be allowed his bride. (You'll "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8623
+#: freeculture.xml:8625
msgid ""
"Before I had read about chimeras, I would have said they were impossible. A "
"single person can't have two sets of DNA. The very idea of DNA is that it is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8631
+#: freeculture.xml:8633
msgid ""
"The more I work to understand the current struggle over copyright and "
"culture, which I've sometimes called unfairly, and sometimes not unfairly "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8645
+#: freeculture.xml:8647
msgid ""
"But the description is also false in part. For when my p2p server is on a "
"p2p network through which anyone can get access to my music, then sure, my "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8654
+#: freeculture.xml:8656
msgid ""
"Likewise, when the other side says, \"File sharing is just like walking into "
"a Tower Records and taking a CD off the shelf and walking out with it,\" "
#. PAGE BREAK 189
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8665
+#: freeculture.xml:8667
msgid ""
"But it is not quite stealing from Tower. After all, when I take a CD from "
"Tower Records, Tower has one less CD to sell. And when I take a CD from "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8675
+#: freeculture.xml:8677
msgid ""
"The point is not that it is as neither side describes. The point is that it "
"is both—both as the RIAA describes it and as Kazaa describes it. It is "
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8721
+#: freeculture.xml:8723
msgid "Conyers, John, Jr."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8722 freeculture.xml:9424
+#: freeculture.xml:8724 freeculture.xml:9427
msgid "Berman, Howard L."
msgstr ""
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:8691
+#: freeculture.xml:8693
msgid ""
"For an excellent summary, see the report prepared by GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School, \"Copyright "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8682
+#: freeculture.xml:8684
msgid ""
"We could respond by simply pretending that it is not a chimera. We could, "
"with the RIAA, decide that every act of file sharing should be a felony. We "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8728
+#: freeculture.xml:8730
msgid ""
"Alternatively, we could respond to file sharing the way many kids act as "
"though we've responded. We could totally legalize it. Let there be no "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8735
+#: freeculture.xml:8737
msgid ""
"Either response is possible. I think either would be a mistake. Rather than "
"embrace one of these two extremes, we should embrace something that "
#. PAGE BREAK 190
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8747
+#: freeculture.xml:8749
msgid ""
"Yet zero tolerance is increasingly our government's policy. In the middle of "
"the chaos that the Internet has created, an extraordinary land grab is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8755
+#: freeculture.xml:8757
msgid ""
"I'm not talking about the opportunities for kids to \"steal\" music. My "
"focus instead is the commercial and cultural innovation that this war will "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8768
+#: freeculture.xml:8770
msgid ""
"eMusic opposes music piracy. We are a distributor of copyrighted material, "
"and we want to protect those rights."
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8772
+#: freeculture.xml:8774
msgid ""
"But building a technology fortress that locks in the clout of the major "
"labels is by no means the only way to protect copyright interests, nor is it "
#. f3.
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
-#: freeculture.xml:8789
+#: freeculture.xml:8791
msgid ""
"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
"Entertainment on the Internet and Other Media: Hearing Before the "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:8779
+#: freeculture.xml:8781
msgid ""
"This is a critical point. The choices that industry sectors make with "
"respect to these systems will in many ways directly shape the market for "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:8803 freeculture.xml:9153
+#: freeculture.xml:8805 freeculture.xml:9155
msgid "Vivendi Universal"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8800
+#: freeculture.xml:8802
msgid ""
"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the "
"major labels.\" Its position on these matters has now changed. <placeholder "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8806
+#: freeculture.xml:8808
msgid ""
"Reversing our tradition of tolerance now will not merely quash piracy. It "
"will sacrifice values that are important to this culture, and will kill "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:8814
+#: freeculture.xml:8816
msgid "CHAPTER TWELVE: Harms"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8816
+#: freeculture.xml:8818
msgid ""
"To fight \"piracy,\" to protect \"property,\" the content industry has "
"launched a war. Lobbying and lots of campaign contributions have now brought "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8823
+#: freeculture.xml:8825
msgid ""
"My aim so far has been to describe the consequences of this war, in "
"particular, the consequences for \"free culture.\" But my aim now is to "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8829
+#: freeculture.xml:8831
msgid ""
"In my view, it is not. There is no good reason why this time, for the first "
"time, the law should defend the old against the new, just when the power of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8837
+#: freeculture.xml:8839
msgid ""
"Yet \"common sense\" does not see it this way. Common sense is still on the "
"side of the Causbys and the content industry. The extreme claims of control "
#. PAGE BREAK 193
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:8844
+#: freeculture.xml:8846
msgid ""
"There will be many consequences of continuing this war. I want to describe "
"just three. All three might be said to be unintended. I am quite confident "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:8851
+#: freeculture.xml:8853
msgid "Constraining Creators"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8853
+#: freeculture.xml:8855
msgid ""
"In the next ten years we will see an explosion of digital technologies. "
"These technologies will enable almost anyone to capture and share "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8868
+#: freeculture.xml:8870
msgid ""
"This digital \"capturing and sharing\" is in part an extension of the "
"capturing and sharing that has always been integral to our culture, and in "
#. PAGE BREAK 194
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8879
+#: freeculture.xml:8881
msgid ""
"Technology has thus given us an opportunity to do something with culture "
"that has only ever been possible for individuals in small groups, isolated "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8889
+#: freeculture.xml:8891
msgid ""
"Yet all this is possible only if the activity is presumptively legal. In the "
"current regime of legal regulation, it is not. Forget file sharing for a "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:8917 freeculture.xml:8938
+#: freeculture.xml:8919 freeculture.xml:8940
msgid "Worldcom"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8912
+#: freeculture.xml:8914
msgid ""
"See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at "
"WorldCom</citetitle> (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:8933
+#: freeculture.xml:8935
msgid "Bush, George W."
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8924
+#: freeculture.xml:8926
msgid ""
"The bill, modeled after California's tort reform model, was passed in the "
"House of Representatives but defeated in a Senate vote in July 2003. For an "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8900
+#: freeculture.xml:8902
msgid ""
"That presumption will increasingly chill creativity, as the examples of "
"extreme penalties for vague infringements continue to proliferate. It is "
#. f3.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:8960
+#: freeculture.xml:8962
msgid ""
"See Danit Lidor, \"Artists Just Wanna Be Free,\" "
"<citetitle>Wired</citetitle>, 7 July 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8941
+#: freeculture.xml:8943
msgid ""
"The consequence of this legal uncertainty, tied to these extremely high "
"penalties, is that an extraordinary amount of creativity will either never "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8970
+#: freeculture.xml:8972
msgid ""
"Part of the reason for this fear of illegality has to do with the changing "
"law. I described that change in detail in chapter <xref xrefstyle=\"select: "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8982
+#: freeculture.xml:8984
msgid ""
"Never in our history has a painter had to worry about whether his painting "
"infringed on someone else's work; but the modern-day painter, using the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:8993
+#: freeculture.xml:8995
msgid ""
"Lawyers rarely see this because lawyers are rarely empirical. As I described "
"in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/>, "
#. PAGE BREAK 196
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9004
+#: freeculture.xml:9006
msgid ""
"But fair use in America simply means the right to hire a lawyer to defend "
"your right to create. And as lawyers love to forget, our system for "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9014
+#: freeculture.xml:9016
msgid ""
"Judges and lawyers can tell themselves that fair use provides adequate "
"\"breathing room\" between regulation by the law and the access the law "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9025
+#: freeculture.xml:9027
msgid ""
"For in a world that threatens $150,000 for a single willful infringement of "
"a copyright, and which demands tens of thousands of dollars to even defend "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9036
+#: freeculture.xml:9038
msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me,"
msgstr ""
#. PAGE BREAK 197
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9040
+#: freeculture.xml:9042
msgid ""
"We're losing [creative] opportunities right and left. Creative people are "
"being forced not to express themselves. Thoughts are not being "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:9053
+#: freeculture.xml:9055
msgid "Constraining Innovators"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9055
+#: freeculture.xml:9057
msgid ""
"The story of the last section was a crunchy-lefty story—creativity "
"quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9063
+#: freeculture.xml:9065
msgid ""
"But there's an aspect of this story that is not lefty in any sense. Indeed, "
"it is an aspect that could be written by the most extreme promarket "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9072
+#: freeculture.xml:9074
msgid ""
"The charge I've been making about the regulation of culture is the same "
"charge free marketers make about regulating markets. Everyone, of course, "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9084 freeculture.xml:9191
+#: freeculture.xml:9086 freeculture.xml:9193
msgid "Barry, Hank"
msgstr ""
#. PAGE BREAK 198
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9086
+#: freeculture.xml:9088
msgid ""
"This is the single most dramatic effect of the shift in regulatory strategy "
"that I described in chapter <xref xrefstyle=\"select: labelnumber\" "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9099
+#: freeculture.xml:9101
msgid ""
"Consider one example to make the point, a story whose beginning I told in "
"<citetitle>The Future of Ideas</citetitle> and which has progressed in a way "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9104
+#: freeculture.xml:9106
msgid ""
"In 1997, Michael Roberts launched a company called MP3.com. MP3.com was "
"keen to remake the music business. Their goal was not just to facilitate new "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9112
+#: freeculture.xml:9114
msgid ""
"To make this system work, however, MP3.com needed a reliable way to "
"recommend music to its users. The idea behind this alternative was to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9120
+#: freeculture.xml:9122
msgid ""
"This idea required a simple way to gather data about user preferences. "
"MP3.com came up with an extraordinarily clever way to gather this preference "
#. PAGE BREAK 199
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9132
+#: freeculture.xml:9134
msgid ""
"No doubt some could use this system to illegally copy content. But that "
"opportunity existed with or without MP3.com. The aim of the my.mp3.com "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9141
+#: freeculture.xml:9143
msgid ""
"To make this system function, however, MP3.com needed to copy 50,000 CDs to "
"a server. (In principle, it could have been the user who uploaded the music, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9156
+#: freeculture.xml:9158
msgid ""
"Nine days after MP3.com launched its service, the five major labels, headed "
"by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9166
+#: freeculture.xml:9168
msgid "That part of the story I have told before. Now consider its conclusion."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9169
+#: freeculture.xml:9171
msgid ""
"After Vivendi purchased MP3.com, Vivendi turned around and filed a "
"malpractice lawsuit against the lawyers who had advised it that they had a "
#. PAGE BREAK 200
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9179
+#: freeculture.xml:9181
msgid ""
"The clear purpose of this lawsuit (which was settled for an unspecified "
"amount shortly after the story was no longer covered in the press) was to "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9190
+#: freeculture.xml:9192
msgid "Hummer, John"
msgstr ""
+#. type: Content of: <book><part><chapter><section><indexterm><primary>
+#: freeculture.xml:9194
+msgid "Hummer Winblad"
+msgstr ""
+
#. f4.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9199
+#: freeculture.xml:9202
msgid ""
"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" <citetitle>Los "
"Angeles Times</citetitle>, 23 April 2003. For a parallel argument about the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9193
+#: freeculture.xml:9196
msgid ""
"This strategy is not just limited to the lawyers. In April 2003, Universal "
"and EMI brought a lawsuit against Hummer Winblad, the venture capital firm "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary>
-#: freeculture.xml:9223
+#: freeculture.xml:9226
msgid "BMW"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9238
+#: freeculture.xml:9241
msgid "Needleman, Rafe"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:9234
+#: freeculture.xml:9237
msgid ""
"Rafe Needleman, \"Driving in Cars with MP3s,\" <citetitle>Business "
"2.0</citetitle>, 16 June 2003, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9225
+#: freeculture.xml:9228
msgid ""
"I asked why, with all the storage capacity and computer power in the car, "
"there was no way to play MP3 files. I was told that BMW engineers in Germany "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9243
+#: freeculture.xml:9246
msgid ""
"This is the world of the mafia—filled with \"your money or your life\" "
"offers, governed in the end not by courts but by the threats that the law "
#. PAGE BREAK 201
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9253
+#: freeculture.xml:9256
msgid ""
"The point is not that businesses should have a right to start illegal "
"enterprises. The point is the definition of \"illegal.\" The law is a mess "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9267
+#: freeculture.xml:9270
msgid ""
"The point is directly parallel to the crunchy-lefty point about fair "
"use. Whatever the \"real\" law is, realism about the effect of law in both "
#. PAGE BREAK 202
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9279
+#: freeculture.xml:9282
msgid ""
"The building of a permission culture, rather than a free culture, is the "
"first important way in which the changes I have described will burden "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9301
+#: freeculture.xml:9304
msgid ""
"The motivation for this response is obvious. The Internet enables the "
"efficient spread of content. That efficiency is a feature of the Internet's "
#. f6.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9315
+#: freeculture.xml:9318
msgid ""
"\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School (2003), "
#. f7.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9328
+#: freeculture.xml:9331
msgid "GartnerG2, 26–27."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9311
+#: freeculture.xml:9314
msgid ""
"The examples of this form of legislation are many. At the urging of the "
"content industry, some in Congress have threatened legislation that would "
#. PAGE BREAK 203
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9332
+#: freeculture.xml:9335
msgid ""
"In one sense, these solutions seem sensible. If the problem is the code, why "
"not regulate the code to remove the problem. But any regulation of technical "
#. f8.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9346
+#: freeculture.xml:9349
msgid ""
"See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, "
"February 2002 (Entertainment)."
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:9352 freeculture.xml:11166
+#: freeculture.xml:9355 freeculture.xml:11170
msgid "Intel"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9342
+#: freeculture.xml:9345
msgid ""
"In March 2002, a broad coalition of technology companies, led by Intel, "
"tried to get Congress to see the harm that such legislation would "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9355
+#: freeculture.xml:9358
msgid ""
"There is one more obvious way in which this war has harmed "
"innovation—again, a story that will be quite familiar to the free "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9360
+#: freeculture.xml:9363
msgid ""
"Copyright may be property, but like all property, it is also a form of "
"regulation. It is a regulation that benefits some and harms others. When "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9372
+#: freeculture.xml:9375
msgid ""
"Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: "
"Prometheus Books, 2001). <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9366
+#: freeculture.xml:9369
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, despite this feature of copyright as regulation, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9383
+#: freeculture.xml:9386
msgid ""
"But that pattern of deference to new technologies has now changed with the "
"rise of the Internet. Rather than striking a balance between the claims of a "
#. f10.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9392
+#: freeculture.xml:9395
msgid ""
"The only circuit court exception is found in <citetitle>Recording Industry "
"Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia "
"distributor liable for contributory or vicarious infringement liability."
msgstr ""
+#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
+#: freeculture.xml:9428
+msgid "Hollings, Fritz"
+msgstr ""
+
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9410
+#: freeculture.xml:9413
msgid ""
"For example, in July 2002, Representative Howard Berman introduced the "
"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize "
"devices. See GartnerG2, \"Copyright and Digital Media in a Post-Napster "
"World,\" 27 June 2003, 33–34, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #44</ulink>. <placeholder "
-"type=\"indexterm\" id=\"0\"/>"
+"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9390
+#: freeculture.xml:9393
msgid ""
"The response by the courts has been fairly universal.<placeholder "
"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9432
+#: freeculture.xml:9436
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"pirates\"/>, when a radio station plays a song, the recording "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9444
+#: freeculture.xml:9448
msgid ""
"The reasoning behind this balance struck by Congress makes some sense. The "
"justification was that radio was a kind of advertising. The recording artist "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9455
+#: freeculture.xml:9459
msgid ""
"Enter Internet radio. Like regular radio, Internet radio is a technology to "
"stream content from a broadcaster to a listener. The broadcast travels "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9464
+#: freeculture.xml:9468
msgid ""
"This feature of the architecture of Internet radio means that there are "
"potentially an unlimited number of radio stations that a user could tune in "
#. PAGE BREAK 205
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9479
+#: freeculture.xml:9483
msgid ""
"Internet radio is thus to radio what FM was to AM. It is an improvement "
"potentially vastly more significant than the FM improvement over AM, since "
#. f12.
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
-#: freeculture.xml:9503
+#: freeculture.xml:9507
msgid "Lessing, 239."
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9489
+#: freeculture.xml:9493
msgid ""
"An almost unlimited number of FM stations was possible in the shortwaves, "
"thus ending the unnatural restrictions imposed on radio in the crowded "
#. f13.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9513
+#: freeculture.xml:9517
msgid "Ibid., 229."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9508
+#: freeculture.xml:9512
msgid ""
"This potential for FM radio was never realized—not because Armstrong "
"was wrong about the technology, but because he underestimated the power of "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9518
+#: freeculture.xml:9522
msgid ""
"Now the very same claim could be made about Internet radio. For again, there "
"is no technical limitation that could restrict the number of Internet radio "
#. PAGE BREAK 206
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9526
+#: freeculture.xml:9530
msgid ""
"But here the power of the lobbyists is reversed. Internet radio is a new "
"industry. The recording artists, on the other hand, have a very powerful "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:9565
+#: freeculture.xml:9569
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9548
+#: freeculture.xml:9552
msgid ""
"This example was derived from fees set by the original Copyright Arbitration "
"Royalty Panel (CARP) proceedings, and is drawn from an example offered by "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9541
+#: freeculture.xml:9545
msgid ""
"This financial burden is not slight. As Harvard law professor William Fisher "
"estimates, if an Internet radio station distributed adfree popular music to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9572
+#: freeculture.xml:9576
msgid ""
"The burden is not financial only. Under the original rules that were "
"proposed, an Internet radio station (but not a terrestrial radio station) "
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9580
+#: freeculture.xml:9584
msgid "name of the service;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9583
+#: freeculture.xml:9587
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9586
+#: freeculture.xml:9590
msgid "type of program (archived/looped/live);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9589
+#: freeculture.xml:9593
msgid "date of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9592
+#: freeculture.xml:9596
msgid "time of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9595
+#: freeculture.xml:9599
msgid "time zone of origination of transmission;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9598
+#: freeculture.xml:9602
msgid "numeric designation of the place of the sound recording within the program;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9601
+#: freeculture.xml:9605
msgid "duration of transmission (to nearest second);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9604
+#: freeculture.xml:9608
msgid "sound recording title;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9607
+#: freeculture.xml:9611
msgid "ISRC code of the recording;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9610
+#: freeculture.xml:9614
msgid ""
"release year of the album per copyright notice and in the case of "
"compilation albums, the release year of the album and copy- right date of "
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9613
+#: freeculture.xml:9617
msgid "featured recording artist;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9616
+#: freeculture.xml:9620
msgid "retail album title;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9619
+#: freeculture.xml:9623
msgid "recording label;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9622
+#: freeculture.xml:9626
msgid "UPC code of the retail album;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9625
+#: freeculture.xml:9629
msgid "catalog number;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9628
+#: freeculture.xml:9632
msgid "copyright owner information;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9631
+#: freeculture.xml:9635
msgid "musical genre of the channel or program (station format);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9634
+#: freeculture.xml:9638
msgid "name of the service or entity;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9637
+#: freeculture.xml:9641
msgid "channel or program;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9640
+#: freeculture.xml:9644
msgid "date and time that the user logged in (in the user's time zone);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9643
+#: freeculture.xml:9647
msgid "date and time that the user logged out (in the user's time zone);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9646
+#: freeculture.xml:9650
msgid "time zone where the signal was received (user);"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9649
+#: freeculture.xml:9653
msgid "unique user identifier;"
msgstr ""
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
-#: freeculture.xml:9652
+#: freeculture.xml:9656
msgid "the country in which the user received the transmissions."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9657
+#: freeculture.xml:9661
msgid ""
"The Librarian of Congress eventually suspended these reporting requirements, "
"pending further study. And he also changed the original rates set by the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9665
+#: freeculture.xml:9669
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><part><chapter><section><para>
-#: freeculture.xml:9671
+#: freeculture.xml:9675
msgid ""
"In a rare bit of candor, one RIAA expert admitted what seemed obvious to "
"everyone at the time. As Alex Alben, vice president for Public Policy at "
#. PAGE BREAK 208
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9677
+#: freeculture.xml:9681
msgid ""
"The RIAA, which was representing the record labels, presented some testimony "
"about what they thought a willing buyer would pay to a willing seller, and "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9693
+#: freeculture.xml:9697
msgid ""
"And the RIAA experts said, \"Well, we don't really model this as an industry "
"with thousands of webcasters, <emphasis>we think it should be an industry "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9701
+#: freeculture.xml:9705
msgid ""
"Translation: The aim is to use the law to eliminate competition, so that "
"this platform of potentially immense competition, which would cause the "
msgstr ""
#. type: Content of: <book><part><chapter><section><title>
-#: freeculture.xml:9711
+#: freeculture.xml:9715
msgid "Corrupting Citizens"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9713
+#: freeculture.xml:9717
msgid ""
"Overregulation stifles creativity. It smothers innovation. It gives "
"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9719
+#: freeculture.xml:9723
msgid ""
"In addition to these important harms, there is one more that was important "
"to our forebears, but seems forgotten today. Overregulation corrupts "
#. f15.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9728
+#: freeculture.xml:9732
msgid ""
"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet "
"and American Life Project (24 April 2001), available at <ulink "
#. PAGE BREAK 209
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9724
+#: freeculture.xml:9728
msgid ""
"The war that is being waged today is a war of prohibition. As with every war "
"of prohibition, it is targeted against the behavior of a very large number "
#. f16.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9762
+#: freeculture.xml:9766
msgid ""
"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" "
"<citetitle>Los Angeles Times</citetitle>, 10 September 2003, Business."
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9749
+#: freeculture.xml:9753
msgid ""
"The content industry's tactics exploit the failings of the American legal "
"system. When the RIAA brought suit against Jesse Jordan, it knew that in "
#. f17.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9784
+#: freeculture.xml:9788
msgid ""
"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During "
"Prohibition,\" <citetitle>American Economic Review</citetitle> 81, no. 2 "
#. f18.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9792
+#: freeculture.xml:9796
msgid ""
"National Drug Control Policy: Hearing Before the House Government Reform "
"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John "
#. f19.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:9802
+#: freeculture.xml:9806
msgid ""
"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" "
"<citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:9809
+#: freeculture.xml:9813
msgid "alcohol prohibition"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9774
+#: freeculture.xml:9778
msgid ""
"Wars of prohibition are nothing new in America. This one is just something "
"more extreme than anything we've seen before. We experimented with alcohol "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:9827
+#: freeculture.xml:9831
msgid "law schools"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9812
+#: freeculture.xml:9816
msgid ""
"This state of affairs is not without consequence. It is a particularly "
"salient issue for teachers like me, whose job it is to teach law students "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9830
+#: freeculture.xml:9834
msgid ""
"The response to this general illegality is either to enforce the law more "
"severely or to change the law. We, as a society, have to learn how to make "
#. PAGE BREAK 211
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9843
+#: freeculture.xml:9847
msgid ""
"My point is not the idiotic one: Just because people violate a law, we "
"should therefore repeal it. Obviously, we could reduce murder statistics "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9850
+#: freeculture.xml:9854
msgid ""
"My point is instead one that democracies understood for generations, but "
"that we recently have learned to forget. The rule of law depends upon people "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9864
+#: freeculture.xml:9868
msgid ""
"When at least forty-three million citizens download content from the "
"Internet, and when they use tools to combine that content in ways "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9876
+#: freeculture.xml:9880
msgid "This abstract point can be made more clear with a particular example."
msgstr ""
#. PAGE BREAK 212
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9879
+#: freeculture.xml:9883
msgid ""
"We all own CDs. Many of us still own phonograph records. These pieces of "
"plastic encode music that in a certain sense we have bought. The law "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9890
+#: freeculture.xml:9894
msgid ""
"But as the MP3 craze has demonstrated, there is another use of phonograph "
"records that is effectively free. Because these recordings were made without "
msgstr ""
#. type: Content of: <book><part><chapter><section><indexterm><primary>
-#: freeculture.xml:9898
+#: freeculture.xml:9902
msgid "Adromeda"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9900
+#: freeculture.xml:9904
msgid ""
"This \"use\" of my records is certainly valuable. I have begun a large "
"process at home of ripping all of my and my wife's CDs, and storing them in "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9911
+#: freeculture.xml:9915
msgid ""
"This use is enabled by unprotected media—either CDs or records. But "
"unprotected media also enable file sharing. File sharing threatens (or so "
#. PAGE BREAK 213
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9921
+#: freeculture.xml:9925
msgid ""
"If these technologies took off, then the building of large archives of your "
"own music would become quite difficult. You might hang in hacker circles, "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9935
+#: freeculture.xml:9939
msgid ""
"If the only way to assure that artists get paid were the elimination of the "
"ability to freely move content, then these technologies to interfere with "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9944
+#: freeculture.xml:9948
msgid ""
"My point just now is not to prove that there is such a system. I offer a "
"version of such a system in the last chapter of this book. For now, the only "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9955
+#: freeculture.xml:9959
msgid ""
"I believe there is a way to assure that artists are paid without turning "
"forty-three million Americans into felons. But the salient feature of this "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9964
+#: freeculture.xml:9968
msgid ""
"Except that this generation's buggy manufacturers have already saddled "
"Congress, and are riding the law to protect themselves against this new form "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9970
+#: freeculture.xml:9974
msgid ""
"It is understandable why they choose as they do. It is not understandable "
"why we as a democracy continue to choose as we do. Jack Valenti is charming; "
msgstr ""
#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
-#: freeculture.xml:9989 freeculture.xml:10098
+#: freeculture.xml:9993 freeculture.xml:10102
msgid "von Lohmann, Fred"
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:9987
+#: freeculture.xml:9991
msgid ""
"\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains, "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:9993
+#: freeculture.xml:9997
msgid ""
"then all of a sudden a lot of basic civil liberty protections evaporate to "
"one degree or another. … If you're a copyright infringer, how can you "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10005
+#: freeculture.xml:10009
msgid ""
"And the consequence of this transformation of the American public into "
"criminals is that it becomes trivial, as a matter of due process, to "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10010
+#: freeculture.xml:10014
msgid ""
"Users of the Internet began to see this generally in 2003 as the RIAA "
"launched its campaign to force Internet service providers to turn over the "
#. f20.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:10028
+#: freeculture.xml:10032
msgid ""
"See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in "
"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" <citetitle>Washington "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10019
+#: freeculture.xml:10023
msgid ""
"The RIAA then expanded this campaign, by announcing a general strategy to "
"sue individual users of the Internet who are alleged to have downloaded "
#. f21.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:10046
+#: freeculture.xml:10050
msgid ""
"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some "
"Methods Used,\" CNN.com, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10042
+#: freeculture.xml:10046
msgid ""
"Even this understates the espionage that is being waged by the RIAA. A "
"report from CNN late last summer described a strategy the RIAA had adopted "
#. f22.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
-#: freeculture.xml:10067
+#: freeculture.xml:10071
msgid ""
"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" "
"<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10055
+#: freeculture.xml:10059
msgid ""
"So imagine the following not-implausible scenario: Imagine a friend gives a "
"CD to your daughter—a collection of songs just like the cassettes you "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10086
+#: freeculture.xml:10090
msgid ""
"Now, of course, she'll have the right to defend herself. You can hire a "
"lawyer for her (at $300 per hour, if you're lucky), and she can plead that "
msgstr ""
#. type: Content of: <book><part><chapter><section><blockquote><para>
-#: freeculture.xml:10102
+#: freeculture.xml:10106
msgid ""
"So when we're talking about numbers like forty to sixty million Americans "
"that are essentially copyright infringers, you create a situation where the "
msgstr ""
#. type: Content of: <book><part><chapter><section><para>
-#: freeculture.xml:10122
+#: freeculture.xml:10126
msgid ""
"When forty to sixty million Americans are considered \"criminals\" under the "
"law, and when the law could achieve the same objective— securing "
msgstr ""
#. type: Content of: <book><part><title>
-#: freeculture.xml:10135
+#: freeculture.xml:10139
msgid "BALANCES"
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10140
+#: freeculture.xml:10144
msgid ""
"So here's the picture: You're standing at the side of the road. Your car is "
"on fire. You are angry and upset because in part you helped start the "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10146
+#: freeculture.xml:10150
msgid ""
"As you ponder the mess, someone else comes along. In a panic, she grabs the "
"bucket. Before you have a chance to tell her to stop—or before she "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10154
+#: freeculture.xml:10158
msgid ""
"A war about copyright rages all around—and we're all focusing on the "
"wrong thing. No doubt, current technologies threaten existing businesses. "
#. PAGE BREAK 219
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10163
+#: freeculture.xml:10167
msgid ""
"Yet policy makers are not willing to leave this fire to itself. Primed with "
"plenty of lobbyists' money, they are keen to intervene to eliminate the "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10171
+#: freeculture.xml:10175
msgid ""
"Somehow we have to find a way to turn attention to this more important and "
"fundamental issue. Somehow we have to find a way to avoid pouring gasoline "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10176
+#: freeculture.xml:10180
msgid ""
"We have not found that way yet. Instead, we seem trapped in a simpler, "
"binary view. However much many people push to frame this debate more "
msgstr ""
#. type: Content of: <book><part><partintro><para>
-#: freeculture.xml:10182
+#: freeculture.xml:10186
msgid ""
"This challenge has been my life these last few years. It has also been my "
"failure. In the two chapters that follow, I describe one small brace of "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:10192
+#: freeculture.xml:10196
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10194
+#: freeculture.xml:10198
msgid "Hawthorne, Nathaniel"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10197
+#: freeculture.xml:10201
msgid ""
"In 1995, a father was frustrated that his daughters didn't seem to like "
"Hawthorne. No doubt there was more than one such father, but at least one "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10206
+#: freeculture.xml:10210
msgid ""
"It didn't work—at least for his daughters. They didn't find Hawthorne "
"any more interesting than before. But Eldred's experiment gave birth to a "
#. PAGE BREAK 221
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10213
+#: freeculture.xml:10217
msgid ""
"Eldred's library was not simply a copy of certain public domain works, "
"though even a copy would have been of great value to people across the world "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10224
+#: freeculture.xml:10228
msgid ""
"Eldred's freedom to do this with Hawthorne's work grew from the same source "
"as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> had passed "
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10248
+#: freeculture.xml:10252
msgid ""
"There's a parallel here with pornography that is a bit hard to describe, but "
"it's a strong one. One phenomenon that the Internet created was a world of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10237
+#: freeculture.xml:10241
msgid ""
"The Internet created the possibility of noncommercial publications of public "
"domain works. Eldred's is just one example. There are literally thousands of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10265
+#: freeculture.xml:10269
msgid ""
"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection "
"of poems <citetitle>New Hampshire</citetitle> was slated to pass into the "
#. f2.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10286
+#: freeculture.xml:10290
msgid ""
"The full text is: \"Sonny [Bono] wanted the term of copyright protection to "
"last forever. I am informed by staff that such a change would violate the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10281
+#: freeculture.xml:10285
msgid ""
"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in "
"memory of the congressman and former musician Sonny Bono, who, his widow, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10297
+#: freeculture.xml:10301
msgid ""
"Eldred decided to fight this law. He first resolved to fight it through "
"civil disobedience. In a series of interviews, Eldred announced that he "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10306
+#: freeculture.xml:10310
msgid ""
"It was here that I became involved in Eldred's battle. I was a "
"constitutional scholar whose first passion was constitutional "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:10317
+#: freeculture.xml:10321
msgid ""
"Congress has the power to promote the Progress of Science … by "
"securing for limited Times to Authors … exclusive Right to their "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10323
+#: freeculture.xml:10327
msgid ""
"As I've described, this clause is unique within the power-granting clause of "
"Article I, section 8 of our Constitution. Every other clause granting power "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10342 freeculture.xml:11795
+#: freeculture.xml:10346 freeculture.xml:11799
msgid "Jaszi, Peter"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10333
+#: freeculture.xml:10337
msgid ""
"In the past forty years, Congress has gotten into the practice of extending "
"existing terms of copyright protection. What puzzled me about this was, if "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10345
+#: freeculture.xml:10349
msgid ""
"As an academic, my first response was to hit the books. I remember sitting "
"late at the office, scouring on-line databases for any serious consideration "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10356
+#: freeculture.xml:10360
msgid ""
"For this is the core of the corruption in our present system of "
"government. \"Corruption\" not in the sense that representatives are "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10365
+#: freeculture.xml:10369
msgid ""
"If that's not obvious to you, consider the following: Say you're one of the "
"very few lucky copyright owners whose copyright continues to make money one "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10375
+#: freeculture.xml:10379
msgid ""
"So imagine the Robert Frost estate is earning $100,000 a year from three of "
"Frost's poems. And imagine the copyright for those poems is about to "
#. PAGE BREAK 224
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10382
+#: freeculture.xml:10386
msgid ""
"\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C "
"will expire. That means that after next year, we will no longer be receiving "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10390
+#: freeculture.xml:10394
msgid ""
"\"There's a proposal in Congress, however,\" she continues, \"that could "
"change this. A few congressmen are floating a bill to extend the terms of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10396
+#: freeculture.xml:10400
msgid ""
"\"Hope?\" a fellow board member says. \"Can't we be doing something about "
"it?\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10400
+#: freeculture.xml:10404
msgid ""
"\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the "
"campaigns of a number of representatives to try to assure that they support "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10405
+#: freeculture.xml:10409
msgid ""
"You hate politics. You hate contributing to campaigns. So you want to know "
"whether this disgusting practice is worth it. \"How much would we get if "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10411
+#: freeculture.xml:10415
msgid ""
"\"Well,\" the adviser says, \"if you're confident that you will continue to "
"get at least $100,000 a year from these copyrights, and you use the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10417
+#: freeculture.xml:10421
msgid ""
"You're a bit shocked by the number, but you quickly come to the correct "
"conclusion:"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10421
+#: freeculture.xml:10425
msgid ""
"\"So you're saying it would be worth it for us to pay more than $1,000,000 "
"in campaign contributions if we were confident those contributions would "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10427
+#: freeculture.xml:10431
msgid ""
"\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute "
"up to the `present value' of the income you expect from these "
#. PAGE BREAK 225
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10433
+#: freeculture.xml:10437
msgid ""
"You quickly get the point—you as the member of the board and, I trust, "
"you the reader. Each time copyrights are about to expire, every beneficiary "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10444
+#: freeculture.xml:10448
msgid ""
"Thus a congressional perpetual motion machine: So long as legislation can be "
"bought (albeit indirectly), there will be all the incentive in the world to "
#. f3.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10456
+#: freeculture.xml:10460
msgid ""
"Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse "
"Effort; Congress OKs Bill Granting Creators 20 More Years,\" "
#. f4.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10463
+#: freeculture.xml:10467
msgid ""
"See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>."
#. f5.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10471
+#: freeculture.xml:10475
msgid ""
"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" "
"<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10449
+#: freeculture.xml:10453
msgid ""
"In the lobbying that led to the passage of the Sonny Bono Copyright Term "
"Extension Act, this \"theory\" about incentives was proved real. Ten of the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10478
+#: freeculture.xml:10482
msgid ""
"Constitutional law is not oblivious to the obvious. Or at least, it need not "
"be. So when I was considering Eldred's complaint, this reality about the "
#. PAGE BREAK 226
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10491
+#: freeculture.xml:10495
msgid ""
"It was also my judgment that <emphasis>this</emphasis> Supreme Court would "
"not allow Congress to extend existing terms. As anyone close to the Supreme "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10504
+#: freeculture.xml:10508
msgid ""
"Since 1937, the Supreme Court had interpreted Congress's granted powers very "
"broadly; so, while the Constitution grants Congress the power to regulate "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10514
+#: freeculture.xml:10518
msgid ""
"As the economy grew, this standard increasingly meant that there was no "
"limit to Congress's power to regulate, since just about every activity, when "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10521
+#: freeculture.xml:10525
msgid ""
"The Supreme Court, under Chief Justice Rehnquist's command, changed that in "
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The "
#. f6.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10536
+#: freeculture.xml:10540
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 "
"U.S. 549, 564 (1995)."
#. f7.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10543
+#: freeculture.xml:10547
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 "
"U.S. 598 (2000)."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10534
+#: freeculture.xml:10538
msgid ""
"\"We pause to consider the implications of the government's arguments,\" the "
"Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> If anything "
#. f8.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10550
+#: freeculture.xml:10554
msgid ""
"If it is a principle about enumerated powers, then the principle carries "
"from one enumerated power to another. The animating point in the context of "
#. PAGE BREAK 227
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10547
+#: freeculture.xml:10551
msgid ""
"If a principle were at work here, then it should apply to the Progress "
"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10571
+#: freeculture.xml:10575
msgid ""
"<emphasis>If</emphasis>, that is, the principle announced in "
"<citetitle>Lopez</citetitle> stood for a principle. Many believed the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10584
+#: freeculture.xml:10588
msgid ""
"Now let's pause for a moment to make sure we understand what the argument in "
"<citetitle>Eldred</citetitle> was not about. By insisting on the "
#. f9.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10607
+#: freeculture.xml:10611
msgid ""
"Brief of the Nashville Songwriters Association, "
"<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S. "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10615
+#: freeculture.xml:10619
msgid "Nashville Songwriters Association"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10601
+#: freeculture.xml:10605
msgid ""
"Some people view the public domain with contempt. In their brief before the "
"Supreme Court, the Nashville Songwriters Association wrote that the public "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10618
+#: freeculture.xml:10622
msgid ""
"As we've seen, our constitutional system requires limits on copyright as a "
"way to assure that copyright holders do not too heavily influence the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10630
+#: freeculture.xml:10634
msgid ""
"It is valuable copyrights that are responsible for terms being extended. "
"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for "
#. f10.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10651
+#: freeculture.xml:10655
msgid ""
"The figure of 2 percent is an extrapolation from the study by the "
"Congressional Research Service, in light of the estimated renewal "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10645
+#: freeculture.xml:10649
msgid ""
"If you look at the work created in the first twenty years (1923 to 1942) "
"affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that "
#. PAGE BREAK 229
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10660
+#: freeculture.xml:10664
msgid ""
"Think practically about the consequence of this extension—practically, "
"as a businessperson, and not as a lawyer eager for more legal work. In 1930, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10672
+#: freeculture.xml:10676
msgid ""
"Well, first, you'd have to determine which of the 9,873 books were still "
"under copyright. That requires going to a library (these data are not "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10680
+#: freeculture.xml:10684
msgid ""
"Then for the books still under copyright, you would need to locate the "
"current copyright owners. How would you do that?"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10684
+#: freeculture.xml:10688
msgid ""
"Most people think that there must be a list of these copyright owners "
"somewhere. Practical people think this way. How could there be thousands and "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10691
+#: freeculture.xml:10695
msgid ""
"But there is no list. There may be a name from 1930, and then in 1959, of "
"the person who registered the copyright. But just think practically about "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10700
+#: freeculture.xml:10704
msgid ""
"\"But there isn't a list of who owns property generally,\" the apologists "
"for the system respond. \"Why should there be a list of copyright owners?\""
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10705
+#: freeculture.xml:10709
msgid ""
"Well, actually, if you think about it, there <emphasis>are</emphasis> plenty "
"of lists of who owns what property. Think about deeds on houses, or titles "
#. PAGE BREAK 230
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10714
+#: freeculture.xml:10718
msgid ""
"So: You walk down a street and see a house. You can know who owns the house "
"by looking it up in the courthouse registry. If you see a car, there is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10729
+#: freeculture.xml:10733
msgid ""
"Compare this story to intangible property. You go into a library. The "
"library owns the books. But who owns the copyrights? As I've already "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10741
+#: freeculture.xml:10745
msgid ""
"The consequence with respect to old books is that they won't be digitized, "
"and hence will simply rot away on shelves. But the consequence for other "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10746
+#: freeculture.xml:10750
msgid "Agee, Michael"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10747 freeculture.xml:11178
+#: freeculture.xml:10751 freeculture.xml:11182
msgid "Hal Roach Studios"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:10748
+#: freeculture.xml:10752
msgid "Laurel and Hardy Films"
msgstr ""
#. f11.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10761
+#: freeculture.xml:10765
msgid ""
"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" "
"<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:10767
+#: freeculture.xml:10771
msgid "Lucky Dog, The"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10750
+#: freeculture.xml:10754
msgid ""
"Consider the story of Michael Agee, chairman of Hal Roach Studios, which "
"owns the copyrights for the Laurel and Hardy films. Agee is a direct "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10770
+#: freeculture.xml:10774
msgid ""
"Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this "
"culture: selflessness. He argued in a brief before the Supreme Court that "
#. PAGE BREAK 231
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10776
+#: freeculture.xml:10780
msgid ""
"His argument is straightforward. A tiny fraction of this work has any "
"continuing commercial value. The rest—to the extent it survives at "
#. f12.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10794
+#: freeculture.xml:10798
msgid ""
"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the "
"Petitoners, <citetitle>Eldred</citetitle> "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10787
+#: freeculture.xml:10791
msgid ""
"We can't know the benefits, but we do know a lot about the costs. For most "
"of the history of film, the costs of restoring film were very high; digital "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10804
+#: freeculture.xml:10808
msgid ""
"Restoration technology is not the only cost, nor the most important. "
"Lawyers, too, are a cost, and increasingly, a very important one. In "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10812
+#: freeculture.xml:10816
msgid ""
"Or more accurately, <emphasis>owners</emphasis>. As we've seen, there isn't "
"only a single copyright associated with a film; there are many. There isn't "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10820
+#: freeculture.xml:10824
msgid ""
"\"But can't you just restore the film, distribute it, and then pay the "
"copyright owner when she shows up?\" Sure, if you want to commit a "
#. PAGE BREAK 232
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10831
+#: freeculture.xml:10835
msgid ""
"For some films, the benefit of releasing the film may well exceed these "
"costs. But for the vast majority of them, there is no way the benefit would "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10841
+#: freeculture.xml:10845
msgid ""
"But by the time the copyright for these films expires, the film will have "
"expired. These films were produced on nitrate-based stock, and nitrate stock "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10849
+#: freeculture.xml:10853
msgid ""
"Of all the creative work produced by humans anywhere, a tiny fraction has "
"continuing commercial value. For that tiny fraction, the copyright is a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10858
+#: freeculture.xml:10862
msgid ""
"But even for that tiny fraction, the actual time during which the creative "
"work has a commercial life is extremely short. As I've indicated, most books "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10868
+#: freeculture.xml:10872
msgid ""
"Yet that doesn't mean the life of the creative work ends. We don't keep "
"libraries of books in order to compete with Barnes & Noble, and we don't "
#. PAGE BREAK 233
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10881
+#: freeculture.xml:10885
msgid ""
"Copyrights in this context do not drive an engine of free expression. In "
"this context, there is no need for an exclusive right. Copyrights in this "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10888
+#: freeculture.xml:10892
msgid ""
"Yet, for most of our history, they also did little harm. For most of our "
"history, when a work ended its commercial life, there was no "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10899
+#: freeculture.xml:10903
msgid ""
"The same was effectively true of film. Because the costs of restoring a "
"film—the real economic costs, not the lawyer costs—were so high, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10908
+#: freeculture.xml:10912
msgid ""
"In other words, though copyright has been relatively short for most of our "
"history, long copyrights wouldn't have mattered for the works that lost "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10914
+#: freeculture.xml:10918
msgid "But this situation has now changed."
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10917
+#: freeculture.xml:10921
msgid ""
"One crucially important consequence of the emergence of digital technologies "
"is to enable the archive that Brewster Kahle dreams of. Digital "
#. PAGE BREAK 234
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10930
+#: freeculture.xml:10934
msgid ""
"And now copyright law does get in the way. Every step of producing this "
"digital archive of our culture infringes on the exclusive right of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10940
+#: freeculture.xml:10944
msgid ""
"Here is the core of the harm that comes from extending terms: Now that "
"technology enables us to rebuild the library of Alexandria, the law gets in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10951
+#: freeculture.xml:10955
msgid ""
"You may well ask, \"But if digital technologies lower the costs for Brewster "
"Kahle, then they will lower the costs for Random House, too. So won't "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10957
+#: freeculture.xml:10961
msgid ""
"Maybe. Someday. But there is absolutely no evidence to suggest that "
"publishers would be as complete as libraries. If Barnes & Noble offered "
#. f13.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:10980
+#: freeculture.xml:10984
msgid ""
"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 "
"December 2002, available at <ulink "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10968
+#: freeculture.xml:10972
msgid ""
"I would be the first to agree that it should do as much as it can: We should "
"rely upon the market as much as possible to spread and enable culture. My "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10987
+#: freeculture.xml:10991
msgid ""
"In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal "
"district court in Washington, D.C., asking the court to declare the Sonny "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:10995
+#: freeculture.xml:10999
msgid ""
"The district court dismissed our claims without even hearing an argument. A "
"panel of the Court of Appeals for the D.C. Circuit also dismissed our "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11002
+#: freeculture.xml:11006
msgid ""
"Judge David Sentelle said the CTEA violated the requirement that copyrights "
"be for \"limited Times\" only. His argument was as elegant as it was simple: "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11013
+#: freeculture.xml:11017
msgid ""
"We asked the Court of Appeals for the D.C. Circuit as a whole to hear the "
"case. Cases are ordinarily heard in panels of three, except for important "
#. PAGE BREAK 236
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11019
+#: freeculture.xml:11023
msgid ""
"The Court of Appeals rejected our request to hear the case en banc. This "
"time, Judge Sentelle was joined by the most liberal member of the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11028
+#: freeculture.xml:11032
msgid ""
"It was here that most expected Eldred v. Ashcroft would die, for the Supreme "
"Court rarely reviews any decision by a court of appeals. (It hears about one "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11035
+#: freeculture.xml:11039
msgid ""
"But in February 2002, the Supreme Court surprised the world by granting our "
"petition to review the D.C. Circuit opinion. Argument was set for October of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11041
+#: freeculture.xml:11045
msgid ""
"It is over a year later as I write these words. It is still astonishingly "
"hard. If you know anything at all about this story, you know that we lost "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11051
+#: freeculture.xml:11055
msgid ""
"But my client and these friends were wrong. This case could have been "
"won. It should have been won. And no matter how hard I try to retell this "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11056 freeculture.xml:11070
+#: freeculture.xml:11060 freeculture.xml:11074
msgid "Steward, Geoffrey"
msgstr ""
#. PAGE BREAK 237
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11058
+#: freeculture.xml:11062
msgid ""
"The mistake was made early, though it became obvious only at the very "
"end. Our case had been supported from the very beginning by an extraordinary "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11068 freeculture.xml:11416 freeculture.xml:11431 freeculture.xml:11524 freeculture.xml:11738 freeculture.xml:11769 freeculture.xml:11862
+#: freeculture.xml:11072 freeculture.xml:11420 freeculture.xml:11435 freeculture.xml:11528 freeculture.xml:11742 freeculture.xml:11773 freeculture.xml:11866
msgid "Ayer, Don"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11069
+#: freeculture.xml:11073
msgid "Bromberg, Dan"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11072
+#: freeculture.xml:11076
msgid ""
"There were three key lawyers on the case from Jones Day. Geoff Stewart was "
"the first, but then Dan Bromberg and Don Ayer became quite "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11082
+#: freeculture.xml:11086
msgid ""
"I hate this view of the law. Of course I thought the Sonny Bono Act was a "
"dramatic harm to free speech and free culture. Of course I still think it "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11103
+#: freeculture.xml:11107
msgid ""
"In any case, I thought, the Court must already see the danger and the harm "
"caused by this sort of law. Why else would they grant review? There was no "
#. PAGE BREAK 238
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11111
+#: freeculture.xml:11115
msgid ""
"There was one way, however, in which I felt politics would matter and in "
"which I thought a response was appropriate. I was convinced that the Court "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11142 freeculture.xml:11168
+#: freeculture.xml:11146 freeculture.xml:11172
msgid "Eagle Forum"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11143
+#: freeculture.xml:11147
msgid "Schlafly, Phyllis"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11130
+#: freeculture.xml:11134
msgid ""
"The first step happened all by itself. Phyllis Schlafly's organization, "
"Eagle Forum, had been an opponent of the CTEA from the very beginning. "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11146
+#: freeculture.xml:11150
msgid ""
"In the Court of Appeals, Eagle Forum was eager to file a brief supporting "
"our position. Their brief made the argument that became the core claim in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11154
+#: freeculture.xml:11158
msgid ""
"In the Supreme Court, the briefs on our side were about as diverse as it "
"gets. They included an extraordinary historical brief by the Free Software "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11175
+#: freeculture.xml:11179
msgid "American Association of Law Libraries"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11176
+#: freeculture.xml:11180
msgid "National Writers Union"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11171
+#: freeculture.xml:11175
msgid ""
"Those briefs framed a legal argument. Then to support the legal argument, "
"there were a number of powerful briefs by libraries and archives, including "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11180
+#: freeculture.xml:11184
msgid ""
"But two briefs captured the policy argument best. One made the argument I've "
"already described: A brief by Hal Roach Studios argued that unless the law "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11186
+#: freeculture.xml:11190
msgid "Akerlof, George"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11187
+#: freeculture.xml:11191
msgid "Arrow, Kenneth"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11188
+#: freeculture.xml:11192
msgid "Buchanan, James"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11189
+#: freeculture.xml:11193
msgid "Coase, Ronald"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11190
+#: freeculture.xml:11194
msgid "Friedman, Milton"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11192
+#: freeculture.xml:11196
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11215 freeculture.xml:11230 freeculture.xml:11422 freeculture.xml:11774
+#: freeculture.xml:11219 freeculture.xml:11234 freeculture.xml:11426 freeculture.xml:11778
msgid "Fried, Charles"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11216
+#: freeculture.xml:11220
msgid "Morrison, Alan"
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11217
+#: freeculture.xml:11221
msgid "Public Citizen"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11203
+#: freeculture.xml:11207
msgid ""
"The same effort at balance was reflected in the legal team we gathered to "
"write our briefs in the case. The Jones Day lawyers had been with us from "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11220
+#: freeculture.xml:11224
msgid ""
"Fried was a special victory for our side. Every other former solicitor "
"general was hired by the other side to defend Congress's power to give media "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11233
+#: freeculture.xml:11237
msgid ""
"The government, in defending the statute, had its collection of friends, as "
"well. Significantly, however, none of these \"friends\" included historians "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11240
+#: freeculture.xml:11244
msgid ""
"The media companies were not surprising. They had the most to gain from the "
"law. The congressmen were not surprising either—they were defending "
#. f14.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11256
+#: freeculture.xml:11260
msgid ""
"Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, 537 U.S. (2003) (No. 01-618), 19."
#. f15.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11264
+#: freeculture.xml:11268
msgid ""
"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
"the Fray,\" <citetitle>New York Times</citetitle>, 28 March 1998, B7."
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:11271
+#: freeculture.xml:11275
msgid "Gershwin, George"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11249
+#: freeculture.xml:11253
msgid ""
"Dr. Seuss's representatives, for example, argued that it was better for the "
"Dr. Seuss estate to control what happened to Dr. Seuss's work— better "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11274
+#: freeculture.xml:11278
msgid ""
"This argument made clear a theme that is rarely noticed in this debate. "
"When Congress decides to extend the term of existing copyrights, Congress is "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11286
+#: freeculture.xml:11290
msgid ""
"We argued as much in a final brief. Not only would upholding the CTEA mean "
"that there was no limit to the power of Congress to extend "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11295
+#: freeculture.xml:11299
msgid ""
"The Supreme Court was divided into two important camps. One camp we called "
"\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11304 freeculture.xml:11328 freeculture.xml:11667 freeculture.xml:11679
+#: freeculture.xml:11308 freeculture.xml:11332 freeculture.xml:11671 freeculture.xml:11683
msgid "Breyer, Stephen"
msgstr ""
#. PAGE BREAK 242
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11306
+#: freeculture.xml:11310
msgid ""
"The Rest were the four Justices who had strongly opposed limits on "
"Congress's power. These four—Justice Stevens, Justice Souter, Justice "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11318
+#: freeculture.xml:11322
msgid ""
"In particular, the least likely was Justice Ginsburg's. In addition to her "
"general view about deference to Congress (except where issues of gender are "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11330
+#: freeculture.xml:11334
msgid ""
"Close behind Justice Ginsburg were two justices whom we also viewed as "
"unlikely allies, though possible surprises. Justice Souter strongly favored "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11338
+#: freeculture.xml:11342
msgid ""
"The only vote we could be confident about was that of Justice "
"Stevens. History will record Justice Stevens as one of the greatest judges "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11346
+#: freeculture.xml:11350
msgid ""
"This analysis of \"the Rest\" showed most clearly where our focus had to be: "
"on the Conservatives. To win this case, we had to crack open these five and "
#. PAGE BREAK 243
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11356
+#: freeculture.xml:11360
msgid ""
"This then was the core of our strategy—a strategy for which I am "
"responsible. We would get the Court to see that just as with the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11370
+#: freeculture.xml:11374
msgid ""
"The argument on the government's side came down to this: Congress has done "
"it before. It should be allowed to do it again. The government claimed that "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11377
+#: freeculture.xml:11381
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><part><chapter><para>
-#: freeculture.xml:11384
+#: freeculture.xml:11388
msgid ""
"But this \"consistency\" should be kept in perspective. Congress extended "
"existing terms once in the first hundred years of the Republic. It then "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11407
+#: freeculture.xml:11411
msgid ""
"I was convinced that to win, I had to keep the Court focused on a single "
"point: that if this extension is permitted, then there is no limit to the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11418
+#: freeculture.xml:11422
msgid ""
"One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He "
"had served in the Reagan Justice Department with Solicitor General Charles "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11425
+#: freeculture.xml:11429
msgid ""
"\"I'm just afraid that unless they really see the harm, they won't be "
"willing to upset this practice that the government says has been a "
#. PAGE BREAK 245
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11433
+#: freeculture.xml:11437
msgid ""
"He may have argued many cases before this Court, I thought, but he didn't "
"understand its soul. As a clerk, I had seen the Justices do the right "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11450
+#: freeculture.xml:11454
msgid ""
"Not everyone has to wait in line. People who know the Justices can ask for "
"seats they control. (I asked Justice Scalia's chambers for seats for my "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11465
+#: freeculture.xml:11469
msgid ""
"When the Chief Justice called me to begin my argument, I began where I "
"intended to stay: on the question of the limits on Congress's power. This "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11471
+#: freeculture.xml:11475
msgid ""
"Justice O'Connor stopped me within one minute of my opening. The history "
"was bothering her."
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11476
+#: freeculture.xml:11480
msgid ""
"justice o'connor: Congress has extended the term so often through the years, "
"and if you are right, don't we run the risk of upsetting previous extensions "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11483
+#: freeculture.xml:11487
msgid ""
"She was quite willing to concede \"that this flies directly in the face of "
"what the framers had in mind.\" But my response again and again was to "
#. PAGE BREAK 246
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11489
+#: freeculture.xml:11493
msgid ""
"mr. lessig: Well, if it flies in the face of what the framers had in mind, "
"then the question is, is there a way of interpreting their words that gives "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11497
+#: freeculture.xml:11501
msgid ""
"There were two points in this argument when I should have seen where the "
"Court was going. The first was a question by Justice Kennedy, who observed,"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11503
+#: freeculture.xml:11507
msgid ""
"justice kennedy: Well, I suppose implicit in the argument that the '76 act, "
"too, should have been declared void, and that we might leave it alone "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11511
+#: freeculture.xml:11515
msgid ""
"Here follows my clear mistake. Like a professor correcting a student, I "
"answered,"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11517
+#: freeculture.xml:11521
msgid ""
"mr. lessig: Justice, we are not making an empirical claim at all. Nothing "
"in our Copyright Clause claim hangs upon the empirical assertion about "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11526
+#: freeculture.xml:11530
msgid ""
"That was a correct answer, but it wasn't the right answer. The right answer "
"was instead that there was an obvious and profound harm. Any number of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11533
+#: freeculture.xml:11537
msgid ""
"The second came from the Chief, for whom the whole case had been "
"crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> "
#. PAGE BREAK 247
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11538
+#: freeculture.xml:11542
msgid ""
"It was clear a second into his question that he wasn't at all sympathetic. "
"To him, we were a bunch of anarchists. As he asked:"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11545
+#: freeculture.xml:11549
msgid ""
"chief justice: Well, but you want more than that. You want the right to copy "
"verbatim other people's books, don't you?"
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11549
+#: freeculture.xml:11553
msgid ""
"mr. lessig: We want the right to copy verbatim works that should be in the "
"public domain and would be in the public domain but for a statute that "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11558
+#: freeculture.xml:11562
msgid ""
"Things went better for us when the government gave its argument; for now the "
"Court picked up on the core of our claim. As Justice Scalia asked Solicitor "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11564
+#: freeculture.xml:11568
msgid ""
"justice scalia: You say that the functional equivalent of an unlimited time "
"would be a violation [of the Constitution], but that's precisely the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11572
+#: freeculture.xml:11576
msgid ""
"When Olson was finished, it was my turn to give a closing rebuttal. Olson's "
"flailing had revived my anger. But my anger still was directed to the "
#. PAGE BREAK 248
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11585
+#: freeculture.xml:11589
msgid ""
"As I left the court that day, I knew there were a hundred points I wished I "
"could remake. There were a hundred questions I wished I had answered "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11593
+#: freeculture.xml:11597
msgid ""
"The government had been asked over and over again, what is the limit? Over "
"and over again, it had answered there is no limit. This was precisely the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11608
+#: freeculture.xml:11612
msgid ""
"The morning of January 15, 2003, I was five minutes late to the office and "
"missed the 7:00 A.M. call from the Supreme Court clerk. Listening to the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11615
+#: freeculture.xml:11619
msgid ""
"A few seconds later, the opinions arrived by e-mail. I took the phone off "
"the hook, posted an announcement to our blog, and sat down to see where I "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11620
+#: freeculture.xml:11624
msgid ""
"My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money "
"in the world against <emphasis>reasoning</emphasis>. And here was the last "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11626
+#: freeculture.xml:11630
msgid ""
"I first scoured the opinion, looking for how the Court would distinguish the "
"principle in this case from the principle in "
#. PAGE BREAK 249
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11635
+#: freeculture.xml:11639
msgid ""
"Justice Ginsburg simply ignored the enumerated powers argument. Consistent "
"with her view that Congress's power was not limited generally, she had found "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11640
+#: freeculture.xml:11644
msgid ""
"Her opinion was perfectly reasonable—for her, and for Justice "
"Souter. Neither believes in <citetitle>Lopez</citetitle>. It would be too "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11646
+#: freeculture.xml:11650
msgid ""
"But as I realized what had happened, I couldn't quite believe what I was "
"reading. I had said there was no way this Court could reconcile limited "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11657
+#: freeculture.xml:11661
msgid ""
"Yet by what right did they get to choose which of the framers' values they "
"would respect? By what right did they—the silent five—get to "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11669
+#: freeculture.xml:11673
msgid ""
"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
"was crafted internal to the law: He argued that the tradition of "
#. PAGE BREAK 250
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11682
+#: freeculture.xml:11686
msgid ""
"Justice Breyer's opinion, perhaps the best opinion he has ever written, was "
"external to the Constitution. He argued that the term of copyrights has "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11693
+#: freeculture.xml:11697
msgid ""
"These two justices understood all the arguments we had made. But because "
"neither believed in the <citetitle>Lopez</citetitle> case, neither was "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11700
+#: freeculture.xml:11704
msgid ""
"Defeat brings depression. They say it is a sign of health when depression "
"gives way to anger. My anger came quickly, but it didn't cure the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11705
+#: freeculture.xml:11709
msgid ""
"It was first anger with the five \"Conservatives.\" It would have been one "
"thing for them to have explained why the principle of "
#. PAGE BREAK 251
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11718
+#: freeculture.xml:11722
msgid ""
"Here, they had joined an opinion that never once tried to explain what the "
"framers had meant by crafting the Progress Clause as they did; they joined "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11733
+#: freeculture.xml:11737
msgid ""
"My anger with the Conservatives quickly yielded to anger with myself. For I "
"had let a view of the law that I liked interfere with a view of the law as "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11740
+#: freeculture.xml:11744
msgid ""
"Most lawyers, and most law professors, have little patience for idealism "
"about courts in general and this Supreme Court in particular. Most have a "
#. PAGE BREAK 252
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11751
+#: freeculture.xml:11755
msgid ""
"As I read back over the transcript from that argument in October, I can see "
"a hundred places where the answers could have taken the conversation in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11771
+#: freeculture.xml:11775
msgid ""
"Would it have been different if I had argued it differently? Would it have "
"been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11777
+#: freeculture.xml:11781
msgid ""
"My friends huddled around me to insist it would not. The Court was not "
"ready, my friends insisted. This was a loss that was destined. It would take "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11783
+#: freeculture.xml:11787
msgid ""
"Maybe, but I doubt it. These Justices have no financial interest in doing "
"anything except the right thing. They are not lobbied. They have little "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11790
+#: freeculture.xml:11794
msgid ""
"And even if I couldn't, then that doesn't excuse what happened in "
"January. For at the start of this case, one of America's leading "
#. PAGE BREAK 253
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11798
+#: freeculture.xml:11802
msgid ""
"After the argument and after the decision, Peter said to me, and publicly, "
"that he was wrong. But if indeed that Court could not have been persuaded, "
msgstr ""
#. type: Content of: <book><part><chapter><blockquote><para>
-#: freeculture.xml:11819
+#: freeculture.xml:11823
msgid ""
"In effect, the Supreme Court's decision makes it likely that we are seeing "
"the beginning of the end of public domain and the birth of copyright "
msgstr ""
#. type: Content of: <book><part><chapter><figure><indexterm><primary>
-#: freeculture.xml:11833 freeculture.xml:11838
+#: freeculture.xml:11837 freeculture.xml:11842
msgid "Bolling, Ruben"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11828
+#: freeculture.xml:11832
msgid ""
"The best responses were in the cartoons. There was a gaggle of hilarious "
"images—of Mickey in jail and the like. The best, from my view of the "
msgstr ""
#. type: Content of: <book><part><chapter><figure><title>
-#: freeculture.xml:11836
+#: freeculture.xml:11840
msgid "Tom the Dancing Bug cartoon"
msgstr ""
#. type: Content of: <book><part><chapter><figure>
-#: freeculture.xml:11837
+#: freeculture.xml:11841
msgid ""
"<graphic fileref=\"images/18.png\"></graphic> <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11841
+#: freeculture.xml:11845
msgid ""
"The image that will always stick in my head is that evoked by the quote from "
"<citetitle>The New York Times</citetitle>. That \"grand experiment\" we call "
msgstr ""
#. type: Content of: <book><part><chapter><title>
-#: freeculture.xml:11852
+#: freeculture.xml:11856
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11854
+#: freeculture.xml:11858
msgid ""
"The day <citetitle>Eldred</citetitle> was decided, fate would have it that I "
"was to travel to Washington, D.C. (The day the rehearing petition in "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11864
+#: freeculture.xml:11868
msgid ""
"It was an act of contrition. During the whole of the flight from San "
"Francisco to Washington, I had heard over and over again in my head the same "
#. PAGE BREAK 256
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11874
+#: freeculture.xml:11878
msgid ""
"<citetitle>The New York Times</citetitle> published the piece. In it, I "
"proposed a simple fix: Fifty years after a work has been published, the "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11882
+#: freeculture.xml:11886
msgid ""
"We called this the Eldred Act, but that was just to give it a name. Eric "
"Eldred was kind enough to let his name be used once again, but as he said "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11887
+#: freeculture.xml:11891
msgid ""
"Or another two names. For depending upon your perspective, this is either "
"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11895 freeculture.xml:12095
+#: freeculture.xml:11899 freeculture.xml:12099
msgid "Forbes, Steve"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11897
+#: freeculture.xml:11901
msgid ""
"The reaction to this idea was amazingly strong. Steve Forbes endorsed it in "
"an editorial. I received an avalanche of e-mail and letters expressing "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11909
+#: freeculture.xml:11913
msgid ""
"Indeed, many recognized the obvious benefit of the registration "
"requirement. For one of the hardest things about the current system for "
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11919
+#: freeculture.xml:11923
msgid "Berlin Act (1908)"
msgstr ""
#. type: Content of: <book><part><chapter><indexterm><primary>
-#: freeculture.xml:11920 freeculture.xml:11960
+#: freeculture.xml:11924 freeculture.xml:11964
msgid "Berne Convention (1908)"
msgstr ""
#. f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
-#: freeculture.xml:11928
+#: freeculture.xml:11932
msgid ""
"Until the 1908 Berlin Act of the Berne Convention, national copyright "
"legislation sometimes made protection depend upon compliance with "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11923
+#: freeculture.xml:11927
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, formalities in copyright law were removed in 1976, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11954
+#: freeculture.xml:11958
msgid ""
"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
"copyright policy. It is absurd especially for authors, because a world "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11962
+#: freeculture.xml:11966
msgid ""
"The fight against formalities achieved its first real victory in Berlin in "
"1908. International copyright lawyers amended the Berne Convention in 1908, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11972
+#: freeculture.xml:11976
msgid ""
"These complaints were real and sensible. And the strictness of the "
"formalities, especially in the United States, was absurd. The law should "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11980
+#: freeculture.xml:11984
msgid ""
"Even that would have been resisted, however, because registration in the "
"nineteenth and twentieth centuries was still expensive. It was also a "
#. PAGE BREAK 258
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:11988
+#: freeculture.xml:11992
msgid ""
"In addition to the practical complaint of authors in 1908, there was a moral "
"claim as well. There was no reason that creative property should be a "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12000
+#: freeculture.xml:12004
msgid ""
"This argument is correct, but its implications are misleading. For the "
"argument in favor of formalities does not depend upon creative property "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12009
+#: freeculture.xml:12013
msgid ""
"No one thinks, for example, that land is second-class property just because "
"you have to register a deed with a court if your sale of land is to be "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12025
+#: freeculture.xml:12029
msgid ""
"It is similarly special physics that makes formalities important in "
"copyright law. Unlike a carpenter's table, there's nothing in nature that "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12040
+#: freeculture.xml:12044
msgid ""
"This was the understanding of the problem with the Sonny Bono Act that we "
"tried to demonstrate to the Court. This was the part it didn't \"get.\" "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12050
+#: freeculture.xml:12054
msgid ""
"But now that copyrights can be just about a century long, the inability to "
"know what is protected and what is not protected becomes a huge and obvious "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12059
+#: freeculture.xml:12063
msgid ""
"The Eldred Act was designed to respond to exactly this problem. If it is "
"worth $1 to you, then register your work and you can get the longer "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12066
+#: freeculture.xml:12070
msgid ""
"If it isn't worth it to you to register to get the benefit of an extended "
"term, then it shouldn't be worth it for the government to defend your "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12073
+#: freeculture.xml:12077
msgid ""
"Some worry about the burden on authors. Won't the burden of registering the "
"work mean that the $1 is really misleading? Isn't the hassle worth more than "
#. PAGE BREAK 260
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12079
+#: freeculture.xml:12083
msgid ""
"It is. The hassle is terrible. The system that exists now is awful. I "
"completely agree that the Copyright Office has done a terrible job (no doubt "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12097
+#: freeculture.xml:12101
msgid ""
"When Steve Forbes endorsed the idea, some in Washington began to pay "
"attention. Many people contacted me pointing to representatives who might be "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:12110
+#: freeculture.xml:12114
msgid "Lofgren, Zoe"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12103
+#: freeculture.xml:12107
msgid ""
"One representative, Zoe Lofgren of California, went so far as to get the "
"bill drafted. The draft solved any problem with international law. It "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12113
+#: freeculture.xml:12117
msgid ""
"But at this stage, the lobbyists began to intervene. Jack Valenti and the "
"MPAA general counsel came to the congresswoman's office to give the view of "
#. PAGE BREAK 261
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12121
+#: freeculture.xml:12125
msgid ""
"The MPAA argued first that Congress had \"firmly rejected the central "
"concept in the proposed bill\"—that copyrights be renewed. That was "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12142
+#: freeculture.xml:12146
msgid ""
"Finally, the MPAA argued that existing law enabled copyright owners to do "
"this if they wanted. But the whole point is that there are thousands of "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12150
+#: freeculture.xml:12154
msgid ""
"At the beginning of this book, I told two stories about the law reacting to "
"changes in technology. In the one, common sense prevailed. In the other, "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12160
+#: freeculture.xml:12164
msgid ""
"I used these two cases as a way to frame the war that this book has been "
"about. For here, too, a new technology is forcing the law to react. And "
#. PAGE BREAK 262
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12169
+#: freeculture.xml:12173
msgid ""
"When the issue is piracy, it is right for the law to back the copyright "
"owners. The commercial piracy that I described is wrong and harmful, and the "
msgstr ""
#. type: Content of: <book><part><chapter><para><indexterm><primary>
-#: freeculture.xml:12188
+#: freeculture.xml:12192
msgid "Kelly, Kevin"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12180
+#: freeculture.xml:12184
msgid ""
"But when the copyright owners oppose a proposal such as the Eldred Act, "
"then, finally, there is an example that lays bare the naked selfinterest "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12191
+#: freeculture.xml:12195
msgid "What does this industry really want?"
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12194
+#: freeculture.xml:12198
msgid ""
"With very little effort, the warriors could protect their content. So the "
"effort to block something like the Eldred Act is not really about protecting "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12205
+#: freeculture.xml:12209
msgid ""
"The opposition to the Eldred Act reveals how extreme the other side is. The "
"most powerful and sexy and well loved of lobbies really has as its aim not "
#. PAGE BREAK 263
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12213
+#: freeculture.xml:12217
msgid ""
"It is not hard to understand why the warriors take this view. It is not hard "
"to see why it would benefit them if the competition of the public domain "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12225
+#: freeculture.xml:12229
msgid ""
"What is hard to understand is why the public takes this view. It is as if "
"the law made airplanes trespassers. The MPAA stands with the Causbys and "
msgstr ""
#. type: Content of: <book><part><chapter><para>
-#: freeculture.xml:12232
+#: freeculture.xml:12236
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:12244
+#: freeculture.xml:12248
msgid "CONCLUSION"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12246
+#: freeculture.xml:12250
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:12253
+#: freeculture.xml:12257
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:12268
+#: freeculture.xml:12272
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:12261
+#: freeculture.xml:12265
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:12279
+#: freeculture.xml:12283
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:12287
+#: freeculture.xml:12291
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:12298
+#: freeculture.xml:12302
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:12316 freeculture.xml:12751
+#: freeculture.xml:12320 freeculture.xml:12755
msgid "Braithwaite, John"
msgstr ""
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12314
+#: freeculture.xml:12318
msgid ""
"See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: "
"Who Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12305
+#: freeculture.xml:12309
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:12327
+#: freeculture.xml:12331
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
#. f4.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12354
+#: freeculture.xml:12358
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12321
+#: freeculture.xml:12325
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:12360
+#: freeculture.xml:12364
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:12370
+#: freeculture.xml:12374
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:12378
+#: freeculture.xml:12382
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:12393
+#: freeculture.xml:12397
msgid ""
"See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at "
"Odds with Firms' Profit Motive,\" <citetitle>San Francisco "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12387
+#: freeculture.xml:12391
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:12414
+#: freeculture.xml:12418
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:12424
+#: freeculture.xml:12428
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:12432
+#: freeculture.xml:12436
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:12440
+#: freeculture.xml:12444
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:12455
+#: freeculture.xml:12459
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:12461
+#: freeculture.xml:12465
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:12473
+#: freeculture.xml:12477
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:12493
+#: freeculture.xml:12497
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:12510
+#: freeculture.xml:12514
msgid ""
"Jonathan Krim, \"The Quiet War over Open-Source,\" <citetitle>Washington "
"Post</citetitle>, August 2003, E1, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:12538 freeculture.xml:13211
+#: freeculture.xml:12542 freeculture.xml:13215
msgid "academic journals"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:12539 freeculture.xml:12629 freeculture.xml:13137
+#: freeculture.xml:12543 freeculture.xml:12633 freeculture.xml:13141
msgid "IBM"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:12540 freeculture.xml:13275
+#: freeculture.xml:12544 freeculture.xml:13279
msgid "PLoS (Public Library of Science)"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12507
+#: freeculture.xml:12511
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:12543
+#: freeculture.xml:12547
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:12551
+#: freeculture.xml:12555
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:12550
+#: freeculture.xml:12554
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:12561
+#: freeculture.xml:12565
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:12585
+#: freeculture.xml:12589
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:12591
+#: freeculture.xml:12595
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:12613
+#: freeculture.xml:12617
msgid ""
"Microsoft's position about free and open source software is more "
"sophisticated. As it has repeatedly asserted, it has no problem with \"open "
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:12630
+#: freeculture.xml:12634
msgid "\"copyleft\" licenses"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12602
+#: freeculture.xml:12606
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:12635
+#: freeculture.xml:12639
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:12661
+#: freeculture.xml:12665
msgid ""
"Krim, \"The Quiet War over Open-Source,\" available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #64</ulink>."
msgstr ""
#. type: Content of: <book><chapter><para><indexterm><primary>
-#: freeculture.xml:12665
+#: freeculture.xml:12669
msgid "Krim, Jonathan"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12653
+#: freeculture.xml:12657
msgid ""
"It is therefore understandable that as a proprietary software developer, "
"Microsoft would oppose this WIPO meeting, and understandable that it would "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12668
+#: freeculture.xml:12672
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:12676
+#: freeculture.xml:12680
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:12686
+#: freeculture.xml:12690
msgid "These statements are astonishing on a number of levels."
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12690
+#: freeculture.xml:12694
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:12700
+#: freeculture.xml:12704
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:12713
+#: freeculture.xml:12717
msgid ""
"Third, even if one believed that the purpose of WIPO was to maximize "
"intellectual property rights, in our tradition, intellectual property rights "
#. PAGE BREAK 274
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12727
+#: freeculture.xml:12731
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:12739
+#: freeculture.xml:12743
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:12756
+#: freeculture.xml:12760
msgid ""
"See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, "
"210–20. <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12753
+#: freeculture.xml:12757
msgid ""
"As Peter Drahos and John Braithwaite relate, this is precisely the choice we "
"are now making about intellectual property.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12765
+#: freeculture.xml:12769
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:12772
+#: freeculture.xml:12776
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:12784
+#: freeculture.xml:12788
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:12794
+#: freeculture.xml:12798
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:12802
+#: freeculture.xml:12806
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:12808
+#: freeculture.xml:12812
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:12819
+#: freeculture.xml:12823
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:12838
+#: freeculture.xml:12842
msgid "Turner, Ted"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12828
+#: freeculture.xml:12832
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:12842
+#: freeculture.xml:12846
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:12850
+#: freeculture.xml:12854
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:12857
+#: freeculture.xml:12861
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:12867
+#: freeculture.xml:12871
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:12874
+#: freeculture.xml:12878
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:12882
+#: freeculture.xml:12886
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:12885
+#: freeculture.xml:12889
msgid "Dylan, Bob"
msgstr ""
#. f11.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12890
+#: freeculture.xml:12894
msgid ""
"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
#. f12.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12908
+#: freeculture.xml:12912
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:12915
+#: freeculture.xml:12919
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:12887
+#: freeculture.xml:12891
msgid ""
"As I write these final words, the news is filled with stories about the RIAA "
"lawsuits against almost three hundred individuals.<placeholder "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:12932 freeculture.xml:13292
+#: freeculture.xml:12936 freeculture.xml:13296
msgid "Creative Commons"
msgstr ""
#. type: Content of: <book><chapter><indexterm><primary>
-#: freeculture.xml:12933
+#: freeculture.xml:12937
msgid "Gil, Gilberto"
msgstr ""
#. f14.
#. type: Content of: <book><chapter><para><footnote><para>
-#: freeculture.xml:12938
+#: freeculture.xml:12942
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:12947
+#: freeculture.xml:12951
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:12935
+#: freeculture.xml:12939
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:12961
+#: freeculture.xml:12965
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:12969
+#: freeculture.xml:12973
msgid "AFTERWORD"
msgstr ""
#. PAGE BREAK 280
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:12973
+#: freeculture.xml:12977
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:12978
+#: freeculture.xml:12982
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:12984
+#: freeculture.xml:12988
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:12991
+#: freeculture.xml:12995
msgid ""
"Once this movement has its effect in the streets, it has some hope of having "
"an effect in Washington. We are still a democracy. What people think "
msgstr ""
#. type: Content of: <book><chapter><section><title>
-#: freeculture.xml:13000
+#: freeculture.xml:13004
msgid "US, NOW"
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13002
+#: freeculture.xml:13006
msgid ""
"Common sense is with the copyright warriors because the debate so far has "
"been framed at the extremes—as a grand either/or: either property or "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13008
+#: freeculture.xml:13012
msgid ""
"The mistake here is the error of the excluded middle. There are extremes in "
"this debate, but the extremes are not all that there is. There are those who "
#. PAGE BREAK 282
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13018
+#: freeculture.xml:13022
msgid ""
"When the Internet was first born, its initial architecture effectively "
"tilted in the \"no rights reserved\" direction. Content could be copied "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13030
+#: freeculture.xml:13034
msgid ""
"This initial character produced a reaction (opposite, but not quite equal) "
"by copyright owners. That reaction has been the topic of this book. Through "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13044
+#: freeculture.xml:13048
msgid ""
"What's needed is a way to say something in the middle—neither \"all "
"rights reserved\" nor \"no rights reserved\" but \"some rights "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13053
+#: freeculture.xml:13057
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13055
+#: freeculture.xml:13059
msgid ""
"If you step back from the battle I've been describing here, you will "
"recognize this problem from other contexts. Think about privacy. Before the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13065
+#: freeculture.xml:13069
msgid "What made it assured?"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13069
+#: freeculture.xml:13073
msgid ""
"Well, if we think in terms of the modalities I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, your privacy was "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:13084
+#: freeculture.xml:13088
msgid "Amazon"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13094
+#: freeculture.xml:13098
msgid "cookies, Internet"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13086
+#: freeculture.xml:13090
msgid ""
"Enter the Internet, where the cost of tracking browsing in particular has "
"become quite tiny. If you're a customer at Amazon, then as you browse the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13097
+#: freeculture.xml:13101
msgid ""
"Amazon, of course, is not the problem. But we might begin to worry about "
"libraries. If you're one of those crazy lefties who thinks that people "
#. f1.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13113
+#: freeculture.xml:13117
msgid ""
"See, for example, Marc Rotenberg, \"Fair Information Practices and the "
"Architecture of Privacy (What Larry Doesn't Get),\" <citetitle>Stanford "
#. PAGE BREAK 284
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13107
+#: freeculture.xml:13111
msgid ""
"It is this reality that explains the push of many to define \"privacy\" on "
"the Internet. It is the recognition that technology can remove what friction "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13131
+#: freeculture.xml:13135
msgid ""
"A similar story could be told about the birth of the free software "
"movement. When computers with software were first made available "
msgstr ""
#. type: Content of: <book><chapter><section><section><indexterm><primary>
-#: freeculture.xml:13139
+#: freeculture.xml:13143
msgid "Stallman, Richard"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13141
+#: freeculture.xml:13145
msgid ""
"That was the world Richard Stallman was born into, and while he was a "
"researcher at MIT, he grew to love the community that developed when one was "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13149
+#: freeculture.xml:13153
msgid ""
"In an academic setting, at least, that's not a terribly radical idea. In a "
"math department, anyone would be free to tinker with a proof that someone "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13161
+#: freeculture.xml:13165
msgid ""
"No one answered that question. Instead, the architecture of revenue for "
"computing changed. As it became possible to import programs from one system "
#. PAGE BREAK 285
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13170
+#: freeculture.xml:13174
msgid ""
"Thus, the practice of proprietary code began to spread, and by the early "
"1980s, Stallman found himself surrounded by proprietary code. The world of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13179
+#: freeculture.xml:13183
msgid ""
"Therefore, in 1984, Stallman began a project to build a free operating "
"system, so that at least a strain of free software would survive. That was "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13187
+#: freeculture.xml:13191
msgid ""
"Stallman's technique was to use copyright law to build a world of software "
"that must be kept free. Software licensed under the Free Software "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13198
+#: freeculture.xml:13202
msgid ""
"Stallman was thus doing for software what privacy advocates now do for "
"privacy. He was seeking a way to rebuild a kind of freedom that was taken "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13206
+#: freeculture.xml:13210
msgid ""
"Finally, consider a very recent example that more directly resonates with "
"the story of this book. This is the shift in the way academic and scientific "
#. PAGE BREAK 286
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13214
+#: freeculture.xml:13218
msgid ""
"As digital technologies develop, it is becoming obvious to many that "
"printing thousands of copies of journals every month and sending them to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13230
+#: freeculture.xml:13234
msgid ""
"There's nothing wrong in general with this, and indeed, the ability to "
"charge for access to even public domain materials is a good incentive for "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13239
+#: freeculture.xml:13243
msgid ""
"But what if the only way to get access to social and scientific data was "
"through proprietary services? What if no one had the ability to browse this "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13244
+#: freeculture.xml:13248
msgid ""
"As many are beginning to notice, this is increasingly the reality with "
"scientific journals. When these journals were distributed in paper form, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13256
+#: freeculture.xml:13260
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13264
+#: freeculture.xml:13268
msgid ""
"This shrinking freedom has led many to take affirmative steps to restore the "
"freedom that has been lost. The Public Library of Science (PLoS), for "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13278
+#: freeculture.xml:13282
msgid ""
"This is one of many such efforts to restore a freedom taken for granted "
"before, but now threatened by changing technology and markets. There's no "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13290
+#: freeculture.xml:13294
msgid "Rebuilding Free Culture: One Idea"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13295
+#: freeculture.xml:13299
msgid ""
"The same strategy could be applied to culture, as a response to the "
"increasing control effected through law and technology."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13299
+#: freeculture.xml:13303
msgid ""
"Enter the Creative Commons. The Creative Commons is a nonprofit corporation "
"established in Massachusetts, but with its home at Stanford University. Its "
#. PAGE BREAK 288
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13310
+#: freeculture.xml:13314
msgid ""
"<emphasis>Simple</emphasis>—which means without a middleman, or "
"without a lawyer. By developing a free set of licenses that people can "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13328
+#: freeculture.xml:13332
msgid ""
"These freedoms are beyond the freedoms promised by fair use. Their precise "
"contours depend upon the choices the creator makes. The creator can choose a "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13339
+#: freeculture.xml:13343
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13360
+#: freeculture.xml:13364
msgid "Garlick, Mia"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13350
+#: freeculture.xml:13354
msgid ""
"This is just one project among many within the Creative Commons. And of "
"course, Creative Commons is not the only organization pursuing such "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13363
+#: freeculture.xml:13367
msgid ""
"The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to "
"complement them. The problems that the law creates for us as a culture are "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13375
+#: freeculture.xml:13379
msgid ""
"Why would creators participate in giving up total control? Some participate "
"to better spread their content. Cory Doctorow, for example, is a science "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13382
+#: freeculture.xml:13386
msgid ""
"Why would a publisher ever agree to this? I suspect his publisher reasoned "
"like this: There are two groups of people out there: (1) those who will buy "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13394
+#: freeculture.xml:13398
msgid ""
"Indeed, the experience of his publisher clearly supports that conclusion. "
"The book's first printing was exhausted months before the publisher had "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13409
+#: freeculture.xml:13413
msgid "Free for All (Wayner)"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13410
+#: freeculture.xml:13414
msgid "Wayner, Peter"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13400
+#: freeculture.xml:13404
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 "
#. f2.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13428
+#: freeculture.xml:13432
msgid ""
"<citetitle>Willful Infringement: A Report from the Front Lines of the Real "
"Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13435
+#: freeculture.xml:13439
msgid "Leaphart, Walter"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13413
+#: freeculture.xml:13417
msgid ""
"These are examples of using the Commons to better spread proprietary "
"content. I believe that is a wonderful and common use of the Commons. There "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13438
+#: freeculture.xml:13442
msgid ""
"Finally, there are many who mark their content with a Creative Commons "
"license just because they want to express to others the importance of "
#. PAGE BREAK 291
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13450
+#: freeculture.xml:13454
msgid ""
"In the first six months of the Creative Commons experiment, over 1 million "
"objects were licensed with these free-culture licenses. The next step is "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13460
+#: freeculture.xml:13464
msgid ""
"These are first steps to rebuilding a public domain. They are not mere "
"arguments; they are action. Building a public domain is the first step to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13468
+#: freeculture.xml:13472
msgid ""
"Creative Commons is just one example of voluntary efforts by individuals and "
"creators to change the mix of rights that now govern the creative field. The "
msgstr ""
#. type: Content of: <book><chapter><section><title>
-#: freeculture.xml:13482
+#: freeculture.xml:13486
msgid "THEM, SOON"
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13484
+#: freeculture.xml:13488
msgid ""
"We will not reclaim a free culture by individual action alone. It will also "
"take important reforms of laws. We have a long way to go before the "
msgstr ""
#. type: Content of: <book><chapter><section><para>
-#: freeculture.xml:13491
+#: freeculture.xml:13495
msgid ""
"In this chapter, I outline five kinds of changes: four that are general, and "
"one that's specific to the most heated battle of the day, music. Each is a "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13498
+#: freeculture.xml:13502
msgid "1. More Formalities"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13500
+#: freeculture.xml:13504
msgid ""
"If you buy a house, you have to record the sale in a deed. If you buy land "
"upon which to build a house, you have to record the purchase in a deed. If "
#. PAGE BREAK 293
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13507
+#: freeculture.xml:13511
msgid ""
"These are all formalities associated with property. They are requirements "
"that we all must bear if we want our property to be protected."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13512
+#: freeculture.xml:13516
msgid ""
"In contrast, under current copyright law, you automatically get a copyright, "
"regardless of whether you comply with any formality. You don't have to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13518
+#: freeculture.xml:13522
msgid "Why?"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13521
+#: freeculture.xml:13525
msgid ""
"As I suggested in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, the motivation to abolish formalities was a good "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13530
+#: freeculture.xml:13534
msgid ""
"But the Internet changes all this. Formalities today need not be a "
"burden. Rather, the world without formalities is the world that burdens "
#. f1.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13544
+#: freeculture.xml:13548
msgid ""
"The proposal I am advancing here would apply to American works only. "
"Obviously, I believe it would be beneficial for the same idea to be adopted "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13542
+#: freeculture.xml:13546
msgid ""
"The law should therefore change this requirement<placeholder "
"type=\"footnote\" id=\"0\"/>—but it should not change it by going back "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13552
+#: freeculture.xml:13556
msgid ""
"The important formalities are three: marking copyrighted work, registering "
"copyrights, and renewing the claim to copyright. Traditionally, the first of "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><title>
-#: freeculture.xml:13564
+#: freeculture.xml:13568
msgid "REGISTRATION AND RENEWAL"
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13566
+#: freeculture.xml:13570
msgid ""
"Under the old system, a copyright owner had to file a registration with the "
"Copyright Office to register or renew a copyright. When filing that "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13579
+#: freeculture.xml:13583
msgid ""
"Yet it is always astonishing to me that we, who come from a tradition of "
"extraordinary innovation in governmental design, can no longer think "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13588
+#: freeculture.xml:13592
msgid ""
"In the context of registration, one obvious model is the Internet. There "
"are at least 32 million Web sites registered around the world. Domain name "
#. PAGE BREAK 295
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13598
+#: freeculture.xml:13602
msgid ""
"We should adopt a similar model for the registration and renewal of "
"copyrights. The Copyright Office may well serve as the central registry, but "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><title>
-#: freeculture.xml:13613
+#: freeculture.xml:13617
msgid "MARKING"
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13615
+#: freeculture.xml:13619
msgid ""
"It used to be that the failure to include a copyright notice on a creative "
"work meant that the copyright was forfeited. That was a harsh punishment for "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13625
+#: freeculture.xml:13629
msgid ""
"The aim of marking is to signal to the public that this work is copyrighted "
"and that the author wants to enforce his rights. The mark also makes it easy "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13631
+#: freeculture.xml:13635
msgid ""
"One of the problems the copyright system confronted early on was that "
"different copyrighted works had to be differently marked. It wasn't clear "
#. f2.
#. type: Content of: <book><chapter><section><section><section><para><footnote><para>
-#: freeculture.xml:13648
+#: freeculture.xml:13652
msgid ""
"There would be a complication with derivative works that I have not solved "
"here. In my view, the law of derivatives creates a more complicated system "
#. PAGE BREAK 296
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13641
+#: freeculture.xml:13645
msgid ""
"Let's start with the last point. If a copyright owner allows his work to be "
"published without a copyright notice, the consequence of that failure need "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13661
+#: freeculture.xml:13665
msgid ""
"That in turn raises the question about how work should best be marked. Here "
"again, the system needs to adjust as the technologies evolve. The best way "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13668
+#: freeculture.xml:13672
msgid ""
"For example, if a recording industry association devises a method for "
"marking CDs, it would propose that to the Copyright Office. The Copyright "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13680
+#: freeculture.xml:13684
msgid ""
"Finally, marking content clearly would simplify registration requirements. "
"If photographs were marked by author and year, there would be little reason "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13688
+#: freeculture.xml:13692
msgid ""
"The objective of formalities is to make things clear. The existing system "
"does nothing to make things clear. Indeed, it seems designed to make things "
msgstr ""
#. type: Content of: <book><chapter><section><section><section><para>
-#: freeculture.xml:13693
+#: freeculture.xml:13697
msgid ""
"If formalities such as registration were reinstated, one of the most "
"difficult aspects of relying upon the public domain would be removed. It "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13705
+#: freeculture.xml:13709
msgid "2. Shorter Terms"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13707
+#: freeculture.xml:13711
msgid ""
"The term of copyright has gone from fourteen years to ninety-five years for "
"corporate authors, and life of the author plus seventy years for natural "
#. f3.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13720
+#: freeculture.xml:13724
msgid ""
"\"A Radical Rethink,\" <citetitle>Economist</citetitle>, 366:8308 (25 "
"January 2003): 15, available at <ulink "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13712
+#: freeculture.xml:13716
msgid ""
"In <citetitle>The Future of Ideas</citetitle>, I proposed a "
"seventy-five-year term, granted in five-year increments with a requirement "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13727
+#: freeculture.xml:13731
msgid ""
"I agree with those who believe that we need a radical change in copyright's "
"term. But whether fourteen years or seventy-five, there are four principles "
#. (1)
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13735
+#: freeculture.xml:13739
msgid ""
"<emphasis>Keep it short:</emphasis> The term should be as long as necessary "
"to give incentives to create, but no longer. If it were tied to very strong "
#. (2)
#. PAGE BREAK 298
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13744
+#: freeculture.xml:13748
msgid ""
"<emphasis>Keep it simple:</emphasis> The line between the public domain and "
"protected content must be kept clear. Lawyers like the fuzziness of \"fair "
#. f4.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><footnote><para>
-#: freeculture.xml:13765
+#: freeculture.xml:13769
msgid ""
"Department of Veterans Affairs, Veteran's Application for Compensation "
"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
msgstr ""
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><indexterm><primary>
-#: freeculture.xml:13773
+#: freeculture.xml:13777
msgid "veterans' pensions"
msgstr ""
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13757
+#: freeculture.xml:13761
msgid ""
"<emphasis>Keep it alive:</emphasis> Copyright should have to be renewed. "
"Especially if the maximum term is long, the copyright owner should be "
#. (4)
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13777
+#: freeculture.xml:13781
msgid ""
"<emphasis>Keep it prospective:</emphasis> Whatever the term of copyright "
"should be, the clearest lesson that economists teach is that a term once "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13793
+#: freeculture.xml:13797
msgid ""
"These changes together should produce an <emphasis>average</emphasis> "
"copyright term that is much shorter than the current term. Until 1976, the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13799
+#: freeculture.xml:13803
msgid ""
"No doubt the extremists will call these ideas \"radical.\" (After all, I "
"call them \"extremists.\") But again, the term I recommended was longer than "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13809
+#: freeculture.xml:13813
msgid "3. Free Use Vs. Fair Use"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13811
+#: freeculture.xml:13815
msgid ""
"As I observed at the beginning of this book, property law originally granted "
"property owners the right to control their property from the ground to the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13819
+#: freeculture.xml:13823
msgid ""
"Our Constitution gives Congress the power to give authors \"exclusive "
"right\" to \"their writings.\" Congress has given authors an exclusive right "
#. f5.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13832
+#: freeculture.xml:13836
msgid ""
"Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New "
"York: Columbia University Press, 1967), 32."
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:13838
+#: freeculture.xml:13842
msgid "Kaplan, Benjamin"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13828
+#: freeculture.xml:13832
msgid ""
"Congress granted the beginnings of this right in 1870, when it expanded the "
"exclusive right of copyright to include a right to control translations and "
#. f6.
#. type: Content of: <book><chapter><section><section><blockquote><para><footnote><para>
-#: freeculture.xml:13846
+#: freeculture.xml:13850
msgid "Ibid., 56."
msgstr ""
#. type: Content of: <book><chapter><section><section><blockquote><para>
-#: freeculture.xml:13842
+#: freeculture.xml:13846
msgid ""
"So inured have we become to the extension of the monopoly to a large range "
"of so-called derivative works, that we no longer sense the oddity of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13851
+#: freeculture.xml:13855
msgid ""
"I think it's time to recognize that there are airplanes in this field and "
"the expansiveness of these rights of derivative use no longer make "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13858
+#: freeculture.xml:13862
msgid ""
"<emphasis>Term:</emphasis> If Congress wants to grant a derivative right, "
"then that right should be for a much shorter term. It makes sense to protect "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13871
+#: freeculture.xml:13875
msgid ""
"<emphasis>Scope:</emphasis> Likewise should the scope of derivative rights "
"be narrowed. Again, there are some cases in which derivative rights are "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13884
+#: freeculture.xml:13888
msgid ""
"This was the point that Alben made when describing the making of the Clint "
"Eastwood CD. While it makes sense to require negotiation for foreseeable "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:13900
+#: freeculture.xml:13904
msgid "Goldstein, Paul"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:13898
+#: freeculture.xml:13902
msgid ""
"Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the "
"Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13892
+#: freeculture.xml:13896
msgid ""
"In each of these cases, the law should mark the uses that are protected, and "
"the presumption should be that other uses are not protected. This is the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13906
+#: freeculture.xml:13910
msgid ""
"Goldstein's analysis would make perfect sense if the cost of the legal "
"system were small. But as we are currently seeing in the context of the "
#. PAGE BREAK 301
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13913
+#: freeculture.xml:13917
msgid ""
"The law could remedy this problem either by removing protection beyond the "
"part explicitly drawn or by granting reuse rights upon certain statutory "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:13923
+#: freeculture.xml:13927
msgid "4. Liberate the Music—Again"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13925
+#: freeculture.xml:13929
msgid ""
"The battle that got this whole war going was about music, so it wouldn't be "
"fair to end this book without addressing the issue that is, to most people, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13932
+#: freeculture.xml:13936
msgid ""
"The appeal of file-sharing music was the crack cocaine of the Internet's "
"growth. It drove demand for access to the Internet more powerfully than any "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13941
+#: freeculture.xml:13945
msgid ""
"The aim of copyright, with respect to content in general and music in "
"particular, is to create the incentives for music to be composed, performed, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13948
+#: freeculture.xml:13952
msgid ""
"File-sharing networks complicate this model by enabling the spread of "
"content for which the performer has not been paid. But of course, that's not "
#. A.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13957
+#: freeculture.xml:13961
msgid ""
"There are some who are using sharing networks as substitutes for purchasing "
"CDs."
#. B.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13962
+#: freeculture.xml:13966
msgid ""
"There are also some who are using sharing networks to sample, on the way to "
"purchasing CDs."
#. PAGE BREAK 302
#. C.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13968
+#: freeculture.xml:13972
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is no longer sold but is still under copyright or that would have been "
#. D.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:13974
+#: freeculture.xml:13978
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is not copyrighted or to get access that the copyright owner plainly "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13980
+#: freeculture.xml:13984
msgid ""
"Any reform of the law needs to keep these different uses in focus. It must "
"avoid burdening type D even if it aims to eliminate type A. The eagerness "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13988
+#: freeculture.xml:13992
msgid ""
"As I said in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"piracy\"/>, the actual harm caused by sharing is controversial. "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:13996
+#: freeculture.xml:14000
msgid ""
"Nonetheless, there is a crucial fact about the current technological context "
"that we must keep in mind if we are to understand how the law should "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14001
+#: freeculture.xml:14005
msgid ""
"Today, file sharing is addictive. In ten years, it won't be. It is addictive "
"today because it is the easiest way to gain access to a broad range of "
#. PAGE BREAK 303
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14013
+#: freeculture.xml:14017
msgid ""
"But it will become a reality, and that means the way we get access to the "
"Internet today is a technology in transition. Policy makers should not make "
#. f8.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14046
+#: freeculture.xml:14050
msgid ""
"See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April "
"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14028
+#: freeculture.xml:14032
msgid ""
"In that world, it will be extremely easy to connect to services that give "
"you access to content on the fly—such as Internet radio, content that "
#. PAGE BREAK 304
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14053
+#: freeculture.xml:14057
msgid ""
"This point about the future is meant to suggest a perspective on the "
"present: It is emphatically temporary. The \"problem\" with file "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14069
+#: freeculture.xml:14073
msgid ""
"The answer begins with recognizing that there are different \"problems\" "
"here to solve. Let's start with type D content—uncopyrighted content "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14080
+#: freeculture.xml:14084
msgid ""
"Type C content raises a different \"problem.\" This is content that was, at "
"one time, published and is no longer available. It may be unavailable "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14089
+#: freeculture.xml:14093
msgid ""
"Again, the model here is the used book store. Once a book goes out of print, "
"it may still be available in libraries and used book stores. But libraries "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14099
+#: freeculture.xml:14103
msgid ""
"The model of used book stores suggests that the law could simply deem "
"out-of-print music fair game. If the publisher does not make copies of the "
#. PAGE BREAK 305
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14110
+#: freeculture.xml:14114
msgid ""
"Alternatively, the law could create a statutory license that would ensure "
"that artists get something from the trade of their work. For example, if the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14120
+#: freeculture.xml:14124
msgid ""
"This system would also create an incentive for publishers to keep works "
"available commercially. Works that are available commercially would not be "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14130
+#: freeculture.xml:14134
msgid ""
"The hard case is content of types A and B, and again, this case is hard only "
"because the extent of the problem will change over time, as the technologies "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14138
+#: freeculture.xml:14142
msgid ""
"So here's a solution that will at first seem very strange to both sides in "
"this war, but which upon reflection, I suggest, should make some sense."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14142
+#: freeculture.xml:14146
msgid ""
"Stripped of the rhetoric about the sanctity of property, the basic claim of "
"the content industry is this: A new technology (the Internet) has harmed a "
#. PAGE BREAK 306
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14153
+#: freeculture.xml:14157
msgid ""
"I love the Internet, and so I don't like likening it to tobacco or "
"asbestos. But the analogy is a fair one from the perspective of the law. "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
-#: freeculture.xml:14198
+#: freeculture.xml:14202
msgid "Fisher, William"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
-#: freeculture.xml:14200 freeculture.xml:14226
+#: freeculture.xml:14204 freeculture.xml:14230
msgid "Promises to Keep (Fisher)"
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14165
+#: freeculture.xml:14169
msgid ""
"William Fisher, <citetitle>Digital Music: Problems and "
"Possibilities</citetitle> (last revised: 10 October 2000), available at "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14161
+#: freeculture.xml:14165
msgid ""
"The idea would be a modification of a proposal that has been floated by "
"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14213
+#: freeculture.xml:14217
msgid ""
"Fisher's proposal is careful and comprehensive. It raises a million "
"questions, most of which he answers well in his upcoming book, "
#. PAGE BREAK 307
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14229
+#: freeculture.xml:14233
msgid ""
"Fisher would balk at the idea of allowing the system to lapse. His aim is "
"not just to ensure that artists are paid, but also to ensure that the system "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14242
+#: freeculture.xml:14246
msgid ""
"No doubt it would be difficult to calculate the proper measure of \"harm\" "
"to an industry. But the difficulty of making that calculation would be "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14257
+#: freeculture.xml:14261
msgid ""
"This competition has already occurred against the background of \"free\" "
"music from p2p systems. As the sellers of cable television have known for "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14269
+#: freeculture.xml:14273
msgid ""
"This regime of competition, with a backstop to assure that artists don't "
"lose, would facilitate a great deal of innovation in the delivery of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14278
+#: freeculture.xml:14282
msgid "In summary, then, my proposal is this:"
msgstr ""
#. PAGE BREAK 308
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14283
+#: freeculture.xml:14287
msgid ""
"The Internet is in transition. We should not be regulating a technology in "
"transition. We should instead be regulating to minimize the harm to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14290
+#: freeculture.xml:14294
msgid "We can minimize that harm while maximizing the benefit to innovation by"
msgstr ""
#. 1.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14296
+#: freeculture.xml:14300
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""
#. 2.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14300
+#: freeculture.xml:14304
msgid ""
"permitting noncommercial type C sharing without liability, and commercial "
"type C sharing at a low and fixed rate set by statute;"
#. 3.
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
-#: freeculture.xml:14306
+#: freeculture.xml:14310
msgid ""
"while in this transition, taxing and compensating for type A sharing, to the "
"extent actual harm is demonstrated."
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14311
+#: freeculture.xml:14315
msgid ""
"But what if \"piracy\" doesn't disappear? What if there is a competitive "
"market providing content at a low cost, but a significant number of "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14317
+#: freeculture.xml:14321
msgid ""
"Yes, it should. But, again, what it should do depends upon how the facts "
"develop. These changes may not eliminate type A sharing. But the real issue "
#. PAGE BREAK 309
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14331
+#: freeculture.xml:14335
msgid ""
"But we're a long way away from whittling the problem down to this subset of "
"type A sharers. And our focus until we're there should not be on finding "
msgstr ""
#. type: Content of: <book><chapter><section><section><title>
-#: freeculture.xml:14342
+#: freeculture.xml:14346
msgid "5. Fire Lots of Lawyers"
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14344
+#: freeculture.xml:14348
msgid ""
"I'm a lawyer. I make lawyers for a living. I believe in the law. I believe "
"in the law of copyright. Indeed, I have devoted my life to working in law, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14350
+#: freeculture.xml:14354
msgid ""
"Yet much of this book has been a criticism of lawyers, or the role lawyers "
"have played in this debate. The law speaks to ideals, but it is my view that "
#. f10.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14367
+#: freeculture.xml:14371
msgid ""
"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer "
"Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14358
+#: freeculture.xml:14362
msgid ""
"The evidence of this bending is compelling. I'm attacked as a \"radical\" by "
"many within the profession, yet the positions that I am advocating are "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14373
+#: freeculture.xml:14377
msgid ""
"However, my criticism of the role that lawyers have played in this debate is "
"not just about a professional bias. It is more importantly about our failure "
msgstr ""
#. type: Content of: <book><chapter><section><section><para><footnote><para>
-#: freeculture.xml:14383
+#: freeculture.xml:14387
msgid ""
"A good example is the work of Professor Stan Liebowitz. Liebowitz is to be "
"commended for his careful review of data about infringement, leading him to "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14378
+#: freeculture.xml:14382
msgid ""
"Economists are supposed to be good at reckoning costs and benefits. But "
"more often than not, economists, with no clue about how the legal system "
#. PAGE BREAK 310
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14407
+#: freeculture.xml:14411
msgid ""
"But the legal system doesn't work. Or more accurately, it doesn't work for "
"anyone except those with the most resources. Not because the system is "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14415
+#: freeculture.xml:14419
msgid ""
"These costs distort free culture in many ways. A lawyer's time is billed at "
"the largest firms at more than $400 per hour. How much time should such a "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14425
+#: freeculture.xml:14429
msgid ""
"The costliness and clumsiness and randomness of this system mock our "
"tradition. And lawyers, as well as academics, should consider it their duty "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14433
+#: freeculture.xml:14437
msgid ""
"But until that reform is complete, we as a society should keep the law away "
"from areas that we know it will only harm. And that is precisely what the "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14439
+#: freeculture.xml:14443
msgid ""
"Think about the amazing things your kid could do or make with digital "
"technology—the film, the music, the Web page, the blog. Or think about "
#. PAGE BREAK 311
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14448
+#: freeculture.xml:14452
msgid ""
"The law should regulate in certain areas of culture—but it should "
"regulate culture only where that regulation does good. Yet lawyers rarely "
msgstr ""
#. type: Content of: <book><chapter><section><section><para>
-#: freeculture.xml:14457
+#: freeculture.xml:14461
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:14466
+#: freeculture.xml:14470
msgid "NOTES"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14468
+#: freeculture.xml:14472
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:14483
+#: freeculture.xml:14487
msgid "ACKNOWLEDGMENTS"
msgstr ""
#. type: Content of: <book><chapter><para>
-#: freeculture.xml:14485
+#: freeculture.xml:14489
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:14491
+#: freeculture.xml:14495
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:14504
+#: freeculture.xml:14508
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:14515
+#: freeculture.xml:14519
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:14535
+#: freeculture.xml:14539
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:14544
+#: freeculture.xml:14548
msgid ""
"Finally, and forever, I am thankful to Bettina, who has always insisted that "
"there would be unending happiness away from these battles, and who has "
projects / text-free-culture-lessig.git / commitdiff