From: Petter Reinholdtsen Date: Mon, 9 Jul 2012 07:14:47 +0000 (+0200) Subject: Fetched docbook source from http://www.sslug.dk/~chlor/lessig/freeculture.sgml.2004... X-Git-Tag: edition-2015-10-10~2588 X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/commitdiff_plain/16745a3d59d73ebaa5249f6e6659e8f9850761e5?ds=sidebyside Fetched docbook source from http://www.sslug.dk/~chlor/lessig/freeculture.sgml.2004-04-01.gz. --- diff --git a/freeculture.xml b/freeculture.xml new file mode 100644 index 0000000..e8a8be9 --- /dev/null +++ b/freeculture.xml @@ -0,0 +1,15221 @@ + + + + + + + + + Free Culture + + "freeculture" + + Version 2004-02-10 + + + + Lawrence + Lessig + + + + + 2004 + + Lawrence Lessig. +This version of Free Culture is licensed +under a Creative Commons license. This license permits +non-commercial use of this work, +so long as attribution is given. +For more information about the license, +click the icon above, or visit +http://creativecommons.org/licenses/by-nc/1.0/ + + + + +ABOUT THE AUTHOR + +LAWRENCE LESSIG +(http://www.lessig.org), +professor of law and a John A. +Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the +Stanford Center for Internet and Society and is chairman of the Creative + Commons +(http://creativecommons.org). +The author of The Future of Ideas (Random +House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig +is a member of the boards of the Public Library of Science, the Electronic Frontier +Foundation, and Public Knowledge. He was the winner of the Free Software +Foundation's Award for the Advancement of Free Software, twice listed in + BusinessWeek's +"e.biz 25," and named one of Scientific American's "50 visionaries." A +graduate of the University of Pennsylvania, Cambridge University, and Yale Law +School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court +of Appeals. + + + + + +Info + + + +You can buy a copy of this book +by clicking on one of the links below: + + +Amazon +B&N +Penguin + + + + + + +ALSO BY LAWRENCE LESSIG +The Future of Ideas: The Fate of the Commons +in a Connected World +Code: And Other Laws of Cyberspace + + + + +THE PENGUIN PRESS +NEW YORK + + + + +FREE CULTURE +HOW BIG MEDIA USES TECHNOLOGY AND THE +HOW BIG MEDIA USES TECHNOLOGY AND +LAW TO LOCK DOWN CULTURE AND CONTROL +THE LAW TO LOCK DOWN CULTURE +CREATIVITY +AND CONTROL CREATIVITY +LAWRENCE LESSIG + + + + +THE PENGUIN PRESS +a member of +Penguin Group (USA) Inc. +375 Hudson Street +New York, New York +Copyright © Lawrence Lessig, +All rights reserved +Excerpt from an editorial titled "The Coming of Copyright Perpetuity," +The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co. +Reprinted with permission. +Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc. +All rights reserved. Reprinted with permission. +Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps. +Library of Congress Cataloging-in-Publication Data +Lessig, Lawrence. +Free culture : how big media uses technology and the law to lock down +culture and control creativity / Lawrence Lessig. +p. cm. +Includes index. +ISBN 1-59420-006-8 (hardcover) +1. Intellectual property--United States. 2. Mass media--United States. +3. Technological innovations--United States. 4. Art--United States. I. Title. +KF2979.L47 +343.7309'9--dc22 +This book is printed on acid-free paper. +Printed in the United States of America +1 3 5 7 9 10 8 6 4 +Designed by Marysarah Quinn +Without limiting the rights under copyright reserved above, no part of this publication may +be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or +by any means (electronic, mechanical, photocopying, recording or otherwise), without the +prior written permission of both the copyright owner and the above publisher of this book. +The scanning, uploading, and distribution of this book via the Internet or via any other +means without the permission of the publisher is illegal and punishable by law. Please + purchase +only authorized electronic editions and do not participate in or encourage electronic +piracy of copyrighted materials. Your support of the author's rights is appreciated. + + + + +To Eric Eldred--whose work first drew me +to this cause, and for whom +it continues still. + + +
+Creative Commons, Some rights reserved + +
+ + + + + List of figures + + + + + + + + +PREFACE + +At the end of his review of my first book, Code: And Other Laws of +Cyberspace, David Pogue, a brilliant writer and author of countless +technical and computer-related texts, wrote this: + +
+ +Unlike actual law, Internet software has no capacity to punish. It +doesn't affect people who aren't online (and only a tiny minority +of the world population is). And if you don't like the Internet's +system, you can always flip off the modem. +David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000. + + +
+ +Pogue was skeptical of the core argument of the book--that + software, +or "code," functioned as a kind of law--and his review suggested +the happy thought that if life in cyberspace got bad, we could always +"drizzle, drazzle, druzzle, drome"-like simply flip a switch and be back +home. Turn off the modem, unplug the computer, and any troubles +that exist in that space wouldn't "affect" us anymore. + + +Pogue might have been right in 1999--I'm skeptical, but maybe. +But even if he was right then, the point is not right now: Free Culture +is about the troubles the Internet causes even after the modem is turned + +off. It is an argument about how the battles that now rage regarding life +on-line have fundamentally affected "people who aren't online." There +is no switch that will insulate us from the Internet's effect. + + +But unlike Code, the argument here is not much about the Internet +itself. It is instead about the consequence of the Internet to a part of +our tradition that is much more fundamental, and, as hard as this is for +a geek-wanna-be to admit, much more important. + + +That tradition is the way our culture gets made. As I explain in the +pages that follow, we come from a tradition of "free culture"--not +"free" as in "free beer" (to borrow a phrase from the founder of the + freesoftware +movement +Richard M. Stallman, Free Software, Free Societies 57 ( Joshua Gay, ed. 2002). +), but "free" as in "free speech," "free markets," "free +trade," "free enterprise," "free will," and "free elections." A free culture +supports and protects creators and innovators. It does this directly by +granting intellectual property rights. But it does so indirectly by + limiting +the reach of those rights, to guarantee that follow-on creators and +innovators remain as free as possible from the control of the past. A free +culture is not a culture without property, just as a free market is not a +market in which everything is free. The opposite of a free culture is a +"permission culture"--a culture in which creators get to create only +with the permission of the powerful, or of creators from the past. + + +If we understood this change, I believe we would resist it. Not "we" +on the Left or "you" on the Right, but we who have no stake in the +particular industries of culture that defined the twentieth century. +Whether you are on the Left or the Right, if you are in this sense + disinterested, +then the story I tell here will trouble you. For the changes I +describe affect values that both sides of our political culture deem + fundamental. + + +We saw a glimpse of this bipartisan outrage in the early summer of +2003. As the FCC considered changes in media ownership rules that +would relax limits on media concentration, an extraordinary coalition +generated more than 700,000 letters to the FCC opposing the change. +As William Safire described marching "uncomfortably alongside +CodePink Women for Peace and the National Rifle Association, + between + liberal Olympia Snowe and conservative Ted Stevens," he + formulated +perhaps most simply just what was at stake: the concentration +of power. And as he asked, + +
+ +Does that sound unconservative? Not to me. The concentration +of power--political, corporate, media, cultural--should be + anathema +to conservatives. The diffusion of power through local + control, +thereby encouraging individual participation, is the essence +of federalism and the greatest expression of democracy. +William Safire, "The Great Media Gulp," New York Times, 22 May 2003. + + +
+ +This idea is an element of the argument of Free Culture, though my +focus is not just on the concentration of power produced by + concentrations +in ownership, but more importantly, if because less visibly, on the +concentration of power produced by a radical change in the effective +scope of the law. The law is changing; that change is altering the way our +culture gets made; that change should worry you--whether or not you +care about the Internet, and whether you're on Safire's left or on his right. +The inspiration for the title and for much of the argument of +this book comes from the work of Richard Stallman and the Free + Software +Foundation. Indeed, as I reread Stallman's own work, especially +the essays in Free Software, Free Society, I realize that all of the + theoretical +insights I develop here are insights Stallman described decades +ago. One could thus well argue that this work is "merely" derivative. + + +I accept that criticism, if indeed it is a criticism. The work of a +lawyer is always derivative, and I mean to do nothing more in this book +than to remind a culture about a tradition that has always been its own. +Like Stallman, I defend that tradition on the basis of values. Like +Stallman, I believe those are the values of freedom. And like Stallman, +I believe those are values of our past that will need to be defended in +our future. A free culture has been our past, but it will only be our + future +if we change the path we are on right now. +xv + +Like Stallman's arguments for free software, an argument for free +culture stumbles on a confusion that is hard to avoid, and even harder +to understand. A free culture is not a culture without property; it is not +a culture in which artists don't get paid. A culture without property, or +in which creators can't get paid, is anarchy, not freedom. Anarchy is not +what I advance here. + + +Instead, the free culture that I defend in this book is a balance + between +anarchy and control. A free culture, like a free market, is filled +with property. It is filled with rules of property and contract that get +enforced by the state. But just as a free market is perverted if its + property +becomes feudal, so too can a free culture be queered by extremism +in the property rights that define it. That is what I fear about our + culture +today. It is against that extremism that this book is written. + + + + + + + +INTRODUCTION + +On December 17, 1903, on a windy North Carolina beach for just +shy of one hundred seconds, the Wright brothers demonstrated that a +heavier-than-air, self-propelled vehicle could fly. The moment was electric +and its importance widely understood. Almost immediately, there +was an explosion of interest in this newfound technology of manned +flight, and a gaggle of innovators began to build upon it. + + +At the time the Wright brothers invented the airplane, American +law held that a property owner presumptively owned not just the surface +of his land, but all the land below, down to the center of the earth, +and all the space above, to "an indefinite extent, upwards." +St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: +Rothman Reprints, 1969), 18. + +For many +years, scholars had puzzled about how best to interpret the idea that +rights in land ran to the heavens. Did that mean that you owned the +stars? Could you prosecute geese for their willful and regular trespass? + + +Then came airplanes, and for the first time, this principle of American +law--deep within the foundations of our tradition, and acknowledged +by the most important legal thinkers of our past--mattered. If +my land reaches to the heavens, what happens when United flies over +my field? Do I have the right to banish it from my property? Am I allowed +to enter into an exclusive license with Delta Airlines? Could we +set up an auction to decide how much these rights are worth? + + +In 1945, these questions became a federal case. When North Carolina +farmers Thomas Lee and Tinie Causby started losing chickens +because of low-flying military aircraft (the terrified chickens apparently +flew into the barn walls and died), the Causbys filed a lawsuit saying +that the government was trespassing on their land. The airplanes, +of course, never touched the surface of the Causbys' land. But if, as +Blackstone, Kent, and Coke had said, their land reached to "an indefinite +extent, upwards," then the government was trespassing on their +property, and the Causbys wanted it to stop. + + +The Supreme Court agreed to hear the Causbys' case. Congress had +declared the airways public, but if one's property really extended to the +heavens, then Congress's declaration could well have been an unconstitutional +"taking" of property without compensation. The Court acknowledged +that "it is ancient doctrine that common law ownership of +the land extended to the periphery of the universe." But Justice Douglas +had no patience for ancient doctrine. In a single paragraph, hundreds of +years of property law were erased. As he wrote for the Court, + +
+ +[The] doctrine has no place in the modern world. The air is a +public highway, as Congress has declared. Were that not true, +every transcontinental flight would subject the operator to countless +trespass suits. Common sense revolts at the idea. To recognize +such private claims to the airspace would clog these highways, +seriously interfere with their control and development in the public +interest, and transfer into private ownership that to which only +the public has a just claim. +United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that +there could be a "taking" if the government's use of its land effectively + destroyed +the value of the Causbys' land. This example was suggested to me +by Keith Aoki's wonderful piece, "(Intellectual) Property and Sovereignty: +Notes Toward a Cultural Geography of Authorship," Stanford Law + Review +48 (1996): 1293, 1333. See also Paul Goldstein, Real Property + (Mineola, +N.Y.: Foundation Press, 1984), 1112­13. + + +
+ +"Common sense revolts at the idea." + + +This is how the law usually works. Not often this abruptly or +impatiently, but eventually, this is how it works. It was Douglas's style not to +dither. Other justices would have blathered on for pages to reach the + +conclusion that Douglas holds in a single line: "Common sense revolts +at the idea." But whether it takes pages or a few words, it is the special +genius of a common law system, as ours is, that the law adjusts to the +technologies of the time. And as it adjusts, it changes. Ideas that were +as solid as rock in one age crumble in another. + + +Or at least, this is how things happen when there's no one powerful +on the other side of the change. The Causbys were just farmers. And +though there were no doubt many like them who were upset by the +growing traffic in the air (though one hopes not many chickens flew +themselves into walls), the Causbys of the world would find it very +hard to unite and stop the idea, and the technology, that the Wright +brothers had birthed. The Wright brothers spat airplanes into the +technological meme pool; the idea then spread like a virus in a chicken +coop; farmers like the Causbys found themselves surrounded by "what +seemed reasonable" given the technology that the Wrights had produced. +They could stand on their farms, dead chickens in hand, and +shake their fists at these newfangled technologies all they wanted. +They could call their representatives or even file a lawsuit. But in the +end, the force of what seems "obvious" to everyone else--the power of +"common sense"--would prevail. Their "private interest" would not be +allowed to defeat an obvious public gain. + + +Edwin Howard Armstrong is one of America's forgotten inventor +geniuses. He came to the great American inventor scene just after the +titans Thomas Edison and Alexander Graham Bell. But his work in +the area of radio technology was perhaps the most important of any +single inventor in the first fifty years of radio. He was better educated +than Michael Faraday, who as a bookbinder's apprentice had discovered +electric induction in 1831. But he had the same intuition about +how the world of radio worked, and on at least three occasions, +Armstrong invented profoundly important technologies that advanced our +understanding of radio. + + + +On the day after Christmas, 1933, four patents were issued to Armstrong +for his most significant invention--FM radio. Until then, consumer radio +had been amplitude-modulated (AM) radio. The theorists +of the day had said that frequency-modulated (FM) radio could never +work. They were right about FM radio in a narrow band of spectrum. +But Armstrong discovered that frequency-modulated radio in a wide +band of spectrum would deliver an astonishing fidelity of sound, with +much less transmitter power and static. + + +On November 5, 1935, he demonstrated the technology at a meeting +of the Institute of Radio Engineers at the Empire State Building in +New York City. He tuned his radio dial across a range of AM stations, +until the radio locked on a broadcast that he had arranged from + seventeen +miles away. The radio fell totally silent, as if dead, and then with a +clarity no one else in that room had ever heard from an electrical + device, +it produced the sound of an announcer's voice: "This is amateur +station W2AG at Yonkers, New York, operating on frequency + modulation +at two and a half meters." + + +The audience was hearing something no one had thought possible: + +
+ +A glass of water was poured before the microphone in Yonkers; it +sounded like a glass of water being poured. . . . A paper was +crumpled and torn; it sounded like paper and not like a crackling +forest fire. . . . Sousa marches were played from records and a + piano +solo and guitar number were performed. . . . The music was +projected with a live-ness rarely if ever heard before from a radio +"music box." +Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong +(Philadelphia: J. B. Lipincott Company, 1956), 209. + + +
+ +As our own common sense tells us, Armstrong had discovered a +vastly superior radio technology. But at the time of his invention, + Armstrong +was working for RCA. RCA was the dominant player in the +then dominant AM radio market. By 1935, there were a thousand radio +stations across the United States, but the stations in large cities were all +owned by a handful of networks. + + + +RCA's president, David Sarnoff, a friend of Armstrong's, was eager +that Armstrong discover a way to remove static from AM radio. So +Sarnoff was quite excited when Armstrong told him he had a device +that removed static from "radio." But when Armstrong demonstrated +his invention, Sarnoff was not pleased. + +
+ +I thought Armstrong would invent some kind of a filter to remove +static from our AM radio. I didn't think he'd start a revolution-- +start up a whole damn new industry to compete with RCA. +See "Saints: The Heroes and Geniuses of the Electronic Era," First + Electronic +Church of America, at www.webstationone.com/fecha, available at + +link #1. + + +
+ +Armstrong's invention threatened RCA's AM empire, so the + company +launched a campaign to smother FM radio. While FM may have +been a superior technology, Sarnoff was a superior tactician. As one + author +described, + +
+ +The forces for FM, largely engineering, could not overcome the +weight of strategy devised by the sales, patent, and legal offices +to subdue this threat to corporate position. For FM, if allowed to +develop unrestrained, posed . . . a complete reordering of radio +power . . . and the eventual overthrow of the carefully restricted +AM system on which RCA had grown to power. +Lessing, 226. + + +
+ +RCA at first kept the technology in house, insisting that further +tests were needed. When, after two years of testing, Armstrong grew +impatient, RCA began to use its power with the government to stall +FM radio's deployment generally. In 1936, RCA hired the former head +of the FCC and assigned him the task of assuring that the FCC assign +spectrum in a way that would castrate FM--principally by moving FM +radio to a different band of spectrum. At first, these efforts failed. But +when Armstrong and the nation were distracted by World War II, +RCA's work began to be more successful. Soon after the war ended, the +FCC announced a set of policies that would have one clear effect: FM +radio would be crippled. As Lawrence Lessing described it, + + +
+ +The series of body blows that FM radio received right after the +war, in a series of rulings manipulated through the FCC by the +big radio interests, were almost incredible in their force and + deviousness. +Lessing, 256. + + +
+ +To make room in the spectrum for RCA's latest gamble, television, +FM radio users were to be moved to a totally new spectrum band. The +power of FM radio stations was also cut, meaning FM could no longer +be used to beam programs from one part of the country to another. +(This change was strongly supported by AT&T, because the loss of +FM relaying stations would mean radio stations would have to buy +wired links from AT&T.) The spread of FM radio was thus choked, at +least temporarily. + + +Armstrong resisted RCA's efforts. In response, RCA resisted + Armstrong's +patents. After incorporating FM technology into the emerging +standard for television, RCA declared the patents invalid--baselessly, +and almost fifteen years after they were issued. It thus refused to pay +him royalties. For six years, Armstrong fought an expensive war of + litigation +to defend the patents. Finally, just as the patents expired, RCA +offered a settlement so low that it would not even cover Armstrong's +lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong +wrote a short note to his wife and then stepped out of a + thirteenth-story +window to his death. + + +This is how the law sometimes works. Not often this tragically, and +rarely with heroic drama, but sometimes, this is how it works. From the +beginning, government and government agencies have been subject +to capture. They are more likely captured when a powerful interest is +threatened by either a legal or technical change. That powerful interest +too often exerts its influence within the government to get the + government +to protect it. The rhetoric of this protection is of course always +public spirited; the reality is something different. Ideas that were as +solid as rock in one age, but that, left to themselves, would crumble in + +another, are sustained through this subtle corruption of our political +process. RCA had what the Causbys did not: the power to stifle the + effect +of technological change. + + +There's no single inventor of the Internet. Nor is there any good +date upon which to mark its birth. Yet in a very short time, the + Internet +has become part of ordinary American life. According to the Pew +Internet and American Life Project, 58 percent of Americans had + access +to the Internet in 2002, up from 49 percent two years before. +Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look +at Internet Access and the Digital Divide," Pew Internet and American +Life Project, 15 April 2003: 6, available at +link #2. + +That number could well exceed two thirds of the nation by the end +of 2004. + + +As the Internet has been integrated into ordinary life, it has +changed things. Some of these changes are technical--the Internet has +made communication faster, it has lowered the cost of gathering data, +and so on. These technical changes are not the focus of this book. They +are important. They are not well understood. But they are the sort of +thing that would simply go away if we all just switched the Internet off. +They don't affect people who don't use the Internet, or at least they +don't affect them directly. They are the proper subject of a book about +the Internet. But this is not a book about the Internet. + + +Instead, this book is about an effect of the Internet beyond the + Internet +itself: an effect upon how culture is made. My claim is that the +Internet has induced an important and unrecognized change in that +process. That change will radically transform a tradition that is as old as +the Republic itself. Most, if they recognized this change, would reject +it. Yet most don't even see the change that the Internet has introduced. + + +We can glimpse a sense of this change by distinguishing between +commercial and noncommercial culture, and by mapping the law's + regulation +of each. By "commercial culture" I mean that part of our culture +that is produced and sold or produced to be sold. By "noncommercial +culture" I mean all the rest. When old men sat around parks or on + +street corners telling stories that kids and others consumed, that was +noncommercial culture. When Noah Webster published his "Reader," +or Joel Barlow his poetry, that was commercial culture. + + +At the beginning of our history, and for just about the whole of our +tradition, noncommercial culture was essentially unregulated. Of +course, if your stories were lewd, or if your song disturbed the peace, +then the law might intervene. But the law was never directly concerned +with the creation or spread of this form of culture, and it left this + culture +"free." The ordinary ways in which ordinary individuals shared and +transformed their culture--telling stories, reenacting scenes from plays +or TV, participating in fan clubs, sharing music, making tapes--were +left alone by the law. + + +The focus of the law was on commercial creativity. At first slightly, +then quite extensively, the law protected the incentives of creators by +granting them exclusive rights to their creative work, so that they could +sell those exclusive rights in a commercial +marketplace. +This is not the only purpose of copyright, though it is the overwhelmingly +primary purpose of the copyright established in the federal constitution. +State copyright law historically protected not just the commercial interest in +publication, but also a privacy interest. By granting authors the exclusive +right to first publication, state copyright law gave authors the power to +control the spread of facts about them. See Samuel D. Warren and Louis +D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, +198­200. + +This is also, of +course, an important part of creativity and culture, and it has become +an increasingly important part in America. But in no sense was it + dominant +within our tradition. It was instead just one part, a controlled +part, balanced with the free. + + +This rough divide between the free and the controlled has now +been erased. +See Jessica Litman, Digital Copyright (New York: Prometheus Books, +2001), ch. 13. + +The Internet has set the stage for this erasure and, +pushed by big media, the law has now affected it. For the first time in +our tradition, the ordinary ways in which individuals create and share +culture fall within the reach of the regulation of the law, which has + expanded +to draw within its control a vast amount of culture and + creativity +that it never reached before. The technology that preserved the +balance of our history--between uses of our culture that were free and +uses of our culture that were only upon permission--has been undone. +The consequence is that we are less and less a free culture, more and +more a permission culture. + + + +This change gets justified as necessary to protect commercial + creativity. +And indeed, protectionism is precisely its motivation. But the +protectionism that justifies the changes that I will describe below is not +the limited and balanced sort that has defined the law in the past. This +is not a protectionism to protect artists. It is instead a protectionism +to protect certain forms of business. Corporations threatened by the +potential of the Internet to change the way both commercial and +noncommercial culture are made and shared have united to induce +lawmakers to use the law to protect them. It is the story of RCA and +Armstrong; it is the dream of the Causbys. + + +For the Internet has unleashed an extraordinary possibility for many +to participate in the process of building and cultivating a culture that +reaches far beyond local boundaries. That power has changed the + marketplace +for making and cultivating culture generally, and that change +in turn threatens established content industries. The Internet is thus to +the industries that built and distributed content in the twentieth + century +what FM radio was to AM radio, or what the truck was to the +railroad industry of the nineteenth century: the beginning of the end, +or at least a substantial transformation. Digital technologies, tied to the +Internet, could produce a vastly more competitive and vibrant market +for building and cultivating culture; that market could include a much +wider and more diverse range of creators; those creators could produce +and distribute a much more vibrant range of creativity; and depending +upon a few important factors, those creators could earn more on average +from this system than creators do today--all so long as the RCAs of our +day don't use the law to protect themselves against this competition. + + +Yet, as I argue in the pages that follow, that is precisely what is + happening +in our culture today. These modern-day equivalents of the early +twentieth-century radio or nineteenth-century railroads are using their +power to get the law to protect them against this new, more efficient, +more vibrant technology for building culture. They are succeeding in +their plan to remake the Internet before the Internet remakes them. + + +It doesn't seem this way to many. The battles over copyright and the + +Internet seem remote to most. To the few who follow them, they seem +mainly about a much simpler brace of questions--whether "piracy" will +be permitted, and whether "property" will be protected. The "war" that +has been waged against the technologies of the Internet--what + Motion +Picture Association of America (MPAA) president Jack Valenti +calls his "own terrorist war" +Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates +Use New Tools to Turn the Net into an Illicit Video Club," New York +Times, 17 January 2002. +--has been framed as a battle about the +rule of law and respect for property. To know which side to take in this +war, most think that we need only decide whether we're for property or +against it. + + +If those really were the choices, then I would be with Jack Valenti +and the content industry. I, too, am a believer in property, and + especially +in the importance of what Mr. Valenti nicely calls "creative + property." +I believe that "piracy" is wrong, and that the law, properly tuned, +should punish "piracy," whether on or off the Internet. + + +But those simple beliefs mask a much more fundamental question +and a much more dramatic change. My fear is that unless we come to see +this change, the war to rid the world of Internet "pirates" will also rid our +culture of values that have been integral to our tradition from the start. + + +These values built a tradition that, for at least the first 180 years of +our Republic, guaranteed creators the right to build freely upon their +past, and protected creators and innovators from either state or private +control. The First Amendment protected creators against state control. +And as Professor Neil Netanel powerfully argues, +Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law +Journal 106 (1996): 283. + +copyright law, + properly +balanced, protected creators against private control. Our tradition +was thus neither Soviet nor the tradition of patrons. It instead carved out +a wide berth within which creators could cultivate and extend our culture. + + +Yet the law's response to the Internet, when tied to changes in the +technology of the Internet itself, has massively increased the effective +regulation of creativity in America. To build upon or critique the + culture +around us one must ask, Oliver Twist­like, for permission first. +Permission is, of course, often granted--but it is not often granted to +the critical or the independent. We have built a kind of cultural + nobility; +those within the noble class live easily; those outside it don't. But it +is nobility of any form that is alien to our tradition. + + + +The story that follows is about this war. Is it not about the + "centrality +of technology" to ordinary life. I don't believe in gods, digital or +otherwise. Nor is it an effort to demonize any individual or group, for +neither do I believe in a devil, corporate or otherwise. It is not a + morality +tale. Nor is it a call to jihad against an industry. + + +It is instead an effort to understand a hopelessly destructive war + inspired +by the technologies of the Internet but reaching far beyond its +code. And by understanding this battle, it is an effort to map peace. +There is no good reason for the current struggle around Internet + technologies +to continue. There will be great harm to our tradition and +culture if it is allowed to continue unchecked. We must come to + understand +the source of this war. We must resolve it soon. + + +Like the Causbys' battle, this war is, in part, about "property." +The property of this war is not as tangible as the Causbys', and no +innocent chicken has yet to lose its life. Yet the ideas surrounding this +"property" are as obvious to most as the Causbys' claim about the + sacredness +of their farm was to them. We are the Causbys. Most of us +take for granted the extraordinarily powerful claims that the owners of +"intellectual property" now assert. Most of us, like the Causbys, treat +these claims as obvious. And hence we, like the Causbys, object when +a new technology interferes with this property. It is as plain to us as it +was to them that the new technologies of the Internet are "trespassing" +upon legitimate claims of "property." It is as plain to us as it was to +them that the law should intervene to stop this trespass. + + +And thus, when geeks and technologists defend their Armstrong or +Wright brothers technology, most of us are simply unsympathetic. + Common +sense does not revolt. Unlike in the case of the unlucky Causbys, +common sense is on the side of the property owners in this war. Unlike + +the lucky Wright brothers, the Internet has not inspired a revolution +on its side. + + +My hope is to push this common sense along. I have become + increasingly +amazed by the power of this idea of intellectual property +and, more importantly, its power to disable critical thought by policy +makers and citizens. There has never been a time in our history when +more of our "culture" was as "owned" as it is now. And yet there has +never been a time when the concentration of power to control the uses +of culture has been as unquestioningly accepted as it is now. + + +The puzzle is, Why? +Is it because we have come to understand a truth about the value +and importance of absolute property over ideas and culture? Is it + because +we have discovered that our tradition of rejecting such an + absolute +claim was wrong? + + +Or is it because the idea of absolute property over ideas and culture +benefits the RCAs of our time and fits our own unreflective intuitions? + + +Is the radical shift away from our tradition of free culture an instance +of America correcting a mistake from its past, as we did after a bloody +war with slavery, and as we are slowly doing with inequality? Or is the +radical shift away from our tradition of free culture yet another example +of a political system captured by a few powerful special interests? + + +Does common sense lead to the extremes on this question because +common sense actually believes in these extremes? Or does common +sense stand silent in the face of these extremes because, as with + Armstrong +versus RCA, the more powerful side has ensured that it has the +more powerful view? + + +I don't mean to be mysterious. My own views are resolved. I believe +it was right for common sense to revolt against the extremism of the +Causbys. I believe it would be right for common sense to revolt against +the extreme claims made today on behalf of "intellectual property." +What the law demands today is increasingly as silly as a sheriff + arresting +an airplane for trespass. But the consequences of this silliness will +be much more profound. + + + +The struggle that rages just now centers on two ideas: "piracy" and +"property." My aim in this book's next two parts is to explore these two +ideas. + + +My method is not the usual method of an academic. I don't want to +plunge you into a complex argument, buttressed with references to + obscure +French theorists--however natural that is for the weird sort we +academics have become. Instead I begin in each part with a collection +of stories that set a context within which these apparently simple ideas +can be more fully understood. + + +The two sections set up the core claim of this book: that while the +Internet has indeed produced something fantastic and new, our + government, +pushed by big media to respond to this "something new," is +destroying something very old. Rather than understanding the changes +the Internet might permit, and rather than taking time to let "common +sense" resolve how best to respond, we are allowing those most + threatened +by the changes to use their power to change the law--and more +importantly, to use their power to change something fundamental about +who we have always been. + + +We allow this, I believe, not because it is right, and not because +most of us really believe in these changes. We allow it because the + interests +most threatened are among the most powerful players in our +depressingly compromised process of making law. This book is the +story of one more consequence of this form of corruption--a + consequence +to which most of us remain oblivious. + + + + +"PIRACY" + + + +Since the inception of the law regulating creative property, there +has been a war against "piracy." The precise contours of this concept, +"piracy," are hard to sketch, but the animating injustice is easy to + capture. +As Lord Mansfield wrote in a case that extended the reach of +English copyright law to include sheet music, + +
+ +A person may use the copy by playing it, but he has no right to +rob the author of the profit, by multiplying copies and disposing +of them for his own use. + +Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). + + +
+ +Today we are in the middle of another "war" against "piracy." The +Internet has provoked this war. The Internet makes possible the + efficient +spread of content. Peer-to-peer (p2p) file sharing is among the +most efficient of the efficient technologies the Internet enables. Using +distributed intelligence, p2p systems facilitate the easy spread of + content +in a way unimagined a generation ago. + + + +This efficiency does not respect the traditional lines of copyright. +The network doesn't discriminate between the sharing of copyrighted +and uncopyrighted content. Thus has there been a vast amount of + sharing +of copyrighted content. That sharing in turn has excited the war, as +copyright owners fear the sharing will "rob the author of the profit." + + +The warriors have turned to the courts, to the legislatures, and + increasingly +to technology to defend their "property" against this "piracy." +A generation of Americans, the warriors warn, is being raised to + believe +that "property" should be "free." Forget tattoos, never mind body +piercing--our kids are becoming thieves! + + +There's no doubt that "piracy" is wrong, and that pirates should be +punished. But before we summon the executioners, we should put this +notion of "piracy" in some context. For as the concept is increasingly +used, at its core is an extraordinary idea that is almost certainly wrong. + + +The idea goes something like this: + +
+ +Creative work has value; whenever I use, or take, or build upon +the creative work of others, I am taking from them something of +value. Whenever I take something of value from someone else, I +should have their permission. The taking of something of value +from someone else without permission is wrong. It is a form of +piracy. + +
+ +This view runs deep within the current debates. It is what NYU law +professor Rochelle Dreyfuss criticizes as the "if value, then right" + theory +of creative property + +See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language +in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397. + +--if there is value, then someone must have a +right to that value. It is the perspective that led a composers' rights + organization, +ASCAP, to sue the Girl Scouts for failing to pay for the +songs that girls sang around Girl Scout campfires. + +Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay +Up," Wall Street Journal, 21 August 1996, available at +link #3; Jonathan +Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free +Speech, No One Wins," Boston Globe, 24 November 2002. + +There was "value" +(the songs) so there must have been a "right"--even against the Girl +Scouts. + + +This idea is certainly a possible understanding of how creative +property should work. It might well be a possible design for a system + +of law protecting creative property. But the "if value, then right" theory +of creative property has never been America's theory of creative + property. +It has never taken hold within our law. + + +Instead, in our tradition, intellectual property is an instrument. It +sets the groundwork for a richly creative society but remains + subservient +to the value of creativity. The current debate has this turned +around. We have become so concerned with protecting the instrument +that we are losing sight of the value. + + +The source of this confusion is a distinction that the law no longer +takes care to draw--the distinction between republishing someone's +work on the one hand and building upon or transforming that work on +the other. Copyright law at its birth had only publishing as its concern; +copyright law today regulates both. + + +Before the technologies of the Internet, this conflation didn't + matter +all that much. The technologies of publishing were expensive; that +meant the vast majority of publishing was commercial. Commercial +entities could bear the burden of the law--even the burden of the +Byzantine complexity that copyright law has become. It was just one +more expense of doing business. + + +But with the birth of the Internet, this natural limit to the reach of +the law has disappeared. The law controls not just the creativity of +commercial creators but effectively that of anyone. Although that + expansion +would not matter much if copyright law regulated only + "copying," +when the law regulates as broadly and obscurely as it does, the +extension matters a lot. The burden of this law now vastly outweighs +any original benefit--certainly as it affects noncommercial creativity, +and increasingly as it affects commercial creativity as well. Thus, as +we'll see more clearly in the chapters below, the law's role is less and +less to support creativity, and more and more to protect certain + industries +against competition. Just at the time digital technology could +unleash an extraordinary range of commercial and noncommercial +creativity, the law burdens this creativity with insanely complex and +vague rules and with the threat of obscenely severe penalties. We may + +be seeing, as Richard Florida writes, the "Rise of the Creative Class." + +In The Rise of the Creative Class (New York: Basic Books, 2002), Richard +Florida documents a shift in the nature of labor toward a labor of + creativity. +His work, however, doesn't directly address the legal conditions under +which that creativity is enabled or stifled. I certainly agree with him about +the importance and significance of this change, but I also believe the + conditions +under which it will be enabled are much more tenuous. + +Unfortunately, we are also seeing an extraordinary rise of regulation of +this creative class. + + +These burdens make no sense in our tradition. We should begin by +understanding that tradition a bit more and by placing in their proper +context the current battles about behavior labeled "piracy." + + + + +CHAPTER ONE: Creators + +In 1928, a cartoon character was born. An early Mickey Mouse +made his debut in May of that year, in a silent flop called Plane Crazy. +In November, in New York City's Colony Theater, in the first widely +distributed cartoon synchronized with sound, Steamboat Willie brought +to life the character that would become Mickey Mouse. + + +Synchronized sound had been introduced to film a year earlier in +the movie The Jazz Singer. That success led Walt Disney to copy the +technique and mix sound with cartoons. No one knew whether it +would work or, if it did work, whether it would win an audience. But +when Disney ran a test in the summer of 1928, the results were + unambiguous. +As Disney describes that first experiment, + +
+ +A couple of my boys could read music, and one of them could play +a mouth organ. We put them in a room where they could not see +the screen and arranged to pipe their sound into the room where +our wives and friends were going to see the picture. + + + +The boys worked from a music and sound-effects score. After +several false starts, sound and action got off with the gun. The +mouth organist played the tune, the rest of us in the sound + department +bammed tin pans and blew slide whistles on the beat. +The synchronization was pretty close. + + +The effect on our little audience was nothing less than + electric. +They responded almost instinctively to this union of sound +and motion. I thought they were kidding me. So they put me in +the audience and ran the action again. It was terrible, but it was +wonderful! And it was something new! + +Leonard Maltin, Of Mice and Magic: A History of American Animated + Cartoons +(New York: Penguin Books, 1987), 34­35. + + +
+ +Disney's then partner, and one of animation's most extraordinary +talents, Ub Iwerks, put it more strongly: "I have never been so thrilled +in my life. Nothing since has ever equaled it." + + +Disney had created something very new, based upon something + relatively +new. Synchronized sound brought life to a form of creativity +that had rarely--except in Disney's hands--been anything more than +filler for other films. Throughout animation's early history, it was + Disney's +invention that set the standard that others struggled to match. +And quite often, Disney's great genius, his spark of creativity, was built +upon the work of others. + + +This much is familiar. What you might not know is that 1928 also +marks another important transition. In that year, a comic (as opposed +to cartoon) genius created his last independently produced silent film. +That genius was Buster Keaton. The film was Steamboat Bill, Jr. + + +Keaton was born into a vaudeville family in 1895. In the era of +silent film, he had mastered using broad physical comedy as a way to +spark uncontrollable laughter from his audience. Steamboat Bill, Jr. was +a classic of this form, famous among film buffs for its incredible stunts. +The film was classic Keaton--wildly popular and among the best of its +genre. + + +Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. + +The coincidence of titles is not coincidental. Steamboat Willie is a + direct +cartoon parody of Steamboat Bill, + +I am grateful to David Gerstein and his careful history, described at +link #4. +According to Dave Smith of the Disney Archives, Disney paid royalties to +use the music for five songs in Steamboat Willie: "Steamboat Bill," "The +Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1" +(Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the +Straw," was already in the public domain. Letter from David Smith to +Harry Surden, 10 July 2003, on file with author. + +and both are built upon a + common +song as a source. It is not just from the invention of synchronized +sound in The Jazz Singer that we get Steamboat Willie. It is also from +Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the +song "Steamboat Bill," that we get Steamboat Willie, and then from +Steamboat Willie, Mickey Mouse. + + +This "borrowing" was nothing unique, either for Disney or for the +industry. Disney was always parroting the feature-length mainstream +films of his day. + +He was also a fan of the public domain. See Chris Sprigman, "The Mouse +that Ate the Public Domain," Findlaw, 5 March 2002, at +link #5. + +So did many others. Early cartoons are filled with +knockoffs--slight variations on winning themes; retellings of ancient +stories. The key to success was the brilliance of the differences. With +Disney, it was sound that gave his animation its spark. Later, it was the +quality of his work relative to the production-line cartoons with which +he competed. Yet these additions were built upon a base that was + borrowed. +Disney added to the work of others before him, creating + something +new out of something just barely old. + + +Sometimes this borrowing was slight. Sometimes it was significant. +Think about the fairy tales of the Brothers Grimm. If you're as + oblivious +as I was, you're likely to think that these tales are happy, sweet + stories, +appropriate for any child at bedtime. In fact, the Grimm fairy tales +are, well, for us, grim. It is a rare and perhaps overly ambitious parent +who would dare to read these bloody, moralistic stories to his or her +child, at bedtime or anytime. + + +Disney took these stories and retold them in a way that carried +them into a new age. He animated the stories, with both characters and +light. Without removing the elements of fear and danger altogether, he +made funny what was dark and injected a genuine emotion of + compassion +where before there was fear. And not just with the work of the +Brothers Grimm. Indeed, the catalog of Disney work drawing upon +the work of others is astonishing when set together: Snow White +(1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi +(1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland +(1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp + +(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), +The Sword in the Stone (1963), and The Jungle Book (1967)--not to +mention a recent example that we should perhaps quickly forget, + Treasure +Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped +creativity from the culture around him, mixed that creativity with his +own extraordinary talent, and then burned that mix into the soul of his +culture. Rip, mix, and burn. + + +This is a kind of creativity. It is a creativity that we should + remember +and celebrate. There are some who would say that there is no + creativity +except this kind. We don't need to go that far to recognize its +importance. We could call this "Disney creativity," though that would +be a bit misleading. It is, more precisely, "Walt Disney creativity"--a +form of expression and genius that builds upon the culture around us +and makes it something different. + + +In 1928, the culture that Disney was free to draw upon was + relatively +fresh. The public domain in 1928 was not very old and was +therefore quite vibrant. The average term of copyright was just around +thirty years--for that minority of creative work that was in fact copyrighted. + +Until 1976, copyright law granted an author the possibility of two terms: an +initial term and a renewal term. I have calculated the "average" term by + determining +the weighted average of total registrations for any particular year, +and the proportion renewing. Thus, if 100 copyrights are registered in year +1, and only 15 are renewed, and the renewal term is 28 years, then the + average +term is 32.2 years. For the renewal data and other relevant data, see the +Web site associated with this book, available at +link #6. + +That means that for thirty years, on average, the authors or +copyright holders of a creative work had an "exclusive right" to control +certain uses of the work. To use this copyrighted work in limited ways +required the permission of the copyright owner. + + +At the end of a copyright term, a work passes into the public + domain. +No permission is then needed to draw upon or use that work. No +permission and, hence, no lawyers. The public domain is a "lawyer-free +zone." Thus, most of the content from the nineteenth century was free +for Disney to use and build upon in 1928. It was free for anyone-- +whether connected or not, whether rich or not, whether approved or +not--to use and build upon. + + +This is the ways things always were--until quite recently. For most +of our history, the public domain was just over the horizon. From +until 1978, the average copyright term was never more than thirty-two +years, meaning that most culture just a generation and a half old was + + +free for anyone to build upon without the permission of anyone else. +Today's equivalent would be for creative work from the 1960s and +1970s to now be free for the next Walt Disney to build upon without +permission. Yet today, the public domain is presumptive only for + content +from before the Great Depression. + + +Of course, Walt Disney had no monopoly on "Walt Disney + creativity." +Nor does America. The norm of free culture has, until recently, +and except within totalitarian nations, been broadly exploited and quite +universal. + + +Consider, for example, a form of creativity that seems strange to +many Americans but that is inescapable within Japanese culture: +manga, or comics. The Japanese are fanatics about comics. Some 40 +percent of publications are comics, and 30 percent of publication + revenue +derives from comics. They are everywhere in Japanese society, at +every magazine stand, carried by a large proportion of commuters on +Japan's extraordinary system of public transportation. + + +Americans tend to look down upon this form of culture. That's an +unattractive characteristic of ours. We're likely to misunderstand much +about manga, because few of us have ever read anything close to the +stories that these "graphic novels" tell. For the Japanese, manga cover +every aspect of social life. For us, comics are "men in tights." And + anyway, +it's not as if the New York subways are filled with readers of Joyce +or even Hemingway. People of different cultures distract themselves in +different ways, the Japanese in this interestingly different way. + + +But my purpose here is not to understand manga. It is to describe a +variant on manga that from a lawyer's perspective is quite odd, but +from a Disney perspective is quite familiar. + + +This is the phenomenon of doujinshi. Doujinshi are also comics, but +they are a kind of copycat comic. A rich ethic governs the creation of +doujinshi. It is not doujinshi if it is just a copy; the artist must make a +contribution to the art he copies, by transforming it either subtly or + +significantly. A doujinshi comic can thus take a mainstream comic and +develop it differently--with a different story line. Or the comic can +keep the character in character but change its look slightly. There is no +formula for what makes the doujinshi sufficiently "different." But they +must be different if they are to be considered true doujinshi. Indeed, +there are committees that review doujinshi for inclusion within shows +and reject any copycat comic that is merely a copy. + + +These copycat comics are not a tiny part of the manga market. They +are huge. More than 33,000 "circles" of creators from across Japan + produce +these bits of Walt Disney creativity. More than 450,000 Japanese +come together twice a year, in the largest public gathering in the + country, +to exchange and sell them. This market exists in parallel to the +mainstream commercial manga market. In some ways, it obviously +competes with that market, but there is no sustained effort by those +who control the commercial manga market to shut the doujinshi + market +down. It flourishes, despite the competition and despite the law. + + +The most puzzling feature of the doujinshi market, for those +trained in the law, at least, is that it is allowed to exist at all. Under +Japanese copyright law, which in this respect (on paper) mirrors + American +copyright law, the doujinshi market is an illegal one. Doujinshi are +plainly "derivative works." There is no general practice by doujinshi +artists of securing the permission of the manga creators. Instead, the +practice is simply to take and modify the creations of others, as Walt +Disney did with Steamboat Bill, Jr. Under both Japanese and American +law, that "taking" without the permission of the original copyright +owner is illegal. It is an infringement of the original copyright to make +a copy or a derivative work without the original copyright owner's +permission. + + +Yet this illegal market exists and indeed flourishes in Japan, and in +the view of many, it is precisely because it exists that Japanese manga +flourish. As American graphic novelist Judd Winick said to me, "The +early days of comics in America are very much like what's going on +in Japan now. . . . American comics were born out of copying each + + +other. . . . That's how [the artists] learn to draw--by going into comic +books and not tracing them, but looking at them and copying them" +and building from them. + +For an excellent history, see Scott McCloud, Reinventing Comics (New +York: Perennial, 2000). + + + +American comics now are quite different, Winick explains, in part +because of the legal difficulty of adapting comics the way doujinshi are +allowed. Speaking of Superman, Winick told me, "there are these rules +and you have to stick to them." There are things Superman "cannot" +do. "As a creator, it's frustrating having to stick to some parameters +which are fifty years old." + + +The norm in Japan mitigates this legal difficulty. Some say it is + precisely +the benefit accruing to the Japanese manga market that explains +the mitigation. Temple University law professor Salil Mehra, for + example, +hypothesizes that the manga market accepts these technical +violations because they spur the manga market to be more wealthy and +productive. Everyone would be worse off if doujinshi were banned, so +the law does not ban doujinshi. + +See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain +Why All the Comics My Kid Watches Are Japanese Imports?" Rutgers Law +Review 55 (2002): 155, 182. "[T]here might be a collective economic + rationality +that would lead manga and anime artists to forgo bringing legal +actions for infringement. One hypothesis is that all manga artists may be +better off collectively if they set aside their individual self-interest and + decide +not to press their legal rights. This is essentially a prisoner's dilemma +solved." + + + +The problem with this story, however, as Mehra plainly + acknowledges, +is that the mechanism producing this laissez faire response is not +clear. It may well be that the market as a whole is better off if + doujinshi +are permitted rather than banned, but that doesn't explain why + individual +copyright owners don't sue nonetheless. If the law has no +general exception for doujinshi, and indeed in some cases individual +manga artists have sued doujinshi artists, why is there not a more + general +pattern of blocking this "free taking" by the doujinshi culture? + + +I spent four wonderful months in Japan, and I asked this question +as often as I could. Perhaps the best account in the end was offered by +a friend from a major Japanese law firm. "We don't have enough +lawyers," he told me one afternoon. There "just aren't enough resources +to prosecute cases like this." + + +This is a theme to which we will return: that regulation by law is a +function of both the words on the books and the costs of making those +words have effect. For now, focus on the obvious question that is +begged: Would Japan be better off with more lawyers? Would manga + +be richer if doujinshi artists were regularly prosecuted? Would the +Japanese gain something important if they could end this practice of +uncompensated sharing? Does piracy here hurt the victims of the +piracy, or does it help them? Would lawyers fighting this piracy help +their clients or hurt them? +Let's pause for a moment. + + +If you're like I was a decade ago, or like most people are when they +first start thinking about these issues, then just about now you should +be puzzled about something you hadn't thought through before. + + +We live in a world that celebrates "property." I am one of those + celebrants. +I believe in the value of property in general, and I also believe +in the value of that weird form of property that lawyers call + "intellectual +property." + +The term intellectual property is of relatively recent origin. See Siva + Vaidhyanathan, +Copyrights and Copywrongs, 11 (New York: New York + University +Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: +Random House, 2001), 293 n. 26. The term accurately describes a set of +"property" rights--copyright, patents, trademark, and trade-secret--but the +nature of those rights is very different. + +A large, diverse society cannot survive without + property; +a large, diverse, and modern society cannot flourish without +intellectual property. + + +But it takes just a second's reflection to realize that there is plenty of +value out there that "property" doesn't capture. I don't mean "money +can't buy you love," but rather, value that is plainly part of a process of +production, including commercial as well as noncommercial + production. +If Disney animators had stolen a set of pencils to draw Steamboat +Willie, we'd have no hesitation in condemning that taking as wrong-- +even though trivial, even if unnoticed. Yet there was nothing wrong, at +least under the law of the day, with Disney's taking from Buster Keaton +or from the Brothers Grimm. There was nothing wrong with the + taking +from Keaton because Disney's use would have been considered +"fair." There was nothing wrong with the taking from the Grimms + because +the Grimms' work was in the public domain. + + +Thus, even though the things that Disney took--or more generally, +the things taken by anyone exercising Walt Disney creativity--are +valuable, our tradition does not treat those takings as wrong. Some + + +things remain free for the taking within a free culture, and that + freedom +is good. + + +The same with the doujinshi culture. If a doujinshi artist broke into +a publisher's office and ran off with a thousand copies of his latest +work--or even one copy--without paying, we'd have no hesitation in +saying the artist was wrong. In addition to having trespassed, he would +have stolen something of value. The law bans that stealing in whatever +form, whether large or small. + + +Yet there is an obvious reluctance, even among Japanese lawyers, to +say that the copycat comic artists are "stealing." This form of Walt + Disney +creativity is seen as fair and right, even if lawyers in particular find +it hard to say why. + + +It's the same with a thousand examples that appear everywhere once +you begin to look. Scientists build upon the work of other scientists +without asking or paying for the privilege. ("Excuse me, Professor + Einstein, +but may I have permission to use your theory of relativity to show +that you were wrong about quantum physics?") Acting companies + perform +adaptations of the works of Shakespeare without securing + permission +from anyone. (Does anyone believe Shakespeare would be +better spread within our culture if there were a central Shakespeare +rights clearinghouse that all productions of Shakespeare must appeal +to first?) And Hollywood goes through cycles with a certain kind of +movie: five asteroid films in the late 1990s; two volcano disaster films +in 1997. + + +Creators here and everywhere are always and at all times building +upon the creativity that went before and that surrounds them now. +That building is always and everywhere at least partially done without +permission and without compensating the original creator. No society, +free or controlled, has ever demanded that every use be paid for or that +permission for Walt Disney creativity must always be sought. Instead, +every society has left a certain bit of its culture free for the taking--free +societies more fully than unfree, perhaps, but all societies to some degree. + + + +The hard question is therefore not whether a culture is free. All + cultures +are free to some degree. The hard question instead is "How free is +this culture?" How much, and how broadly, is the culture free for + others +to take and build upon? Is that freedom limited to party members? +To members of the royal family? To the top ten corporations on the +New York Stock Exchange? Or is that freedom spread broadly? To +artists generally, whether affiliated with the Met or not? To musicians +generally, whether white or not? To filmmakers generally, whether + affiliated +with a studio or not? + + +Free cultures are cultures that leave a great deal open for others to +build upon; unfree, or permission, cultures leave much less. Ours was a +free culture. It is becoming much less so. + + + + + +CHAPTER TWO: "Mere Copyists" + + +In 1839, Louis Daguerre invented the first practical technology for +producing what we would call "photographs." Appropriately enough, +they were called "daguerreotypes." The process was complicated and +expensive, and the field was thus limited to professionals and a few +zealous and wealthy amateurs. (There was even an American Daguerre +Association that helped regulate the industry, as do all such + associations, +by keeping competition down so as to keep prices up.) + + +Yet despite high prices, the demand for daguerreotypes was strong. +This pushed inventors to find simpler and cheaper ways to make + "automatic +pictures." William Talbot soon discovered a process for + making +"negatives." But because the negatives were glass, and had to be +kept wet, the process still remained expensive and cumbersome. In the +1870s, dry plates were developed, making it easier to separate the + taking +of a picture from its developing. These were still plates of glass, and +thus it was still not a process within reach of most amateurs. + + +The technological change that made mass photography possible +didn't happen until 1888, and was the creation of a single man. George + +Eastman, himself an amateur photographer, was frustrated by the +technology of photographs made with plates. In a flash of insight (so +to speak), Eastman saw that if the film could be made to be flexible, it +could be held on a single spindle. That roll could then be sent to a + developer, +driving the costs of photography down substantially. By + lowering +the costs, Eastman expected he could dramatically broaden the +population of photographers. + + +Eastman developed flexible, emulsion-coated paper film and placed +rolls of it in small, simple cameras: the Kodak. The device was + marketed +on the basis of its simplicity. "You press the button and we do the +rest." + +Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University Press, 1975), 112. + As he described in The Kodak Primer: + +
+ +The principle of the Kodak system is the separation of the work +that any person whomsoever can do in making a photograph, +from the work that only an expert can do. . . . We furnish + anybody, +man, woman or child, who has sufficient intelligence to +point a box straight and press a button, with an instrument which +altogether removes from the practice of photography the + necessity +for exceptional facilities or, in fact, any special knowledge of +the art. It can be employed without preliminary study, without a +darkroom and without chemicals. + +Brian Coe, The Birth of Photography (New York: Taplinger Publishing, +1977), 53. + + +
+ +For $25, anyone could make pictures. The camera came preloaded +with film, and when it had been used, the camera was returned to an +Eastman factory, where the film was developed. Over time, of course, +the cost of the camera and the ease with which it could be used both +improved. Roll film thus became the basis for the explosive growth of +popular photography. Eastman's camera first went on sale in 1888; one +year later, Kodak was printing more than six thousand negatives a day. +From 1888 through 1909, while industrial production was rising by 4.7 +percent, photographic equipment and material sales increased by +percent. + +Jenkins, 177. + Eastman Kodak's sales during the same period experienced +an average annual increase of over 17 percent. + +Based on a chart in Jenkins, p. 178. + + + + + +The real significance of Eastman's invention, however, was not +economic. It was social. Professional photography gave individuals a +glimpse of places they would never otherwise see. Amateur + photography +gave them the ability to record their own lives in a way they had +never been able to do before. As author Brian Coe notes, "For the first +time the snapshot album provided the man on the street with a + permanent +record of his family and its activities. . . . For the first time in +history there exists an authentic visual record of the appearance and + activities +of the common man made without [literary] interpretation +or bias." + +Coe, 58. + + + +In this way, the Kodak camera and film were technologies of + expression. +The pencil or paintbrush was also a technology of expression, +of course. But it took years of training before they could be deployed by +amateurs in any useful or effective way. With the Kodak, expression +was possible much sooner and more simply. The barrier to expression +was lowered. Snobs would sneer at its "quality"; professionals would +discount it as irrelevant. But watch a child study how best to frame a +picture and you get a sense of the experience of creativity that the + Kodak +enabled. Democratic tools gave ordinary people a way to express +themselves more easily than any tools could have before. + + +What was required for this technology to flourish? Obviously, +Eastman's genius was an important part. But also important was the + legal +environment within which Eastman's invention grew. For early in +the history of photography, there was a series of judicial decisions that +could well have changed the course of photography substantially. +Courts were asked whether the photographer, amateur or professional, +required permission before he could capture and print whatever image +he wanted. Their answer was no. + +For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E. + + + +The arguments in favor of requiring permission will sound + surprisingly +familiar. The photographer was "taking" something from the + person +or building whose photograph he shot--pirating something of +value. Some even thought he was taking the target's soul. Just as + Disney +was not free to take the pencils that his animators used to draw + +Mickey, so, too, should these photographers not be free to take images +that they thought valuable. + + +On the other side was an argument that should be familiar, as well. +Sure, there may be something of value being used. But citizens should +have the right to capture at least those images that stand in public view. +(Louis Brandeis, who would become a Supreme Court Justice, thought +the rule should be different for images from private spaces. + +Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," + Harvard +Law Review 4 (1890): 193. +) It may be +that this means that the photographer gets something for nothing. Just +as Disney could take inspiration from Steamboat Bill, Jr. or the + Brothers +Grimm, the photographer should be free to capture an image + without +compensating the source. + + +Fortunately for Mr. Eastman, and for photography in general, these +early decisions went in favor of the pirates. In general, no permission +would be required before an image could be captured and shared with +others. Instead, permission was presumed. Freedom was the default. +(The law would eventually craft an exception for famous people: + commercial +photographers who snap pictures of famous people for + commercial +purposes have more restrictions than the rest of us. But in the +ordinary case, the image can be captured without clearing the rights to +do the capturing. + +See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary +Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law + Review +48 (1960) 398­407; White v. Samsung Electronics America, Inc., 971 F. +2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). +) + + +We can only speculate about how photography would have + developed +had the law gone the other way. If the presumption had been +against the photographer, then the photographer would have had to +demonstrate permission. Perhaps Eastman Kodak would have had to +demonstrate permission, too, before it developed the film upon which +images were captured. After all, if permission were not granted, then +Eastman Kodak would be benefiting from the "theft" committed by +the photographer. Just as Napster benefited from the copyright + infringements +committed by Napster users, Kodak would be benefiting +from the "image-right" infringement of its photographers. We could +imagine the law then requiring that some form of permission be +demonstrated before a company developed pictures. We could imagine +a system developing to demonstrate that permission. + + + + +But though we could imagine this system of permission, it would +be very hard to see how photography could have flourished as it did if +the requirement for permission had been built into the rules that + govern +it. Photography would have existed. It would have grown in + importance +over time. Professionals would have continued to use the +technology as they did--since professionals could have more easily borne +the burdens of the permission system. But the spread of photography +to ordinary people would not have occurred. Nothing like that growth +would have been realized. And certainly, nothing like that growth in a +democratic technology of expression would have been realized. +If you drive through San Francisco's Presidio, you might see two +gaudy yellow school buses painted over with colorful and striking + images, +and the logo "Just Think!" in place of the name of a school. But +there's little that's "just" cerebral in the projects that these busses + enable. +These buses are filled with technologies that teach kids to tinker +with film. Not the film of Eastman. Not even the film of your VCR. +Rather the "film" of digital cameras. Just Think! is a project that + enables +kids to make films, as a way to understand and critique the filmed +culture that they find all around them. Each year, these busses travel to +more than thirty schools and enable three hundred to five hundred +children to learn something about media by doing something with + media. +By doing, they think. By tinkering, they learn. + + +These buses are not cheap, but the technology they carry is + increasingly +so. The cost of a high-quality digital video system has fallen + dramatically. +As one analyst puts it, "Five years ago, a good real-time +digital video editing system cost $25,000. Today you can get + professional +quality for $595." + +H. Edward Goldberg, "Essential Presentation Tools: Hardware and + Software +You Need to Create Digital Multimedia Presentations," cadalyst, +February 2002, available at +link #7. + +These buses are filled with technology that +would have cost hundreds of thousands just ten years ago. And it is +now feasible to imagine not just buses like this, but classrooms across +the country where kids are learning more and more of something +teachers call "media literacy." + + + +"Media literacy," as Dave Yanofsky, the executive director of Just +Think!, puts it, "is the ability . . . to understand, analyze, and + deconstruct +media images. Its aim is to make [kids] literate about the way +media works, the way it's constructed, the way it's delivered, and the +way people access it." + + +This may seem like an odd way to think about "literacy." For most +people, literacy is about reading and writing. Faulkner and Hemingway +and noticing split infinitives are the things that "literate" people know +about. + + +Maybe. But in a world where children see on average 390 hours of +television commercials per year, or between 20,000 and 45,000 + commercials +generally, + +Judith Van Evra, Television and Child Development (Hillsdale, N.J.: +Lawrence Erlbaum Associates, 1990); "Findings on Family and TV +Study," Denver Post, 25 May 1997, B6. + +it is increasingly important to understand the +"grammar" of media. For just as there is a grammar for the written +word, so, too, is there one for media. And just as kids learn how to write +by writing lots of terrible prose, kids learn how to write media by + constructing +lots of (at least at first) terrible media. + + +A growing field of academics and activists sees this form of literacy +as crucial to the next generation of culture. For though anyone who has +written understands how difficult writing is--how difficult it is to + sequence +the story, to keep a reader's attention, to craft language to be +understandable--few of us have any real sense of how difficult media +is. Or more fundamentally, few of us have a sense of how media works, +how it holds an audience or leads it through a story, how it triggers +emotion or builds suspense. + + +It took filmmaking a generation before it could do these things well. +But even then, the knowledge was in the filming, not in writing about +the film. The skill came from experiencing the making of a film, not +from reading a book about it. One learns to write by writing and then +reflecting upon what one has written. One learns to write with images +by making them and then reflecting upon what one has created. + + +This grammar has changed as media has changed. When it was just +film, as Elizabeth Daley, executive director of the University of + Southern +California's Annenberg Center for Communication and dean of the + + +USC School of Cinema-Television, explained to me, the grammar was +about "the placement of objects, color, . . . rhythm, pacing, and + texture." + +Interview with Elizabeth Daley and Stephanie Barish, 13 December +2002. + +But as computers open up an interactive space where a story is +"played" as well as experienced, that grammar changes. The simple +control of narrative is lost, and so other techniques are necessary. + Author +Michael Crichton had mastered the narrative of science fiction. +But when he tried to design a computer game based on one of his +works, it was a new craft he had to learn. How to lead people through +a game without their feeling they have been led was not obvious, even +to a wildly successful author. + +See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4 + November +2000, available at +link #8; "Timeline," 22 November 2000, + available +at +link #9. + + + +This skill is precisely the craft a filmmaker learns. As Daley + describes, +"people are very surprised about how they are led through a +film. [I]t is perfectly constructed to keep you from seeing it, so you +have no idea. If a filmmaker succeeds you do not know how you were +led." If you know you were led through a film, the film has failed. + + +Yet the push for an expanded literacy--one that goes beyond text to +include audio and visual elements--is not about making better film + directors. +The aim is not to improve the profession of filmmaking at all. +Instead, as Daley explained, + +
+ +From my perspective, probably the most important digital divide +is not access to a box. It's the ability to be empowered with the +language that that box works in. Otherwise only a very few people +can write with this language, and all the rest of us are reduced to +being read-only. + +
+ +"Read-only." Passive recipients of culture produced elsewhere. +Couch potatoes. Consumers. This is the world of media from the +twentieth century. + + +The twenty-first century could be different. This is the crucial point: +It could be both read and write. Or at least reading and better + understanding +the craft of writing. Or best, reading and understanding the +tools that enable the writing to lead or mislead. The aim of any literacy, + +and this literacy in particular, is to "empower people to choose the + appropriate +language for what they need to create or express." + +Interview with Daley and Barish. + It is to enable +students "to communicate in the language of the twenty-first century." + +Ibid. + + + +As with any language, this language comes more easily to some +than to others. It doesn't necessarily come more easily to those who + excel +in written language. Daley and Stephanie Barish, director of the + Institute +for Multimedia Literacy at the Annenberg Center, describe one +particularly poignant example of a project they ran in a high school. +The high school was a very poor inner-city Los Angeles school. In all +the traditional measures of success, this school was a failure. But Daley +and Barish ran a program that gave kids an opportunity to use film +to express meaning about something the students know something +about--gun violence. + + +The class was held on Friday afternoons, and it created a relatively +new problem for the school. While the challenge in most classes was +getting the kids to come, the challenge in this class was keeping them +away. The "kids were showing up at 6 A.M. and leaving at 5 at night," +said Barish. They were working harder than in any other class to do +what education should be about--learning how to express themselves. + + +Using whatever "free web stuff they could find," and relatively + simple +tools to enable the kids to mix "image, sound, and text," Barish said +this class produced a series of projects that showed something about +gun violence that few would otherwise understand. This was an issue +close to the lives of these students. The project "gave them a tool and +empowered them to be able to both understand it and talk about it," +Barish explained. That tool succeeded in creating expression--far more +successfully and powerfully than could have been created using only +text. "If you had said to these students, `you have to do it in text,' they +would've just thrown their hands up and gone and done something +else," Barish described, in part, no doubt, because expressing + themselves +in text is not something these students can do well. Yet neither +is text a form in which these ideas can be expressed well. The power of +this message depended upon its connection to this form of expression. + + + + +"But isn't education about teaching kids to write?" I asked. In part, +of course, it is. But why are we teaching kids to write? Education, + Daley +explained, is about giving students a way of "constructing + meaning." +To say that that means just writing is like saying teaching writing +is only about teaching kids how to spell. Text is one part--and + increasingly, +not the most powerful part--of constructing meaning. As Daley +explained in the most moving part of our interview, + +
+ +What you want is to give these students ways of constructing +meaning. If all you give them is text, they're not going to do it. +Because they can't. You know, you've got Johnny who can look at +a video, he can play a video game, he can do graffiti all over your +walls, he can take your car apart, and he can do all sorts of other +things. He just can't read your text. So Johnny comes to school +and you say, "Johnny, you're illiterate. Nothing you can do + matters." +Well, Johnny then has two choices: He can dismiss you or +he [can] dismiss himself. If his ego is healthy at all, he's going to +dismiss you. [But i]nstead, if you say, "Well, with all these things +that you can do, let's talk about this issue. Play for me music that +you think reflects that, or show me images that you think reflect +that, or draw for me something that reflects that." Not by giving +a kid a video camera and . . . saying, "Let's go have fun with the +video camera and make a little movie." But instead, really help +you take these elements that you understand, that are your + language, +and construct meaning about the topic. . . . + + +That empowers enormously. And then what happens, of +course, is eventually, as it has happened in all these classes, they +bump up against the fact, "I need to explain this and I really need +to write something." And as one of the teachers told Stephanie, +they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right. + + +Because they needed to. There was a reason for doing it. They +needed to say something, as opposed to just jumping through +your hoops. They actually needed to use a language that they + +didn't speak very well. But they had come to understand that they +had a lot of power with this language." + +
+ +When two planes crashed into the World Trade Center, another into +the Pentagon, and a fourth into a Pennsylvania field, all media around +the world shifted to this news. Every moment of just about every day for +that week, and for weeks after, television in particular, and media + generally, +retold the story of the events we had just witnessed. The telling was +a retelling, because we had seen the events that were described. The + genius +of this awful act of terrorism was that the delayed second attack was +perfectly timed to assure that the whole world would be watching. + + +These retellings had an increasingly familiar feel. There was music +scored for the intermissions, and fancy graphics that flashed across the +screen. There was a formula to interviews. There was "balance," and +seriousness. This was news choreographed in the way we have + increasingly +come to expect it, "news as entertainment," even if the + entertainment +is tragedy. + + +But in addition to this produced news about the "tragedy of + September +11," those of us tied to the Internet came to see a very different +production as well. The Internet was filled with accounts of the same +events. Yet these Internet accounts had a very different flavor. Some +people constructed photo pages that captured images from around the +world and presented them as slide shows with text. Some offered open +letters. There were sound recordings. There was anger and frustration. +There were attempts to provide context. There was, in short, an + extraordinary +worldwide barn raising, in the sense Mike Godwin uses +the term in his book Cyber Rights, around a news event that had + captured +the attention of the world. There was ABC and CBS, but there +was also the Internet. + + +I don't mean simply to praise the Internet--though I do think the +people who supported this form of speech should be praised. I mean +instead to point to a significance in this form of speech. For like a + Kodak, +the Internet enables people to capture images. And like in a movie + + +by a student on the "Just Think!" bus, the visual images could be mixed +with sound or text. + + +But unlike any technology for simply capturing images, the + Internet +allows these creations to be shared with an extraordinary number of +people, practically instantaneously. This is something new in our + tradition--not +just that culture can be captured mechanically, and obviously +not just that events are commented upon critically, but that this mix of +captured images, sound, and commentary can be widely spread + practically +instantaneously. + + +September 11 was not an aberration. It was a beginning. Around +the same time, a form of communication that has grown dramatically +was just beginning to come into public consciousness: the Web-log, or +blog. The blog is a kind of public diary, and within some cultures, such +as in Japan, it functions very much like a diary. In those cultures, it +records private facts in a public way--it's a kind of electronic Jerry +Springer, available anywhere in the world. + + +But in the United States, blogs have taken on a very different + character. +There are some who use the space simply to talk about their + private +life. But there are many who use the space to engage in public +discourse. Discussing matters of public import, criticizing others who +are mistaken in their views, criticizing politicians about the decisions +they make, offering solutions to problems we all see: blogs create the +sense of a virtual public meeting, but one in which we don't all hope to +be there at the same time and in which conversations are not + necessarily +linked. The best of the blog entries are relatively short; they point +directly to words used by others, criticizing with or adding to them. +They are arguably the most important form of unchoreographed + public +discourse that we have. + + +That's a strong statement. Yet it says as much about our democracy +as it does about blogs. This is the part of America that is most difficult +for those of us who love America to accept: Our democracy has + atrophied. +Of course we have elections, and most of the time the courts + allow +those elections to count. A relatively small number of people vote + +in those elections. The cycle of these elections has become totally + professionalized +and routinized. Most of us think this is democracy. + + +But democracy has never just been about elections. Democracy +means rule by the people, but rule means something more than mere +elections. In our tradition, it also means control through reasoned + discourse. +This was the idea that captured the imagination of Alexis de +Tocqueville, the nineteenth-century French lawyer who wrote the +most important account of early "Democracy in America." It wasn't +popular elections that fascinated him--it was the jury, an institution +that gave ordinary people the right to choose life or death for other + citizens. +And most fascinating for him was that the jury didn't just vote +about the outcome they would impose. They deliberated. Members + argued +about the "right" result; they tried to persuade each other of the +"right" result, and in criminal cases at least, they had to agree upon a +unanimous result for the process to come to an end. + +See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, trans. +Henry Reeve (New York: Bantam Books, 2000), ch. 16. + + + +Yet even this institution flags in American life today. And in its +place, there is no systematic effort to enable citizen deliberation. Some +are pushing to create just such an institution. + +Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of + Political +Philosophy 10 (2) (2002): 129. + +And in some towns in +New England, something close to deliberation remains. But for most +of us for most of the time, there is no time or place for "democratic + deliberation" +to occur. + + +More bizarrely, there is generally not even permission for it to + occur. +We, the most powerful democracy in the world, have developed a +strong norm against talking about politics. It's fine to talk about + politics +with people you agree with. But it is rude to argue about politics +with people you disagree with. Political discourse becomes isolated, +and isolated discourse becomes more extreme. + +Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), +65­80, 175, 182, 183, 192. + We say what our +friends want to hear, and hear very little beyond what our friends say. + + +Enter the blog. The blog's very architecture solves one part of this +problem. People post when they want to post, and people read when +they want to read. The most difficult time is synchronous time. + Technologies +that enable asynchronous communication, such as e-mail, +increase the opportunity for communication. Blogs allow for public + + +discourse without the public ever needing to gather in a single public +place. + + +But beyond architecture, blogs also have solved the problem of +norms. There's no norm (yet) in blog space not to talk about politics. +Indeed, the space is filled with political speech, on both the right and +the left. Some of the most popular sites are conservative or libertarian, +but there are many of all political stripes. And even blogs that are not +political cover political issues when the occasion merits. + + +The significance of these blogs is tiny now, though not so tiny. The +name Howard Dean may well have faded from the 2004 presidential +race but for blogs. Yet even if the number of readers is small, the + reading +is having an effect. + + +One direct effect is on stories that had a different life cycle in the +mainstream media. The Trent Lott affair is an example. When Lott +"misspoke" at a party for Senator Strom Thurmond, essentially + praising +Thurmond's segregationist policies, he calculated correctly that this +story would disappear from the mainstream press within forty-eight +hours. It did. But he didn't calculate its life cycle in blog space. The +bloggers kept researching the story. Over time, more and more + instances +of the same "misspeaking" emerged. Finally, the story broke +back into the mainstream press. In the end, Lott was forced to resign +as senate majority leader. + +Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New +York Times, 16 January 2003, G5. + + + +This different cycle is possible because the same commercial + pressures +don't exist with blogs as with other ventures. Television and +newspapers are commercial entities. They must work to keep attention. +If they lose readers, they lose revenue. Like sharks, they must move on. + + +But bloggers don't have a similar constraint. They can obsess, they +can focus, they can get serious. If a particular blogger writes a + particularly +interesting story, more and more people link to that story. And as +the number of links to a particular story increases, it rises in the ranks +of stories. People read what is popular; what is popular has been + selected +by a very democratic process of peer-generated rankings. + + +There's a second way, as well, in which blogs have a different cycle + +from the mainstream press. As Dave Winer, one of the fathers of this +movement and a software author for many decades, told me, another +difference is the absence of a financial "conflict of interest." "I think you +have to take the conflict of interest" out of journalism, Winer told me. +"An amateur journalist simply doesn't have a conflict of interest, or the +conflict of interest is so easily disclosed that you know you can sort of +get it out of the way." + + +These conflicts become more important as media becomes more +concentrated (more on this below). A concentrated media can hide +more from the public than an unconcentrated media can--as CNN +admitted it did after the Iraq war because it was afraid of the + consequences +to its own employees. + +Telephone interview with David Winer, 16 April 2003. + +It also needs to sustain a more + coherent +account. (In the middle of the Iraq war, I read a post on the +Internet from someone who was at that time listening to a satellite + uplink +with a reporter in Iraq. The New York headquarters was telling the +reporter over and over that her account of the war was too bleak: She +needed to offer a more optimistic story. When she told New York that +wasn't warranted, they told her that they were writing "the story.") + + +Blog space gives amateurs a way to enter the debate--"amateur" not +in the sense of inexperienced, but in the sense of an Olympic athlete, +meaning not paid by anyone to give their reports. It allows for a much +broader range of input into a story, as reporting on the Columbia + disaster +revealed, when hundreds from across the southwest United States +turned to the Internet to retell what they had seen. + +John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of + Information +Online," New York Times, 2 February 2003, A28; Staci D. Kramer, +"Shuttle Disaster Coverage Mixed, but Strong Overall," Online + Journalism +Review, 2 February 2003, available at +link #10. + +And it drives +readers to read across the range of accounts and "triangulate," as Winer +puts it, the truth. Blogs, Winer says, are "communicating directly with +our constituency, and the middle man is out of it"--with all the + benefits, +and costs, that might entail. + + +Winer is optimistic about the future of journalism infected with +blogs. "It's going to become an essential skill," Winer predicts, for + public +figures and increasingly for private figures as well. It's not clear that +"journalism" is happy about this--some journalists have been told to +curtail their blogging. + +See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" New +York Times, 29 September 2003, C4. ("Not all news organizations have +been as accepting of employees who blog. Kevin Sites, a CNN + correspondent +in Iraq who started a blog about his reporting of the war on March 9, +stopped posting 12 days later at his bosses' request. Last year Steve + Olafson, +a Houston Chronicle reporter, was fired for keeping a personal Web log, +published under a pseudonym, that dealt with some of the issues and +people he was covering.") + +But it is clear that we are still in transition. "A + + +lot of what we are doing now is warm-up exercises," Winer told me. +There is a lot that must mature before this space has its mature effect. +And as the inclusion of content in this space is the least infringing use +of the Internet (meaning infringing on copyright), Winer said, "we will +be the last thing that gets shut down." + + +This speech affects democracy. Winer thinks that happens because +"you don't have to work for somebody who controls, [for] a + gatekeeper." +That is true. But it affects democracy in another way as well. +As more and more citizens express what they think, and defend it in +writing, that will change the way people understand public issues. It is +easy to be wrong and misguided in your head. It is harder when the +product of your mind can be criticized by others. Of course, it is a rare +human who admits that he has been persuaded that he is wrong. But it +is even rarer for a human to ignore when he has been proven wrong. +The writing of ideas, arguments, and criticism improves democracy. +Today there are probably a couple of million blogs where such writing +happens. When there are ten million, there will be something + extraordinary +to report. + + +John Seely Brown is the chief scientist of the Xerox Corporation. +His work, as his Web site describes it, is "human learning and . . . the +creation of knowledge ecologies for creating . . . innovation." + + +Brown thus looks at these technologies of digital creativity a bit + differently +from the perspectives I've sketched so far. I'm sure he would be +excited about any technology that might improve democracy. But his +real excitement comes from how these technologies affect learning. + + +As Brown believes, we learn by tinkering. When "a lot of us grew +up," he explains, that tinkering was done "on motorcycle engines, + lawnmower +engines, automobiles, radios, and so on." But digital + technologies +enable a different kind of tinkering--with abstract ideas though +in concrete form. The kids at Just Think! not only think about how +a commercial portrays a politician; using digital technology, they can + +take the commercial apart and manipulate it, tinker with it to see how +it does what it does. Digital technologies launch a kind of bricolage, or +"free collage," as Brown calls it. Many get to add to or transform the +tinkering of many others. + + +The best large-scale example of this kind of tinkering so far is free +software or open-source software (FS/OSS). FS/OSS is software whose +source code is shared. Anyone can download the technology that makes +a FS/OSS program run. And anyone eager to learn how a particular bit +of FS/OSS technology works can tinker with the code. + + +This opportunity creates a "completely new kind of learning + platform," +as Brown describes. "As soon as you start doing that, you . . . +unleash a free collage on the community, so that other people can start +looking at your code, tinkering with it, trying it out, seeing if they can +improve it." Each effort is a kind of apprenticeship. "Open source + becomes +a major apprenticeship platform." + + +In this process, "the concrete things you tinker with are abstract. +They are code." Kids are "shifting to the ability to tinker in the + abstract, +and this tinkering is no longer an isolated activity that you're + doing +in your garage. You are tinkering with a community platform. . . . +You are tinkering with other people's stuff. The more you tinker the +more you improve." The more you improve, the more you learn. + + +This same thing happens with content, too. And it happens in the +same collaborative way when that content is part of the Web. As +Brown puts it, "the Web [is] the first medium that truly honors + multiple +forms of intelligence." Earlier technologies, such as the typewriter +or word processors, helped amplify text. But the Web amplifies much +more than text. "The Web . . . says if you are musical, if you are + artistic, +if you are visual, if you are interested in film . . . [then] there is a lot +you can start to do on this medium. [It] can now amplify and honor +these multiple forms of intelligence." + + +Brown is talking about what Elizabeth Daley, Stephanie Barish, +and Just Think! teach: that this tinkering with culture teaches as well + + +as creates. It develops talents differently, and it builds a different kind +of recognition. + + +Yet the freedom to tinker with these objects is not guaranteed. + Indeed, +as we'll see through the course of this book, that freedom is + increasingly +highly contested. While there's no doubt that your father +had the right to tinker with the car engine, there's great doubt that your +child will have the right to tinker with the images she finds all around. +The law and, increasingly, technology interfere with a freedom that +technology, and curiosity, would otherwise ensure. + + +These restrictions have become the focus of researchers and + scholars. +Professor Ed Felten of Princeton (whom we'll see more of in + chapter +10) has developed a powerful argument in favor of the "right to +tinker" as it applies to computer science and to knowledge in general. + +See, for example, Edward Felten and Andrew Appel, "Technological + Access +Control Interferes with Noninfringing Scholarship," Communications +of the Association for Computer Machinery 43 (2000): 9. + +But Brown's concern is earlier, or younger, or more fundamental. It is +about the learning that kids can do, or can't do, because of the law. + + +"This is where education in the twenty-first century is going," +Brown explains. We need to "understand how kids who grow up + digital +think and want to learn." + + +"Yet," as Brown continued, and as the balance of this book will +evince, "we are building a legal system that completely suppresses the +natural tendencies of today's digital kids. . . . We're building an + architecture +that unleashes 60 percent of the brain [and] a legal system that +closes down that part of the brain." + + +We're building a technology that takes the magic of Kodak, mixes +moving images and sound, and adds a space for commentary and an +opportunity to spread that creativity everywhere. But we're building +the law to close down that technology. + + +"No way to run a culture," as Brewster Kahle, whom we'll meet in +chapter 9, quipped to me in a rare moment of despondence. + + + + +CHAPTER THREE: Catalogs + +In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled +as a freshman at Rensselaer Polytechnic Institute, in Troy, New York. +His major at RPI was information technology. Though he is not a + programmer, +in October Jesse decided to begin to tinker with search + engine +technology that was available on the RPI network. + + +RPI is one of America's foremost technological research + institutions. +It offers degrees in fields ranging from architecture and + engineering +to information sciences. More than 65 percent of its five +thousand undergraduates finished in the top 10 percent of their high +school class. The school is thus a perfect mix of talent and experience +to imagine and then build, a generation for the network age. + + +RPI's computer network links students, faculty, and administration +to one another. It also links RPI to the Internet. Not everything + available +on the RPI network is available on the Internet. But the network +is designed to enable students to get access to the Internet, as well as +more intimate access to other members of the RPI community. + + +Search engines are a measure of a network's intimacy. Google + +brought the Internet much closer to all of us by fantastically improving +the quality of search on the network. Specialty search engines can do +this even better. The idea of "intranet" search engines, search engines +that search within the network of a particular institution, is to provide +users of that institution with better access to material from that + institution. +Businesses do this all the time, enabling employees to have + access +to material that people outside the business can't get. Universities +do it as well. + + +These engines are enabled by the network technology itself. + Microsoft, +for example, has a network file system that makes it very easy +for search engines tuned to that network to query the system for + information +about the publicly (within that network) available content. +Jesse's search engine was built to take advantage of this technology. It +used Microsoft's network file system to build an index of all the files +available within the RPI network. + + +Jesse's wasn't the first search engine built for the RPI network. + Indeed, +his engine was a simple modification of engines that others had +built. His single most important improvement over those engines was +to fix a bug within the Microsoft file-sharing system that could cause a +user's computer to crash. With the engines that existed before, if you +tried to access a file through a Windows browser that was on a + computer +that was off-line, your computer could crash. Jesse modified the +system a bit to fix that problem, by adding a button that a user could +click to see if the machine holding the file was still on-line. + + +Jesse's engine went on-line in late October. Over the following six +months, he continued to tweak it to improve its functionality. By +March, the system was functioning quite well. Jesse had more than one +million files in his directory, including every type of content that might +be on users' computers. + + +Thus the index his search engine produced included pictures, +which students could use to put on their own Web sites; copies of notes +or research; copies of information pamphlets; movie clips that + students +might have created; university brochures--basically anything that + +users of the RPI network made available in a public folder of their +computer. + + +But the index also included music files. In fact, one quarter of the +files that Jesse's search engine listed were music files. But that means, +of course, that three quarters were not, and--so that this point is + absolutely +clear--Jesse did nothing to induce people to put music files in +their public folders. He did nothing to target the search engine to these +files. He was a kid tinkering with a Google-like technology at a + university +where he was studying information science, and hence, + tinkering +was the aim. Unlike Google, or Microsoft, for that matter, he made +no money from this tinkering; he was not connected to any business +that would make any money from this experiment. He was a kid + tinkering +with technology in an environment where tinkering with + technology +was precisely what he was supposed to do. + + +On April 3, 2003, Jesse was contacted by the dean of students at +RPI. The dean informed Jesse that the Recording Industry Association +of America, the RIAA, would be filing a lawsuit against him and three +other students whom he didn't even know, two of them at other + universities. +A few hours later, Jesse was served with papers from the suit. +As he read these papers and watched the news reports about them, he +was increasingly astonished. + + +"It was absurd," he told me. "I don't think I did anything wrong. . . . +I don't think there's anything wrong with the search engine that I ran +or . . . what I had done to it. I mean, I hadn't modified it in any way +that promoted or enhanced the work of pirates. I just modified the +search engine in a way that would make it easier to use"--again, a +search engine, which Jesse had not himself built, using the Windows + filesharing +system, which Jesse had not himself built, to enable members +of the RPI community to get access to content, which Jesse had not +himself created or posted, and the vast majority of which had nothing +to do with music. + + +But the RIAA branded Jesse a pirate. They claimed he operated a +network and had therefore "willfully" violated copyright laws. They + + demanded +that he pay them the damages for his wrong. For cases of +"willful infringement," the Copyright Act specifies something lawyers +call "statutory damages." These damages permit a copyright owner to +claim $150,000 per infringement. As the RIAA alleged more than one +hundred specific copyright infringements, they therefore demanded +that Jesse pay them at least $15,000,000. + + +Similar lawsuits were brought against three other students: one +other student at RPI, one at Michigan Technical University, and one at +Princeton. Their situations were similar to Jesse's. Though each case +was different in detail, the bottom line in each was exactly the same: +huge demands for "damages" that the RIAA claimed it was entitled to. +If you added up the claims, these four lawsuits were asking courts in +the United States to award the plaintiffs close to $100 billion--six +times the total profit of the film industry in 2001. + +Tim Goral, "Recording Industry Goes After Campus P-2-P Networks: +Suit Alleges $97.8 Billion in Damages," Professional Media Group LCC 6 +(2003): 5, available at 2003 WL 55179443. + + + +Jesse called his parents. They were supportive but a bit frightened. +An uncle was a lawyer. He began negotiations with the RIAA. They +demanded to know how much money Jesse had. Jesse had saved +$12,000 from summer jobs and other employment. They demanded +$12,000 to dismiss the case. + + +The RIAA wanted Jesse to admit to doing something wrong. He +refused. They wanted him to agree to an injunction that would + essentially +make it impossible for him to work in many fields of technology +for the rest of his life. He refused. They made him understand that this +process of being sued was not going to be pleasant. (As Jesse's father +recounted to me, the chief lawyer on the case, Matt Oppenheimer, told +Jesse, "You don't want to pay another visit to a dentist like me.") And +throughout, the RIAA insisted it would not settle the case until it took +every penny Jesse had saved. + + +Jesse's family was outraged at these claims. They wanted to fight. +But Jesse's uncle worked to educate the family about the nature of the +American legal system. Jesse could fight the RIAA. He might even +win. But the cost of fighting a lawsuit like this, Jesse was told, would be +at least $250,000. If he won, he would not recover that money. If he + +won, he would have a piece of paper saying he had won, and a piece of +paper saying he and his family were bankrupt. + + +So Jesse faced a mafia-like choice: $250,000 and a chance at + winning, +or $12,000 and a settlement. + + +The recording industry insists this is a matter of law and morality. +Let's put the law aside for a moment and think about the morality. +Where is the morality in a lawsuit like this? What is the virtue in +scapegoatism? The RIAA is an extraordinarily powerful lobby. The +president of the RIAA is reported to make more than $1 million a year. +Artists, on the other hand, are not well paid. The average recording +artist makes $45,900. + +Occupational Employment Survey, U.S. Dept. of Labor (2001) +(27­2042--Musicians and Singers). See also National Endowment for +the Arts, More Than One in a Blue Moon (2000). + +There are plenty of ways for the RIAA to affect +and direct policy. So where is the morality in taking money from a + student +for running a search engine? + +Douglas Lichtman makes a related point in "KaZaA and Punishment," +Wall Street Journal, 10 September 2003, A24. + + + +On June 23, Jesse wired his savings to the lawyer working for the +RIAA. The case against him was then dismissed. And with this, this +kid who had tinkered a computer into a $15 million lawsuit became an +activist: + +
+ +I was definitely not an activist [before]. I never really meant to be +an activist. . . . [But] I've been pushed into this. In no way did I +ever foresee anything like this, but I think it's just completely + absurd +what the RIAA has done. + +
+ +Jesse's parents betray a certain pride in their reluctant activist. As +his father told me, Jesse "considers himself very conservative, and so do +I. . . . He's not a tree hugger. . . . I think it's bizarre that they would +pick on him. But he wants to let people know that they're sending the +wrong message. And he wants to correct the record." + + + + +CHAPTER FOUR: "Pirates" + + +If "piracy" means using the creative property of others without +their permission--if "if value, then right" is true--then the history of +the content industry is a history of piracy. Every important sector of +"big media" today--film, records, radio, and cable TV--was born of a +kind of piracy so defined. The consistent story is how last generation's +pirates join this generation's country club--until now. + + +Film + +The film industry of Hollywood was built by fleeing pirates. + +I am grateful to Peter DiMauro for pointing me to this extraordinary + history. +See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87­93, +which details Edison's "adventures" with copyright and patent. + +Creators +and directors migrated from the East Coast to California in the early +twentieth century in part to escape controls that patents granted the +inventor of filmmaking, Thomas Edison. These controls were + exercised +through a monopoly "trust," the Motion Pictures Patents + Company, +and were based on Thomas Edison's creative property--patents. +Edison formed the MPPC to exercise the rights this creative property + +gave him, and the MPPC was serious about the control it demanded. + + +As one commentator tells one part of the story, + +
+ +A January 1909 deadline was set for all companies to comply with +the license. By February, unlicensed outlaws, who referred to +themselves as independents protested the trust and carried on +business without submitting to the Edison monopoly. In the +summer of 1909 the independent movement was in full-swing, +with producers and theater owners using illegal equipment and +imported film stock to create their own underground market. + + +With the country experiencing a tremendous expansion in the +number of nickelodeons, the Patents Company reacted to the + independent +movement by forming a strong-arm subsidiary known +as the General Film Company to block the entry of non-licensed +independents. With coercive tactics that have become legendary, +General Film confiscated unlicensed equipment, discontinued +product supply to theaters which showed unlicensed films, and +effectively monopolized distribution with the acquisition of all +U.S. film exchanges, except for the one owned by the independent +William Fox who defied the Trust even after his license was + revoked. + +J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion +Picture Producers (Cobblestone Entertainment, 2000) and expanded texts +posted at "The Edison Movie Monopoly: The Motion Picture Patents +Company vs. the Independent Outlaws," available at +link #11. For a + discussion +of the economic motive behind both these limits and the limits +imposed by Victor on phonographs, see Randal C. Picker, "From Edison +to the Broadcast Flag: Mechanisms of Consent and Refusal and the + Propertization +of Copyright" (September 2002), University of Chicago Law +School, James M. Olin Program in Law and Economics, Working Paper +No. 159. + + +
+ +The Napsters of those days, the "independents," were companies like +Fox. And no less than today, these independents were vigorously + resisted. +"Shooting was disrupted by machinery stolen, and `accidents' +resulting in loss of negatives, equipment, buildings and sometimes life +and limb frequently occurred." + +Marc Wanamaker, "The First Studios," The Silents Majority, archived at + +link #12. + +That led the independents to flee the +East Coast. California was remote enough from Edison's reach that + filmmakers +there could pirate his inventions without fear of the law. And the +leaders of Hollywood filmmaking, Fox most prominently, did just that. + + +Of course, California grew quickly, and the effective enforcement +of federal law eventually spread west. But because patents grant the +patent holder a truly "limited" monopoly (just seventeen years at that + + +time), by the time enough federal marshals appeared, the patents had +expired. A new industry had been born, in part from the piracy of + Edison's +creative property. + + + +Recorded Music + +The record industry was born of another kind of piracy, though to see +how requires a bit of detail about the way the law regulates music. + + +At the time that Edison and Henri Fourneaux invented machines +for reproducing music (Edison the phonograph, Fourneaux the player +piano), the law gave composers the exclusive right to control copies of +their music and the exclusive right to control public performances of +their music. In other words, in 1900, if I wanted a copy of Phil Russel's +1899 hit "Happy Mose," the law said I would have to pay for the right +to get a copy of the musical score, and I would also have to pay for the +right to perform it publicly. + + +But what if I wanted to record "Happy Mose," using Edison's +phonograph or Fourneaux's player piano? Here the law stumbled. It was +clear enough that I would have to buy any copy of the musical score that +I performed in making this recording. And it was clear enough that I +would have to pay for any public performance of the work I was + recording. +But it wasn't totally clear that I would have to pay for a "public + performance" +if I recorded the song in my own house (even today, you don't +owe the Beatles anything if you sing their songs in the shower), or if I +recorded the song from memory (copies in your brain are not--yet-- +regulated by copyright law). So if I simply sang the song into a + recording +device in the privacy of my own home, it wasn't clear that I owed the +composer anything. And more importantly, it wasn't clear whether I +owed the composer anything if I then made copies of those recordings. +Because of this gap in the law, then, I could effectively pirate someone +else's song without paying its composer anything. + + +The composers (and publishers) were none too happy about + +this capacity to pirate. As South Dakota senator Alfred Kittredge +put it, + +
+ +Imagine the injustice of the thing. A composer writes a song or an +opera. A publisher buys at great expense the rights to the same and +copyrights it. Along come the phonographic companies and + companies +who cut music rolls and deliberately steal the work of the brain +of the composer and publisher without any regard for [their] rights. + +To Amend and Consolidate the Acts Respecting Copyright: Hearings on +S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th +Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of +South Dakota, chairman), reprinted in Legislative History of the +Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South + Hackensack, +N.J.: Rothman Reprints, 1976). + + +
+ +The innovators who developed the technology to record other +people's works were "sponging upon the toil, the work, the talent, and +genius of American composers," + +To Amend and Consolidate the Acts Respecting Copyright, 223 + (statement +of Nathan Burkan, attorney for the Music Publishers Association). + +and the "music publishing industry" +was thereby "at the complete mercy of this one pirate." + +To Amend and Consolidate the Acts Respecting Copyright, 226 + (statement +of Nathan Burkan, attorney for the Music Publishers Association). + +As John Philip +Sousa put it, in as direct a way as possible, "When they make money +out of my pieces, I want a share of it." + +To Amend and Consolidate the Acts Respecting Copyright, 23 + (statement +of John Philip Sousa, composer). + + + +These arguments have familiar echoes in the wars of our day. So, +too, do the arguments on the other side. The innovators who + developed +the player piano argued that "it is perfectly demonstrable that the +introduction of automatic music players has not deprived any + composer +of anything he had before their introduction." Rather, the + machines +increased the sales of sheet music. + +To Amend and Consolidate the Acts Respecting Copyright, 283­84 +(statement of Albert Walker, representative of the Auto-Music + Perforating +Company of New York). + In any case, the innovators +argued, the job of Congress was "to consider first the interest of [the +public], whom they represent, and whose servants they are." "All talk +about `theft,'" the general counsel of the American Graphophone +Company wrote, "is the merest claptrap, for there exists no property in +ideas musical, literary or artistic, except as defined by statute." + +To Amend and Consolidate the Acts Respecting Copyright, 376 + (prepared +memorandum of Philip Mauro, general patent counsel of the + American +Graphophone Company Association). + + + +The law soon resolved this battle in favor of the composer and +the recording artist. Congress amended the law to make sure that +composers would be paid for the "mechanical reproductions" of their +music. But rather than simply granting the composer complete + control +over the right to make mechanical reproductions, Congress gave +recording artists a right to record the music, at a price set by Congress, +once the composer allowed it to be recorded once. This is the part of + + +copyright law that makes cover songs possible. Once a composer + authorizes +a recording of his song, others are free to record the same +song, so long as they pay the original composer a fee set by the law. + + +American law ordinarily calls this a "compulsory license," but I will +refer to it as a "statutory license." A statutory license is a license whose +key terms are set by law. After Congress's amendment of the Copyright +Act in 1909, record companies were free to distribute copies of + recordings +so long as they paid the composer (or copyright holder) the fee set +by the statute. + + +This is an exception within the law of copyright. When John Grisham +writes a novel, a publisher is free to publish that novel only if Grisham +gives the publisher permission. Grisham, in turn, is free to charge + whatever +he wants for that permission. The price to publish Grisham is +thus set by Grisham, and copyright law ordinarily says you have no +permission to use Grisham's work except with permission of Grisham. + + +But the law governing recordings gives recording artists less. And +thus, in effect, the law subsidizes the recording industry through a kind +of piracy--by giving recording artists a weaker right than it otherwise +gives creative authors. The Beatles have less control over their creative +work than Grisham does. And the beneficiaries of this less control are +the recording industry and the public. The recording industry gets +something of value for less than it otherwise would pay; the public gets +access to a much wider range of musical creativity. Indeed, Congress +was quite explicit about its reasons for granting this right. Its fear was +the monopoly power of rights holders, and that that power would + stifle +follow-on creativity. + +Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and +H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st +sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted +in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and +Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976). + + + +While the recording industry has been quite coy about this recently, +historically it has been quite a supporter of the statutory license for +records. As a 1967 report from the House Committee on the Judiciary +relates, + +
+ +the record producers argued vigorously that the compulsory + +license system must be retained. They asserted that the record + industry +is a half-billion-dollar business of great economic + importance +in the United States and throughout the world; records +today are the principal means of disseminating music, and this +creates special problems, since performers need unhampered + access +to musical material on nondiscriminatory terms. Historically, +the record producers pointed out, there were no recording rights +before 1909 and the 1909 statute adopted the compulsory license +as a deliberate anti-monopoly condition on the grant of these +rights. They argue that the result has been an outpouring of +recorded music, with the public being given lower prices, + improved +quality, and a greater choice. + +Copyright Law Revision: Report to Accompany H.R. 2512, House + Committee +on the Judiciary, 90th Cong., 1st sess., House Document no. 83, +(8 March 1967). I am grateful to Glenn Brown for drawing my attention +to this report. + + +
+ +By limiting the rights musicians have, by partially pirating their + creative +work, the record producers, and the public, benefit. + + + +Radio + +Radio was also born of piracy. + + +When a radio station plays a record on the air, that constitutes a +"public performance" of the composer's work. + +See 17 United States Code, sections 106 and 110. At the beginning, record +companies printed "Not Licensed for Radio Broadcast" and other + messages +purporting to restrict the ability to play a record on a radio station. +Judge Learned Hand rejected the argument that a warning attached to a +record might restrict the rights of the radio station. See RCA + Manufacturing +Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. +Picker, "From Edison to the Broadcast Flag: Mechanisms of Consent and +Refusal and the Propertization of Copyright," University of Chicago Law +Review 70 (2003): 281. + +As I described above, +the law gives the composer (or copyright holder) an exclusive right to +public performances of his work. The radio station thus owes the + composer +money for that performance. + + +But when the radio station plays a record, it is not only performing +a copy of the composer's work. The radio station is also performing a +copy of the recording artist's work. It's one thing to have "Happy + Birthday" +sung on the radio by the local children's choir; it's quite another to +have it sung by the Rolling Stones or Lyle Lovett. The recording artist +is adding to the value of the composition performed on the radio + station. +And if the law were perfectly consistent, the radio station would +have to pay the recording artist for his work, just as it pays the + composer +of the music for his work. + + + + +But it doesn't. Under the law governing radio performances, the + radio +station does not have to pay the recording artist. The radio station +need only pay the composer. The radio station thus gets a bit of + something +for nothing. It gets to perform the recording artist's work for +free, even if it must pay the composer something for the privilege of +playing the song. + + +This difference can be huge. Imagine you compose a piece of + music. +Imagine it is your first. You own the exclusive right to authorize +public performances of that music. So if Madonna wants to sing your +song in public, she has to get your permission. + + +Imagine she does sing your song, and imagine she likes it a lot. She +then decides to make a recording of your song, and it becomes a top +hit. Under our law, every time a radio station plays your song, you get +some money. But Madonna gets nothing, save the indirect effect on +the sale of her CDs. The public performance of her recording is not a +"protected" right. The radio station thus gets to pirate the value of +Madonna's work without paying her anything. + + +No doubt, one might argue that, on balance, the recording artists +benefit. On average, the promotion they get is worth more than the +performance rights they give up. Maybe. But even if so, the law + ordinarily +gives the creator the right to make this choice. By making the +choice for him or her, the law gives the radio station the right to take +something for nothing. + + + +Cable TV + + +Cable TV was also born of a kind of piracy. + + +When cable entrepreneurs first started wiring communities with +cable television in 1948, most refused to pay broadcasters for the + content +that they echoed to their customers. Even when the cable + companies +started selling access to television broadcasts, they refused to pay + +for what they sold. Cable companies were thus Napsterizing + broadcasters' +content, but more egregiously than anything Napster ever did-- +Napster never charged for the content it enabled others to give away. + + +Broadcasters and copyright owners were quick to attack this theft. +Rosel Hyde, chairman of the FCC, viewed the practice as a kind of +"unfair and potentially destructive competition." + +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). + +There may have +been a "public interest" in spreading the reach of cable TV, but as + Douglas +Anello, general counsel to the National Association of + Broadcasters, +asked Senator Quentin Burdick during testimony, "Does public +interest dictate that you use somebody else's property?" + +Copyright Law Revision--CATV, 116 (statement of Douglas A. Anello, +general counsel of the National Association of Broadcasters). + +As another broadcaster put it, + +
+ +The extraordinary thing about the CATV business is that it is the +only business I know of where the product that is being sold is not +paid for. + +Copyright Law Revision--CATV, 126 (statement of Ernest W. Jennes, +general counsel of the Association of Maximum Service Telecasters, Inc.). + + +
+ +Again, the demand of the copyright holders seemed reasonable +enough: + +
+ +All we are asking for is a very simple thing, that people who now +take our property for nothing pay for it. We are trying to stop +piracy and I don't think there is any lesser word to describe it. I +think there are harsher words which would fit it. + +Copyright Law Revision--CATV, 169 (joint statement of Arthur B. +Krim, president of United Artists Corp., and John Sinn, president of +United Artists Television, Inc.). + + +
+ +These were "free-ride[rs]," Screen Actor's Guild president + Charlton +Heston said, who were "depriving actors of compensation." + +Copyright Law Revision--CATV, 209 (statement of Charlton Heston, +president of the Screen Actors Guild). + + + +But again, there was another side to the debate. As Assistant + Attorney +General Edwin Zimmerman put it, + +
+ +Our point here is that unlike the problem of whether you have +any copyright protection at all, the problem here is whether + copyright +holders who are already compensated, who already have a +monopoly, should be permitted to extend that monopoly. . . . The + + +question here is how much compensation they should have and +how far back they should carry their right to compensation. + +Copyright Law Revision--CATV, 216 (statement of Edwin M. + Zimmerman, +acting assistant attorney general). + + +
+ +Copyright owners took the cable companies to court. Twice the +Supreme Court held that the cable companies owed the copyright +owners nothing. + + +It took Congress almost thirty years before it resolved the question +of whether cable companies had to pay for the content they "pirated." +In the end, Congress resolved this question in the same way that it + resolved +the question about record players and player pianos. Yes, cable +companies would have to pay for the content that they broadcast; but +the price they would have to pay was not set by the copyright owner. +The price was set by law, so that the broadcasters couldn't exercise veto +power over the emerging technologies of cable. Cable companies thus +built their empire in part upon a "piracy" of the value created by + broadcasters' +content. + + +These separate stories sing a common theme. If "piracy" +means using value from someone else's creative property without + permission +from that creator--as it is increasingly described today + +See, for example, National Music Publisher's Association, The Engine of Free +Expression: Copyright on the Internet--The Myth of Free Information, + available +at +link #13. "The threat of piracy--the use of someone else's creative +work without permission or compensation--has grown with the Internet." + +-- +then every industry affected by copyright today is the product and +beneficiary of a certain kind of piracy. Film, records, radio, cable +TV. . . . The list is long and could well be expanded. Every generation +welcomes the pirates from the last. Every generation--until now. + + + + + +CHAPTER FIVE: "Piracy" + + +There is piracy of copyrighted material. Lots of it. This piracy +comes in many forms. The most significant is commercial piracy, the +unauthorized taking of other people's content within a commercial +context. Despite the many justifications that are offered in its defense, +this taking is wrong. No one should condone it, and the law should +stop it. + + +But as well as copy-shop piracy, there is another kind of "taking" +that is more directly related to the Internet. That taking, too, seems +wrong to many, and it is wrong much of the time. Before we paint this +taking "piracy," however, we should understand its nature a bit more. +For the harm of this taking is significantly more ambiguous than + outright +copying, and the law should account for that ambiguity, as it has +so often done in the past. + + + +Piracy I + +All across the world, but especially in Asia and Eastern Europe, there +are businesses that do nothing but take others people's copyrighted +content, copy it, and sell it--all without the permission of a copyright +owner. The recording industry estimates that it loses about $4.6 billion +every year to physical piracy + +See IFPI (International Federation of the Phonographic Industry), The +Recording Industry Commercial Piracy Report 2003, July 2003, available at + +link #14. See also Ben Hunt, "Companies Warned on Music Piracy Risk," +Financial Times, 14 February 2003, 11. + +(that works out to one in three CDs sold +worldwide). The MPAA estimates that it loses $3 billion annually +worldwide to piracy. + + +This is piracy plain and simple. Nothing in the argument of this +book, nor in the argument that most people make when talking about +the subject of this book, should draw into doubt this simple point: +This piracy is wrong. + + +Which is not to say that excuses and justifications couldn't be made +for it. We could, for example, remind ourselves that for the first one +hundred years of the American Republic, America did not honor + foreign +copyrights. We were born, in this sense, a pirate nation. It might +therefore seem hypocritical for us to insist so strongly that other + developing +nations treat as wrong what we, for the first hundred years of our +existence, treated as right. + + +That excuse isn't terribly strong. Technically, our law did not ban +the taking of foreign works. It explicitly limited itself to American +works. Thus the American publishers who published foreign works +without the permission of foreign authors were not violating any rule. +The copy shops in Asia, by contrast, are violating Asian law. Asian law +does protect foreign copyrights, and the actions of the copy shops + violate +that law. So the wrong of piracy that they engage in is not just a +moral wrong, but a legal wrong, and not just an internationally legal +wrong, but a locally legal wrong as well. + + +True, these local rules have, in effect, been imposed upon these +countries. No country can be part of the world economy and choose + +not to protect copyright internationally. We may have been born a + pirate +nation, but we will not allow any other nation to have a similar +childhood. + + +If a country is to be treated as a sovereign, however, then its laws are +its laws regardless of their source. The international law under which +these nations live gives them some opportunities to escape the burden +of intellectual property law. + +See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns +the Knowledge Economy? (New York: The New Press, 2003), 10­13, 209. +The Trade-Related Aspects of Intellectual Property Rights (TRIPS) + agreement +obligates member nations to create administrative and enforcement +mechanisms for intellectual property rights, a costly proposition for + developing +countries. Additionally, patent rights may lead to higher prices for +staple industries such as agriculture. Critics of TRIPS question the + disparity +between burdens imposed upon developing countries and benefits + conferred +to industrialized nations. TRIPS does permit governments to use +patents for public, noncommercial uses without first obtaining the patent +holder's permission. Developing nations may be able to use this to gain the +benefits of foreign patents at lower prices. This is a promising strategy for +developing nations within the TRIPS framework. + +In my view, more developing nations +should take advantage of that opportunity, but when they don't, then +their laws should be respected. And under the laws of these nations, +this piracy is wrong. + + +Alternatively, we could try to excuse this piracy by noting that in +any case, it does no harm to the industry. The Chinese who get access +to American CDs at 50 cents a copy are not people who would have +bought those American CDs at $15 a copy. So no one really has any +less money than they otherwise would have had. + +For an analysis of the economic impact of copying technology, see Stan +Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), +144­90. "In some instances . . . the impact of piracy on the copyright holder's +ability to appropriate the value of the work will be negligible. One obvious + instance +is the case where the individual engaging in pirating would not have +purchased an original even if pirating were not an option." Ibid., 149. + + + +This is often true (though I have friends who have purchased many +thousands of pirated DVDs who certainly have enough money to pay +for the content they have taken), and it does mitigate to some degree +the harm caused by such taking. Extremists in this debate love to say, +"You wouldn't go into Barnes & Noble and take a book off of the shelf +without paying; why should it be any different with on-line music?" +The difference is, of course, that when you take a book from Barnes & +Noble, it has one less book to sell. By contrast, when you take an MP3 +from a computer network, there is not one less CD that can be sold. +The physics of piracy of the intangible are different from the physics of +piracy of the tangible. + + +This argument is still very weak. However, although copyright is a +property right of a very special sort, it is a property right. Like all + property +rights, the copyright gives the owner the right to decide the terms +under which content is shared. If the copyright owner doesn't want to +sell, she doesn't have to. There are exceptions: important statutory + licenses +that apply to copyrighted content regardless of the wish of the +copyright owner. Those licenses give people the right to "take" + copyrighted +content whether or not the copyright owner wants to sell. But + + +where the law does not give people the right to take content, it is +wrong to take that content even if the wrong does no harm. If we have +a property system, and that system is properly balanced to the + technology +of a time, then it is wrong to take property without the permission +of a property owner. That is exactly what "property" means. + + +Finally, we could try to excuse this piracy with the argument that +the piracy actually helps the copyright owner. When the Chinese +"steal" Windows, that makes the Chinese dependent on Microsoft. +Microsoft loses the value of the software that was taken. But it gains +users who are used to life in the Microsoft world. Over time, as the + nation +grows more wealthy, more and more people will buy software +rather than steal it. And hence over time, because that buying will + benefit +Microsoft, Microsoft benefits from the piracy. If instead of pirating +Microsoft Windows, the Chinese used the free GNU/Linux operating +system, then these Chinese users would not eventually be buying + Microsoft. +Without piracy, then, Microsoft would lose. + + +This argument, too, is somewhat true. The addiction strategy is a +good one. Many businesses practice it. Some thrive because of it. Law +students, for example, are given free access to the two largest legal +databases. The companies marketing both hope the students will + become +so used to their service that they will want to use it and not the +other when they become lawyers (and must pay high subscription fees). + + +Still, the argument is not terribly persuasive. We don't give the + alcoholic +a defense when he steals his first beer, merely because that will +make it more likely that he will buy the next three. Instead, we + ordinarily +allow businesses to decide for themselves when it is best to give +their product away. If Microsoft fears the competition of GNU/Linux, +then Microsoft can give its product away, as it did, for example, with +Internet Explorer to fight Netscape. A property right means + giving +the property owner the right to say who gets access to what--at +least ordinarily. And if the law properly balances the rights of the + copyright +owner with the rights of access, then violating the law is still +wrong. + + + +Thus, while I understand the pull of these justifications for piracy, +and I certainly see the motivation, in my view, in the end, these efforts +at justifying commercial piracy simply don't cut it. This kind of piracy +is rampant and just plain wrong. It doesn't transform the content it +steals; it doesn't transform the market it competes in. It merely gives +someone access to something that the law says he should not have. +Nothing has changed to draw that law into doubt. This form of piracy +is flat out wrong. + + +But as the examples from the four chapters that introduced this +part suggest, even if some piracy is plainly wrong, not all "piracy" is. Or +at least, not all "piracy" is wrong if that term is understood in the way +it is increasingly used today. Many kinds of "piracy" are useful and + productive, +to produce either new content or new ways of doing business. +Neither our tradition nor any tradition has ever banned all "piracy" in +that sense of the term. + + +This doesn't mean that there are no questions raised by the latest +piracy concern, peer-to-peer file sharing. But it does mean that we +need to understand the harm in peer-to-peer sharing a bit more before +we condemn it to the gallows with the charge of piracy. + + +For (1) like the original Hollywood, p2p sharing escapes an overly +controlling industry; and (2) like the original recording industry, it +simply exploits a new way to distribute content; but (3) unlike cable +TV, no one is selling the content that is shared on p2p services. + + +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. + + + +Piracy II + +The key to the "piracy" that the law aims to quash is a use that "rob[s] +the author of [his] profit." + +Bach v. Longman, 98 Eng. Rep. 1274 (1777). + +This means we must determine whether +and how much p2p sharing harms before we know how strongly the + +law should seek to either prevent it or find an alternative to assure the +author of his profit. + + +Peer-to-peer sharing was made famous by Napster. But the inventors +of the Napster technology had not made any major technological + innovations. +Like every great advance in innovation on the Internet (and, + arguably, +off the Internet as well + +See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary +National Bestseller That Changed the Way We Do Business (New York: +HarperBusiness, 2000). Professor Christensen examines why companies +that give rise to and dominate a product area are frequently unable to come +up with the most creative, paradigm-shifting uses for their own products. +This job usually falls to outside innovators, who reassemble existing + technology +in inventive ways. For a discussion of Christensen's ideas, see +Lawrence Lessig, Future, 89­92, 139. +), Shawn Fanning and crew had simply +put together components that had been developed independently. + + +The result was spontaneous combustion. Launched in July 1999, +Napster amassed over 10 million users within nine months. After +eighteen months, there were close to 80 million registered users of the +system. + +See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," +San Francisco Chronicle, 24 September 2002, A1; "Rock 'n' Roll Suicide," +New Scientist, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO, +Secures New Financing," San Francisco Chronicle, 23 May 2003, C1; + "Napster's +Wake-Up Call," Economist, 24 June 2000, 23; John Naughton, + "Hollywood +at War with the Internet" (London) Times, 26 July 2002, 18. + +Courts quickly shut Napster down, but other services emerged +to take its place. (Kazaa is currently the most popular p2p service. It +boasts over 100 million members.) These services' systems are different +architecturally, though not very different in function: Each enables +users to make content available to any number of other users. With a +p2p system, you can share your favorite songs with your best friend-- +or your 20,000 best friends. + + +According to a number of estimates, a huge proportion of + Americans +have tasted file-sharing technology. A study by Ipsos-Insight in +September 2002 estimated that 60 million Americans had downloaded +music--28 percent of Americans older than 12. + +See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution +(September 2002), reporting that 28 percent of Americans aged twelve +and older have downloaded music off of the Internet and 30 percent have +listened to digital music files stored on their computers. + +A survey by the NPD +group quoted in The New York Times estimated that 43 million citizens +used file-sharing networks to exchange content in May 2003. + +Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New +York Times, 6 June 2003, A1. + +The vast +majority of these are not kids. Whatever the actual figure, a massive +quantity of content is being "taken" on these networks. The ease and +inexpensiveness of file-sharing networks have inspired millions to + enjoy +music in a way that they hadn't before. + + +Some of this enjoying involves copyright infringement. Some of it +does not. And even among the part that is technically copyright + infringement, +calculating the actual harm to copyright owners is more +complicated than one might think. So consider--a bit more carefully +than the polarized voices around this debate usually do--the kinds of +sharing that file sharing enables, and the kinds of harm it entails. + + + +File sharers share different kinds of content. We can divide these +different kinds into four types. + + + + +There are some who use sharing networks as substitutes for + purchasing +content. Thus, when a new Madonna CD is released, +rather than buying the CD, these users simply take it. We might +quibble about whether everyone who takes it would actually +have bought it if sharing didn't make it available for free. Most +probably wouldn't have, but clearly there are some who would. +The latter are the target of category A: users who download + instead +of purchasing. + + + +There are some who use sharing networks to sample music before +purchasing it. Thus, a friend sends another friend an MP3 of an +artist he's not heard of. The other friend then buys CDs by that +artist. This is a kind of targeted advertising, quite likely to + succeed. +If the friend recommending the album gains nothing from +a bad recommendation, then one could expect that the + recommendations +will actually be quite good. The net effect of this +sharing could increase the quantity of music purchased. + + + +There are many who use sharing networks to get access to + copyrighted +content that is no longer sold or that they would not +have purchased because the transaction costs off the Net are too +high. This use of sharing networks is among the most + rewarding +for many. Songs that were part of your childhood but have +long vanished from the marketplace magically appear again on +the network. (One friend told me that when she discovered +Napster, she spent a solid weekend "recalling" old songs. She +was astonished at the range and mix of content that was + available.) +For content not sold, this is still technically a violation of +copyright, though because the copyright owner is not selling the +content anymore, the economic harm is zero--the same harm +that occurs when I sell my collection of 1960s 45-rpm records to +a local collector. + + + + +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. + + + +How do these different types of sharing balance out? + + +Let's start with some simple but important points. From the + perspective +of the law, only type D sharing is clearly legal. From the +perspective of economics, only type A sharing is clearly harmful. + +See Liebowitz, Rethinking the Network Economy,148­49. + +Type B sharing is illegal but plainly beneficial. Type C sharing is + illegal, +yet good for society (since more exposure to music is good) and +harmless to the artist (since the work is not otherwise available). So +how sharing matters on balance is a hard question to answer--and + certainly +much more difficult than the current rhetoric around the issue +suggests. + + +Whether on balance sharing is harmful depends importantly on +how harmful type A sharing is. Just as Edison complained about + Hollywood, +composers complained about piano rolls, recording artists +complained about radio, and broadcasters complained about cable TV, +the music industry complains that type A sharing is a kind of "theft" +that is "devastating" the industry. + + +While the numbers do suggest that sharing is harmful, how + harmful +is harder to reckon. It has long been the recording industry's + practice +to blame technology for any drop in sales. The history of cassette +recording is a good example. As a study by Cap Gemini Ernst & +Young put it, "Rather than exploiting this new, popular technology, the +labels fought it." + +See Cap Gemini Ernst & Young, Technology Evolution and the Music + Industry's +Business Model Crisis (2003), 3. This report describes the music + industry's +effort to stigmatize the budding practice of cassette taping in the +1970s, including an advertising campaign featuring a cassette-shape skull +and the caption "Home taping is killing music." +At the time digital audio tape became a threat, the Office of Technical +Assessment conducted a survey of consumer behavior. In 1988, 40 percent +of consumers older than ten had taped music to a cassette format. U.S. +Congress, Office of Technology Assessment, Copyright and Home Copying: +Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S. +Government Printing Office, October 1989), 145­56. + +The labels claimed that every album taped was an +album unsold, and when record sales fell by 11.4 percent in 1981, the +industry claimed that its point was proved. Technology was the + problem, +and banning or regulating technology was the answer. + + +Yet soon thereafter, and before Congress was given an opportunity +to enact regulation, MTV was launched, and the industry had a record +turnaround. "In the end," Cap Gemini concludes, "the `crisis' . . . was +not the fault of the tapers--who did not [stop after MTV came into + +being]--but had to a large extent resulted from stagnation in musical +innovation at the major labels." + +U.S. Congress, Copyright and Home Copying, 4. + + + +But just because the industry was wrong before does not mean it is +wrong today. To evaluate the real threat that p2p sharing presents to +the industry in particular, and society in general--or at least the + society +that inherits the tradition that gave us the film industry, the record +industry, the radio industry, cable TV, and the VCR--the question is +not simply whether type A sharing is harmful. The question is also how +harmful type A sharing is, and how beneficial the other types of + sharing +are. + + +We start to answer this question by focusing on the net harm, from +the standpoint of the industry as a whole, that sharing networks cause. +The "net harm" to the industry as a whole is the amount by which type +A sharing exceeds type B. If the record companies sold more records +through sampling than they lost through substitution, then sharing +networks would actually benefit music companies on balance. They +would therefore have little static reason to resist them. + + +Could that be true? Could the industry as a whole be gaining + because +of file sharing? Odd as that might sound, the data about CD +sales actually suggest it might be close. + + +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. + +See Recording Industry Association of America, 2002 Yearend Statistics, +available at +link #15. A later report indicates even greater losses. See +Recording Industry Association of America, Some Facts About Music Piracy, +25 June 2003, available at +link #16: "In the past four years, unit shipments +of recorded music have fallen by 26 percent from 1.16 billion units in +to 860 million units in 2002 in the United States (based on units shipped). +In terms of sales, revenues are down 14 percent, from $14.6 billion in +to $12.6 billion last year (based on U.S. dollar value of shipments). The + music +industry worldwide has gone from a $39 billion industry in 2000 down +to a $32 billion industry in 2002 (based on U.S. dollar value of shipments)." + +This confirms a trend over the past few years. The RIAA blames + Internet +piracy for the trend, though there are many other causes that +could account for this drop. SoundScan, for example, reports a more +than 20 percent drop in the number of CDs released since 1999. That +no doubt accounts for some of the decrease in sales. Rising prices could +account for at least some of the loss. "From 1999 to 2001, the average +price of a CD rose 7.2 percent, from $13.04 to $14.19." + +Jane Black, "Big Music's Broken Record," BusinessWeek online, 13 + February +2003, available at +link #17. + +Competition +from other forms of media could also account for some of the decline. +As Jane Black of BusinessWeek notes, "The soundtrack to the film High +Fidelity has a list price of $18.98. You could get the whole movie [on +DVD] for $19.99." + +Ibid. + + + + + +But let's assume the RIAA is right, and all of the decline in CD +sales is because of Internet sharing. Here's the rub: In the same period +that the RIAA estimates that 803 million CDs were sold, the RIAA +estimates that 2.1 billion CDs were downloaded for free. Thus, + although +2.6 times the total number of CDs sold were downloaded for +free, sales revenue fell by just 6.7 percent. + + +There are too many different things happening at the same time to +explain these numbers definitively, but one conclusion is unavoidable: +The recording industry constantly asks, "What's the difference + between +downloading a song and stealing a CD?"--but their own + numbers +reveal the difference. If I steal a CD, then there is one less CD to +sell. Every taking is a lost sale. But on the basis of the numbers the +RIAA provides, it is absolutely clear that the same is not true of +downloads. If every download were a lost sale--if every use of Kazaa +"rob[bed] the author of [his] profit"--then the industry would have +suffered a 100 percent drop in sales last year, not a 7 percent drop. If 2.6 +times the number of CDs sold were downloaded for free, and yet sales +revenue dropped by just 6.7 percent, then there is a huge difference + between +"downloading a song and stealing a CD." + + +These are the harms--alleged and perhaps exaggerated but, let's + assume, +real. What of the benefits? File sharing may impose costs on the +recording industry. What value does it produce in addition to these +costs? + + +One benefit is type C sharing--making available content that is +technically still under copyright but is no longer commercially + available. +This is not a small category of content. There are millions of +tracks that are no longer commercially available. + +By one estimate, 75 percent of the music released by the major labels is no +longer in print. See Online Entertainment and Copyright Law--Coming +Soon to a Digital Device Near You: Hearing Before the Senate + Committee +on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared + statement +of the Future of Music Coalition), available at +link #18. + +And while it's + conceivable +that some of this content is not available because the artist +producing the content doesn't want it to be made available, the vast +majority of it is unavailable solely because the publisher or the + distributor +has decided it no longer makes economic sense to the company to +make it available. + + +In real space--long before the Internet--the market had a simple + +response to this problem: used book and record stores. There are + thousands +of used book and used record stores in America today. + +While there are not good estimates of the number of used record stores in +existence, in 2002, there were 7,198 used book dealers in the United States, +an increase of 20 percent since 1993. See Book Hunter Press, The Quiet +Revolution: The Expansion of the Used Book Market (2002), available at +link #19. Used records accounted for $260 million in sales in 2002. See + National +Association of Recording Merchandisers, "2002 Annual Survey + Results," +available at +link #20. + +These +stores buy content from owners, then sell the content they buy. And +under American copyright law, when they buy and sell this content, +even if the content is still under copyright, the copyright owner doesn't get +a dime. Used book and record stores are commercial entities; their +owners make money from the content they sell; but as with cable + companies +before statutory licensing, they don't have to pay the copyright +owner for the content they sell. + + +Type C sharing, then, is very much like used book stores or used +record stores. It is different, of course, because the person making the +content available isn't making money from making the content + available. +It is also different, of course, because in real space, when I sell a +record, I don't have it anymore, while in cyberspace, when someone +shares my 1949 recording of Bernstein's "Two Love Songs," I still have +it. That difference would matter economically if the owner of the +copyright were selling the record in competition to my sharing. But +we're talking about the class of content that is not currently + commercially +available. The Internet is making it available, through + cooperative +sharing, without competing with the market. + + +It may well be, all things considered, that it would be better if the +copyright owner got something from this trade. But just because it may +well be better, it doesn't follow that it would be good to ban used book +stores. Or put differently, if you think that type C sharing should be +stopped, do you think that libraries and used book stores should be +shut as well? + + +Finally, and perhaps most importantly, file-sharing networks enable +type D sharing to occur--the sharing of content that copyright owners +want to have shared or for which there is no continuing copyright. This +sharing clearly benefits authors and society. Science fiction author +Cory Doctorow, for example, released his first novel, Down and Out in +the Magic Kingdom, both free on-line and in bookstores on the same + + +day. His (and his publisher's) thinking was that the on-line distribution +would be a great advertisement for the "real" book. People would read +part on-line, and then decide whether they liked the book or not. If +they liked it, they would be more likely to buy it. Doctorow's content is +type D content. If sharing networks enable his work to be spread, then +both he and society are better off. (Actually, much better off: It is a +great book!) + + +Likewise for work in the public domain: This sharing benefits + society +with no legal harm to authors at all. If efforts to solve the problem +of type A sharing destroy the opportunity for type D sharing, then we +lose something important in order to protect type A content. + + +The point throughout is this: While the recording industry + understandably +says, "This is how much we've lost," we must also ask, "How +much has society gained from p2p sharing? What are the efficiencies? +What is the content that otherwise would be unavailable?" + + +For unlike the piracy I described in the first section of this chapter, +much of the "piracy" that file sharing enables is plainly legal and good. +And like the piracy I described in chapter 4, much of this piracy is + motivated +by a new way of spreading content caused by changes in the +technology of distribution. Thus, consistent with the tradition that +gave us Hollywood, radio, the recording industry, and cable TV, the +question we should be asking about file sharing is how best to preserve +its benefits while minimizing (to the extent possible) the wrongful harm +it causes artists. The question is one of balance. The law should seek +that balance, and that balance will be found only with time. + + +"But isn't the war just a war against illegal sharing? Isn't the target +just what you call type A sharing?" + + +You would think. And we should hope. But so far, it is not. The + effect +of the war purportedly on type A sharing alone has been felt far +beyond that one class of sharing. That much is obvious from the + Napster +case itself. When Napster told the district court that it had + developed +a technology to block the transfer of 99.4 percent of identified + +infringing material, the district court told counsel for Napster 99.4 +percent was not good enough. Napster had to push the infringements +"down to zero." + +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 +link #21. For an account of the litigation and its toll on +Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn + Fanning's +Napster (New York: Crown Business, 2003), 269­82. + + + +If 99.4 percent is not good enough, then this is a war on file-sharing +technologies, not a war on copyright infringement. There is no way to +assure that a p2p system is used 100 percent of the time in compliance +with the law, any more than there is a way to assure that 100 percent of +VCRs or 100 percent of Xerox machines or 100 percent of handguns +are used in compliance with the law. Zero tolerance means zero p2p. +The court's ruling means that we as a society must lose the benefits of +p2p, even for the totally legal and beneficial uses they serve, simply to +assure that there are zero copyright infringements caused by p2p. + + +Zero tolerance has not been our history. It has not produced the +content industry that we know today. The history of American law has +been a process of balance. As new technologies changed the way + content +was distributed, the law adjusted, after some time, to the new + technology. +In this adjustment, the law sought to ensure the legitimate rights +of creators while protecting innovation. Sometimes this has meant +more rights for creators. Sometimes less. + + +So, as we've seen, when "mechanical reproduction" threatened the +interests of composers, Congress balanced the rights of composers +against the interests of the recording industry. It granted rights to + composers, +but also to the recording artists: Composers were to be paid, but +at a price set by Congress. But when radio started broadcasting the +recordings made by these recording artists, and they complained to +Congress that their "creative property" was not being respected (since +the radio station did not have to pay them for the creativity it + broadcast), +Congress rejected their claim. An indirect benefit was enough. + + +Cable TV followed the pattern of record albums. When the courts +rejected the claim that cable broadcasters had to pay for the content +they rebroadcast, Congress responded by giving broadcasters a right to +compensation, but at a level set by the law. It likewise gave cable + companies +the right to the content, so long as they paid the statutory price. + + + + +This compromise, like the compromise affecting records and player +pianos, served two important goals--indeed, the two central goals of +any copyright legislation. First, the law assured that new innovators +would have the freedom to develop new ways to deliver content. + Second, +the law assured that copyright holders would be paid for the + content +that was distributed. One fear was that if Congress simply +required cable TV to pay copyright holders whatever they demanded +for their content, then copyright holders associated with broadcasters +would use their power to stifle this new technology, cable. But if + Congress +had permitted cable to use broadcasters' content for free, then it +would have unfairly subsidized cable. Thus Congress chose a path that +would assure compensation without giving the past (broadcasters) + control +over the future (cable). + + +In the same year that Congress struck this balance, two major + producers +and distributors of film content filed a lawsuit against another +technology, the video tape recorder (VTR, or as we refer to them today, +VCRs) that Sony had produced, the Betamax. Disney's and Universal's +claim against Sony was relatively simple: Sony produced a device, + Disney +and Universal claimed, that enabled consumers to engage in + copyright +infringement. Because the device that Sony built had a "record" +button, the device could be used to record copyrighted movies and +shows. Sony was therefore benefiting from the copyright infringement +of its customers. It should therefore, Disney and Universal claimed, be +partially liable for that infringement. + + +There was something to Disney's and Universal's claim. Sony did +decide to design its machine to make it very simple to record television +shows. It could have built the machine to block or inhibit any direct +copying from a television broadcast. Or possibly, it could have built the +machine to copy only if there were a special "copy me" signal on the +line. It was clear that there were many television shows that did not +grant anyone permission to copy. Indeed, if anyone had asked, no +doubt the majority of shows would not have authorized copying. And + +in the face of this obvious preference, Sony could have designed its + system +to minimize the opportunity for copyright infringement. It did +not, and for that, Disney and Universal wanted to hold it responsible +for the architecture it chose. + + +MPAA president Jack Valenti became the studios' most vocal +champion. Valenti called VCRs "tapeworms." He warned, "When +there are 20, 30, 40 million of these VCRs in the land, we will be + invaded +by millions of `tapeworms,' eating away at the very heart and +essence of the most precious asset the copyright owner has, his + copyright." + +Copyright Infringements (Audio and Video Recorders): Hearing on +S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st +and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion +Picture Association of America, Inc.). + +"One does not have to be trained in sophisticated marketing +and creative judgment," he told Congress, "to understand the + devastation +on the after-theater marketplace caused by the hundreds of + millions +of tapings that will adversely impact on the future of the creative +community in this country. It is simply a question of basic economics +and plain common sense." + +Copyright Infringements (Audio and Video Recorders), 475. + +Indeed, as surveys would later show, +percent of VCR owners had movie libraries of ten videos or more + +Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, +(C.D. Cal., 1979). + +--a +use the Court would later hold was not "fair." By "allowing VCR + owners +to copy freely by the means of an exemption from copyright + infringement +without creating a mechanism to compensate copyright +owners," Valenti testified, Congress would "take from the owners the +very essence of their property: the exclusive right to control who may +use their work, that is, who may copy it and thereby profit from its + reproduction." + +Copyright Infringements (Audio and Video Recorders), 485 (testimony +of Jack Valenti). + + + +It took eight years for this case to be resolved by the Supreme +Court. In the interim, the Ninth Circuit Court of Appeals, which + includes +Hollywood in its jurisdiction--leading Judge Alex Kozinski, +who sits on that court, refers to it as the "Hollywood Circuit"--held +that Sony would be liable for the copyright infringement made + possible +by its machines. Under the Ninth Circuit's rule, this totally + familiar +technology--which Jack Valenti had called "the Boston Strangler +of the American film industry" (worse yet, it was a Japanese Boston +Strangler of the American film industry)--was an illegal technology. + +Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th Cir. +1981). + + + +But the Supreme Court reversed the decision of the Ninth Circuit. + + +And in its reversal, the Court clearly articulated its understanding of +when and whether courts should intervene in such disputes. As the +Court wrote, + +
+ +Sound policy, as well as history, supports our consistent deference +to Congress when major technological innovations alter the + market +for copyrighted materials. Congress has the constitutional + authority +and the institutional ability to accommodate fully the +varied permutations of competing interests that are inevitably + implicated +by such new technology. + +Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984). + + +
+ +Congress was asked to respond to the Supreme Court's decision. +But as with the plea of recording artists about radio broadcasts, + Congress +ignored the request. Congress was convinced that American film +got enough, this "taking" notwithstanding. +If we put these cases together, a pattern is clear: + + + +Table + + + + CASE + WHOSE VALUE WAS "PIRATED" + RESPONSE OF THE COURTS + RESPONSE OF CONGRESS + + + + + Recordings + Composers + No protection + Statutory license + + + Radio + Recording artists + N/A + Nothing + + + Cable TV + Broadcasters + No protection + Statutory license + + + VCR + Film creators + No protection + Nothing + + + +
+ + +In each case throughout our history, a new technology changed the +way content was distributed. + +These are the most important instances in our history, but there are other +cases as well. The technology of digital audio tape (DAT), for example, +was regulated by Congress to minimize the risk of piracy. The remedy +Congress imposed did burden DAT producers, by taxing tape sales and +controlling the technology of DAT. See Audio Home Recording Act of +1992 (Title 17 of the United States Code), Pub. L. No. 102-563, 106 Stat. +4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not +eliminate the opportunity for free riding in the sense I've described. See +Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag," +University of Chicago Law Review 70 (2003): 293­96. + +In each case, throughout our history, +that change meant that someone got a "free ride" on someone else's +work. + + +In none of these cases did either the courts or Congress eliminate all +free riding. In none of these cases did the courts or Congress insist that +the law should assure that the copyright holder get all the value that his +copyright created. In every case, the copyright owners complained of +"piracy." In every case, Congress acted to recognize some of the + legitimacy +in the behavior of the "pirates." In each case, Congress allowed +some new technology to benefit from content made before. It balanced +the interests at stake. + + + +When you think across these examples, and the other examples that +make up the first four chapters of this section, this balance makes +sense. Was Walt Disney a pirate? Would doujinshi be better if creators +had to ask permission? Should tools that enable others to capture and +spread images as a way to cultivate or criticize our culture be better + regulated? +Is it really right that building a search engine should expose you +to $15 million in damages? Would it have been better if Edison had +controlled film? Should every cover band have to hire a lawyer to get +permission to record a song? + + +We could answer yes to each of these questions, but our tradition +has answered no. In our tradition, as the Supreme Court has stated, +copyright "has never accorded the copyright owner complete control +over all possible uses of his work." + +Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, +(1984). + +Instead, the particular uses that the +law regulates have been defined by balancing the good that comes from +granting an exclusive right against the burdens such an exclusive right +creates. And this balancing has historically been done after a + technology +has matured, or settled into the mix of technologies that facilitate +the distribution of content. + + +We should be doing the same thing today. The technology of the +Internet is changing quickly. The way people connect to the Internet +(wires vs. wireless) is changing very quickly. No doubt the network +should not become a tool for "stealing" from artists. But neither should +the law become a tool to entrench one particular way in which artists +(or more accurately, distributors) get paid. As I describe in some detail +in the last chapter of this book, we should be securing income to artists +while we allow the market to secure the most efficient way to promote +and distribute content. This will require changes in the law, at least +in the interim. These changes should be designed to balance the + protection +of the law against the strong public interest that innovation +continue. + + + + +This is especially true when a new technology enables a vastly + superior +mode of distribution. And this p2p has done. P2p technologies +can be ideally efficient in moving content across a widely diverse + network. +Left to develop, they could make the network vastly more + efficient. +Yet these "potential public benefits," as John Schwartz writes in +The New York Times, "could be delayed in the P2P fight." + +John Schwartz, "New Economy: The Attack on Peer-to-Peer Software +Echoes Past Efforts," New York Times, 22 September 2003, C3. + +Yet when anyone begins to talk about "balance," the copyright + warriors +raise a different argument. "All this hand waving about balance +and incentives," they say, "misses a fundamental point. Our content," +the warriors insist, "is our property. Why should we wait for Congress +to `rebalance' our property rights? Do you have to wait before calling +the police when your car has been stolen? And why should Congress +deliberate at all about the merits of this theft? Do we ask whether the +car thief had a good use for the car before we arrest him?" + + +"It is our property," the warriors insist. "And it should be protected +just as any other property is protected." + + + + + + +"PROPERTY" + + + +The copyright warriors are right: A copyright is a kind of +property. It can be owned and sold, and the law protects against its +theft. Ordinarily, the copyright owner gets to hold out for any price he +wants. Markets reckon the supply and demand that partially determine +the price she can get. + + +But in ordinary language, to call a copyright a "property" right is a +bit misleading, for the property of copyright is an odd kind of property. +Indeed, the very idea of property in any idea or any expression is very +odd. I understand what I am taking when I take the picnic table you +put in your backyard. I am taking a thing, the picnic table, and after I +take it, you don't have it. But what am I taking when I take the good +idea you had to put a picnic table in the backyard--by, for example, + going +to Sears, buying a table, and putting it in my backyard? What is the +thing I am taking then? + + +The point is not just about the thingness of picnic tables versus +ideas, though that's an important difference. The point instead is that + +in the ordinary case--indeed, in practically every case except for a + narrow +range of exceptions--ideas released to the world are free. I don't +take anything from you when I copy the way you dress--though I +might seem weird if I did it every day, and especially weird if you are a +woman. Instead, as Thomas Jefferson said (and as is especially true +when I copy the way someone else dresses), "He who receives an idea +from me, receives instruction himself without lessening mine; as he who +lights his taper at mine, receives light without darkening me." + +Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in +The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert +Ellery Bergh, eds., 1903), 330, 333­34. + + + +The exceptions to free use are ideas and expressions within the +reach of the law of patent and copyright, and a few other domains that +I won't discuss here. Here the law says you can't take my idea or + expression +without my permission: The law turns the intangible into +property. + + +But how, and to what extent, and in what form--the details, in +other words--matter. To get a good sense of how this practice of + turning +the intangible into property emerged, we need to place this + "property" +in its proper context. + +As the legal realists taught American law, all property rights are + intangible. +A property right is simply a right that an individual has against the +world to do or not do certain things that may or may not attach to a + physical +object. The right itself is intangible, even if the object to which it is +(metaphorically) attached is tangible. See Adam Mossoff, "What Is + Property? +Putting the Pieces Back Together," Arizona Law Review 45 (2003): +373, 429 n. 241. + + + +My strategy in doing this will be the same as my strategy in the + preceding +part. I offer four stories to help put the idea of "copyright + material +is property" in context. Where did the idea come from? What are +its limits? How does it function in practice? After these stories, the +significance of this true statement--"copyright material is property"-- +will be a bit more clear, and its implications will be revealed as quite +different from the implications that the copyright warriors would have +us draw. + + + + +CHAPTER SIX: Founders + +William Shakespeare wrote Romeo and Juliet in 1595. The play +was first published in 1597. It was the eleventh major play that + Shakespeare +had written. He would continue to write plays through 1613, +and the plays that he wrote have continued to define Anglo-American +culture ever since. So deeply have the works of a sixteenth-century writer +seeped into our culture that we often don't even recognize their source. +I once overheard someone commenting on Kenneth Branagh's + adaptation +of Henry V: "I liked it, but Shakespeare is so full of clichés." + + +In 1774, almost 180 years after Romeo and Juliet was written, the +"copy-right" for the work was still thought by many to be the exclusive +right of a single London publisher, Jacob Tonson. + +Jacob Tonson is typically remembered for his associations with prominent +eighteenth-century literary figures, especially John Dryden, and for his +handsome "definitive editions" of classic works. In addition to Romeo and +Juliet, he published an astonishing array of works that still remain at the +heart of the English canon, including collected works of Shakespeare, Ben +Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson, +Bookseller," American Scholar 61:3 (1992): 424­31. + +Tonson was the +most prominent of a small group of publishers called the Conger + +Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: + Vanderbilt +University Press, 1968), 151­52. + +who +controlled bookselling in England during the eighteenth century. The +Conger claimed a perpetual right to control the "copy" of books that +they had acquired from authors. That perpetual right meant that no + +one else could publish copies of a book to which they held the + copyright. +Prices of the classics were thus kept high; competition to + produce +better or cheaper editions was eliminated. + + +Now, there's something puzzling about the year 1774 to anyone who +knows a little about copyright law. The better-known year in the history +of copyright is 1710, the year that the British Parliament adopted the +first "copyright" act. Known as the Statute of Anne, the act stated that +all published works would get a copyright term of fourteen years, + renewable +once if the author was alive, and that all works already + published +by 1710 would get a single term of twenty-one additional years. + +As Siva Vaidhyanathan nicely argues, it is erroneous to call this a + "copyright +law." See Vaidhyanathan, Copyrights and Copywrongs, 40. + +Under this law, Romeo and Juliet should have been free in 1731. So why +was there any issue about it still being under Tonson's control in 1774? + + +The reason is that the English hadn't yet agreed on what a + "copyright" +was--indeed, no one had. At the time the English passed the +Statute of Anne, there was no other legislation governing copyrights. +The last law regulating publishers, the Licensing Act of 1662, had + expired +in 1695. That law gave publishers a monopoly over publishing, as +a way to make it easier for the Crown to control what was published. +But after it expired, there was no positive law that said that the + publishers, +or "Stationers," had an exclusive right to print books. + + +There was no positive law, but that didn't mean that there was no +law. The Anglo-American legal tradition looks to both the words of +legislatures and the words of judges to know the rules that are to + govern +how people are to behave. We call the words from legislatures + "positive +law." We call the words from judges "common law." The common +law sets the background against which legislatures legislate; the + legislature, +ordinarily, can trump that background only if it passes a law to +displace it. And so the real question after the licensing statutes had + expired +was whether the common law protected a copyright, + independent +of any positive law. + + +This question was important to the publishers, or "booksellers," as +they were called, because there was growing competition from foreign +publishers. The Scottish, in particular, were increasingly publishing +and exporting books to England. That competition reduced the profits + + +of the Conger, which reacted by demanding that Parliament pass a law +to again give them exclusive control over publishing. That demand + ultimately +resulted in the Statute of Anne. + + +The Statute of Anne granted the author or "proprietor" of a book +an exclusive right to print that book. In an important limitation, + however, +and to the horror of the booksellers, the law gave the bookseller +that right for a limited term. At the end of that term, the copyright + "expired," +and the work would then be free and could be published by +anyone. Or so the legislature is thought to have believed. + + +Now, the thing to puzzle about for a moment is this: Why would +Parliament limit the exclusive right? Not why would they limit it to the +particular limit they set, but why would they limit the right at all? + + +For the booksellers, and the authors whom they represented, had a +very strong claim. Take Romeo and Juliet as an example: That play was +written by Shakespeare. It was his genius that brought it into the +world. He didn't take anybody's property when he created this play +(that's a controversial claim, but never mind), and by his creating this +play, he didn't make it any harder for others to craft a play. So why is it +that the law would ever allow someone else to come along and take +Shakespeare's play without his, or his estate's, permission? What + reason +is there to allow someone else to "steal" Shakespeare's work? + + +The answer comes in two parts. We first need to see something + special +about the notion of "copyright" that existed at the time of the +Statute of Anne. Second, we have to see something important about +"booksellers." + + +First, about copyright. In the last three hundred years, we have +come to apply the concept of "copyright" ever more broadly. But in +1710, it wasn't so much a concept as it was a very particular right. The +copyright was born as a very specific set of restrictions: It forbade + others +from reprinting a book. In 1710, the "copy-right" was a right to use +a particular machine to replicate a particular work. It did not go + beyond +that very narrow right. It did not control any more generally how + +a work could be used. Today the right includes a large collection of + restrictions +on the freedom of others: It grants the author the exclusive +right to copy, the exclusive right to distribute, the exclusive right to +perform, and so on. + + +So, for example, even if the copyright to Shakespeare's works were +perpetual, all that would have meant under the original meaning of the +term was that no one could reprint Shakespeare's work without the + permission +of the Shakespeare estate. It would not have controlled + anything, +for example, about how the work could be performed, whether +the work could be translated, or whether Kenneth Branagh would be +allowed to make his films. The "copy-right" was only an exclusive right +to print--no less, of course, but also no more. + + +Even that limited right was viewed with skepticism by the British. +They had had a long and ugly experience with "exclusive rights," + especially +"exclusive rights" granted by the Crown. The English had fought +a civil war in part about the Crown's practice of handing out + monopolies--especially +monopolies for works that already existed. King Henry +VIII granted a patent to print the Bible and a monopoly to Darcy to +print playing cards. The English Parliament began to fight back +against this power of the Crown. In 1656, it passed the Statute of + Monopolies, +limiting monopolies to patents for new inventions. And by +1710, Parliament was eager to deal with the growing monopoly in +publishing. + + +Thus the "copy-right," when viewed as a monopoly right, was + naturally +viewed as a right that should be limited. (However convincing +the claim that "it's my property, and I should have it forever," try +sounding convincing when uttering, "It's my monopoly, and I should +have it forever.") The state would protect the exclusive right, but only +so long as it benefited society. The British saw the harms from + specialinterest +favors; they passed a law to stop them. + + +Second, about booksellers. It wasn't just that the copyright was a +monopoly. It was also that it was a monopoly held by the booksellers. +Booksellers sound quaint and harmless to us. They were not viewed +as harmless in seventeenth-century England. Members of the Conger + +were increasingly seen as monopolists of the worst kind--tools of the +Crown's repression, selling the liberty of England to guarantee + themselves +a monopoly profit. The attacks against these monopolists were +harsh: Milton described them as "old patentees and monopolizers in +the trade of book-selling"; they were "men who do not therefore labour +in an honest profession to which learning is indetted." + +Philip Wittenberg, The Protection and Marketing of Literary Property (New +York: J. Messner, Inc., 1937), 31. + + + +Many believed the power the booksellers exercised over the spread +of knowledge was harming that spread, just at the time the + Enlightenment +was teaching the importance of education and knowledge spread +generally. The idea that knowledge should be free was a hallmark of the +time, and these powerful commercial interests were interfering with +that idea. + + +To balance this power, Parliament decided to increase competition +among booksellers, and the simplest way to do that was to spread the +wealth of valuable books. Parliament therefore limited the term of +copyrights, and thereby guaranteed that valuable books would become +open to any publisher to publish after a limited time. Thus the setting +of the term for existing works to just twenty-one years was a + compromise +to fight the power of the booksellers. The limitation on terms was +an indirect way to assure competition among publishers, and thus the +construction and spread of culture. + + +When 1731 (1710 + 21) came along, however, the booksellers were +getting anxious. They saw the consequences of more competition, and +like every competitor, they didn't like them. At first booksellers simply +ignored the Statute of Anne, continuing to insist on the perpetual right +to control publication. But in 1735 and 1737, they tried to persuade +Parliament to extend their terms. Twenty-one years was not enough, +they said; they needed more time. + + +Parliament rejected their requests. As one pamphleteer put it, in +words that echo today, + +
+ +I see no Reason for granting a further Term now, which will not +hold as well for granting it again and again, as often as the Old + +ones Expire; so that should this Bill pass, it will in Effect be + establishing +a perpetual Monopoly, a Thing deservedly odious in +the Eye of the Law; it will be a great Cramp to Trade, a + Discouragement +to Learning, no Benefit to the Authors, but a general +Tax on the Publick; and all this only to increase the private Gain +of the Booksellers. + +A Letter to a Member of Parliament concerning the Bill now depending +in the House of Commons, for making more effectual an Act in the +Eighth Year of the Reign of Queen Anne, entitled, An Act for the + Encouragement +of Learning, by Vesting the Copies of Printed Books in the +Authors or Purchasers of such Copies, during the Times therein + mentioned +(London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et al., 8, +Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01-618). + + +
+ +Having failed in Parliament, the publishers turned to the courts in +a series of cases. Their argument was simple and direct: The Statute of +Anne gave authors certain protections through positive law, but those +protections were not intended as replacements for the common law. +Instead, they were intended simply to supplement the common law. +Under common law, it was already wrong to take another person's + creative +"property" and use it without his permission. The Statute of Anne, +the booksellers argued, didn't change that. Therefore, just because the +protections of the Statute of Anne expired, that didn't mean the + protections +of the common law expired: Under the common law they had +the right to ban the publication of a book, even if its Statute of Anne +copyright had expired. This, they argued, was the only way to protect +authors. + + +This was a clever argument, and one that had the support of some +of the leading jurists of the day. It also displayed extraordinary + chutzpah. +Until then, as law professor Raymond Patterson has put it, "The +publishers . . . had as much concern for authors as a cattle rancher has +for cattle." + +Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt +Law Review 40 (1987): 28. For a wonderfully compelling account, see +Vaidhyanathan, 37­48. + +The bookseller didn't care squat for the rights of the + author. +His concern was the monopoly profit that the author's work gave. + + +The booksellers' argument was not accepted without a fight. +The hero of this fight was a Scottish bookseller named Alexander +Donaldson. + +For a compelling account, see David Saunders, Authorship and Copyright +(London: Routledge, 1992), 62­69. + + + +Donaldson was an outsider to the London Conger. He began his +career in Edinburgh in 1750. The focus of his business was inexpensive +reprints "of standard works whose copyright term had expired," at least +under the Statute of Anne. + +Mark Rose, Authors and Owners (Cambridge: Harvard University Press, +1993), 92. + +Donaldson's publishing house prospered + +and became "something of a center for literary Scotsmen." "[A]mong +them," Professor Mark Rose writes, was "the young James Boswell +who, together with his friend Andrew Erskine, published an anthology +of contemporary Scottish poems with Donaldson." + +Ibid., 93. + + + +When the London booksellers tried to shut down Donaldson's +shop in Scotland, he responded by moving his shop to London, where +he sold inexpensive editions "of the most popular English books, in + defiance +of the supposed common law right of Literary Property." + +Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting +Borwell). + +His +books undercut the Conger prices by 30 to 50 percent, and he rested +his right to compete upon the ground that, under the Statute of Anne, +the works he was selling had passed out of protection. + + +The London booksellers quickly brought suit to block "piracy" like +Donaldson's. A number of actions were successful against the "pirates," +the most important early victory being Millar v. Taylor. + + +Millar was a bookseller who in 1729 had purchased the rights to +James Thomson's poem "The Seasons." Millar complied with the + requirements +of the Statute of Anne, and therefore received the full + protection +of the statute. After the term of copyright ended, Robert Taylor +began printing a competing volume. Millar sued, claiming a perpetual +common law right, the Statute of Anne notwithstanding. + +Howard B. Abrams, "The Historic Foundation of American Copyright +Law: Exploding the Myth of Common Law Copyright," Wayne Law + Review +29 (1983): 1152. + + + +Astonishingly to modern lawyers, one of the greatest judges in + English +history, Lord Mansfield, agreed with the booksellers. Whatever +protection the Statute of Anne gave booksellers, it did not, he held, +extinguish any common law right. The question was whether the +common law would protect the author against subsequent "pirates." +Mansfield's answer was yes: The common law would bar Taylor from +reprinting Thomson's poem without Millar's permission. That + common +law rule thus effectively gave the booksellers a perpetual right to +control the publication of any book assigned to them. + + +Considered as a matter of abstract justice--reasoning as if justice +were just a matter of logical deduction from first principles--Mansfield's +conclusion might make some sense. But what it ignored was the larger +issue that Parliament had struggled with in 1710: How best to limit + +the monopoly power of publishers? Parliament's strategy was to offer a +term for existing works that was long enough to buy peace in 1710, but +short enough to assure that culture would pass into competition within +a reasonable period of time. Within twenty-one years, Parliament + believed, +Britain would mature from the controlled culture that the +Crown coveted to the free culture that we inherited. + + +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. + + +Millar died soon after his victory, so his case was not appealed. His +estate sold Thomson's poems to a syndicate of printers that included +Thomas Beckett. + +Ibid., 1156. + +Donaldson then released an unauthorized edition +of Thomson's works. Beckett, on the strength of the decision in Millar, +got an injunction against Donaldson. Donaldson appealed the case to +the House of Lords, which functioned much like our own Supreme +Court. In February of 1774, that body had the chance to interpret the +meaning of Parliament's limits from sixty years before. + + +As few legal cases ever do, Donaldson v. Beckett drew an enormous +amount of attention throughout Britain. Donaldson's lawyers argued +that whatever rights may have existed under the common law, the Statute +of Anne terminated those rights. After passage of the Statute of Anne, +the only legal protection for an exclusive right to control publication +came from that statute. Thus, they argued, after the term specified in +the Statute of Anne expired, works that had been protected by the +statute were no longer protected. + + +The House of Lords was an odd institution. Legal questions were +presented to the House and voted upon first by the "law lords," + members +of special legal distinction who functioned much like the Justices +in our Supreme Court. Then, after the law lords voted, the House of +Lords generally voted. + + +The reports about the law lords' votes are mixed. On some counts, +it looks as if perpetual copyright prevailed. But there is no ambiguity + +about how the House of Lords voted as whole. By a two-to-one + majority +(22 to 11) they voted to reject the idea of perpetual copyrights. +Whatever one's understanding of the common law, now a copyright +was fixed for a limited time, after which the work protected by + copyright +passed into the public domain. + + +"The public domain." Before the case of Donaldson v. Beckett, there +was no clear idea of a public domain in England. Before 1774, there +was a strong argument that common law copyrights were perpetual. +After 1774, the public domain was born. For the first time in + Anglo-American +history, the legal control over creative works expired, and the +greatest works in English history--including those of Shakespeare, +Bacon, Milton, Johnson, and Bunyan--were free of legal restraint. + + +It is hard for us to imagine, but this decision by the House of Lords +fueled an extraordinarily popular and political reaction. In Scotland, +where most of the "pirate publishers" did their work, people celebrated +the decision in the streets. As the Edinburgh Advertiser reported, "No +private cause has so much engrossed the attention of the public, and +none has been tried before the House of Lords in the decision of +which so many individuals were interested." "Great rejoicing in + Edinburgh +upon victory over literary property: bonfires and + illuminations." + +Rose, 97. + + + +In London, however, at least among publishers, the reaction was +equally strong in the opposite direction. The Morning Chronicle + reported: + +
+ +By the above decision . . . near 200,000 pounds worth of what +was honestly purchased at public sale, and which was yesterday +thought property is now reduced to nothing. The Booksellers of +London and Westminster, many of whom sold estates and houses +to purchase Copy-right, are in a manner ruined, and those who +after many years industry thought they had acquired a + competency +to provide for their families now find themselves without a +shilling to devise to their successors. + +Ibid. + + +
+ + +"Ruined" is a bit of an exaggeration. But it is not an exaggeration to +say that the change was profound. The decision of the House of Lords +meant that the booksellers could no longer control how culture in + England +would grow and develop. Culture in England was thereafter free. +Not in the sense that copyrights would not be respected, for of course, +for a limited time after a work was published, the bookseller had an + exclusive +right to control the publication of that book. And not in the +sense that books could be stolen, for even after a copyright expired, you +still had to buy the book from someone. But free in the sense that the +culture and its growth would no longer be controlled by a small group +of publishers. As every free market does, this free market of free culture +would grow as the consumers and producers chose. English culture +would develop as the many English readers chose to let it develop-- +chose in the books they bought and wrote; chose in the memes they +repeated and endorsed. Chose in a competitive context, not a context +in which the choices about what culture is available to people and +how they get access to it are made by the few despite the wishes of +the many. + + +At least, this was the rule in a world where the Parliament is + antimonopoly, +resistant to the protectionist pleas of publishers. In a world +where the Parliament is more pliant, free culture would be less + protected. + + + + +CHAPTER SEVEN: Recorders + +Jon Else is a filmmaker. He is best known for his documentaries and +has been very successful in spreading his art. He is also a teacher, and +as a teacher myself, I envy the loyalty and admiration that his students +feel for him. (I met, by accident, two of his students at a dinner party. +He was their god.) + + +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. + + +In 1990, Else was working on a documentary about Wagner's Ring +Cycle. The focus was stagehands at the San Francisco Opera. + Stagehands +are a particularly funny and colorful element of an opera. + During +a show, they hang out below the stage in the grips' lounge and in +the lighting loft. They make a perfect contrast to the art on the stage. + + +During one of the performances, Else was shooting some + stagehands +playing checkers. In one corner of the room was a television set. +Playing on the television set, while the stagehands played checkers and +the opera company played Wagner, was The Simpsons. As Else judged + +it, this touch of cartoon helped capture the flavor of what was special +about the scene. + + +Years later, when he finally got funding to complete the film, Else +attempted to clear the rights for those few seconds of The Simpsons. +For of course, those few seconds are copyrighted; and of course, to use +copyrighted material you need the permission of the copyright owner, +unless "fair use" or some other privilege applies. + + +Else called Simpsons creator Matt Groening's office to get + permission. +Groening approved the shot. The shot was a + four-and-a-halfsecond +image on a tiny television set in the corner of the room. How +could it hurt? Groening was happy to have it in the film, but he told +Else to contact Gracie Films, the company that produces the program. + + +Gracie Films was okay with it, too, but they, like Groening, wanted +to be careful. So they told Else to contact Fox, Gracie's parent company. +Else called Fox and told them about the clip in the corner of the one +room shot of the film. Matt Groening had already given permission, +Else said. He was just confirming the permission with Fox. + + +Then, as Else told me, "two things happened. First we + discovered +. . . that Matt Groening doesn't own his own creation--or at least +that someone [at Fox] believes he doesn't own his own creation." And +second, Fox "wanted ten thousand dollars as a licensing fee for us to use +this four-point-five seconds of . . . entirely unsolicited Simpsons which +was in the corner of the shot." + + +Else was certain there was a mistake. He worked his way up to +someone he thought was a vice president for licensing, Rebecca + Herrera. +He explained to her, "There must be some mistake here. . . . +We're asking for your educational rate on this." That was the + educational +rate, Herrera told Else. A day or so later, Else called again to +confirm what he had been told. + + +"I wanted to make sure I had my facts straight," he told me. "Yes, +you have your facts straight," she said. It would cost $10,000 to use the +clip of The Simpsons in the corner of a shot in a documentary film about + + +Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And +if you quote me, I'll turn you over to our attorneys." As an assistant to +Herrera told Else later on, "They don't give a shit. They just want the +money." + + +Else didn't have the money to buy the right to replay what was + playing +on the television backstage at the San Francisco Opera. To reproduce +this reality was beyond the documentary filmmaker's budget. At the very +last minute before the film was to be released, Else digitally replaced the +shot with a clip from another film that he had worked on, The Day After +Trinity, from ten years before. + + +There's no doubt that someone, whether Matt Groening or Fox, +owns the copyright to The Simpsons. That copyright is their property. +To use that copyrighted material thus sometimes requires the + permission +of the copyright owner. If the use that Else wanted to make of the +Simpsons copyright were one of the uses restricted by the law, then he +would need to get the permission of the copyright owner before he +could use the work in that way. And in a free market, it is the owner of +the copyright who gets to set the price for any use that the law says the +owner gets to control. + + +For example, "public performance" is a use of The Simpsons that +the copyright owner gets to control. If you take a selection of favorite +episodes, rent a movie theater, and charge for tickets to come see "My +Favorite Simpsons," then you need to get permission from the + copyright +owner. And the copyright owner (rightly, in my view) can charge +whatever she wants--$10 or $1,000,000. That's her right, as set by +the law. + + +But when lawyers hear this story about Jon Else and Fox, their first +thought is "fair use." + +For an excellent argument that such use is "fair use," but that lawyers don't +permit recognition that it is "fair use," see Richard A. Posner with William +F. Patry, "Fair Use and Statutory Reform in the Wake of Eldred " (draft on +file with author), University of Chicago Law School, 5 August 2003. + +Else's use of just 4.5 seconds of an indirect shot +of a Simpsons episode is clearly a fair use of The Simpsons--and fair use +does not require the permission of anyone. + + + +So I asked Else why he didn't just rely upon "fair use." Here's his reply: + +
+ +The Simpsons fiasco was for me a great lesson in the gulf + between +what lawyers find irrelevant in some abstract sense, and +what is crushingly relevant in practice to those of us actually +trying to make and broadcast documentaries. I never had any +doubt that it was "clearly fair use" in an absolute legal sense. But +I couldn't rely on the concept in any concrete way. Here's why: + + + + +Before our films can be broadcast, the network requires +that we buy Errors and Omissions insurance. The carriers + require +a detailed "visual cue sheet" listing the source and + licensing +status of each shot in the film. They take a dim view of +"fair use," and a claim of "fair use" can grind the application +process to a halt. + + + +I probably never should have asked Matt Groening in the +first place. But I knew (at least from folklore) that Fox had a +history of tracking down and stopping unlicensed Simpsons +usage, just as George Lucas had a very high profile litigating +Star Wars usage. So I decided to play by the book, thinking +that we would be granted free or cheap license to four seconds +of Simpsons. As a documentary producer working to + exhaustion +on a shoestring, the last thing I wanted was to risk legal +trouble, even nuisance legal trouble, and even to defend a +principle. + + + +I did, in fact, speak with one of your colleagues at Stanford +Law School . . . who confirmed that it was fair use. He also +confirmed that Fox would "depose and litigate you to within +an inch of your life," regardless of the merits of my claim. He +made clear that it would boil down to who had the bigger + legal +department and the deeper pockets, me or them. + + + + +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. + + +
+ +In theory, fair use means you need no permission. The theory + therefore +supports free culture and insulates against a permission culture. +But in practice, fair use functions very differently. The fuzzy lines of +the law, tied to the extraordinary liability if lines are crossed, means +that the effective fair use for many types of creators is slight. The law +has the right aim; practice has defeated the aim. + + +This practice shows just how far the law has come from its +eighteenth-century roots. The law was born as a shield to protect + publishers' +profits against the unfair competition of a pirate. It has matured +into a sword that interferes with any use, transformative or not. + + + + +CHAPTER EIGHT: Transformers + +In 1993, Alex Alben was a lawyer working at Starwave, Inc. + Starwave +was an innovative company founded by Microsoft cofounder +Paul Allen to develop digital entertainment. Long before the Internet +became popular, Starwave began investing in new technology for + delivering +entertainment in anticipation of the power of networks. + + +Alben had a special interest in new technology. He was intrigued by +the emerging market for CD-ROM technology--not to distribute +film, but to do things with film that otherwise would be very difficult. +In 1993, he launched an initiative to develop a product to build + retrospectives +on the work of particular actors. The first actor chosen was +Clint Eastwood. The idea was to showcase all of the work of + Eastwood, +with clips from his films and interviews with figures important +to his career. + + +At that time, Eastwood had made more than fifty films, as an actor +and as a director. Alben began with a series of interviews with + Eastwood, +asking him about his career. Because Starwave produced those +interviews, it was free to include them on the CD. + + + +That alone would not have made a very interesting product, so +Starwave wanted to add content from the movies in Eastwood's career: +posters, scripts, and other material relating to the films Eastwood +made. Most of his career was spent at Warner Brothers, and so it was +relatively easy to get permission for that content. + + +Then Alben and his team decided to include actual film clips. "Our +goal was that we were going to have a clip from every one of + Eastwood's +films," Alben told me. It was here that the problem arose. "No +one had ever really done this before," Alben explained. "No one had +ever tried to do this in the context of an artistic look at an actor's +career." + + +Alben brought the idea to Michael Slade, the CEO of Starwave. +Slade asked, "Well, what will it take?" + + +Alben replied, "Well, we're going to have to clear rights from +everyone who appears in these films, and the music and everything +else that we want to use in these film clips." Slade said, "Great! Go +for it." + +Technically, the rights that Alben had to clear were mainly those of + publicity--rights +an artist has to control the commercial exploitation of his + image. +But these rights, too, burden "Rip, Mix, Burn" creativity, as this chapter +evinces. + + + +The problem was that neither Alben nor Slade had any idea what +clearing those rights would mean. Every actor in each of the films +could have a claim to royalties for the reuse of that film. But CD- +ROMs had not been specified in the contracts for the actors, so there +was no clear way to know just what Starwave was to do. + + +I asked Alben how he dealt with the problem. With an obvious +pride in his resourcefulness that obscured the obvious bizarreness of his +tale, Alben recounted just what they did: + +
+ +So we very mechanically went about looking up the film clips. +We made some artistic decisions about what film clips to + include--of +course we were going to use the "Make my day" clip +from Dirty Harry. But you then need to get the guy on the ground +who's wiggling under the gun and you need to get his + permission. +And then you have to decide what you are going to pay +him. + + + +We decided that it would be fair if we offered them the + dayplayer +rate for the right to reuse that performance. We're talking +about a clip of less than a minute, but to reuse that performance +in the CD-ROM the rate at the time was about $600. +So we had to identify the people--some of them were hard to +identify because in Eastwood movies you can't tell who's the guy +crashing through the glass--is it the actor or is it the stuntman? +And then we just, we put together a team, my assistant and some +others, and we just started calling people. + +
+ +Some actors were glad to help--Donald Sutherland, for example, +followed up himself to be sure that the rights had been cleared. +Others were dumbfounded at their good fortune. Alben would ask, +"Hey, can I pay you $600 or maybe if you were in two films, you +know, $1,200?" And they would say, "Are you for real? Hey, I'd love +to get $1,200." And some of course were a bit difficult (estranged +ex-wives, in particular). But eventually, Alben and his team had +cleared the rights to this retrospective CD-ROM on Clint Eastwood's +career. + + +It was one year later--"and even then we weren't sure whether we +were totally in the clear." + + +Alben is proud of his work. The project was the first of its kind and +the only time he knew of that a team had undertaken such a massive +project for the purpose of releasing a retrospective. + +
+ +Everyone thought it would be too hard. Everyone just threw up +their hands and said, "Oh, my gosh, a film, it's so many + copyrights, +there's the music, there's the screenplay, there's the director, +there's the actors." But we just broke it down. We just put it into +its constituent parts and said, "Okay, there's this many actors, this +many directors, . . . this many musicians," and we just went at it +very systematically and cleared the rights. + +
+ + + +And no doubt, the product itself was exceptionally good. Eastwood +loved it, and it sold very well. + + +But I pressed Alben about how weird it seems that it would have to +take a year's work simply to clear rights. No doubt Alben had done this +efficiently, but as Peter Drucker has famously quipped, "There is + nothing +so useless as doing efficiently that which should not be done at +all." + +U.S. Department of Commerce Office of Acquisition Management, Seven +Steps to Performance-Based Services Acquisition, available at +link #22. + +Did it make sense, I asked Alben, that this is the way a new work +has to be made? + + +For, as he acknowledged, "very few . . . have the time and resources, +and the will to do this," and thus, very few such works would ever be +made. Does it make sense, I asked him, from the standpoint of what +anybody really thought they were ever giving rights for originally, that +you would have to go clear rights for these kinds of clips? + +
+ +I don't think so. When an actor renders a performance in a movie, +he or she gets paid very well. . . . And then when 30 seconds of +that performance is used in a new product that is a retrospective +of somebody's career, I don't think that that person . . . should be +compensated for that. + +
+ +Or at least, is this how the artist should be compensated? Would it +make sense, I asked, for there to be some kind of statutory license that +someone could pay and be free to make derivative use of clips like this? +Did it really make sense that a follow-on creator would have to track +down every artist, actor, director, musician, and get explicit permission +from each? Wouldn't a lot more be created if the legal part of the + creative +process could be made to be more clean? + +
+ +Absolutely. I think that if there were some fair-licensing + mechanism--where +you weren't subject to hold-ups and you weren't +subject to estranged former spouses--you'd see a lot more of this +work, because it wouldn't be so daunting to try to put together a + +retrospective of someone's career and meaningfully illustrate it +with lots of media from that person's career. You'd build in a cost +as the producer of one of these things. You'd build in a cost of + paying +X dollars to the talent that performed. But it would be a +known cost. That's the thing that trips everybody up and makes +this kind of product hard to get off the ground. If you knew I have +a hundred minutes of film in this product and it's going to cost me +X, then you build your budget around it, and you can get + investments +and everything else that you need to produce it. But if you +say, "Oh, I want a hundred minutes of something and I have no +idea what it's going to cost me, and a certain number of people are +going to hold me up for money," then it becomes difficult to put +one of these things together. + +
+ +Alben worked for a big company. His company was backed by some +of the richest investors in the world. He therefore had authority and +access that the average Web designer would not have. So if it took him +a year, how long would it take someone else? And how much creativity +is never made just because the costs of clearing the rights are so high? +These costs are the burdens of a kind of regulation. Put on a + Republican +hat for a moment, and get angry for a bit. The government +defines the scope of these rights, and the scope defined determines +how much it's going to cost to negotiate them. (Remember the idea +that land runs to the heavens, and imagine the pilot purchasing + flythrough +rights as he negotiates to fly from Los Angeles to San Francisco.) +These rights might well have once made sense; but as circumstances +change, they make no sense at all. Or at least, a well-trained, + regulationminimizing +Republican should look at the rights and ask, "Does this +still make sense?" + + +I've seen the flash of recognition when people get this point, but only +a few times. The first was at a conference of federal judges in California. +The judges were gathered to discuss the emerging topic of cyber-law. I +was asked to be on the panel. Harvey Saferstein, a well-respected lawyer + + +from an L.A. firm, introduced the panel with a video that he and a +friend, Robert Fairbank, had produced. + + +The video was a brilliant collage of film from every period in the +twentieth century, all framed around the idea of a 60 Minutes episode. +The execution was perfect, down to the sixty-minute stopwatch. The +judges loved every minute of it. + + +When the lights came up, I looked over to my copanelist, David +Nimmer, perhaps the leading copyright scholar and practitioner in the +nation. He had an astonished look on his face, as he peered across the +room of over 250 well-entertained judges. Taking an ominous tone, he +began his talk with a question: "Do you know how many federal laws +were just violated in this room?" + + +For of course, the two brilliantly talented creators who made this +film hadn't done what Alben did. They hadn't spent a year clearing the +rights to these clips; technically, what they had done violated the law. +Of course, it wasn't as if they or anyone were going to be prosecuted for +this violation (the presence of 250 judges and a gaggle of federal + marshals +notwithstanding). But Nimmer was making an important point: +A year before anyone would have heard of the word Napster, and two +years before another member of our panel, David Boies, would defend +Napster before the Ninth Circuit Court of Appeals, Nimmer was + trying +to get the judges to see that the law would not be friendly to the +capacities that this technology would enable. Technology means you +can now do amazing things easily; but you couldn't easily do them +legally. + + +We live in a "cut and paste" culture enabled by technology. Anyone +building a presentation knows the extraordinary freedom that the cut +and paste architecture of the Internet created--in a second you can +find just about any image you want; in another second, you can have it +planted in your presentation. + + +But presentations are just a tiny beginning. Using the Internet and + +its archives, musicians are able to string together mixes of sound never +before imagined; filmmakers are able to build movies out of clips on +computers around the world. An extraordinary site in Sweden takes +images of politicians and blends them with music to create biting + political +commentary. A site called Camp Chaos has produced some of +the most biting criticism of the record industry that there is through +the mixing of Flash! and music. + + +All of these creations are technically illegal. Even if the creators +wanted to be "legal," the cost of complying with the law is impossibly +high. Therefore, for the law-abiding sorts, a wealth of creativity is +never made. And for that part that is made, if it doesn't follow the +clearance rules, it doesn't get released. + + +To some, these stories suggest a solution: Let's alter the mix of +rights so that people are free to build upon our culture. Free to add or +mix as they see fit. We could even make this change without + necessarily +requiring that the "free" use be free as in "free beer." Instead, the + system +could simply make it easy for follow-on creators to compensate +artists without requiring an army of lawyers to come along: a rule, for +example, that says "the royalty owed the copyright owner of an + unregistered +work for the derivative reuse of his work will be a flat 1 percent +of net revenues, to be held in escrow for the copyright owner." Under +this rule, the copyright owner could benefit from some royalty, but he +would not have the benefit of a full property right (meaning the right +to name his own price) unless he registers the work. + + +Who could possibly object to this? And what reason would there be +for objecting? We're talking about work that is not now being made; +which if made, under this plan, would produce new income for artists. +What reason would anyone have to oppose it? + + +In February 2003, DreamWorks studios announced an + agreement +with Mike Myers, the comic genius of Saturday Night Live and + +Austin Powers. According to the announcement, Myers and + Dream-Works +would work together to form a "unique filmmaking pact." Under +the agreement, DreamWorks "will acquire the rights to existing motion +picture hits and classics, write new storylines and--with the use of + stateof-the-art +digital technology--insert Myers and other actors into the +film, thereby creating an entirely new piece of entertainment." + + +The announcement called this "film sampling." As Myers + explained, +"Film Sampling is an exciting way to put an original spin on +existing films and allow audiences to see old movies in a new light. Rap +artists have been doing this for years with music and now we are able +to take that same concept and apply it to film." Steven Spielberg is +quoted as saying, "If anyone can create a way to bring old films to new +audiences, it is Mike." + + +Spielberg is right. Film sampling by Myers will be brilliant. But if +you don't think about it, you might miss the truly astonishing point +about this announcement. As the vast majority of our film heritage + remains +under copyright, the real meaning of the DreamWorks + announcement +is just this: It is Mike Myers and only Mike Myers who is +free to sample. Any general freedom to build upon the film archive of +our culture, a freedom in other contexts presumed for us all, is now a +privilege reserved for the funny and famous--and presumably rich. + + +This privilege becomes reserved for two sorts of reasons. The first +continues the story of the last chapter: the vagueness of "fair use." +Much of "sampling" should be considered "fair use." But few would +rely upon so weak a doctrine to create. That leads to the second reason +that the privilege is reserved for the few: The costs of negotiating the +legal rights for the creative reuse of content are astronomically high. +These costs mirror the costs with fair use: You either pay a lawyer to +defend your fair use rights or pay a lawyer to track down permissions +so you don't have to rely upon fair use rights. Either way, the creative +process is a process of paying lawyers--again a privilege, or perhaps a +curse, reserved for the few. + + + + +CHAPTER NINE: Collectors + +In April 1996, millions of "bots"--computer codes designed to +"spider," or automatically search the Internet and copy content--began +running across the Net. Page by page, these bots copied Internet-based +information onto a small set of computers located in a basement in San +Francisco's Presidio. Once the bots finished the whole of the Internet, +they started again. Over and over again, once every two months, these +bits of code took copies of the Internet and stored them. + + +By October 2001, the bots had collected more than five years of +copies. And at a small announcement in Berkeley, California, the archive +that these copies created, the Internet Archive, was opened to the +world. Using a technology called "the Way Back Machine," you could +enter a Web page, and see all of its copies going back to 1996, as well +as when those pages changed. + + +This is the thing about the Internet that Orwell would have + appreciated. +In the dystopia described in 1984, old newspapers were + constantly +updated to assure that the current view of the world, approved +of by the government, was not contradicted by previous news reports. + + + +Thousands of workers constantly reedited the past, meaning there was +no way ever to know whether the story you were reading today was the +story that was printed on the date published on the paper. + + +It's the same with the Internet. If you go to a Web page today, +there's no way for you to know whether the content you are reading is +the same as the content you read before. The page may seem the same, +but the content could easily be different. The Internet is Orwell's + library--constantly +updated, without any reliable memory. + + +Until the Way Back Machine, at least. With the Way Back + Machine, +and the Internet Archive underlying it, you can see what the +Internet was. You have the power to see what you remember. More +importantly, perhaps, you also have the power to find what you don't +remember and what others might prefer you forget. + +The temptations remain, however. Brewster Kahle reports that the White +House changes its own press releases without notice. A May 13, 2003, press +release stated, "Combat Operations in Iraq Have Ended." That was later +changed, without notice, to "Major Combat Operations in Iraq Have Ended." +E-mail from Brewster Kahle, 1 December 2003. + + + +We take it for granted that we can go back to see what we + remember +reading. Think about newspapers. If you wanted to study the + reaction +of your hometown newspaper to the race riots in Watts in 1965, +or to Bull Connor's water cannon in 1963, you could go to your public +library and look at the newspapers. Those papers probably exist on +microfiche. If you're lucky, they exist in paper, too. Either way, you +are free, using a library, to go back and remember--not just what it is +convenient to remember, but remember something close to the truth. + + +It is said that those who fail to remember history are doomed to + repeat +it. That's not quite correct. We all forget history. The key is whether +we have a way to go back to rediscover what we forget. More directly, the +key is whether an objective past can keep us honest. Libraries help do +that, by collecting content and keeping it, for schoolchildren, for + researchers, +for grandma. A free society presumes this knowedge. + + +The Internet was an exception to this presumption. Until the + Internet +Archive, there was no way to go back. The Internet was the +quintessentially transitory medium. And yet, as it becomes more + important +in forming and reforming society, it becomes more and more + + important +to maintain in some historical form. It's just bizarre to think that +we have scads of archives of newspapers from tiny towns around the +world, yet there is but one copy of the Internet--the one kept by the + Internet +Archive. + + +Brewster Kahle is the founder of the Internet Archive. He was a very +successful Internet entrepreneur after he was a successful computer + researcher. +In the 1990s, Kahle decided he had had enough business + success. +It was time to become a different kind of success. So he launched +a series of projects designed to archive human knowledge. The + Internet +Archive was just the first of the projects of this Andrew Carnegie +of the Internet. By December of 2002, the archive had over 10 billion +pages, and it was growing at about a billion pages a month. + + +The Way Back Machine is the largest archive of human knowledge +in human history. At the end of 2002, it held "two hundred and thirty +terabytes of material"--and was "ten times larger than the Library of +Congress." And this was just the first of the archives that Kahle set +out to build. In addition to the Internet Archive, Kahle has been + constructing +the Television Archive. Television, it turns out, is even more +ephemeral than the Internet. While much of twentieth-century culture +was constructed through television, only a tiny proportion of that + culture +is available for anyone to see today. Three hours of news are + recorded +each evening by Vanderbilt University--thanks to a specific +exemption in the copyright law. That content is indexed, and is available +to scholars for a very low fee. "But other than that, [television] is almost +unavailable," Kahle told me. "If you were Barbara Walters you could get +access to [the archives], but if you are just a graduate student?" As Kahle +put it, + +
+ +Do you remember when Dan Quayle was interacting with + Murphy +Brown? Remember that back and forth surreal experience of +a politician interacting with a fictional television character? If you +were a graduate student wanting to study that, and you wanted to +get those original back and forth exchanges between the two, the + + +60 Minutes episode that came out after it . . . it would be almost +impossible. . . . Those materials are almost unfindable. . . . + +
+ +Why is that? Why is it that the part of our culture that is recorded +in newspapers remains perpetually accessible, while the part that is +recorded on videotape is not? How is it that we've created a world +where researchers trying to understand the effect of media on + nineteenthcentury +America will have an easier time than researchers trying to + understand +the effect of media on twentieth-century America? + + +In part, this is because of the law. Early in American copyright law, +copyright owners were required to deposit copies of their work in + libraries. +These copies were intended both to facilitate the spread of +knowledge and to assure that a copy of the work would be around once +the copyright expired, so that others might access and copy the work. + + +These rules applied to film as well. But in 1915, the Library of + Congress +made an exception for film. Film could be copyrighted so long +as such deposits were made. But the filmmaker was then allowed to +borrow back the deposits--for an unlimited time at no cost. In 1915 +alone, there were more than 5,475 films deposited and "borrowed back." +Thus, when the copyrights to films expire, there is no copy held by any +library. The copy exists--if it exists at all--in the library archive of the +film company. + +Doug Herrick, "Toward a National Film Collection: Motion Pictures at the +Library of Congress," Film Library Quarterly 13 nos. 2­3 (1980): 5; + Anthony +Slide, Nitrate Won't Wait: A History of Film Preservation in the United +States ( Jefferson, N.C.: McFarland & Co., 1992), 36. + + + +The same is generally true about television. Television broadcasts +were originally not copyrighted--there was no way to capture the +broadcasts, so there was no fear of "theft." But as technology enabled +capturing, broadcasters relied increasingly upon the law. The law + required +they make a copy of each broadcast for the work to be + "copyrighted." +But those copies were simply kept by the broadcasters. No +library had any right to them; the government didn't demand them. +The content of this part of American culture is practically invisible to +anyone who would look. + + +Kahle was eager to correct this. Before September 11, 2001, he and + +his allies had started capturing television. They selected twenty + stations +from around the world and hit the Record button. After + September +11, Kahle, working with dozens of others, selected twenty stations +from around the world and, beginning October 11, 2001, made their +coverage during the week of September 11 available free on-line. + Anyone +could see how news reports from around the world covered the +events of that day. + + +Kahle had the same idea with film. Working with Rick Prelinger, +whose archive of film includes close to 45,000 "ephemeral films" +(meaning films other than Hollywood movies, films that were never +copyrighted), Kahle established the Movie Archive. Prelinger let Kahle +digitize 1,300 films in this archive and post those films on the Internet +to be downloaded for free. Prelinger's is a for-profit company. It sells +copies of these films as stock footage. What he has discovered is that +after he made a significant chunk available for free, his stock footage +sales went up dramatically. People could easily find the material they +wanted to use. Some downloaded that material and made films on +their own. Others purchased copies to enable other films to be made. +Either way, the archive enabled access to this important part of our + culture. +Want to see a copy of the "Duck and Cover" film that instructed +children how to save themselves in the middle of nuclear attack? Go to +archive.org, and you can download the film in a few minutes--for free. + + +Here again, Kahle is providing access to a part of our culture that +we otherwise could not get easily, if at all. It is yet another part of what +defines the twentieth century that we have lost to history. The law +doesn't require these copies to be kept by anyone, or to be deposited in +an archive by anyone. Therefore, there is no simple way to find them. + + +The key here is access, not price. Kahle wants to enable free access to +this content, but he also wants to enable others to sell access to it. His +aim is to ensure competition in access to this important part of our + culture. +Not during the commercial life of a bit of creative property, but + during +a second life that all creative property has--a noncommercial life. + + +For here is an idea that we should more clearly recognize. Every bit +of creative property goes through different "lives." In its first life, if the + + +creator is lucky, the content is sold. In such cases the commercial + market +is successful for the creator. The vast majority of creative property +doesn't enjoy such success, but some clearly does. For that content, +commercial life is extremely important. Without this commercial + market, +there would be, many argue, much less creativity. + + +After the commercial life of creative property has ended, our + tradition +has always supported a second life as well. A newspaper delivers +the news every day to the doorsteps of America. The very next day, it is +used to wrap fish or to fill boxes with fragile gifts or to build an archive +of knowledge about our history. In this second life, the content can +continue to inform even if that information is no longer sold. + + +The same has always been true about books. A book goes out of +print very quickly (the average today is after about a year + +Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord, +Bar Owner Starts a New Chapter by Adopting Business," Chicago Tribune, +5 September 1997, at Metro Lake 1L. Of books published between 1927 +and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese, "The +First Sale Doctrine in the Era of Digital Networks," Boston College Law + Review +44 (2003): 593 n. 51. +). After it is +out of print, it can be sold in used book stores without the copyright +owner getting anything and stored in libraries, where many get to read +the book, also for free. Used book stores and libraries are thus the + second +life of a book. That second life is extremely important to the +spread and stability of culture. + + +Yet increasingly, any assumption about a stable second life for + creative +property does not hold true with the most important components +of popular culture in the twentieth and twenty-first centuries. For +these--television, movies, music, radio, the Internet--there is no + guarantee +of a second life. For these sorts of culture, it is as if we've replaced +libraries with Barnes & Noble superstores. With this culture, what's +accessible is nothing but what a certain limited market demands. + Beyond +that, culture disappears. + + +For most of the twentieth century, it was economics that made this +so. It would have been insanely expensive to collect and make + accessible +all television and film and music: The cost of analog copies is + extraordinarily +high. So even though the law in principle would have +restricted the ability of a Brewster Kahle to copy culture generally, the + +real restriction was economics. The market made it impossibly difficult +to do anything about this ephemeral culture; the law had little + practical +effect. + + +Perhaps the single most important feature of the digital revolution +is that for the first time since the Library of Alexandria, it is feasible to +imagine constructing archives that hold all culture produced or + distributed +publicly. Technology makes it possible to imagine an archive of all +books published, and increasingly makes it possible to imagine an +archive of all moving images and sound. + + +The scale of this potential archive is something we've never + imagined +before. The Brewster Kahles of our history have dreamed about it; +but we are for the first time at a point where that dream is possible. As +Kahle describes, + +
+ +It looks like there's about two to three million recordings of + music. +Ever. There are about a hundred thousand theatrical releases +of movies, . . . and about one to two million movies [distributed] +during the twentieth century. There are about twenty-six million +different titles of books. All of these would fit on computers that +would fit in this room and be able to be afforded by a small + company. +So we're at a turning point in our history. Universal access is +the goal. And the opportunity of leading a different life, based on +this, is . . . thrilling. It could be one of the things humankind +would be most proud of. Up there with the Library of Alexandria, +putting a man on the moon, and the invention of the printing +press. + +
+ +Kahle is not the only librarian. The Internet Archive is not the only +archive. But Kahle and the Internet Archive suggest what the future of +libraries or archives could be. When the commercial life of creative +property ends, I don't know. But it does. And whenever it does, Kahle +and his archive hint at a world where this knowledge, and culture, + remains +perpetually available. Some will draw upon it to understand it; + +some to criticize it. Some will use it, as Walt Disney did, to re-create +the past for the future. These technologies promise something that had +become unimaginable for much of our past--a future for our past. The +technology of digital arts could make the dream of the Library of +Alexandria real again. + + +Technologists have thus removed the economic costs of building +such an archive. But lawyers' costs remain. For as much as we might +like to call these "archives," as warm as the idea of a "library" might +seem, the "content" that is collected in these digital spaces is also + someone's +"property." And the law of property restricts the freedoms that +Kahle and others would exercise. + + + + +CHAPTER TEN: "Property" + +Jack Valenti has been the president of the Motion Picture + Association +of America since 1966. He first came to Washington, D.C., +with Lyndon Johnson's administration--literally. The famous picture +of Johnson's swearing-in on Air Force One after the assassination of +President Kennedy has Valenti in the background. In his almost forty +years of running the MPAA, Valenti has established himself as perhaps +the most prominent and effective lobbyist in Washington. + + +The MPAA is the American branch of the international Motion +Picture Association. It was formed in 1922 as a trade association whose +goal was to defend American movies against increasing domestic + criticism. +The organization now represents not only filmmakers but + producers +and distributors of entertainment for television, video, and +cable. Its board is made up of the chairmen and presidents of the seven +major producers and distributors of motion picture and television + programs +in the United States: Walt Disney, Sony Pictures + Entertainment, +MGM, Paramount Pictures, Twentieth Century Fox, Universal +Studios, and Warner Brothers. + + + +Valenti is only the third president of the MPAA. No president +before him has had as much influence over that organization, or over +Washington. As a Texan, Valenti has mastered the single most + important +political skill of a Southerner--the ability to appear simple and +slow while hiding a lightning-fast intellect. To this day, Valenti plays +the simple, humble man. But this Harvard MBA, and author of four +books, who finished high school at the age of fifteen and flew more +than fifty combat missions in World War II, is no Mr. Smith. When +Valenti went to Washington, he mastered the city in a quintessentially +Washingtonian way. + + +In defending artistic liberty and the freedom of speech that our + culture +depends upon, the MPAA has done important good. In crafting +the MPAA rating system, it has probably avoided a great deal of +speech-regulating harm. But there is an aspect to the organization's +mission that is both the most radical and the most important. This is +the organization's effort, epitomized in Valenti's every act, to redefine +the meaning of "creative property." + + +In 1982, Valenti's testimony to Congress captured the strategy + perfectly: + +
+ +No matter the lengthy arguments made, no matter the charges +and the counter-charges, no matter the tumult and the shouting, +reasonable men and women will keep returning to the + fundamental +issue, the central theme which animates this entire debate: + Creative +property owners must be accorded the same rights and protection +resident in all other property owners in the nation. That is the issue. +That is the question. And that is the rostrum on which this entire +hearing and the debates to follow must rest. + +Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. +4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the + Subcommittee +on Courts, Civil Liberties, and the Administration of Justice of +the Committee on the Judiciary of the House of Representatives, 97th +Cong., 2nd sess. (1982): 65 (testimony of Jack Valenti). + + +
+ +The strategy of this rhetoric, like the strategy of most of Valenti's +rhetoric, is brilliant and simple and brilliant because simple. The + "central +theme" to which "reasonable men and women" will return is this: + +"Creative property owners must be accorded the same rights and + protections +resident in all other property owners in the nation." There are +no second-class citizens, Valenti might have continued. There should +be no second-class property owners. + + +This claim has an obvious and powerful intuitive pull. It is stated +with such clarity as to make the idea as obvious as the notion that we +use elections to pick presidents. But in fact, there is no more extreme a +claim made by anyone who is serious in this debate than this claim of +Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps +the nation's foremost extremist when it comes to the nature and scope +of "creative property." His views have no reasonable connection to our +actual legal tradition, even if the subtle pull of his Texan charm has +slowly redefined that tradition, at least in Washington. + + +While "creative property" is certainly "property" in a nerdy and + precise +sense that lawyers are trained to understand, + +Lawyers speak of "property" not as an absolute thing, but as a bundle of +rights that are sometimes associated with a particular object. Thus, my +"property right" to my car gives me the right to exclusive use, but not the +right to drive at 150 miles an hour. For the best effort to connect the + ordinary +meaning of "property" to "lawyer talk," see Bruce Ackerman, Private +Property and the Constitution (New Haven: Yale University Press, 1977), +26­27. + it has never been the +case, nor should it be, that "creative property owners" have been + "accorded +the same rights and protection resident in all other property +owners." Indeed, if creative property owners were given the same rights +as all other property owners, that would effect a radical, and radically +undesirable, change in our tradition. + + +Valenti knows this. But he speaks for an industry that cares squat +for our tradition and the values it represents. He speaks for an industry +that is instead fighting to restore the tradition that the British + overturned +in 1710. In the world that Valenti's changes would create, a +powerful few would exercise powerful control over how our creative +culture would develop. + + +I have two purposes in this chapter. The first is to convince you +that, historically, Valenti's claim is absolutely wrong. The second is to +convince you that it would be terribly wrong for us to reject our + history. +We have always treated rights in creative property differently +from the rights resident in all other property owners. They have never +been the same. And they should never be the same, because, however +counterintuitive this may seem, to make them the same would be to + + +fundamentally weaken the opportunity for new creators to create. + Creativity +depends upon the owners of creativity having less than perfect +control. + + +Organizations such as the MPAA, whose board includes the most +powerful of the old guard, have little interest, their rhetoric + notwithstanding, +in assuring that the new can displace them. No organization +does. No person does. (Ask me about tenure, for example.) But what's +good for the MPAA is not necessarily good for America. A society that +defends the ideals of free culture must preserve precisely the + opportunity +for new creativity to threaten the old. +To get just a hint that there is something fundamentally wrong in +Valenti's argument, we need look no further than the United States +Constitution itself. + + +The framers of our Constitution loved "property." Indeed, so +strongly did they love property that they built into the Constitution an +important requirement. If the government takes your property--if it +condemns your house, or acquires a slice of land from your farm--it is +required, under the Fifth Amendment's "Takings Clause," to pay you +"just compensation" for that taking. The Constitution thus guarantees +that property is, in a certain sense, sacred. It cannot ever be taken from +the property owner unless the government pays for the privilege. + + +Yet the very same Constitution speaks very differently about what +Valenti calls "creative property." In the clause granting Congress the +power to create "creative property," the Constitution requires that after +a "limited time," Congress take back the rights that it has granted and +set the "creative property" free to the public domain. Yet when + Congress +does this, when the expiration of a copyright term "takes" your +copyright and turns it over to the public domain, Congress does not +have any obligation to pay "just compensation" for this "taking." + Instead, +the same Constitution that requires compensation for your land + +requires that you lose your "creative property" right without any + compensation +at all. + + +The Constitution thus on its face states that these two forms of +property are not to be accorded the same rights. They are plainly to be +treated differently. Valenti is therefore not just asking for a change in +our tradition when he argues that creative-property owners should be +accorded the same rights as every other property-right owner. He is + effectively +arguing for a change in our Constitution itself. + + +Arguing for a change in our Constitution is not necessarily wrong. +There was much in our original Constitution that was plainly wrong. +The Constitution of 1789 entrenched slavery; it left senators to be + appointed +rather than elected; it made it possible for the electoral college +to produce a tie between the president and his own vice president (as it +did in 1800). The framers were no doubt extraordinary, but I would be +the first to admit that they made big mistakes. We have since rejected +some of those mistakes; no doubt there could be others that we should +reject as well. So my argument is not simply that because Jefferson did +it, we should, too. + + +Instead, my argument is that because Jefferson did it, we should at +least try to understand why. Why did the framers, fanatical property +types that they were, reject the claim that creative property be given the +same rights as all other property? Why did they require that for + creative +property there must be a public domain? + + +To answer this question, we need to get some perspective on the + history +of these "creative property" rights, and the control that they + enabled. +Once we see clearly how differently these rights have been +defined, we will be in a better position to ask the question that should +be at the core of this war: Not whether creative property should be + protected, +but how. Not whether we will enforce the rights the law gives to +creative-property owners, but what the particular mix of rights ought to +be. Not whether artists should be paid, but whether institutions designed +to assure that artists get paid need also control how culture develops. + + + + +To answer these questions, we need a more general way to talk +about how property is protected. More precisely, we need a more + general +way than the narrow language of the law allows. In Code and Other +Laws of Cyberspace, I used a simple model to capture this more general +perspective. For any particular right or regulation, this model asks how +four different modalities of regulation interact to support or weaken +the right or regulation. I represented it with this diagram: + +
+ + +
+ +At the center of this picture is a regulated dot: the individual or +group that is the target of regulation, or the holder of a right. (In each +case throughout, we can describe this either as regulation or as a right. +For simplicity's sake, I will speak only of regulations.) The ovals + represent +four ways in which the individual or group might be regulated-- +either constrained or, alternatively, enabled. Law is the most obvious +constraint (to lawyers, at least). It constrains by threatening + punishments +after the fact if the rules set in advance are violated. So if, for + example, +you willfully infringe Madonna's copyright by copying a song +from her latest CD and posting it on the Web, you can be punished + +with a $150,000 fine. The fine is an ex post punishment for violating +an ex ante rule. It is imposed by the state. + + +Norms are a different kind of constraint. They, too, punish an + individual +for violating a rule. But the punishment of a norm is imposed by +a community, not (or not only) by the state. There may be no law +against spitting, but that doesn't mean you won't be punished if you +spit on the ground while standing in line at a movie. The punishment +might not be harsh, though depending upon the community, it could +easily be more harsh than many of the punishments imposed by the +state. The mark of the difference is not the severity of the rule, but the +source of the enforcement. + + +The market is a third type of constraint. Its constraint is effected +through conditions: You can do X if you pay Y; you'll be paid M if +you do N. These constraints are obviously not independent of law or +norms--it is property law that defines what must be bought if it is to be +taken legally; it is norms that say what is appropriately sold. But given a +set of norms, and a background of property and contract law, the + market +imposes a simultaneous constraint upon how an individual or group +might behave. + + +Finally, and for the moment, perhaps, most mysteriously, + "architecture"--the +physical world as one finds it--is a constraint on + behavior. +A fallen bridge might constrain your ability to get across a +river. Railroad tracks might constrain the ability of a community to +integrate its social life. As with the market, architecture does not + effect +its constraint through ex post punishments. Instead, also as with +the market, architecture effects its constraint through simultaneous +conditions. These conditions are imposed not by courts enforcing + contracts, +or by police punishing theft, but by nature, by "architecture." +If a 500-pound boulder blocks your way, it is the law of gravity that +enforces this constraint. If a $500 airplane ticket stands between +you and a flight to New York, it is the market that enforces this + constraint. + + + + +So the first point about these four modalities of regulation is + obvious: +They interact. Restrictions imposed by one might be reinforced +by another. Or restrictions imposed by one might be undermined by +another. + + +The second point follows directly: If we want to understand the +effective freedom that anyone has at a given moment to do any + particular +thing, we have to consider how these four modalities interact. +Whether or not there are other constraints (there may well be; my +claim is not about comprehensiveness), these four are among the most +significant, and any regulator (whether controlling or freeing) must +consider how these four in particular interact. + + +So, for example, consider the "freedom" to drive a car at a high +speed. That freedom is in part restricted by laws: speed limits that say +how fast you can drive in particular places at particular times. It is in +part restricted by architecture: speed bumps, for example, slow most + rational +drivers; governors in buses, as another example, set the + maximum +rate at which the driver can drive. The freedom is in part restricted +by the market: Fuel efficiency drops as speed increases, thus the price of +gasoline indirectly constrains speed. And finally, the norms of a + community +may or may not constrain the freedom to speed. Drive at 50 +mph by a school in your own neighborhood and you're likely to be +punished by the neighbors. The same norm wouldn't be as effective in +a different town, or at night. + + +The final point about this simple model should also be fairly clear: +While these four modalities are analytically independent, law has a +special role in affecting the three. + +By describing the way law affects the other three modalities, I don't mean +to suggest that the other three don't affect law. Obviously, they do. Law's +only distinction is that it alone speaks as if it has a right self-consciously to +change the other three. The right of the other three is more timidly + expressed. +See Lawrence Lessig, Code: And Other Laws of Cyberspace (New +York: Basic Books, 1999): 90­95; Lawrence Lessig, "The New Chicago +School," Journal of Legal Studies, June 1998. + +The law, in other words, sometimes +operates to increase or decrease the constraint of a particular modality. +Thus, the law might be used to increase taxes on gasoline, so as to + increase +the incentives to drive more slowly. The law might be used to +mandate more speed bumps, so as to increase the difficulty of driving +rapidly. The law might be used to fund ads that stigmatize reckless +driving. Or the law might be used to require that other laws be more + +strict--a federal requirement that states decrease the speed limit, for +example--so as to decrease the attractiveness of fast driving. + +
+ + +
+ +These constraints can thus change, and they can be changed. To +understand the effective protection of liberty or protection of property +at any particular moment, we must track these changes over time. A + restriction +imposed by one modality might be erased by another. A + freedom +enabled by one modality might be displaced by another. + +Some people object to this way of talking about "liberty." They object + because +their focus when considering the constraints that exist at any + particular +moment are constraints imposed exclusively by the government. For +instance, if a storm destroys a bridge, these people think it is meaningless +to say that one's liberty has been restrained. A bridge has washed out, and +it's harder to get from one place to another. To talk about this as a loss of +freedom, they say, is to confuse the stuff of politics with the vagaries of + ordinary +life. +I don't mean to deny the value in this narrower view, which depends +upon the context of the inquiry. I do, however, mean to argue against any +insistence that this narrower view is the only proper view of liberty. As I +argued in Code, we come from a long tradition of political thought with a +broader focus than the narrow question of what the government did when. +John Stuart Mill defended freedom of speech, for example, from the +tyranny of narrow minds, not from the fear of government prosecution; +John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. +John R. Commons famously defended the economic freedom of labor +from constraints imposed by the market; John R. Commons, "The Right +to Work," in Malcom Rutherford and Warren J. Samuels, eds., John R. +Commons: Selected Essays (London: Routledge: 1997), 62. The Americans +with Disabilities Act increases the liberty of people with physical + disabilities +by changing the architecture of certain public places, thereby making +access to those places easier; 42 United States Code, section 12101 (2000). +Each of these interventions to change existing conditions changes the +liberty of a particular group. The effect of those interventions should be +accounted for in order to understand the effective liberty that each of these +groups might face. + + + +Why Hollywood Is Right + + +The most obvious point that this model reveals is just why, or just +how, Hollywood is right. The copyright warriors have rallied Congress +and the courts to defend copyright. This model helps us see why that +rallying makes sense. + + +Let's say this is the picture of copyright's regulation before the + Internet: + +
+ + +
+ + +There is balance between law, norms, market, and architecture. The +law limits the ability to copy and share content, by imposing penalties +on those who copy and share content. Those penalties are reinforced by +technologies that make it hard to copy and share content (architecture) +and expensive to copy and share content (market). Finally, those + penalties +are mitigated by norms we all recognize--kids, for example, taping +other kids' records. These uses of copyrighted material may well be + infringement, +but the norms of our society (before the Internet, at least) +had no problem with this form of infringement. + + +Enter the Internet, or, more precisely, technologies such as MP3s +and p2p sharing. Now the constraint of architecture changes + dramatically, +as does the constraint of the market. And as both the market and +architecture relax the regulation of copyright, norms pile on. The +happy balance (for the warriors, at least) of life before the Internet + becomes +an effective state of anarchy after the Internet. + + +Thus the sense of, and justification for, the warriors' response. + Technology +has changed, the warriors say, and the effect of this change, +when ramified through the market and norms, is that a balance of + protection +for the copyright owners' rights has been lost. This is Iraq + +after the fall of Saddam, but this time no government is justifying the +looting that results. + +
+ + +
+ +Neither this analysis nor the conclusions that follow are new to the +warriors. Indeed, in a "White Paper" prepared by the Commerce + Department +(one heavily influenced by the copyright warriors) in 1995, +this mix of regulatory modalities had already been identified and the +strategy to respond already mapped. In response to the changes the + Internet +had effected, the White Paper argued (1) Congress should +strengthen intellectual property law, (2) businesses should adopt + innovative +marketing techniques, (3) technologists should push to develop +code to protect copyrighted material, and (4) educators should educate +kids to better protect copyright. + + +This mixed strategy is just what copyright needed--if it was to + preserve +the particular balance that existed before the change induced by +the Internet. And it's just what we should expect the content industry +to push for. It is as American as apple pie to consider the happy life +you have as an entitlement, and to look to the law to protect it if + something +comes along to change that happy life. Homeowners living in a + + +flood plain have no hesitation appealing to the government to rebuild +(and rebuild again) when a flood (architecture) wipes away their + property +(law). Farmers have no hesitation appealing to the government to +bail them out when a virus (architecture) devastates their crop. Unions +have no hesitation appealing to the government to bail them out when +imports (market) wipe out the U.S. steel industry. + + +Thus, there's nothing wrong or surprising in the content industry's +campaign to protect itself from the harmful consequences of a + technological +innovation. And I would be the last person to argue that the +changing technology of the Internet has not had a profound effect on the +content industry's way of doing business, or as John Seely Brown + describes +it, its "architecture of revenue." + + +But just because a particular interest asks for government support, +it doesn't follow that support should be granted. And just because + technology +has weakened a particular way of doing business, it doesn't + follow +that the government should intervene to support that old way of +doing business. Kodak, for example, has lost perhaps as much as 20 +percent of their traditional film market to the emerging technologies +of digital cameras. + +See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?" + BusinessWeek +online, 2 August 1999, available at +link #23. For a more recent +analysis of Kodak's place in the market, see Chana R. Schoenberger, "Can +Kodak Make Up for Lost Moments?" Forbes.com, 6 October 2003, + available +at +link #24. + +Does anyone believe the government should ban +digital cameras just to support Kodak? Highways have weakened the +freight business for railroads. Does anyone think we should ban trucks +from roads for the purpose of protecting the railroads? Closer to the + subject +of this book, remote channel changers have weakened the + "stickiness" +of television advertising (if a boring commercial comes on the +TV, the remote makes it easy to surf ), and it may well be that this +change has weakened the television advertising market. But does + anyone +believe we should regulate remotes to reinforce commercial + television? +(Maybe by limiting them to function only once a second, or to +switch to only ten channels within an hour?) + + +The obvious answer to these obviously rhetorical questions is no. +In a free society, with a free market, supported by free enterprise and +free trade, the government's role is not to support one way of doing + +business against others. Its role is not to pick winners and protect +them against loss. If the government did this generally, then we would +never have any progress. As Microsoft chairman Bill Gates wrote in +1991, in a memo criticizing software patents, "established companies +have an interest in excluding future competitors." + +Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170­71. + +And relative to a +startup, established companies also have the means. (Think RCA and +FM radio.) A world in which competitors with new ideas must fight +not only the market but also the government is a world in which +competitors with new ideas will not succeed. It is a world of stasis and +increasingly concentrated stagnation. It is the Soviet Union under +Brezhnev. + + +Thus, while it is understandable for industries threatened with new +technologies that change the way they do business to look to the + government +for protection, it is the special duty of policy makers to + guarantee +that that protection not become a deterrent to progress. It is the +duty of policy makers, in other words, to assure that the changes they +create, in response to the request of those hurt by changing technology, +are changes that preserve the incentives and opportunities for + innovation +and change. + + +In the context of laws regulating speech--which include, obviously, +copyright law--that duty is even stronger. When the industry + complaining +about changing technologies is asking Congress to respond in +a way that burdens speech and creativity, policy makers should be + especially +wary of the request. It is always a bad deal for the government +to get into the business of regulating speech markets. The risks and +dangers of that game are precisely why our framers created the First +Amendment to our Constitution: "Congress shall make no law . . . +abridging the freedom of speech." So when Congress is being asked to +pass laws that would "abridge" the freedom of speech, it should ask-- +carefully--whether such regulation is justified. + + +My argument just now, however, has nothing to do with whether + +the changes that are being pushed by the copyright warriors are + "justified." +My argument is about their effect. For before we get to the + question +of justification, a hard question that depends a great deal upon +your values, we should first ask whether we understand the effect of the +changes the content industry wants. + + +Here's the metaphor that will capture the argument to follow. + + +In 1873, the chemical DDT was first synthesized. In 1948, Swiss +chemist Paul Hermann Müller won the Nobel Prize for his work +demonstrating the insecticidal properties of DDT. By the 1950s, the +insecticide was widely used around the world to kill disease-carrying +pests. It was also used to increase farm production. + + +No one doubts that killing disease-carrying pests or increasing crop +production is a good thing. No one doubts that the work of Müller was +important and valuable and probably saved lives, possibly millions. + + +But in 1962, Rachel Carson published Silent Spring, which argued +that DDT, whatever its primary benefits, was also having unintended +environmental consequences. Birds were losing the ability to + reproduce. +Whole chains of the ecology were being destroyed. + + +No one set out to destroy the environment. Paul Müller certainly +did not aim to harm any birds. But the effort to solve one set of + problems +produced another set which, in the view of some, was far worse +than the problems that were originally attacked. Or more accurately, +the problems DDT caused were worse than the problems it solved, at +least when considering the other, more environmentally friendly ways +to solve the problems that DDT was meant to solve. + + +It is to this image precisely that Duke University law professor James +Boyle appeals when he argues that we need an "environmentalism" for +culture. + +See, for example, James Boyle, "A Politics of Intellectual Property: + Environmentalism +for the Net?" Duke Law Journal 47 (1997): 87. + +His point, and the point I want to develop in the balance of +this chapter, is not that the aims of copyright are flawed. Or that + authors +should not be paid for their work. Or that music should be given +away "for free." The point is that some of the ways in which we might +protect authors will have unintended consequences for the cultural + environment, +much like DDT had for the natural environment. And just + +as criticism of DDT is not an endorsement of malaria or an attack on +farmers, so, too, is criticism of one particular set of regulations + protecting +copyright not an endorsement of anarchy or an attack on authors. +It is an environment of creativity that we seek, and we should be aware +of our actions' effects on the environment. + + +My argument, in the balance of this chapter, tries to map exactly +this effect. No doubt the technology of the Internet has had a dramatic +effect on the ability of copyright owners to protect their content. But +there should also be little doubt that when you add together the +changes in copyright law over time, plus the change in technology that +the Internet is undergoing just now, the net effect of these changes will +not be only that copyrighted work is effectively protected. Also, and +generally missed, the net effect of this massive increase in protection +will be devastating to the environment for creativity. + + +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. + + + +Beginnings + +America copied English copyright law. Actually, we copied and + improved +English copyright law. Our Constitution makes the purpose of +"creative property" rights clear; its express limitations reinforce the + English +aim to avoid overly powerful publishers. + + +The power to establish "creative property" rights is granted to + Congress +in a way that, for our Constitution, at least, is very odd. Article I, +section 8, clause 8 of our Constitution states that: + + +Congress has the power to promote the Progress of Science and +useful Arts, by securing for limited Times to Authors and Inventors +the exclusive Right to their respective Writings and Discoveries. + + +We can call this the "Progress Clause," for notice what this clause does +not say. It does not say Congress has the power to grant "creative + property +rights." It says that Congress has the power to promote progress. The +grant of power is its purpose, and its purpose is a public one, not the +purpose of enriching publishers, nor even primarily the purpose of + rewarding +authors. + + +The Progress Clause expressly limits the term of copyrights. As we +saw in chapter 6, the English limited the term of copyright so as to + assure +that a few would not exercise disproportionate control over culture +by exercising disproportionate control over publishing. We can assume +the framers followed the English for a similar purpose. Indeed, unlike +the English, the framers reinforced that objective, by requiring that +copyrights extend "to Authors" only. + + +The design of the Progress Clause reflects something about the +Constitution's design in general. To avoid a problem, the framers built +structure. To prevent the concentrated power of publishers, they built +a structure that kept copyrights away from publishers and kept them +short. To prevent the concentrated power of a church, they banned the +federal government from establishing a church. To prevent + concentrating +power in the federal government, they built structures to reinforce +the power of the states--including the Senate, whose members were +at the time selected by the states, and an electoral college, also selected +by the states, to select the president. In each case, a structure built +checks and balances into the constitutional frame, structured to + prevent +otherwise inevitable concentrations of power. + + +I doubt the framers would recognize the regulation we call + "copyright" +today. The scope of that regulation is far beyond anything they +ever considered. To begin to understand what they did, we need to put +our "copyright" in context: We need to see how it has changed in the +210 years since they first struck its design. + + +Some of these changes come from the law: some in light of changes +in technology, and some in light of changes in technology given a + +particular concentration of market power. In terms of our model, we +started here: + +
+ + +
+ +We will end here: + +
+ + +
+ +Let me explain how. + + + + +Law: Duration + +When the first Congress enacted laws to protect creative property, it +faced the same uncertainty about the status of creative property that +the English had confronted in 1774. Many states had passed laws + protecting +creative property, and some believed that these laws simply +supplemented common law rights that already protected creative + authorship. + +William W. Crosskey, Politics and the Constitution in the History of the +United States (London: Cambridge University Press, 1953), vol. 1, 485­86: +"extinguish[ing], by plain implication of `the supreme Law of the Land,' +the perpetual rights which authors had, or were supposed by some to have, under +the Common Law" (emphasis added). + +This meant that there was no guaranteed public domain in +the United States in 1790. If copyrights were protected by the + common +law, then there was no simple way to know whether a work + published +in the United States was controlled or free. Just as in England, +this lingering uncertainty would make it hard for publishers to rely +upon a public domain to reprint and distribute works. + + +That uncertainty ended after Congress passed legislation granting +copyrights. Because federal law overrides any contrary state law, federal +protections for copyrighted works displaced any state law protections. +Just as in England the Statute of Anne eventually meant that the + copyrights +for all English works expired, a federal statute meant that any +state copyrights expired as well. + + +In 1790, Congress enacted the first copyright law. It created a + federal +copyright and secured that copyright for fourteen years. If the + author +was alive at the end of that fourteen years, then he could opt to +renew the copyright for another fourteen years. If he did not renew the +copyright, his work passed into the public domain. + + +While there were many works created in the United States in the +first ten years of the Republic, only 5 percent of the works were + actually +registered under the federal copyright regime. Of all the work + created +in the United States both before 1790 and from 1790 through +1800, 95 percent immediately passed into the public domain; the + balance +would pass into the pubic domain within twenty-eight years at +most, and more likely within fourteen years. + +Although 13,000 titles were published in the United States from 1790 to +1799, only 556 copyright registrations were filed; John Tebbel, A History of +Book Publishing in the United States, vol. 1, The Creation of an Industry, +1630­1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints +recorded before 1790, only twelve were copyrighted under the 1790 act; +William J. Maher, Copyright Term, Retrospective Extension and the + Copyright +Law of 1790 in Historical Context, 7­10 (2002), available at +link #25. +Thus, the overwhelming majority of works fell immediately into the + public +domain. Even those works that were copyrighted fell into the public +domain quickly, because the term of copyright was short. The initial term +of copyright was fourteen years, with the option of renewal for an + additional +fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. 124. + + + +This system of renewal was a crucial part of the American system +of copyright. It assured that the maximum terms of copyright would be + +granted only for works where they were wanted. After the initial term +of fourteen years, if it wasn't worth it to an author to renew his + copyright, +then it wasn't worth it to society to insist on the copyright, either. + + +Fourteen years may not seem long to us, but for the vast majority of +copyright owners at that time, it was long enough: Only a small + minority +of them renewed their copyright after fourteen years; the + balance +allowed their work to pass into the public domain. + +Few copyright holders ever chose to renew their copyrights. For instance, +of the 25,006 copyrights registered in 1883, only 894 were renewed in +1910. For a year-by-year analysis of copyright renewal rates, see Barbara +A. Ringer, "Study No. 31: Renewal of Copyright," Studies on Copyright, +vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more recent +and comprehensive analysis, see William M. Landes and Richard A. + Posner, +"Indefinitely Renewable Copyright," University of Chicago Law + Review +70 (2003): 471, 498­501, and accompanying figures. + + + +Even today, this structure would make sense. Most creative work +has an actual commercial life of just a couple of years. Most books fall +out of print after one year. + +See Ringer, ch. 9, n. 2. + +When that happens, the used books are +traded free of copyright regulation. Thus the books are no longer + effectively +controlled by copyright. The only practical commercial use of the +books at that time is to sell the books as used books; that use--because +it does not involve publication--is effectively free. + + +In the first hundred years of the Republic, the term of copyright +was changed once. In 1831, the term was increased from a maximum +of 28 years to a maximum of 42 by increasing the initial term of + copyright +from 14 years to 28 years. In the next fifty years of the Republic, +the term increased once again. In 1909, Congress extended the renewal +term of 14 years to 28 years, setting a maximum term of 56 years. + + +Then, beginning in 1962, Congress started a practice that has + defined +copyright law since. Eleven times in the last forty years, Congress +has extended the terms of existing copyrights; twice in those forty +years, Congress extended the term of future copyrights. Initially, the +extensions of existing copyrights were short, a mere one to two years. +In 1976, Congress extended all existing copyrights by nineteen years. +And in 1998, in the Sonny Bono Copyright Term Extension Act, +Congress extended the term of existing and future copyrights by +twenty years. + + +The effect of these extensions is simply to toll, or delay, the passing +of works into the public domain. This latest extension means that the +public domain will have been tolled for thirty-nine out of fifty-five +years, or 70 percent of the time since 1962. Thus, in the twenty years + + +after the Sonny Bono Act, while one million patents will pass into the +public domain, zero copyrights will pass into the public domain by virtue +of the expiration of a copyright term. + + +The effect of these extensions has been exacerbated by another, +little-noticed change in the copyright law. Remember I said that the +framers established a two-part copyright regime, requiring a copyright +owner to renew his copyright after an initial term. The requirement of +renewal meant that works that no longer needed copyright protection +would pass more quickly into the public domain. The works remaining +under protection would be those that had some continuing commercial +value. + + +The United States abandoned this sensible system in 1976. For +all works created after 1978, there was only one copyright term--the +maximum term. For "natural" authors, that term was life plus fifty +years. For corporations, the term was seventy-five years. Then, in 1992, +Congress abandoned the renewal requirement for all works created +before 1978. All works still under copyright would be accorded the +maximum term then available. After the Sonny Bono Act, that term +was ninety-five years. + + +This change meant that American law no longer had an automatic +way to assure that works that were no longer exploited passed into the +public domain. And indeed, after these changes, it is unclear whether +it is even possible to put works into the public domain. The public + domain +is orphaned by these changes in copyright law. Despite the + requirement +that terms be "limited," we have no evidence that anything +will limit them. + + +The effect of these changes on the average duration of copyright is +dramatic. In 1973, more than 85 percent of copyright owners failed to +renew their copyright. That meant that the average term of copyright +in 1973 was just 32.2 years. Because of the elimination of the renewal +requirement, the average term of copyright is now the maximum term. +In thirty years, then, the average term has tripled, from 32.2 years to 95 +years. + +These statistics are understated. Between the years 1910 and 1962 (the +first year the renewal term was extended), the average term was never +more than thirty-two years, and averaged thirty years. See Landes and +Posner, "Indefinitely Renewable Copyright," loc. cit. + + + + + +Law: Scope + +The "scope" of a copyright is the range of rights granted by the law. +The scope of American copyright has changed dramatically. Those +changes are not necessarily bad. But we should understand the extent +of the changes if we're to keep this debate in context. + + +In 1790, that scope was very narrow. Copyright covered only "maps, +charts, and books." That means it didn't cover, for example, music or +architecture. More significantly, the right granted by a copyright gave +the author the exclusive right to "publish" copyrighted works. That +means someone else violated the copyright only if he republished the +work without the copyright owner's permission. Finally, the right granted +by a copyright was an exclusive right to that particular book. The right +did not extend to what lawyers call "derivative works." It would not, +therefore, interfere with the right of someone other than the author to +translate a copyrighted book, or to adapt the story to a different form +(such as a drama based on a published book). + + +This, too, has changed dramatically. While the contours of + copyright +today are extremely hard to describe simply, in general terms, the +right covers practically any creative work that is reduced to a tangible +form. It covers music as well as architecture, drama as well as computer +programs. It gives the copyright owner of that creative work not only +the exclusive right to "publish" the work, but also the exclusive right of +control over any "copies" of that work. And most significant for our +purposes here, the right gives the copyright owner control over not +only his or her particular work, but also any "derivative work" that might +grow out of the original work. In this way, the right covers more + creative +work, protects the creative work more broadly, and protects works +that are based in a significant way on the initial creative work. + + +At the same time that the scope of copyright has expanded, + procedural +limitations on the right have been relaxed. I've already described +the complete removal of the renewal requirement in 1992. In addition + +to the renewal requirement, for most of the history of American + copyright +law, there was a requirement that a work be registered before it +could receive the protection of a copyright. There was also a + requirement +that any copyrighted work be marked either with that famous © +or the word copyright. And for most of the history of American + copyright +law, there was a requirement that works be deposited with the +government before a copyright could be secured. + + +The reason for the registration requirement was the sensible + understanding +that for most works, no copyright was required. Again, in the +first ten years of the Republic, 95 percent of works eligible for + copyright +were never copyrighted. Thus, the rule reflected the norm: Most +works apparently didn't need copyright, so registration narrowed the +regulation of the law to the few that did. The same reasoning justified +the requirement that a work be marked as copyrighted--that way it +was easy to know whether a copyright was being claimed. The + requirement +that works be deposited was to assure that after the copyright + expired, +there would be a copy of the work somewhere so that it could be +copied by others without locating the original author. + + +All of these "formalities" were abolished in the American system +when we decided to follow European copyright law. There is no + requirement +that you register a work to get a copyright; the copyright +now is automatic; the copyright exists whether or not you mark your +work with a ©; and the copyright exists whether or not you actually +make a copy available for others to copy. + + +Consider a practical example to understand the scope of these + differences. + + +If, in 1790, you wrote a book and you were one of the 5 percent who +actually copyrighted that book, then the copyright law protected you +against another publisher's taking your book and republishing it + without +your permission. The aim of the act was to regulate publishers so +as to prevent that kind of unfair competition. In 1790, there were 174 +publishers in the United States. + +See Thomas Bender and David Sampliner, "Poets, Pirates, and the + Creation +of American Literature," 29 New York University Journal of + International +Law and Politics 255 (1997), and James Gilraeth, ed., Federal +Copyright Records, 1790­1800 (U.S. G.P.O., 1987). + +The Copyright Act was thus a tiny +regulation of a tiny proportion of a tiny part of the creative market in +the United States--publishers. + + + +The act left other creators totally unregulated. If I copied your +poem by hand, over and over again, as a way to learn it by heart, my +act was totally unregulated by the 1790 act. If I took your novel and +made a play based upon it, or if I translated it or abridged it, none of +those activities were regulated by the original copyright act. These + creative +activities remained free, while the activities of publishers were + restrained. + + +Today the story is very different: If you write a book, your book is +automatically protected. Indeed, not just your book. Every e-mail, +every note to your spouse, every doodle, every creative act that's + reduced +to a tangible form--all of this is automatically copyrighted. +There is no need to register or mark your work. The protection follows +the creation, not the steps you take to protect it. + + +That protection gives you the right (subject to a narrow range of +fair use exceptions) to control how others copy the work, whether they +copy it to republish it or to share an excerpt. + + +That much is the obvious part. Any system of copyright would + control +competing publishing. But there's a second part to the copyright of +today that is not at all obvious. This is the protection of "derivative +rights." If you write a book, no one can make a movie out of your +book without permission. No one can translate it without permission. +CliffsNotes can't make an abridgment unless permission is granted. All +of these derivative uses of your original work are controlled by the +copyright holder. The copyright, in other words, is now not just an + exclusive +right to your writings, but an exclusive right to your writings +and a large proportion of the writings inspired by them. + + +It is this derivative right that would seem most bizarre to our +framers, though it has become second nature to us. Initially, this + expansion +was created to deal with obvious evasions of a narrower + copyright. +If I write a book, can you change one word and then claim a +copyright in a new and different book? Obviously that would make a +joke of the copyright, so the law was properly expanded to include +those slight modifications as well as the verbatim original work. + + + + +In preventing that joke, the law created an astonishing power within +a free culture--at least, it's astonishing when you understand that the +law applies not just to the commercial publisher but to anyone with a +computer. I understand the wrong in duplicating and selling someone +else's work. But whatever that wrong is, transforming someone else's +work is a different wrong. Some view transformation as no wrong at +all--they believe that our law, as the framers penned it, should not + protect +derivative rights at all. + +Jonathan Zittrain, "The Copyright Cage," Legal Affairs, July/August +2003, available at +link #26. + +Whether or not you go that far, it seems +plain that whatever wrong is involved is fundamentally different from +the wrong of direct piracy. + + +Yet copyright law treats these two different wrongs in the same +way. I can go to court and get an injunction against your pirating my +book. I can go to court and get an injunction against your + transformative +use of my book. + +Professor Rubenfeld has presented a powerful constitutional argument +about the difference that copyright law should draw (from the perspective +of the First Amendment) between mere "copies" and derivative works. See +Jed Rubenfeld, "The Freedom of Imagination: Copyright's + Constitutionality," +Yale Law Journal 112 (2002): 1­60 (see especially pp. 53­59). + +These two different uses of my creative work are +treated the same. + + +This again may seem right to you. If I wrote a book, then why +should you be able to write a movie that takes my story and makes +money from it without paying me or crediting me? Or if Disney + creates +a creature called "Mickey Mouse," why should you be able to make +Mickey Mouse toys and be the one to trade on the value that Disney +originally created? + + +These are good arguments, and, in general, my point is not that the +derivative right is unjustified. My aim just now is much narrower: + simply +to make clear that this expansion is a significant change from the +rights originally granted. + + + +Law and Architecture: Reach + +Whereas originally the law regulated only publishers, the change in +copyright's scope means that the law today regulates publishers, users, +and authors. It regulates them because all three are capable of making +copies, and the core of the regulation of copyright law is copies. + +This is a simplification of the law, but not much of one. The law certainly +regulates more than "copies"--a public performance of a copyrighted +song, for example, is regulated even though performance per se doesn't +make a copy; 17 United States Code, section 106(4). And it certainly + sometimes +doesn't regulate a "copy"; 17 United States Code, section 112(a). But +the presumption under the existing law (which regulates "copies;" 17 +United States Code, section 102) is that if there is a copy, there is a right. + + + + +"Copies." That certainly sounds like the obvious thing for copyright +law to regulate. But as with Jack Valenti's argument at the start of this +chapter, that "creative property" deserves the "same rights" as all other +property, it is the obvious that we need to be most careful about. For +while it may be obvious that in the world before the Internet, copies +were the obvious trigger for copyright law, upon reflection, it should be +obvious that in the world with the Internet, copies should not be the +trigger for copyright law. More precisely, they should not always be the +trigger for copyright law. + + +This is perhaps the central claim of this book, so let me take this +very slowly so that the point is not easily missed. My claim is that the +Internet should at least force us to rethink the conditions under which +the law of copyright automatically applies, + +Thus, my argument is not that in each place that copyright law extends, +we should repeal it. It is instead that we should have a good argument for +its extending where it does, and should not determine its reach on the + basis +of arbitrary and automatic changes caused by technology. + +because it is clear that the +current reach of copyright was never contemplated, much less chosen, +by the legislators who enacted copyright law. + + +We can see this point abstractly by beginning with this largely +empty circle. + +
+ + +
+ + +Think about a book in real space, and imagine this circle to + represent +all its potential uses. Most of these uses are unregulated by copyright +law, because the uses don't create a copy. If you read a book, that act is not +regulated by copyright law. If you give someone the book, that act is +not regulated by copyright law. If you resell a book, that act is not + regulated +(copyright law expressly states that after the first sale of a book, +the copyright owner can impose no further conditions on the + disposition +of the book). If you sleep on the book or use it to hold up a lamp or +let your puppy chew it up, those acts are not regulated by copyright law, +because those acts do not make a copy. + +
+ + +
+ +Obviously, however, some uses of a copyrighted book are regulated +by copyright law. Republishing the book, for example, makes a copy. It +is therefore regulated by copyright law. Indeed, this particular use stands +at the core of this circle of possible uses of a copyrighted work. It is the +paradigmatic use properly regulated by copyright regulation (see first +diagram on next page). + + +Finally, there is a tiny sliver of otherwise regulated copying uses +that remain unregulated because the law considers these "fair uses." + + +
+ + +
+ +These are uses that themselves involve copying, but which the law treats +as unregulated because public policy demands that they remain + unregulated. +You are free to quote from this book, even in a review that +is quite negative, without my permission, even though that quoting +makes a copy. That copy would ordinarily give the copyright owner the +exclusive right to say whether the copy is allowed or not, but the law +denies the owner any exclusive right over such "fair uses" for public +policy (and possibly First Amendment) reasons. + +
+ + +
+ +
+ + +
+ + +In real space, then, the possible uses of a book are divided into three +sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that +are nonetheless deemed "fair" regardless of the copyright owner's views. + + +Enter the Internet--a distributed, digital network where every use +of a copyrighted work produces a copy. + +I don't mean "nature" in the sense that it couldn't be different, but rather that +its present instantiation entails a copy. Optical networks need not make +copies of content they transmit, and a digital network could be designed to +delete anything it copies so that the same number of copies remain. + +And because of this single, +arbitrary feature of the design of a digital network, the scope of + category +1 changes dramatically. Uses that before were presumptively + unregulated +are now presumptively regulated. No longer is there a set of +presumptively unregulated uses that define a freedom associated with a +copyrighted work. Instead, each use is now subject to the copyright, +because each use also makes a copy--category 1 gets sucked into + category +2. And those who would defend the unregulated uses of + copyrighted +work must look exclusively to category 3, fair uses, to bear the +burden of this shift. + + +So let's be very specific to make this general point clear. Before the +Internet, if you purchased a book and read it ten times, there would be +no plausible copyright-related argument that the copyright owner could +make to control that use of her book. Copyright law would have + nothing +to say about whether you read the book once, ten times, or every + +night before you went to bed. None of those instances of use--reading-- +could be regulated by copyright law because none of those uses + produced +a copy. + + +But the same book as an e-book is effectively governed by a + different +set of rules. Now if the copyright owner says you may read the book +only once or only once a month, then copyright law would aid the + copyright +owner in exercising this degree of control, because of the + accidental +feature of copyright law that triggers its application upon there +being a copy. Now if you read the book ten times and the license says +you may read it only five times, then whenever you read the book (or +any portion of it) beyond the fifth time, you are making a copy of the +book contrary to the copyright owner's wish. + + +There are some people who think this makes perfect sense. My aim +just now is not to argue about whether it makes sense or not. My aim +is only to make clear the change. Once you see this point, a few other +points also become clear: + + +First, making category 1 disappear is not anything any policy maker +ever intended. Congress did not think through the collapse of the + presumptively +unregulated uses of copyrighted works. There is no + evidence +at all that policy makers had this idea in mind when they allowed +our policy here to shift. Unregulated uses were an important part of +free culture before the Internet. + + +Second, this shift is especially troubling in the context of + transformative +uses of creative content. Again, we can all understand the wrong +in commercial piracy. But the law now purports to regulate any + transformation +you make of creative work using a machine. "Copy and paste" +and "cut and paste" become crimes. Tinkering with a story and + releasing +it to others exposes the tinkerer to at least a requirement of + justification. +However troubling the expansion with respect to copying a +particular work, it is extraordinarily troubling with respect to + transformative +uses of creative work. + + +Third, this shift from category 1 to category 2 puts an extraordinary + + +burden on category 3 ("fair use") that fair use never before had to bear. +If a copyright owner now tried to control how many times I could read +a book on-line, the natural response would be to argue that this is a +violation of my fair use rights. But there has never been any litigation +about whether I have a fair use right to read, because before the + Internet, +reading did not trigger the application of copyright law and hence +the need for a fair use defense. The right to read was effectively + protected +before because reading was not regulated. + + +This point about fair use is totally ignored, even by advocates for +free culture. We have been cornered into arguing that our rights + depend +upon fair use--never even addressing the earlier question about +the expansion in effective regulation. A thin protection grounded in +fair use makes sense when the vast majority of uses are unregulated. But +when everything becomes presumptively regulated, then the + protections +of fair use are not enough. + + +The case of Video Pipeline is a good example. Video Pipeline was +in the business of making "trailer" advertisements for movies available +to video stores. The video stores displayed the trailers as a way to sell +videos. Video Pipeline got the trailers from the film distributors, put +the trailers on tape, and sold the tapes to the retail stores. + + +The company did this for about fifteen years. Then, in 1997, it + began +to think about the Internet as another way to distribute these + previews. +The idea was to expand their "selling by sampling" technique by +giving on-line stores the same ability to enable "browsing." Just as in a +bookstore you can read a few pages of a book before you buy the book, +so, too, you would be able to sample a bit from the movie on-line + before +you bought it. + + +In 1998, Video Pipeline informed Disney and other film + distributors +that it intended to distribute the trailers through the Internet +(rather than sending the tapes) to distributors of their videos. Two +years later, Disney told Video Pipeline to stop. The owner of Video + +Pipeline asked Disney to talk about the matter--he had built a + business +on distributing this content as a way to help sell Disney films; he +had customers who depended upon his delivering this content. Disney +would agree to talk only if Video Pipeline stopped the distribution + immediately. +Video Pipeline thought it was within their "fair use" rights +to distribute the clips as they had. So they filed a lawsuit to ask the +court to declare that these rights were in fact their rights. + + +Disney countersued--for $100 million in damages. Those damages +were predicated upon a claim that Video Pipeline had "willfully + infringed" +on Disney's copyright. When a court makes a finding of + willful +infringement, it can award damages not on the basis of the actual +harm to the copyright owner, but on the basis of an amount set in the +statute. Because Video Pipeline had distributed seven hundred clips of +Disney movies to enable video stores to sell copies of those movies, +Disney was now suing Video Pipeline for $100 million. + + +Disney has the right to control its property, of course. But the video +stores that were selling Disney's films also had some sort of right to be +able to sell the films that they had bought from Disney. Disney's claim +in court was that the stores were allowed to sell the films and they were +permitted to list the titles of the films they were selling, but they were +not allowed to show clips of the films as a way of selling them without +Disney's permission. + + +Now, you might think this is a close case, and I think the courts would +consider it a close case. My point here is to map the change that gives +Disney this power. Before the Internet, Disney couldn't really control +how people got access to their content. Once a video was in the + marketplace, +the "first-sale doctrine" would free the seller to use the video as he +wished, including showing portions of it in order to engender sales of the +entire movie video. But with the Internet, it becomes possible for Disney +to centralize control over access to this content. Because each use of the +Internet produces a copy, use on the Internet becomes subject to the +copyright owner's control. The technology expands the scope of effective +control, because the technology builds a copy into every transaction. + + + +No doubt, a potential is not yet an abuse, and so the potential for + control +is not yet the abuse of control. Barnes & Noble has the right to say +you can't touch a book in their store; property law gives them that right. +But the market effectively protects against that abuse. If Barnes & + Noble +banned browsing, then consumers would choose other bookstores. +Competition protects against the extremes. And it may well be (my + argument +so far does not even question this) that competition would prevent +any similar danger when it comes to copyright. Sure, publishers + exercising +the rights that authors have assigned to them might try to regulate +how many times you read a book, or try to stop you from sharing the book +with anyone. But in a competitive market such as the book market, the +dangers of this happening are quite slight. + + +Again, my aim so far is simply to map the changes that this changed +architecture enables. Enabling technology to enforce the control of +copyright means that the control of copyright is no longer defined by +balanced policy. The control of copyright is simply what private + owners +choose. In some contexts, at least, that fact is harmless. But in some +contexts it is a recipe for disaster. + + + +Architecture and Law: Force + +The disappearance of unregulated uses would be change enough, but a +second important change brought about by the Internet magnifies its +significance. This second change does not affect the reach of copyright +regulation; it affects how such regulation is enforced. + + +In the world before digital technology, it was generally the law that +controlled whether and how someone was regulated by copyright law. +The law, meaning a court, meaning a judge: In the end, it was a human, +trained in the tradition of the law and cognizant of the balances that +tradition embraced, who said whether and how the law would restrict +your freedom. + + +There's a famous story about a battle between the Marx Brothers +and Warner Brothers. The Marxes intended to make a parody of + +Casablanca. Warner Brothers objected. They wrote a nasty letter to the +Marxes, warning them that there would be serious legal consequences +if they went forward with their plan. + +See David Lange, "Recognizing the Public Domain," Law and + Contemporary +Problems 44 (1981): 172­73. + + + +This led the Marx Brothers to respond in kind. They warned +Warner Brothers that the Marx Brothers "were brothers long before +you were." + +Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1­3. + +The Marx Brothers therefore owned the word brothers, +and if Warner Brothers insisted on trying to control Casablanca, then +the Marx Brothers would insist on control over brothers. + + +An absurd and hollow threat, of course, because Warner Brothers, +like the Marx Brothers, knew that no court would ever enforce such a +silly claim. This extremism was irrelevant to the real freedoms anyone +(including Warner Brothers) enjoyed. + + +On the Internet, however, there is no check on silly rules, because +on the Internet, increasingly, rules are enforced not by a human but by +a machine: Increasingly, the rules of copyright law, as interpreted by +the copyright owner, get built into the technology that delivers + copyrighted +content. It is code, rather than law, that rules. And the problem +with code regulations is that, unlike law, code has no shame. Code +would not get the humor of the Marx Brothers. The consequence of +that is not at all funny. + + +Consider the life of my Adobe eBook Reader. + + +An e-book is a book delivered in electronic form. An Adobe eBook +is not a book that Adobe has published; Adobe simply produces the +software that publishers use to deliver e-books. It provides the + technology, +and the publisher delivers the content by using the technology. + + +On the next page is a picture of an old version of my Adobe eBook +Reader. + + +As you can see, I have a small collection of e-books within this +e-book library. Some of these books reproduce content that is in the +public domain: Middlemarch, for example, is in the public domain. +Some of them reproduce content that is not in the public domain: My +own book The Future of Ideas is not yet within the public domain. +Consider Middlemarch first. If you click on my e-book copy of + +Middlemarch, you'll see a fancy cover, and then a button at the bottom +called Permissions. + +
+Acrobat eBook Reader + +
+ +If you click on the Permissions button, you'll see a list of the + permissions +that the publisher purports to grant with this book. + +
+ + +
+ + +According to my eBook +Reader, I have the permission +to copy to the clipboard of the +computer ten text selections +every ten days. (So far, I've +copied no text to the clipboard.) +I also have the permission to +print ten pages from the book +every ten days. Lastly, I have +the permission to use the Read +Aloud button to hear + Middlemarch +read aloud through the +computer. + + +Here's the e-book for another +work in the public domain + (including +the translation): + Aristotle's +Politics. + +
+ + +
+ +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. + +
+ + +
+ +Finally (and most embarrassingly), here are the permissions for the +original e-book version of my last book, The Future of Ideas: + + +
+ + +
+ +No copying, no printing, and don't you dare try to listen to this book! + + +Now, the Adobe eBook Reader calls these controls "permissions"-- +as if the publisher has the power to control how you use these works. +For works under copyright, the copyright owner certainly does have +the power--up to the limits of the copyright law. But for work not + under +copyright, there is no such copyright power. + +In principle, a contract might impose a requirement on me. I might, for +example, buy a book from you that includes a contract that says I will read +it only three times, or that I promise to read it three times. But that + obligation +(and the limits for creating that obligation) would come from the +contract, not from copyright law, and the obligations of contract would +not necessarily pass to anyone who subsequently acquired the book. + +When my e-book of +Middlemarch says I have the permission to copy only ten text selections +into the memory every ten days, what that really means is that the +eBook Reader has enabled the publisher to control how I use the book +on my computer, far beyond the control that the law would enable. + + +The control comes instead from the code--from the technology +within which the e-book "lives." Though the e-book says that these are +permissions, they are not the sort of "permissions" that most of us deal +with. When a teenager gets "permission" to stay out till midnight, she +knows (unless she's Cinderella) that she can stay out till 2 A.M., but +will suffer a punishment if she's caught. But when the Adobe eBook +Reader says I have the permission to make ten copies of the text into +the computer's memory, that means that after I've made ten copies, the +computer will not make any more. The same with the printing + restrictions: +After ten pages, the eBook Reader will not print any more pages. +It's the same with the silly restriction that says that you can't use the +Read Aloud button to read my book aloud--it's not that the company +will sue you if you do; instead, if you push the Read Aloud button with +my book, the machine simply won't read aloud. + + + +These are controls, not permissions. Imagine a world where the +Marx Brothers sold word processing software that, when you tried to +type "Warner Brothers," erased "Brothers" from the sentence. + + +This is the future of copyright law: not so much copyright law as +copyright code. The controls over access to content will not be controls +that are ratified by courts; the controls over access to content will be +controls that are coded by programmers. And whereas the controls that +are built into the law are always to be checked by a judge, the controls +that are built into the technology have no similar built-in check. + + +How significant is this? Isn't it always possible to get around the +controls built into the technology? Software used to be sold with + technologies +that limited the ability of users to copy the software, but those +were trivial protections to defeat. Why won't it be trivial to defeat these +protections as well? + + +We've only scratched the surface of this story. Return to the Adobe +eBook Reader. + + +Early in the life of the Adobe eBook Reader, Adobe suffered a + public +relations nightmare. Among the books that you could download for +free on the Adobe site was a copy of Alice's Adventures in Wonderland. +This wonderful book is in the public domain. Yet when you clicked on +Permissions for that book, you got the following report: + +
+ + +
+ + +Here was a public domain children's book that you were not + allowed +to copy, not allowed to lend, not allowed to give, and, as the + "permissions" +indicated, not allowed to "read aloud"! + + +The public relations nightmare attached to that final permission. +For the text did not say that you were not permitted to use the Read +Aloud button; it said you did not have the permission to read the book +aloud. That led some people to think that Adobe was restricting the +right of parents, for example, to read the book to their children, which +seemed, to say the least, absurd. + + +Adobe responded quickly that it was absurd to think that it was + trying +to restrict the right to read a book aloud. Obviously it was only + restricting +the ability to use the Read Aloud button to have the book read +aloud. But the question Adobe never did answer is this: Would Adobe +thus agree that a consumer was free to use software to hack around the +restrictions built into the eBook Reader? If some company (call it +Elcomsoft) developed a program to disable the technological + protection +built into an Adobe eBook so that a blind person, say, could use a +computer to read the book aloud, would Adobe agree that such a use of +an eBook Reader was fair? Adobe didn't answer because the answer, +however absurd it might seem, is no. + + +The point is not to blame Adobe. Indeed, Adobe is among the most +innovative companies developing strategies to balance open access to +content with incentives for companies to innovate. But Adobe's + technology +enables control, and Adobe has an incentive to defend this + control. +That incentive is understandable, yet what it creates is often crazy. + + +To see the point in a particularly absurd context, consider a favorite +story of mine that makes the same point. + + +Consider the robotic dog made by Sony named "Aibo." The Aibo +learns tricks, cuddles, and follows you around. It eats only electricity +and that doesn't leave that much of a mess (at least in your house). + + +The Aibo is expensive and popular. Fans from around the world +have set up clubs to trade stories. One fan in particular set up a Web +site to enable information about the Aibo dog to be shared. This fan set + +up aibopet.com (and aibohack.com, but that resolves to the same site), +and on that site he provided information about how to teach an Aibo +to do tricks in addition to the ones Sony had taught it. + + +"Teach" here has a special meaning. Aibos are just cute computers. +You teach a computer how to do something by programming it + differently. +So to say that aibopet.com was giving information about how to +teach the dog to do new tricks is just to say that aibopet.com was + giving +information to users of the Aibo pet about how to hack their + computer +"dog" to make it do new tricks (thus, aibohack.com). + + +If you're not a programmer or don't know many programmers, the +word hack has a particularly unfriendly connotation. Nonprogrammers +hack bushes or weeds. Nonprogrammers in horror movies do even +worse. But to programmers, or coders, as I call them, hack is a much +more positive term. Hack just means code that enables the program to +do something it wasn't originally intended or enabled to do. If you buy +a new printer for an old computer, you might find the old computer +doesn't run, or "drive," the printer. If you discovered that, you'd later be +happy to discover a hack on the Net by someone who has written a +driver to enable the computer to drive the printer you just bought. + + +Some hacks are easy. Some are unbelievably hard. Hackers as a +community like to challenge themselves and others with increasingly +difficult tasks. There's a certain respect that goes with the talent to hack +well. There's a well-deserved respect that goes with the talent to hack +ethically. + + +The Aibo fan was displaying a bit of both when he hacked the + program +and offered to the world a bit of code that would enable the Aibo +to dance jazz. The dog wasn't programmed to dance jazz. It was a +clever bit of tinkering that turned the dog into a more talented creature +than Sony had built. + + +I've told this story in many contexts, both inside and outside the +United States. Once I was asked by a puzzled member of the audience, +is it permissible for a dog to dance jazz in the United States? We + forget +that stories about the backcountry still flow across much of the + + +world. So let's just be clear before we continue: It's not a crime + anywhere +(anymore) to dance jazz. Nor is it a crime to teach your dog to +dance jazz. Nor should it be a crime (though we don't have a lot to go +on here) to teach your robot dog to dance jazz. Dancing jazz is a + completely +legal activity. One imagines that the owner of aibopet.com +thought, What possible problem could there be with teaching a robot dog to +dance? + + +Let's put the dog to sleep for a minute, and turn to a pony show-- +not literally a pony show, but rather a paper that a Princeton academic +named Ed Felten prepared for a conference. This Princeton academic +is well known and respected. He was hired by the government in the +Microsoft case to test Microsoft's claims about what could and could +not be done with its own code. In that trial, he demonstrated both his +brilliance and his coolness. Under heavy badgering by Microsoft +lawyers, Ed Felten stood his ground. He was not about to be bullied +into being silent about something he knew very well. + + +But Felten's bravery was really tested in April 2001. + +See Pamela Samuelson, "Anticircumvention Rules: Threat to Science," +Science 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles +the Techies Who Teach a Robot Dog New Tricks," American Prospect, +January 2002; "Court Dismisses Computer Scientists' Challenge to +DMCA," Intellectual Property Litigation Reporter, 11 December 2001; Bill +Holland, "Copyright Act Raising Free-Speech Concerns," Billboard, +May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com, +April 2001; Electronic Frontier Foundation, "Frequently Asked + Questions +about Felten and USENIX v. RIAA Legal Case," available at +link #27. + +He and a +group of colleagues were working on a paper to be submitted at + conference. +The paper was intended to describe the weakness in an + encryption +system being developed by the Secure Digital Music Initiative as +a technique to control the distribution of music. + + +The SDMI coalition had as its goal a technology to enable content +owners to exercise much better control over their content than the + Internet, +as it originally stood, granted them. Using encryption, SDMI +hoped to develop a standard that would allow the content owner to say +"this music cannot be copied," and have a computer respect that + command. +The technology was to be part of a "trusted system" of control +that would get content owners to trust the system of the Internet much +more. + + +When SDMI thought it was close to a standard, it set up a + competition. +In exchange for providing contestants with the code to an +SDMI-encrypted bit of content, contestants were to try to crack it +and, if they did, report the problems to the consortium. + + + +Felten and his team figured out the encryption system quickly. He +and the team saw the weakness of this system as a type: Many + encryption +systems would suffer the same weakness, and Felten and his team +thought it worthwhile to point this out to those who study encryption. + + +Let's review just what Felten was doing. Again, this is the United +States. We have a principle of free speech. We have this principle not +just because it is the law, but also because it is a really great idea. A +strongly protected tradition of free speech is likely to encourage a wide +range of criticism. That criticism is likely, in turn, to improve the + systems +or people or ideas criticized. + + +What Felten and his colleagues were doing was publishing a paper +describing the weakness in a technology. They were not spreading free +music, or building and deploying this technology. The paper was an +academic essay, unintelligible to most people. But it clearly showed the +weakness in the SDMI system, and why SDMI would not, as presently +constituted, succeed. + + +What links these two, aibopet.com and Felten, is the letters they +then received. Aibopet.com received a letter from Sony about the +aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony +wrote: + +
+ +Your site contains information providing the means to circumvent +AIBO-ware's copy protection protocol constituting a violation of +the anti-circumvention provisions of the Digital Millennium + Copyright +Act. + +
+ +And though an academic paper describing the weakness in a system +of encryption should also be perfectly legal, Felten received a letter +from an RIAA lawyer that read: + +
+ +Any disclosure of information gained from participating in the + +Public Challenge would be outside the scope of activities + permitted +by the Agreement and could subject you and your research +team to actions under the Digital Millennium Copyright Act +("DMCA"). + +
+ +In both cases, this weirdly Orwellian law was invoked to control the +spread of information. The Digital Millennium Copyright Act made +spreading such information an offense. + + +The DMCA was enacted as a response to copyright owners' first fear +about cyberspace. The fear was that copyright control was effectively +dead; the response was to find technologies that might compensate. +These new technologies would be copyright protection technologies-- +technologies to control the replication and distribution of copyrighted +material. They were designed as code to modify the original code of the +Internet, to reestablish some protection for copyright owners. + + +The DMCA was a bit of law intended to back up the protection of +this code designed to protect copyrighted material. It was, we could +say, legal code intended to buttress software code which itself was + intended +to support the legal code of copyright. + + +But the DMCA was not designed merely to protect copyrighted +works to the extent copyright law protected them. Its protection, that +is, did not end at the line that copyright law drew. The DMCA + regulated +devices that were designed to circumvent copyright protection +measures. It was designed to ban those devices, whether or not the use +of the copyrighted material made possible by that circumvention +would have been a copyright violation. + + +Aibopet.com and Felten make the point. The Aibo hack + circumvented +a copyright protection system for the purpose of enabling the +dog to dance jazz. That enablement no doubt involved the use of + copyrighted +material. But as aibopet.com's site was noncommercial, and the +use did not enable subsequent copyright infringements, there's no doubt +that aibopet.com's hack was fair use of Sony's copyrighted material. Yet +fair use is not a defense to the DMCA. The question is not whether the + +use of the copyrighted material was a copyright violation. The question +is whether a copyright protection system was circumvented. + + +The threat against Felten was more attenuated, but it followed the +same line of reasoning. By publishing a paper describing how a + copyright +protection system could be circumvented, the RIAA lawyer + suggested, +Felten himself was distributing a circumvention technology. +Thus, even though he was not himself infringing anyone's copyright, +his academic paper was enabling others to infringe others' copyright. + + +The bizarreness of these arguments is captured in a cartoon drawn +in 1981 by Paul Conrad. At that time, a court in California had held +that the VCR could be banned because it was a copyright-infringing +technology: It enabled consumers to copy films without the permission +of the copyright owner. No doubt there were uses of the technology +that were legal: Fred Rogers, aka "Mr. Rogers," for example, had + testified +in that case that he wanted people to feel free to tape Mr. Rogers' +Neighborhood. + +
+ +Some public stations, as well as commercial stations, program the +"Neighborhood" at hours when some children cannot use it. I +think that it's a real service to families to be able to record such +programs and show them at appropriate times. I have always felt +that with the advent of all of this new technology that allows +people to tape the "Neighborhood" off-the-air, and I'm + speaking +for the "Neighborhood" because that's what I produce, +that they then become much more active in the programming of +their family's television life. Very frankly, I am opposed to people +being programmed by others. My whole approach in + broadcasting +has always been "You are an important person just the way +you are. You can make healthy decisions." Maybe I'm going on +too long, but I just feel that anything that allows a person to be +more active in the control of his or her life, in a healthy way, is +important. + +Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, +455 fn. 27 (1984). Rogers never changed his view about the VCR. See +James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of +the VCR (New York: W. W. Norton, 1987), 270­71. + + +
+ + +Even though there were uses that were legal, because there were +some uses that were illegal, the court held the companies producing +the VCR responsible. + + +This led Conrad to draw the cartoon below, which we can adopt to +the DMCA. + + +No argument I have can top this picture, but let me try to get close. + + +The anticircumvention provisions of the DMCA target copyright +circumvention technologies. Circumvention technologies can be used +for different ends. They can be used, for example, to enable massive + pirating +of copyrighted material--a bad end. Or they can be used to + enable +the use of particular copyrighted materials in ways that would be +considered fair use--a good end. + + +A handgun can be used to shoot a police officer or a child. Most + +would agree such a use is bad. Or a handgun can be used for target +practice or to protect against an intruder. At least some would say that +such a use would be good. It, too, is a technology that has both good +and bad uses. + +
+ + +
+ +The obvious point of Conrad's cartoon is the weirdness of a world +where guns are legal, despite the harm they can do, while VCRs (and +circumvention technologies) are illegal. Flash: No one ever died from +copyright circumvention. Yet the law bans circumvention technologies +absolutely, despite the potential that they might do some good, but +permits guns, despite the obvious and tragic harm they do. + + +The Aibo and RIAA examples demonstrate how copyright owners +are changing the balance that copyright law grants. Using code, + copyright +owners restrict fair use; using the DMCA, they punish those who +would attempt to evade the restrictions on fair use that they impose +through code. Technology becomes a means by which fair use can be +erased; the law of the DMCA backs up that erasing. + + +This is how code becomes law. The controls built into the technology +of copy and access protection become rules the violation of which is also +a violation of the law. In this way, the code extends the law--increasing its +regulation, even if the subject it regulates (activities that would otherwise +plainly constitute fair use) is beyond the reach of the law. Code becomes +law; code extends the law; code thus extends the control that copyright +owners effect--at least for those copyright holders with the lawyers +who can write the nasty letters that Felten and aibopet.com received. + + +There is one final aspect of the interaction between architecture +and law that contributes to the force of copyright's regulation. This is +the ease with which infringements of the law can be detected. For +contrary to the rhetoric common at the birth of cyberspace that on the +Internet, no one knows you're a dog, increasingly, given changing + technologies +deployed on the Internet, it is easy to find the dog who + committed +a legal wrong. The technologies of the Internet are open to +snoops as well as sharers, and the snoops are increasingly good at + tracking +down the identity of those who violate the rules. + + + + +For example, imagine you were part of a Star Trek fan club. You +gathered every month to share trivia, and maybe to enact a kind of fan +fiction about the show. One person would play Spock, another, + Captain +Kirk. The characters would begin with a plot from a real story, +then simply continue it. + +For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions, +Copyright, Fan Fiction, and a New Common Law," Loyola of Los Angeles +Entertainment Law Journal 17 (1997): 651. + + + +Before the Internet, this was, in effect, a totally unregulated + activity. +No matter what happened inside your club room, you would never +be interfered with by the copyright police. You were free in that space +to do as you wished with this part of our culture. You were allowed to +build on it as you wished without fear of legal control. + + +But if you moved your club onto the Internet, and made it generally +available for others to join, the story would be very different. Bots + scouring +the Net for trademark and copyright infringement would quickly +find your site. Your posting of fan fiction, depending upon the + ownership +of the series that you're depicting, could well inspire a lawyer's +threat. And ignoring the lawyer's threat would be extremely costly + indeed. +The law of copyright is extremely efficient. The penalties are + severe, +and the process is quick. + + +This change in the effective force of the law is caused by a change +in the ease with which the law can be enforced. That change too shifts +the law's balance radically. It is as if your car transmitted the speed at +which you traveled at every moment that you drove; that would be just +one step before the state started issuing tickets based upon the data you +transmitted. That is, in effect, what is happening here. + + + +Market: Concentration + +So copyright's duration has increased dramatically--tripled in the past +thirty years. And copyright's scope has increased as well--from + regulating +only publishers to now regulating just about everyone. And +copyright's reach has changed, as every action becomes a copy and +hence presumptively regulated. And as technologists find better ways + +to control the use of content, and as copyright is increasingly enforced +through technology, copyright's force changes, too. Misuse is easier to +find and easier to control. This regulation of the creative process, which +began as a tiny regulation governing a tiny part of the market for + creative +work, has become the single most important regulator of + creativity +there is. It is a massive expansion in the scope of the government's +control over innovation and creativity; it would be totally + unrecognizable +to those who gave birth to copyright's control. + + +Still, in my view, all of these changes would not matter much if it +weren't for one more change that we must also consider. This is a +change that is in some sense the most familiar, though its significance +and scope are not well understood. It is the one that creates precisely the +reason to be concerned about all the other changes I have described. + + +This is the change in the concentration and integration of the media. +In the past twenty years, the nature of media ownership has undergone +a radical alteration, caused by changes in legal rules governing the + media. +Before this change happened, the different forms of media were +owned by separate media companies. Now, the media is increasingly +owned by only a few companies. Indeed, after the changes that the +FCC announced in June 2003, most expect that within a few years, we +will live in a world where just three companies control more than +percent of the media. + + +These changes are of two sorts: the scope of concentration, and its +nature. + + +Changes in scope are the easier ones to describe. As Senator John +McCain summarized the data produced in the FCC's review of media +ownership, "five companies control 85 percent of our media sources." + +FCC Oversight: Hearing Before the Senate Commerce, Science and +Transportation Committee, 108th Cong., 1st sess. (22 May 2003) + (statement +of Senator John McCain). + +The five recording labels of Universal Music Group, BMG, Sony + Music +Entertainment, Warner Music Group, and EMI control 84.8 + percent +of the U.S. music market. + +Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to +Slide," New York Times, 23 December 2002. + +The "five largest cable companies pipe +programming to 74 percent of the cable subscribers nationwide." + +Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette, +31 May 2003. + + + +The story with radio is even more dramatic. Before deregulation, +the nation's largest radio broadcasting conglomerate owned fewer than + +seventy-five stations. Today one company owns more than 1,200 stations. +During that period of consolidation, the total number of radio owners +dropped by 34 percent. Today, in most markets, the two largest + broadcasters +control 74 percent of that market's revenues. Overall, just four +companies control 90 percent of the nation's radio advertising revenues. + + +Newspaper ownership is becoming more concentrated as well. + Today, +there are six hundred fewer daily newspapers in the United States +than there were eighty years ago, and ten companies control half of the +nation's circulation. There are twenty major newspaper publishers in +the United States. The top ten film studios receive 99 percent of all +film revenue. The ten largest cable companies account for 85 percent of +all cable revenue. This is a market far from the free press the framers +sought to protect. Indeed, it is a market that is quite well protected-- +by the market. + + +Concentration in size alone is one thing. The more invidious +change is in the nature of that concentration. As author James Fallows +put it in a recent article about Rupert Murdoch, + +
+ +Murdoch's companies now constitute a production system + unmatched +in its integration. They supply content--Fox movies . . . +Fox TV shows . . . Fox-controlled sports broadcasts, plus + newspapers +and books. They sell the content to the public and to + advertisers--in +newspapers, on the broadcast network, on the cable +channels. And they operate the physical distribution system +through which the content reaches the customers. Murdoch's +satellite systems now distribute News Corp. content in Europe +and Asia; if Murdoch becomes DirecTV's largest single owner, +that system will serve the same function in the United States. + +James Fallows, "The Age of Murdoch," Atlantic Monthly (September +2003): 89. + + +
+ +The pattern with Murdoch is the pattern of modern media. Not +just large companies owning many radio stations, but a few companies +owning as many outlets of media as possible. A picture describes this +pattern better than a thousand words could do: + +
+ + +
+ + +Does this concentration matter? Will it affect what is made, or +what is distributed? Or is it merely a more efficient way to produce and +distribute content? + + +My view was that concentration wouldn't matter. I thought it was +nothing more than a more efficient financial structure. But now, after +reading and listening to a barrage of creators try to convince me to the +contrary, I am beginning to change my mind. + + +Here's a representative story that begins to suggest how this + integration +may matter. + +ABC + +In 1969, Norman Lear created a pilot for All in the Family. He took +the pilot to ABC. The network didn't like it. It was too edgy, they told +Lear. Make it again. Lear made a second pilot, more edgy than the +first. ABC was exasperated. You're missing the point, they told Lear. +We wanted less edgy, not more. + + +Rather than comply, Lear simply took the show elsewhere. CBS +was happy to have the series; ABC could not stop Lear from walking. +The copyrights that Lear held assured an independence from network +control. + +Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center +Forum, "Entertainment Economics: The Movie Industry," St. Louis, + Missouri, +3 April 2003 (transcript of prepared remarks available at +link #28; +for the Lear story, not included in the prepared remarks, see +link #29). + + + + + +The network did not control those copyrights because the law + forbade +the networks from controlling the content they syndicated. The +law required a separation between the networks and the content + producers; +that separation would guarantee Lear freedom. And as late as +1992, because of these rules, the vast majority of prime time + television--75 +percent of it--was "independent" of the networks. + + +In 1994, the FCC abandoned the rules that required this + independence. +After that change, the networks quickly changed the balance. +In 1985, there were twenty-five independent television production + studios; +in 2002, only five independent television studios remained. "In +1992, only 15 percent of new series were produced for a network by a +company it controlled. Last year, the percentage of shows produced by +controlled companies more than quintupled to 77 percent." "In 1992, +16 new series were produced independently of conglomerate control, +last year there was one." + +NewsCorp./DirecTV Merger and Media Consolidation: Hearings on +Media Ownership Before the Senate Commerce Committee, 108th +Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf of + Consumers +Union and the Consumer Federation of America), available at +link #30. Kimmelman quotes Victoria Riskin, president of Writers Guild of +America, West, in her Remarks at FCC En Banc Hearing, Richmond, +Virginia, 27 February 2003. + +In 2002, 75 percent of prime time television +was owned by the networks that ran it. "In the ten-year period between +1992 and 2002, the number of prime time television hours per week +produced by network studios increased over 200%, whereas the + number +of prime time television hours per week produced by independent +studios decreased 63%." + +Ibid. + + + +Today, another Norman Lear with another All in the Family would +find that he had the choice either to make the show less edgy or to be +fired: The content of any show developed for a network is increasingly +owned by the network. + + +While the number of channels has increased dramatically, the + ownership +of those channels has narrowed to an ever smaller and smaller +few. As Barry Diller said to Bill Moyers, + +
+ +Well, if you have companies that produce, that finance, that air on +their channel and then distribute worldwide everything that goes +through their controlled distribution system, then what you get is +fewer and fewer actual voices participating in the process. [We + +u]sed to have dozens and dozens of thriving independent + production +companies producing television programs. Now you have less +than a handful. + +"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill +Moyers, 25 April 2003, edited transcript available at +link #31. + + +
+ +This narrowing has an effect on what is produced. The product of +such large and concentrated networks is increasingly homogenous. + Increasingly +safe. Increasingly sterile. The product of news shows from +networks like this is increasingly tailored to the message the network +wants to convey. This is not the communist party, though from the + inside, +it must feel a bit like the communist party. No one can question +without risk of consequence--not necessarily banishment to Siberia, +but punishment nonetheless. Independent, critical, different views are +quashed. This is not the environment for a democracy. + + +Economics itself offers a parallel that explains why this integration +affects creativity. Clay Christensen has written about the "Innovator's +Dilemma": the fact that large traditional firms find it rational to ignore +new, breakthrough technologies that compete with their core business. +The same analysis could help explain why large, traditional media +companies would find it rational to ignore new cultural trends. + +Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary + National +Bestseller that Changed the Way We Do Business (Cambridge: Harvard +Business School Press, 1997). Christensen acknowledges that the idea was +first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of +Design Hierarchies and Market Concepts in Technological Evolution," +Research Policy 14 (1985): 235­51. For a more recent study, see Richard +Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are +Built to Last Underperform the Market--and How to Successfully Transform +Them (New York: Currency/Doubleday, 2001). + + + Lumbering +giants not only don't, but should not, sprint. Yet if the field is +only open to the giants, there will be far too little sprinting. + + +I don't think we know enough about the economics of the media +market to say with certainty what concentration and integration will +do. The efficiencies are important, and the effect on culture is hard to +measure. + + +But there is a quintessentially obvious example that does strongly +suggest the concern. + + +In addition to the copyright wars, we're in the middle of the drug +wars. Government policy is strongly directed against the drug cartels; +criminal and civil courts are filled with the consequences of this battle. + + +Let me hereby disqualify myself from any possible appointment to +any position in government by saying I believe this war is a profound +mistake. I am not pro drugs. Indeed, I come from a family once + + +wrecked by drugs--though the drugs that wrecked my family were all +quite legal. I believe this war is a profound mistake because the + collateral +damage from it is so great as to make waging the war insane. +When you add together the burdens on the criminal justice system, the +desperation of generations of kids whose only real economic + opportunities +are as drug warriors, the queering of constitutional protections + because +of the constant surveillance this war requires, and, most profoundly, +the total destruction of the legal systems of many South American + nations +because of the power of the local drug cartels, I find it impossible +to believe that the marginal benefit in reduced drug consumption by +Americans could possibly outweigh these costs. + + +You may not be convinced. That's fine. We live in a democracy, and +it is through votes that we are to choose policy. But to do that, we + depend +fundamentally upon the press to help inform Americans about +these issues. + + +Beginning in 1998, the Office of National Drug Control Policy +launched a media campaign as part of the "war on drugs." The + campaign +produced scores of short film clips about issues related to illegal +drugs. In one series (the Nick and Norm series) two men are in a bar, +discussing the idea of legalizing drugs as a way to avoid some of the +collateral damage from the war. One advances an argument in favor of +drug legalization. The other responds in a powerful and effective way +against the argument of the first. In the end, the first guy changes his +mind (hey, it's television). The plug at the end is a damning attack on +the pro-legalization campaign. + + +Fair enough. It's a good ad. Not terribly misleading. It delivers its +message well. It's a fair and reasonable message. + + +But let's say you think it is a wrong message, and you'd like to run a +countercommercial. Say you want to run a series of ads that try to +demonstrate the extraordinary collateral harm that comes from the +drug war. Can you do it? + + +Well, obviously, these ads cost lots of money. Assume you raise the + +money. Assume a group of concerned citizens donates all the money in +the world to help you get your message out. Can you be sure your + message +will be heard then? + + +No. You cannot. Television stations have a general policy of + avoiding +"controversial" ads. Ads sponsored by the government are deemed +uncontroversial; ads disagreeing with the government are controversial. +This selectivity might be thought inconsistent with the First + Amendment, +but the Supreme Court has held that stations have the right to +choose what they run. Thus, the major channels of commercial media +will refuse one side of a crucial debate the opportunity to present its case. +And the courts will defend the rights of the stations to be this biased. + +The Marijuana Policy Project, in February 2003, sought to place ads that +directly responded to the Nick and Norm series on stations within the +Washington, D.C., area. Comcast rejected the ads as "against [their] + policy." +The local NBC affiliate, WRC, rejected the ads without reviewing +them. The local ABC affiliate, WJOA, originally agreed to run the ads and +accepted payment to do so, but later decided not to run the ads and + returned +the collected fees. Interview with Neal Levine, 15 October 2003. +These restrictions are, of course, not limited to drug policy. See, for + example, +Nat Ives, "On the Issue of an Iraq War, Advocacy Ads Meet with +Rejection from TV Networks," New York Times, 13 March 2003, C4. + Outside +of election-related air time there is very little that the FCC or the +courts are willing to do to even the playing field. For a general overview, +see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial + Advertising +on Television and Radio," Yale Law and Policy Review 6 (1988): +449­79, and for a more recent summary of the stance of the FCC and the +courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d +872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as +the networks. In a recent example from San Francisco, the San Francisco +transit authority rejected an ad that criticized its Muni diesel buses. Phillip +Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects +Ad," SFGate.com, 16 June 2003, available at +link #32. The ground was +that the criticism was "too controversial." + + + +I'd be happy to defend the networks' rights, as well--if we lived in +a media market that was truly diverse. But concentration in the media +throws that condition into doubt. If a handful of companies control + access +to the media, and that handful of companies gets to decide which +political positions it will allow to be promoted on its channels, then in +an obvious and important way, concentration matters. You might like +the positions the handful of companies selects. But you should not like +a world in which a mere few get to decide which issues the rest of us +get to know about. + + + + +Together + +There is something innocent and obvious about the claim of the + copyright +warriors that the government should "protect my property." In +the abstract, it is obviously true and, ordinarily, totally harmless. No +sane sort who is not an anarchist could disagree. + + +But when we see how dramatically this "property" has changed-- +when we recognize how it might now interact with both technology +and markets to mean that the effective constraint on the liberty to + cultivate +our culture is dramatically different--the claim begins to seem + + +less innocent and obvious. Given (1) the power of technology to + supplement +the law's control, and (2) the power of concentrated markets +to weaken the opportunity for dissent, if strictly enforcing the + massively +expanded "property" rights granted by copyright fundamentally +changes the freedom within this culture to cultivate and build upon our +past, then we have to ask whether this property should be redefined. + + +Not starkly. Or absolutely. My point is not that we should abolish +copyright or go back to the eighteenth century. That would be a total +mistake, disastrous for the most important creative enterprises within +our culture today. + + +But there is a space between zero and one, Internet culture + notwithstanding. +And these massive shifts in the effective power of copyright +regulation, tied to increased concentration of the content industry and +resting in the hands of technology that will increasingly enable control +over the use of culture, should drive us to consider whether another + adjustment +is called for. Not an adjustment that increases copyright's +power. Not an adjustment that increases its term. Rather, an + adjustment +to restore the balance that has traditionally defined copyright's +regulation--a weakening of that regulation, to strengthen creativity. + + +Copyright law has not been a rock of Gibraltar. It's not a set of + constant +commitments that, for some mysterious reason, teenagers and +geeks now flout. Instead, copyright power has grown dramatically in a +short period of time, as the technologies of distribution and creation +have changed and as lobbyists have pushed for more control by + copyright +holders. Changes in the past in response to changes in + technology +suggest that we may well need similar changes in the future. And +these changes have to be reductions in the scope of copyright, in + response +to the extraordinary increase in control that technology and the +market enable. + + +For the single point that is lost in this war on pirates is a point that +we see only after surveying the range of these changes. When you add + +together the effect of changing law, concentrated markets, and + changing +technology, together they produce an astonishing conclusion: +Never in our history have fewer had a legal right to control more of the + development +of our culture than now. + + +Not when copyrights were perpetual, for when copyrights were +perpetual, they affected only that precise creative work. Not when only +publishers had the tools to publish, for the market then was much more +diverse. Not when there were only three television networks, for even +then, newspapers, film studios, radio stations, and publishers were + independent +of the networks. Never has copyright protected such a wide +range of rights, against as broad a range of actors, for a term that was +remotely as long. This form of regulation--a tiny regulation of a tiny +part of the creative energy of a nation at the founding--is now a + massive +regulation of the overall creative process. Law plus technology plus +the market now interact to turn this historically benign regulation into +the most significant regulation of culture that our free society has +known. + +Siva Vaidhyanathan captures a similar point in his "four surrenders" of +copyright law in the digital age. See Vaidhyanathan, 159­60. + + + +This has been a long chapter. Its point can now be briefly stated. + + +At the start of this book, I distinguished between commercial and +noncommercial culture. In the course of this chapter, I have + distinguished +between copying a work and transforming it. We can now +combine these two distinctions and draw a clear map of the changes +that copyright law has undergone. +In 1790, the law looked like this: + + + + + + + + + PUBLISH + TRANSFORM + + + + + Commercial + © + Free + + + Noncommercial + Free + Free + + + +
+ + +The act of publishing a map, chart, and book was regulated by +copyright law. Nothing else was. Transformations were free. And as +copyright attached only with registration, and only those who intended + + +to benefit commercially would register, copying through publishing of +noncommercial work was also free. + + +By the end of the nineteenth century, the law had changed to this: + + + + + + + + + PUBLISH + TRANSFORM + + + + + Commercial + © + © + + + Noncommercial + Free + Free + + + +
+ + +Derivative works were now regulated by copyright law--if + published, +which again, given the economics of publishing at the time, +means if offered commercially. But noncommercial publishing and +transformation were still essentially free. + + +In 1909 the law changed to regulate copies, not publishing, and + after +this change, the scope of the law was tied to technology. As the +technology of copying became more prevalent, the reach of the law + expanded. +Thus by 1975, as photocopying machines became more + common, +we could say the law began to look like this: + + + + + + + + + COPY + TRANSFORM + + + + + Commercial + © + © + + + Noncommercial + ©/Free + Free + + + +
+ + +The law was interpreted to reach noncommercial copying through, +say, copy machines, but still much of copying outside of the + commercial +market remained free. But the consequence of the emergence of +digital technologies, especially in the context of a digital network, +means that the law now looks like this: + + + + + + + + + COPY + TRANSFORM + + + + + Commercial + © + © + + + Noncommercial + © + © + + + +
+ + +Every realm is governed by copyright law, whereas before most + creativity +was not. The law now regulates the full range of creativity-- + +commercial or not, transformative or not--with the same rules designed +to regulate commercial publishers. + + +Obviously, copyright law is not the enemy. The enemy is regulation +that does no good. So the question that we should be asking just now +is whether extending the regulations of copyright law into each of +these domains actually does any good. + + +I have no doubt that it does good in regulating commercial copying. +But I also have no doubt that it does more harm than good when +regulating (as it regulates just now) noncommercial copying and, + especially, +noncommercial transformation. And increasingly, for the + reasons +sketched especially in chapters 7 and 8, one might well wonder +whether it does more harm than good for commercial transformation. +More commercial transformative work would be created if derivative +rights were more sharply restricted. + + +The issue is therefore not simply whether copyright is property. Of +course copyright is a kind of "property," and of course, as with any +property, the state ought to protect it. But first impressions + notwithstanding, +historically, this property right (as with all property rights + +It was the single most important contribution of the legal realist + movement +to demonstrate that all property rights are always crafted to balance +public and private interests. See Thomas C. Grey, "The Disintegration of +Property," in Nomos XXII: Property, J. Roland Pennock and John W. +Chapman, eds. (New York: New York University Press, 1980). +) +has been crafted to balance the important need to give authors and +artists incentives with the equally important need to assure access to +creative work. This balance has always been struck in light of new + technologies. +And for almost half of our tradition, the "copyright" did not +control at all the freedom of others to build upon or transform a creative +work. American culture was born free, and for almost 180 years our +country consistently protected a vibrant and rich free culture. + + +We achieved that free culture because our law respected important +limits on the scope of the interests protected by "property." The very +birth of "copyright" as a statutory right recognized those limits, by +granting copyright owners protection for a limited time only (the story +of chapter 6). The tradition of "fair use" is animated by a similar + concern +that is increasingly under strain as the costs of exercising any fair +use right become unavoidably high (the story of chapter 7). Adding + +statutory rights where markets might stifle innovation is another + familiar +limit on the property right that copyright is (chapter 8). And + granting +archives and libraries a broad freedom to collect, claims of property +notwithstanding, is a crucial part of guaranteeing the soul of a culture +(chapter 9). Free cultures, like free markets, are built with property. But +the nature of the property that builds a free culture is very different +from the extremist vision that dominates the debate today. + + +Free culture is increasingly the casualty in this war on piracy. In + response +to a real, if not yet quantified, threat that the technologies of the +Internet present to twentieth-century business models for producing +and distributing culture, the law and technology are being transformed +in a way that will undermine our tradition of free culture. The property +right that is copyright is no longer the balanced right that it was, or +was intended to be. The property right that is copyright has become +unbalanced, tilted toward an extreme. The opportunity to create and +transform becomes weakened in a world in which creation requires +permission and creativity must check with a lawyer. + + + + + + +PUZZLES + + + + + +CHAPTER ELEVEN: Chimera + + +In a well-known short story by H. G. Wells, a mountain climber +named Nunez trips (literally, down an ice slope) into an unknown and +isolated valley in the Peruvian Andes. + H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells, +The Country of the Blind and Other Stories, Michael Sherborne, ed. (New +York: Oxford University Press, 1996). + +The valley is extraordinarily +beautiful, with "sweet water, pasture, an even climate, slopes of rich +brown soil with tangles of a shrub that bore an excellent fruit." But the +villagers are all blind. Nunez takes this as an opportunity. "In the +Country of the Blind," he tells himself, "the One-Eyed Man is King." +So he resolves to live with the villagers to explore life as a king. + + +Things don't go quite as he planned. He tries to explain the idea of +sight to the villagers. They don't understand. He tells them they are +"blind." They don't have the word blind. They think he's just thick. + Indeed, +as they increasingly notice the things he can't do (hear the sound +of grass being stepped on, for example), they increasingly try to control +him. He, in turn, becomes increasingly frustrated. "`You don't + understand,' +he cried, in a voice that was meant to be great and resolute, and +which broke. `You are blind and I can see. Leave me alone!'" + + + +The villagers don't leave him alone. Nor do they see (so to speak) +the virtue of his special power. Not even the ultimate target of his + affection, +a young woman who to him seems "the most beautiful thing in +the whole of creation," understands the beauty of sight. Nunez's + description +of what he sees "seemed to her the most poetical of fancies, +and she listened to his description of the stars and the mountains and +her own sweet white-lit beauty as though it was a guilty indulgence." +"She did not believe," Wells tells us, and "she could only half + understand, +but she was mysteriously delighted." + + +When Nunez announces his desire to marry his "mysteriously + delighted" +love, the father and the village object. "You see, my dear," her +father instructs, "he's an idiot. He has delusions. He can't do anything +right." They take Nunez to the village doctor. + + +After a careful examination, the doctor gives his opinion. "His brain +is affected," he reports. + + +"What affects it?" the father asks. +"Those queer things that are called the eyes . . . are diseased . . . in +such a way as to affect his brain." + + +The doctor continues: "I think I may say with reasonable certainty +that in order to cure him completely, all that we need to do is a simple +and easy surgical operation--namely, to remove these irritant bodies +[the eyes]." + + +"Thank Heaven for science!" says the father to the doctor. They + inform +Nunez of this condition necessary for him to be allowed his bride. +(You'll have to read the original to learn what happens in the end. I + believe +in free culture, but never in giving away the end of a story.) +It sometimes happens that the eggs of twins fuse in the mother's +womb. That fusion produces a "chimera." A chimera is a single creature +with two sets of DNA. The DNA in the blood, for example, might be +different from the DNA of the skin. This possibility is an underused + + +plot for murder mysteries. "But the DNA shows with 100 percent + certainty +that she was not the person whose blood was at the scene. . . ." + + +Before I had read about chimeras, I would have said they were + impossible. +A single person can't have two sets of DNA. The very idea of +DNA is that it is the code of an individual. Yet in fact, not only can two +individuals have the same set of DNA (identical twins), but one person +can have two different sets of DNA (a chimera). Our understanding of +a "person" should reflect this reality. + + +The more I work to understand the current struggle over copyright +and culture, which I've sometimes called unfairly, and sometimes not +unfairly enough, "the copyright wars," the more I think we're dealing +with a chimera. For example, in the battle over the question "What is +p2p file sharing?" both sides have it right, and both sides have it wrong. +One side says, "File sharing is just like two kids taping each others' +records--the sort of thing we've been doing for the last thirty years +without any question at all." That's true, at least in part. When I tell my +best friend to try out a new CD that I've bought, but rather than just +send the CD, I point him to my p2p server, that is, in all relevant + respects, +just like what every executive in every recording company no +doubt did as a kid: sharing music. + + +But the description is also false in part. For when my p2p server is +on a p2p network through which anyone can get access to my music, +then sure, my friends can get access, but it stretches the meaning of +"friends" beyond recognition to say "my ten thousand best friends" can +get access. Whether or not sharing my music with my best friend is +what "we have always been allowed to do," we have not always been + allowed +to share music with "our ten thousand best friends." + + +Likewise, when the other side says, "File sharing is just like walking +into a Tower Records and taking a CD off the shelf and walking out +with it," that's true, at least in part. If, after Lyle Lovett (finally) + releases +a new album, rather than buying it, I go to Kazaa and find a free +copy to take, that is very much like stealing a copy from Tower. + + + + +But it is not quite stealing from Tower. After all, when I take a CD +from Tower Records, Tower has one less CD to sell. And when I take +a CD from Tower Records, I get a bit of plastic and a cover, and + something +to show on my shelves. (And, while we're at it, we could also note +that when I take a CD from Tower Records, the maximum fine that +might be imposed on me, under California law, at least, is $1,000. + According +to the RIAA, by contrast, if I download a ten-song CD, I'm + liable +for $1,500,000 in damages.) + + +The point is not that it is as neither side describes. The point is that +it is both--both as the RIAA describes it and as Kazaa describes it. It +is a chimera. And rather than simply denying what the other side + asserts, +we need to begin to think about how we should respond to this +chimera. What rules should govern it? + + +We could respond by simply pretending that it is not a chimera. We +could, with the RIAA, decide that every act of file sharing should be a +felony. We could prosecute families for millions of dollars in damages +just because file sharing occurred on a family computer. And we can get +universities to monitor all computer traffic to make sure that no + computer +is used to commit this crime. These responses might be extreme, +but each of them has either been proposed or actually implemented. + For an excellent summary, see the report prepared by GartnerG2 and the +Berkman Center for Internet and Society at Harvard Law School, + "Copyright +and Digital Media in a Post-Napster World," 27 June 2003, available +at +link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman +(D-Calif.) have introduced a bill that would treat unauthorized on-line +copying as a felony offense with punishments ranging as high as five years +imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy," +Los Angeles Times, 17 July 2003, available at +link #34. Civil penalties are +currently set at $150,000 per copied song. For a recent (and unsuccessful) +legal challenge to the RIAA's demand that an ISP reveal the identity of a +user accused of sharing more than 600 songs through a family computer, +see RIAA v. Verizon Internet Services (In re. Verizon Internet Services), 240 F. +Supp. 2d 24 (D.D.C. 2003). Such a user could face liability ranging as +high as $90 million. Such astronomical figures furnish the RIAA with a +powerful arsenal in its prosecution of file sharers. Settlements ranging +from $12,000 to $17,500 for four students accused of heavy file sharing on +university networks must have seemed a mere pittance next to the $98 + billion +the RIAA could seek should the matter proceed to court. See + Elizabeth +Young, "Downloading Could Lead to Fines," redandblack.com, +August 2003, available at +link #35. For an example of the RIAA's + targeting +of student file sharing, and of the subpoenas issued to universities to +reveal student file-sharer identities, see James Collins, "RIAA Steps Up +Bid to Force BC, MIT to Name Students," Boston Globe, 8 August 2003, +D3, available at +link #36. + + + + +Alternatively, we could respond to file sharing the way many kids +act as though we've responded. We could totally legalize it. Let there +be no copyright liability, either civil or criminal, for making + copyrighted +content available on the Net. Make file sharing like gossip: + regulated, +if at all, by social norms but not by law. + + +Either response is possible. I think either would be a mistake. +Rather than embrace one of these two extremes, we should embrace +something that recognizes the truth in both. And while I end this book +with a sketch of a system that does just that, my aim in the next chapter +is to show just how awful it would be for us to adopt the zero-tolerance +extreme. I believe either extreme would be worse than a reasonable + alternative. +But I believe the zero-tolerance solution would be the worse +of the two extremes. + + + + +Yet zero tolerance is increasingly our government's policy. In the +middle of the chaos that the Internet has created, an extraordinary land +grab is occurring. The law and technology are being shifted to give + content +holders a kind of control over our culture that they have never had +before. And in this extremism, many an opportunity for new + innovation +and new creativity will be lost. + + +I'm not talking about the opportunities for kids to "steal" music. My +focus instead is the commercial and cultural innovation that this war +will also kill. We have never seen the power to innovate spread so +broadly among our citizens, and we have just begun to see the + innovation +that this power will unleash. Yet the Internet has already seen the +passing of one cycle of innovation around technologies to distribute +content. The law is responsible for this passing. As the vice president +for global public policy at one of these new innovators, eMusic.com, +put it when criticizing the DMCA's added protection for copyrighted +material, + +
+ +eMusic opposes music piracy. We are a distributor of copyrighted +material, and we want to protect those rights. + + +But building a technology fortress that locks in the clout of +the major labels is by no means the only way to protect copyright +interests, nor is it necessarily the best. It is simply too early to + answer +that question. Market forces operating naturally may very +well produce a totally different industry model. + + +This is a critical point. The choices that industry sectors make +with respect to these systems will in many ways directly shape the +market for digital media and the manner in which digital media +are distributed. This in turn will directly influence the options +that are available to consumers, both in terms of the ease with +which they will be able to access digital media and the equipment +that they will require to do so. Poor choices made this early in the +game will retard the growth of this market, hurting everyone's +interests. + WIPO and the DMCA One Year Later: Assessing Consumer Access to +Digital Entertainment on the Internet and Other Media: Hearing Before +the Subcommittee on Telecommunications, Trade, and Consumer + Protection, +House Committee on Commerce, 106th Cong. 29 (1999) (statement +of Peter Harter, vice president, Global Public Policy and Standards, + EMusic.com), +available in LEXIS, Federal Document Clearing House + Congressional +Testimony File. + + +
+ + +In April 2001, eMusic.com was purchased by Vivendi Universal, +one of "the major labels." Its position on these matters has now +changed. + + +Reversing our tradition of tolerance now will not merely quash +piracy. It will sacrifice values that are important to this culture, and will +kill opportunities that could be extraordinarily valuable. + + + + + +CHAPTER TWELVE: Harms + + +To fight "piracy," to protect "property," the content industry has +launched a war. Lobbying and lots of campaign contributions have +now brought the government into this war. As with any war, this one +will have both direct and collateral damage. As with any war of + prohibition, +these damages will be suffered most by our own people. + + +My aim so far has been to describe the consequences of this war, in +particular, the consequences for "free culture." But my aim now is to + extend +this description of consequences into an argument. Is this war + justified? + + +In my view, it is not. There is no good reason why this time, for the +first time, the law should defend the old against the new, just when the +power of the property called "intellectual property" is at its greatest in +our history. + + +Yet "common sense" does not see it this way. Common sense is still +on the side of the Causbys and the content industry. The extreme +claims of control in the name of property still resonate; the uncritical +rejection of "piracy" still has play. + + + +There will be many consequences of continuing this war. I want to +describe just three. All three might be said to be unintended. I am quite +confident the third is unintended. I'm less sure about the first two. The +first two protect modern RCAs, but there is no Howard Armstrong in +the wings to fight today's monopolists of culture. + + +Constraining Creators + +In the next ten years we will see an explosion of digital technologies. +These technologies will enable almost anyone to capture and share +content. Capturing and sharing content, of course, is what humans have +done since the dawn of man. It is how we learn and communicate. But +capturing and sharing through digital technology is different. The + fidelity +and power are different. You could send an e-mail telling + someone +about a joke you saw on Comedy Central, or you could send the +clip. You could write an essay about the inconsistencies in the + arguments +of the politician you most love to hate, or you could make a short +film that puts statement against statement. You could write a poem to +express your love, or you could weave together a string--a mash-up-- +of songs from your favorite artists in a collage and make it available on +the Net. + + +This digital "capturing and sharing" is in part an extension of the +capturing and sharing that has always been integral to our culture, and +in part it is something new. It is continuous with the Kodak, but it + explodes +the boundaries of Kodak-like technologies. The technology of +digital "capturing and sharing" promises a world of extraordinarily + diverse +creativity that can be easily and broadly shared. And as that + creativity +is applied to democracy, it will enable a broad range of citizens +to use technology to express and criticize and contribute to the culture +all around. + + +Technology has thus given us an opportunity to do something with +culture that has only ever been possible for individuals in small groups, + + +isolated from others. Think about an old man telling a story to a + collection +of neighbors in a small town. Now imagine that same + storytelling +extended across the globe. + + +Yet all this is possible only if the activity is presumptively legal. In +the current regime of legal regulation, it is not. Forget file sharing for +a moment. Think about your favorite amazing sites on the Net. Web +sites that offer plot summaries from forgotten television shows; sites +that catalog cartoons from the 1960s; sites that mix images and sound +to criticize politicians or businesses; sites that gather newspaper articles +on remote topics of science or culture. There is a vast amount of creative +work spread across the Internet. But as the law is currently crafted, this +work is presumptively illegal. + + +That presumption will increasingly chill creativity, as the examples +of extreme penalties for vague infringements continue to proliferate. It +is impossible to get a clear sense of what's allowed and what's not, and at +the same time, the penalties for crossing the line are astonishingly harsh. +The four students who were threatened by the RIAA ( Jesse Jordan of +chapter 3 was just one) were threatened with a $98 billion lawsuit for +building search engines that permitted songs to be copied. Yet + World-Com--which +defrauded investors of $11 billion, resulting in a loss to + investors +in market capitalization of over $200 billion--received a fine of a +mere $750 million. + See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom + (Hoboken, +N.J.: John Wiley & Sons, 2003), 176, 204; for details of the + settlement, +see MCI press release, "MCI Wins U.S. District Court Approval for +SEC Settlement" (7 July 2003), available at +link #37. + + And under legislation being pushed in Congress +right now, a doctor who negligently removes the wrong leg in an + operation +would be liable for no more than $250,000 in damages for pain and +suffering. + The bill, modeled after California's tort reform model, was passed in the +House of Representatives but defeated in a Senate vote in July 2003. For +an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,' +Say Tort Reformers," amednews.com, 28 July 2003, available at +link #38, +and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003, +available at +link #39. President Bush has continued to urge tort reform in +recent months. + + Can common sense recognize the absurdity in a world where +the maximum fine for downloading two songs off the Internet is more +than the fine for a doctor's negligently butchering a patient? + + +The consequence of this legal uncertainty, tied to these extremely +high penalties, is that an extraordinary amount of creativity will either +never be exercised, or never be exercised in the open. We drive this + creative +process underground by branding the modern-day Walt Disneys +"pirates." We make it impossible for businesses to rely upon a public +domain, because the boundaries of the public domain are designed to + + +be unclear. It never pays to do anything except pay for the right to + create, +and hence only those who can pay are allowed to create. As was the +case in the Soviet Union, though for very different reasons, we will + begin +to see a world of underground art--not because the message is + necessarily +political, or because the subject is controversial, but because the +very act of creating the art is legally fraught. Already, exhibits of + "illegal +art" tour the United States. + See Danit Lidor, "Artists Just Wanna Be Free," Wired, 7 July 2003, + available +at +link #40. For an overview of the exhibition, see +link #41. + + In what does their "illegality" consist? +In the act of mixing the culture around us with an expression that is +critical or reflective. + + +Part of the reason for this fear of illegality has to do with the + changing +law. I described that change in detail in chapter 10. But an even +bigger part has to do with the increasing ease with which infractions +can be tracked. As users of file-sharing systems discovered in 2002, it +is a trivial matter for copyright owners to get courts to order Internet +service providers to reveal who has what content. It is as if your cassette +tape player transmitted a list of the songs that you played in the privacy +of your own home that anyone could tune into for whatever reason +they chose. + + +Never in our history has a painter had to worry about whether +his painting infringed on someone else's work; but the modern-day +painter, using the tools of Photoshop, sharing content on the Web, +must worry all the time. Images are all around, but the only safe images +to use in the act of creation are those purchased from Corbis or another +image farm. And in purchasing, censoring happens. There is a free +market in pencils; we needn't worry about its effect on creativity. But +there is a highly regulated, monopolized market in cultural icons; the +right to cultivate and transform them is not similarly free. + + +Lawyers rarely see this because lawyers are rarely empirical. As I +described in chapter 7, in response to the story about documentary +filmmaker Jon Else, I have been lectured again and again by lawyers +who insist Else's use was fair use, and hence I am wrong to say that the +law regulates such a use. + + + + +But fair use in America simply means the right to hire a lawyer to +defend your right to create. And as lawyers love to forget, our system +for defending rights such as fair use is astonishingly bad--in practically +every context, but especially here. It costs too much, it delivers too +slowly, and what it delivers often has little connection to the justice + underlying +the claim. The legal system may be tolerable for the very rich. +For everyone else, it is an embarrassment to a tradition that prides + itself +on the rule of law. + + +Judges and lawyers can tell themselves that fair use provides + adequate +"breathing room" between regulation by the law and the access +the law should allow. But it is a measure of how out of touch our legal +system has become that anyone actually believes this. The rules that +publishers impose upon writers, the rules that film distributors impose +upon filmmakers, the rules that newspapers impose upon journalists-- +these are the real laws governing creativity. And these rules have little +relationship to the "law" with which judges comfort themselves. + + +For in a world that threatens $150,000 for a single willful + infringement +of a copyright, and which demands tens of thousands of dollars to +even defend against a copyright infringement claim, and which would +never return to the wrongfully accused defendant anything of the costs +she suffered to defend her right to speak--in that world, the + astonishingly +broad regulations that pass under the name "copyright" silence +speech and creativity. And in that world, it takes a studied blindness for +people to continue to believe they live in a culture that is free. + + +As Jed Horovitz, the businessman behind Video Pipeline, said +to me, + +
+ +We're losing [creative] opportunities right and left. Creative +people are being forced not to express themselves. Thoughts are +not being expressed. And while a lot of stuff may [still] be created, +it still won't get distributed. Even if the stuff gets made . . . you're +not going to get it distributed in the mainstream media unless + +you've got a little note from a lawyer saying, "This has been +cleared." You're not even going to get it on PBS without that kind +of permission. That's the point at which they control it. + +
+ + +Constraining Innovators + +The story of the last section was a crunchy-lefty story--creativity +quashed, artists who can't speak, yada yada yada. Maybe that doesn't +get you going. Maybe you think there's enough weird art out there, and +enough expression that is critical of what seems to be just about + everything. +And if you think that, you might think there's little in this story +to worry you. + + +But there's an aspect of this story that is not lefty in any sense. + Indeed, +it is an aspect that could be written by the most extreme + promarket +ideologue. And if you're one of these sorts (and a special one at +that, 188 pages into a book like this), then you can see this other aspect +by substituting "free market" every place I've spoken of "free culture." +The point is the same, even if the interests affecting culture are more +fundamental. + + +The charge I've been making about the regulation of culture is the +same charge free marketers make about regulating markets. Everyone, +of course, concedes that some regulation of markets is necessary--at a +minimum, we need rules of property and contract, and courts to + enforce +both. Likewise, in this culture debate, everyone concedes that at +least some framework of copyright is also required. But both + perspectives +vehemently insist that just because some regulation is good, it +doesn't follow that more regulation is better. And both perspectives are +constantly attuned to the ways in which regulation simply enables the +powerful industries of today to protect themselves against the + competitors +of tomorrow. + + +This is the single most dramatic effect of the shift in regulatory + +strategy that I described in chapter 10. The consequence of this + massive +threat of liability tied to the murky boundaries of copyright law is +that innovators who want to innovate in this space can safely innovate +only if they have the sign-off from last generation's dominant + industries. +That lesson has been taught through a series of cases that were +designed and executed to teach venture capitalists a lesson. That + lesson--what +former Napster CEO Hank Barry calls a "nuclear pall" that +has fallen over the Valley--has been learned. + + +Consider one example to make the point, a story whose beginning +I told in The Future of Ideas and which has progressed in a way that +even I (pessimist extraordinaire) would never have predicted. + + +In 1997, Michael Roberts launched a company called MP3.com. +MP3.com was keen to remake the music business. Their goal was not +just to facilitate new ways to get access to content. Their goal was also +to facilitate new ways to create content. Unlike the major labels, +MP3.com offered creators a venue to distribute their creativity, + without +demanding an exclusive engagement from the creators. + + +To make this system work, however, MP3.com needed a reliable +way to recommend music to its users. The idea behind this alternative +was to leverage the revealed preferences of music listeners to + recommend +new artists. If you like Lyle Lovett, you're likely to enjoy Bonnie +Raitt. And so on. + + +This idea required a simple way to gather data about user + preferences. +MP3.com came up with an extraordinarily clever way to gather +this preference data. In January 2000, the company launched a service +called my.mp3.com. Using software provided by MP3.com, a user would +sign into an account and then insert into her computer a CD. The + software +would identify the CD, and then give the user access to that + content. +So, for example, if you inserted a CD by Jill Sobule, then +wherever you were--at work or at home--you could get access to that +music once you signed into your account. The system was therefore a +kind of music-lockbox. + + +No doubt some could use this system to illegally copy content. But +that opportunity existed with or without MP3.com. The aim of the + + +my.mp3.com service was to give users access to their own content, and +as a by-product, by seeing the content they already owned, to discover +the kind of content the users liked. + + +To make this system function, however, MP3.com needed to copy +50,000 CDs to a server. (In principle, it could have been the user who +uploaded the music, but that would have taken a great deal of time, and +would have produced a product of questionable quality.) It therefore +purchased 50,000 CDs from a store, and started the process of making +copies of those CDs. Again, it would not serve the content from those +copies to anyone except those who authenticated that they had a copy +of the CD they wanted to access. So while this was 50,000 copies, it +was 50,000 copies directed at giving customers something they had + already +bought. + + +Nine days after MP3.com launched its service, the five major labels, +headed by the RIAA, brought a lawsuit against MP3.com. MP3.com +settled with four of the five. Nine months later, a federal judge found +MP3.com to have been guilty of willful infringement with respect to +the fifth. Applying the law as it is, the judge imposed a fine against +MP3.com of $118 million. MP3.com then settled with the remaining +plaintiff, Vivendi Universal, paying over $54 million. Vivendi + purchased +MP3.com just about a year later. + + +That part of the story I have told before. Now consider its conclusion. + + +After Vivendi purchased MP3.com, Vivendi turned around and +filed a malpractice lawsuit against the lawyers who had advised it that +they had a good faith claim that the service they wanted to offer would +be considered legal under copyright law. This lawsuit alleged that it +should have been obvious that the courts would find this behavior + illegal; +therefore, this lawsuit sought to punish any lawyer who had dared +to suggest that the law was less restrictive than the labels demanded. + + +The clear purpose of this lawsuit (which was settled for an + unspecified +amount shortly after the story was no longer covered in the press) +was to send an unequivocal message to lawyers advising clients in this + +space: It is not just your clients who might suffer if the content + industry +directs its guns against them. It is also you. So those of you who + believe +the law should be less restrictive should realize that such a view of +the law will cost you and your firm dearly. + + +This strategy is not just limited to the lawyers. In April 2003, +Universal and EMI brought a lawsuit against Hummer Winblad, the +venture capital firm (VC) that had funded Napster at a certain stage of +its development, its cofounder ( John Hummer), and general partner +(Hank Barry). + See Joseph Menn, "Universal, EMI Sue Napster Investor," Los Angeles +Times, 23 April 2003. For a parallel argument about the effects on + innovation +in the distribution of music, see Janelle Brown, "The Music + Revolution +Will Not Be Digitized," Salon.com, 1 June 2001, available at +link #42. +See also Jon Healey, "Online Music Services Besieged," Los Angeles +Times, 28 May 2001. + + The claim here, as well, was that the VC should have +recognized the right of the content industry to control how the + industry +should develop. They should be held personally liable for funding a +company whose business turned out to be beyond the law. Here again, +the aim of the lawsuit is transparent: Any VC now recognizes that if +you fund a company whose business is not approved of by the dinosaurs, +you are at risk not just in the marketplace, but in the courtroom as well. +Your investment buys you not only a company, it also buys you a lawsuit. +So extreme has the environment become that even car manufacturers +are afraid of technologies that touch content. In an article in Business +2.0, Rafe Needleman describes a discussion with BMW: + +
+ +I asked why, with all the storage capacity and computer power in +the car, there was no way to play MP3 files. I was told that BMW +engineers in Germany had rigged a new vehicle to play MP3s via +the car's built-in sound system, but that the company's marketing +and legal departments weren't comfortable with pushing this + forward +for release stateside. Even today, no new cars are sold in the +United States with bona fide MP3 players. . . . + Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16 June +2003, available at +link #43. I am grateful to Dr. Mohammad Al-Ubaydli +for this example. + + +
+ +This is the world of the mafia--filled with "your money or your +life" offers, governed in the end not by courts but by the threats that the +law empowers copyright holders to exercise. It is a system that will + obviously +and necessarily stifle new innovation. It is hard enough to start +a company. It is impossibly hard if that company is constantly + threatened +by litigation. + + + + +The point is not that businesses should have a right to start illegal +enterprises. The point is the definition of "illegal." The law is a mess of +uncertainty. We have no good way to know how it should apply to new +technologies. Yet by reversing our tradition of judicial deference, and +by embracing the astonishingly high penalties that copyright law + imposes, +that uncertainty now yields a reality which is far more + conservative +than is right. If the law imposed the death penalty for parking +tickets, we'd not only have fewer parking tickets, we'd also have much +less driving. The same principle applies to innovation. If innovation is +constantly checked by this uncertain and unlimited liability, we will +have much less vibrant innovation and much less creativity. + + +The point is directly parallel to the crunchy-lefty point about fair +use. Whatever the "real" law is, realism about the effect of law in both +contexts is the same. This wildly punitive system of regulation will + systematically +stifle creativity and innovation. It will protect some + industries +and some creators, but it will harm industry and creativity +generally. Free market and free culture depend upon vibrant + competition. +Yet the effect of the law today is to stifle just this kind of + competition. +The effect is to produce an overregulated culture, just as the effect +of too much control in the market is to produce an + overregulatedregulated +market. + + +The building of a permission culture, rather than a free culture, is +the first important way in which the changes I have described will + burden +innovation. A permission culture means a lawyer's culture--a + culture +in which the ability to create requires a call to your lawyer. Again, +I am not antilawyer, at least when they're kept in their proper place. I +am certainly not antilaw. But our profession has lost the sense of its +limits. And leaders in our profession have lost an appreciation of the +high costs that our profession imposes upon others. The inefficiency of +the law is an embarrassment to our tradition. And while I believe our +profession should therefore do everything it can to make the law more +efficient, it should at least do everything it can to limit the reach of the + +law where the law is not doing any good. The transaction costs buried +within a permission culture are enough to bury a wide range of + creativity. +Someone needs to do a lot of justifying to justify that result. +The uncertainty of the law is one burden on innovation. There is +a second burden that operates more directly. This is the effort by many +in the content industry to use the law to directly regulate the + technology +of the Internet so that it better protects their content. + + +The motivation for this response is obvious. The Internet enables +the efficient spread of content. That efficiency is a feature of the + Internet's +design. But from the perspective of the content industry, this + feature +is a "bug." The efficient spread of content means that content +distributors have a harder time controlling the distribution of content. +One obvious response to this efficiency is thus to make the Internet +less efficient. If the Internet enables "piracy," then, this response says, +we should break the kneecaps of the Internet. + + +The examples of this form of legislation are many. At the urging of +the content industry, some in Congress have threatened legislation that +would require computers to determine whether the content they access +is protected or not, and to disable the spread of protected content. + "Copyright and Digital Media in a Post-Napster World," GartnerG2 and +the Berkman Center for Internet and Society at Harvard Law School +(2003), 33­35, available at +link #44. + + + Congress +has already launched proceedings to explore a mandatory + "broadcast +flag" that would be required on any device capable of transmitting +digital video (i.e., a computer), and that would disable the copying of +any content that is marked with a broadcast flag. Other members of +Congress have proposed immunizing content providers from liability +for technology they might deploy that would hunt down copyright + violators +and disable their machines. + GartnerG2, 26­27. + + + + +In one sense, these solutions seem sensible. If the problem is the +code, why not regulate the code to remove the problem. But any + regulation +of technical infrastructure will always be tuned to the particular +technology of the day. It will impose significant burdens and costs on + + +the technology, but will likely be eclipsed by advances around exactly +those requirements. + + +In March 2002, a broad coalition of technology companies, led by +Intel, tried to get Congress to see the harm that such legislation would +impose. + See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, +February 2002 (Entertainment). + + Their argument was obviously not that copyright should not +be protected. Instead, they argued, any protection should not do more +harm than good. + + +There is one more obvious way in which this war has harmed + innovation--again, +a story that will be quite familiar to the free market +crowd. + + +Copyright may be property, but like all property, it is also a form +of regulation. It is a regulation that benefits some and harms others. +When done right, it benefits creators and harms leeches. When done +wrong, it is regulation the powerful use to defeat competitors. + + +As I described in chapter 10, despite this feature of copyright as +regulation, and subject to important qualifications outlined by Jessica +Litman in her book Digital Copyright, + Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, +2001). + + overall this history of copyright +is not bad. As chapter 10 details, when new technologies have come +along, Congress has struck a balance to assure that the new is protected +from the old. Compulsory, or statutory, licenses have been one part of +that strategy. Free use (as in the case of the VCR) has been another. + + +But that pattern of deference to new technologies has now changed +with the rise of the Internet. Rather than striking a balance between +the claims of a new technology and the legitimate rights of content +creators, both the courts and Congress have imposed legal restrictions +that will have the effect of smothering the new to benefit the old. + + +The response by the courts has been fairly universal. + The only circuit court exception is found in Recording Industry Association +of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th +Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that +makers of a portable MP3 player were not liable for contributory + copyright +infringement for a device that is unable to record or redistribute + music +(a device whose only copying function is to render portable a music file +already stored on a user's hard drive). +At the district court level, the only exception is found in + Metro-Goldwyn-Mayer +Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D. +Cal., 2003), where the court found the link between the distributor and +any given user's conduct too attenuated to make the distributor liable for +contributory or vicarious infringement liability. + + It has been +mirrored in the responses threatened and actually implemented by +Congress. I won't catalog all of those responses here. + For example, in July 2002, Representative Howard Berman introduced the +Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize +copyright holders from liability for damage done to computers when the +copyright holders use technology to stop copyright infringement. In + August +2002, Representative Billy Tauzin introduced a bill to mandate that +technologies capable of rebroadcasting digital copies of films broadcast on +TV (i.e., computers) respect a "broadcast flag" that would disable copying +of that content. And in March of the same year, Senator Fritz Hollings +introduced the Consumer Broadband and Digital Television Promotion +Act, which mandated copyright protection technology in all digital media +devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster +World," 27 June 2003, 33­34, available at +link #44. + + But there is one +example that captures the flavor of them all. This is the story of the + demise +of Internet radio. + + + + +As I described in chapter 4, when a radio station plays a song, the +recording artist doesn't get paid for that "radio performance" unless he +or she is also the composer. So, for example if Marilyn Monroe had +recorded a version of "Happy Birthday"--to memorialize her famous +performance before President Kennedy at Madison Square Garden-- +then whenever that recording was played on the radio, the current + copyright +owners of "Happy Birthday" would get some money, whereas +Marilyn Monroe would not. + + +The reasoning behind this balance struck by Congress makes some +sense. The justification was that radio was a kind of advertising. The +recording artist thus benefited because by playing her music, the radio +station was making it more likely that her records would be purchased. +Thus, the recording artist got something, even if only indirectly. + Probably +this reasoning had less to do with the result than with the power +of radio stations: Their lobbyists were quite good at stopping any + efforts +to get Congress to require compensation to the recording artists. + + +Enter Internet radio. Like regular radio, Internet radio is a + technology +to stream content from a broadcaster to a listener. The broadcast +travels across the Internet, not across the ether of radio spectrum. +Thus, I can "tune in" to an Internet radio station in Berlin while sitting +in San Francisco, even though there's no way for me to tune in to a + regular +radio station much beyond the San Francisco metropolitan area. + + +This feature of the architecture of Internet radio means that there +are potentially an unlimited number of radio stations that a user could +tune in to using her computer, whereas under the existing architecture +for broadcast radio, there is an obvious limit to the number of + broadcasters +and clear broadcast frequencies. Internet radio could therefore +be more competitive than regular radio; it could provide a wider range +of selections. And because the potential audience for Internet radio is +the whole world, niche stations could easily develop and market their +content to a relatively large number of users worldwide. According to +some estimates, more than eighty million users worldwide have tuned +in to this new form of radio. + + + + +Internet radio is thus to radio what FM was to AM. It is an + improvement +potentially vastly more significant than the FM + improvement +over AM, since not only is the technology better, so, too, is the +competition. Indeed, there is a direct parallel between the fight to + establish +FM radio and the fight to protect Internet radio. As one author +describes Howard Armstrong's struggle to enable FM radio, + +
+ +An almost unlimited number of FM stations was possible in the +shortwaves, thus ending the unnatural restrictions imposed on + radio +in the crowded longwaves. If FM were freely developed, the +number of stations would be limited only by economics and + competition +rather than by technical restrictions. . . . Armstrong +likened the situation that had grown up in radio to that following +the invention of the printing press, when governments and ruling +interests attempted to control this new instrument of mass + communications +by imposing restrictive licenses on it. This tyranny +was broken only when it became possible for men freely to + acquire +printing presses and freely to run them. FM in this sense +was as great an invention as the printing presses, for it gave radio +the opportunity to strike off its shackles. + Lessing, 239. + + +
+ +This potential for FM radio was never realized--not because + Armstrong +was wrong about the technology, but because he underestimated +the power of "vested interests, habits, customs and legislation" + Ibid., 229. + +to + retard +the growth of this competing technology. + + +Now the very same claim could be made about Internet radio. For +again, there is no technical limitation that could restrict the number of +Internet radio stations. The only restrictions on Internet radio are +those imposed by the law. Copyright law is one such law. So the first +question we should ask is, what copyright rules would govern Internet +radio? + + +But here the power of the lobbyists is reversed. Internet radio is a +new industry. The recording artists, on the other hand, have a very + + +powerful lobby, the RIAA. Thus when Congress considered the + phenomenon +of Internet radio in 1995, the lobbyists had primed Congress +to adopt a different rule for Internet radio than the rule that applies to +terrestrial radio. While terrestrial radio does not have to pay our + hypothetical +Marilyn Monroe when it plays her hypothetical recording of +"Happy Birthday" on the air, Internet radio does. Not only is the law not +neutral toward Internet radio--the law actually burdens Internet radio +more than it burdens terrestrial radio. + + +This financial burden is not slight. As Harvard law professor +William Fisher estimates, if an Internet radio station distributed + adfree +popular music to (on average) ten thousand listeners, twenty-four +hours a day, the total artist fees that radio station would owe would be +over $1 million a year. + This example was derived from fees set by the original Copyright + Arbitration +Royalty Panel (CARP) proceedings, and is drawn from an example +offered by Professor William Fisher. Conference Proceedings, iLaw +(Stanford), 3 July 2003, on file with author. Professors Fisher and Zittrain +submitted testimony in the CARP proceeding that was ultimately rejected. +See Jonathan Zittrain, Digital Performance Right in Sound Recordings +and Ephemeral Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, +available at +link #45. +For an excellent analysis making a similar point, see Randal C. Picker, +"Copyright as Entry Policy: The Case of Digital Distribution," Antitrust +Bulletin (Summer/Fall 2002): 461: "This was not confusion, these are just +old-fashioned entry barriers. Analog radio stations are protected from + digital +entrants, reducing entry in radio and diversity. Yes, this is done in the +name of getting royalties to copyright holders, but, absent the play of + powerful +interests, that could have been done in a media-neutral way." + + A regular radio station broadcasting the same +content would pay no equivalent fee. + + +The burden is not financial only. Under the original rules that were +proposed, an Internet radio station (but not a terrestrial radio station) +would have to collect the following data from every listening transaction: + + + + +name of the service; + + +channel of the program (AM/FM stations use station ID); + + +type of program (archived/looped/live); + + +date of transmission; + + +time of transmission; + + +time zone of origination of transmission; + + +numeric designation of the place of the sound recording within the program; + + +duration of transmission (to nearest second); + + +sound recording title; + + +ISRC code of the recording; + + +release year of the album per copyright notice and in the case of compilation albums, the release year of the album and copy- right date of the track; + + +featured recording artist; + + +retail album title; + + +recording label; + + +UPC code of the retail album; + + +catalog number; + + +copyright owner information; + + +musical genre of the channel or program (station format); + + +name of the service or entity; + + +channel or program; + + +date and time that the user logged in (in the user's time zone); + + +date and time that the user logged out (in the user's time zone); + + +time zone where the signal was received (user); + + +Unique User identifier; + + +the country in which the user received the transmissions. + + + + +The Librarian of Congress eventually suspended these reporting +requirements, pending further study. And he also changed the original +rates set by the arbitration panel charged with setting rates. But the +basic difference between Internet radio and terrestrial radio remains: +Internet radio has to pay a type of copyright fee that terrestrial radio +does not. + + +Why? What justifies this difference? Was there any study of the +economic consequences from Internet radio that would justify these +differences? Was the motive to protect artists against piracy? + + +In a rare bit of candor, one RIAA expert admitted what seemed + obvious +to everyone at the time. As Alex Alben, vice president for Public +Policy at Real Networks, told me, + +
+ +The RIAA, which was representing the record labels, presented +some testimony about what they thought a willing buyer would +pay to a willing seller, and it was much higher. It was ten times +higher than what radio stations pay to perform the same songs for +the same period of time. And so the attorneys representing the +webcasters asked the RIAA, . . . "How do you come up with a + + +rate that's so much higher? Why is it worth more than radio? + Because +here we have hundreds of thousands of webcasters who +want to pay, and that should establish the market rate, and if you +set the rate so high, you're going to drive the small webcasters out +of business. . . ." + + +And the RIAA experts said, "Well, we don't really model this +as an industry with thousands of webcasters, we think it should be +an industry with, you know, five or seven big players who can pay a +high rate and it's a stable, predictable market." (Emphasis added.) + +
+ +Translation: The aim is to use the law to eliminate competition, so +that this platform of potentially immense competition, which would +cause the diversity and range of content available to explode, would not +cause pain to the dinosaurs of old. There is no one, on either the right +or the left, who should endorse this use of the law. And yet there is +practically no one, on either the right or the left, who is doing anything +effective to prevent it. + + + +Corrupting Citizens + +Overregulation stifles creativity. It smothers innovation. It gives + dinosaurs +a veto over the future. It wastes the extraordinary opportunity +for a democratic creativity that digital technology enables. + + +In addition to these important harms, there is one more that was +important to our forebears, but seems forgotten today. Overregulation +corrupts citizens and weakens the rule of law. + + +The war that is being waged today is a war of prohibition. As with +every war of prohibition, it is targeted against the behavior of a very +large number of citizens. According to The New York Times, 43 million +Americans downloaded music in May 2002. + Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew +Internet and American Life Project (24 April 2001), available at +link #46. +The Pew Internet and American Life Project reported that 37 million +Americans had downloaded music files from the Internet by early 2001. + + According to the RIAA, +the behavior of those 43 million Americans is a felony. We thus have a +set of rules that transform 20 percent of America into criminals. As the + + +RIAA launches lawsuits against not only the Napsters and Kazaas of +the world, but against students building search engines, and + increasingly +against ordinary users downloading content, the technologies for +sharing will advance to further protect and hide illegal use. It is an arms +race or a civil war, with the extremes of one side inviting a more + extreme +response by the other. + + +The content industry's tactics exploit the failings of the American +legal system. When the RIAA brought suit against Jesse Jordan, it +knew that in Jordan it had found a scapegoat, not a defendant. The +threat of having to pay either all the money in the world in damages +($15,000,000) or almost all the money in the world to defend against +paying all the money in the world in damages ($250,000 in legal fees) +led Jordan to choose to pay all the money he had in the world +($12,000) to make the suit go away. The same strategy animates the +RIAA's suits against individual users. In September 2003, the RIAA +sued 261 individuals--including a twelve-year-old girl living in public +housing and a seventy-year-old man who had no idea what file sharing +was. + Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los +Angeles Times, 10 September 2003, Business. + + As these scapegoats discovered, it will always cost more to + defend +against these suits than it would cost to simply settle. (The twelve +year old, for example, like Jesse Jordan, paid her life savings of $2,000 +to settle the case.) Our law is an awful system for defending rights. It +is an embarrassment to our tradition. And the consequence of our law +as it is, is that those with the power can use the law to quash any rights +they oppose. + + +Wars of prohibition are nothing new in America. This one is just +something more extreme than anything we've seen before. We + experimented +with alcohol prohibition, at a time when the per capita + consumption +of alcohol was 1.5 gallons per capita per year. The war against +drinking initially reduced that consumption to just 30 percent of its +preprohibition levels, but by the end of prohibition, consumption was +up to 70 percent of the preprohibition level. Americans were drinking +just about as much, but now, a vast number were criminals. + Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During + Prohibition," +American Economic Review 81, no. 2 (1991): 242. + + We have + + +launched a war on drugs aimed at reducing the consumption of + regulated +narcotics that 7 percent (or 16 million) Americans now use. + National Drug Control Policy: Hearing Before the House Government +Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of +John P. Walters, director of National Drug Control Policy). + + +That is a drop from the high (so to speak) in 1979 of 14 percent of the +population. We regulate automobiles to the point where the vast + majority +of Americans violate the law every day. We run such a complex +tax system that a majority of cash businesses regularly cheat. + See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax + Compliance," +Journal of Economic Literature 36 (1998): 818 (survey of compliance +literature). + + We +pride ourselves on our "free society," but an endless array of ordinary +behavior is regulated within our society. And as a result, a huge + proportion +of Americans regularly violate at least some law. + + +This state of affairs is not without consequence. It is a particularly +salient issue for teachers like me, whose job it is to teach law students +about the importance of "ethics." As my colleague Charlie Nesson told +a class at Stanford, each year law schools admit thousands of students +who have illegally downloaded music, illegally consumed alcohol and +sometimes drugs, illegally worked without paying taxes, illegally driven +cars. These are kids for whom behaving illegally is increasingly the +norm. And then we, as law professors, are supposed to teach them how +to behave ethically--how to say no to bribes, or keep client funds + separate, +or honor a demand to disclose a document that will mean that +your case is over. Generations of Americans--more significantly in +some parts of America than in others, but still, everywhere in America +today--can't live their lives both normally and legally, since "normally" +entails a certain degree of illegality. + + +The response to this general illegality is either to enforce the law +more severely or to change the law. We, as a society, have to learn how +to make that choice more rationally. Whether a law makes sense + depends, +in part, at least, upon whether the costs of the law, both + intended +and collateral, outweigh the benefits. If the costs, intended and +collateral, do outweigh the benefits, then the law ought to be changed. +Alternatively, if the costs of the existing system are much greater than +the costs of an alternative, then we have a good reason to consider the +alternative. + + + + +My point is not the idiotic one: Just because people violate a law, we +should therefore repeal it. Obviously, we could reduce murder statistics +dramatically by legalizing murder on Wednesdays and Fridays. But +that wouldn't make any sense, since murder is wrong every day of the +week. A society is right to ban murder always and everywhere. + + +My point is instead one that democracies understood for + generations, +but that we recently have learned to forget. The rule of law +depends upon people obeying the law. The more often, and more + repeatedly, +we as citizens experience violating the law, the less we respect +the law. Obviously, in most cases, the important issue is the law, not +respect for the law. I don't care whether the rapist respects the law or +not; I want to catch and incarcerate the rapist. But I do care whether +my students respect the law. And I do care if the rules of law sow + increasing +disrespect because of the extreme of regulation they impose. +Twenty million Americans have come of age since the Internet + introduced +this different idea of "sharing." We need to be able to call these +twenty million Americans "citizens," not "felons." + + +When at least forty-three million citizens download content from +the Internet, and when they use tools to combine that content in ways +unauthorized by copyright holders, the first question we should be + asking +is not how best to involve the FBI. The first question should be +whether this particular prohibition is really necessary in order to achieve +the proper ends that copyright law serves. Is there another way to +assure that artists get paid without transforming forty-three million +Americans into felons? Does it make sense if there are other ways to +assure that artists get paid without transforming America into a nation +of felons? + + +This abstract point can be made more clear with a particular example. + + +We all own CDs. Many of us still own phonograph records. These +pieces of plastic encode music that in a certain sense we have bought. +The law protects our right to buy and sell that plastic: It is not a + copyright +infringement for me to sell all my classical records at a used + + +record store and buy jazz records to replace them. That "use" of the +recordings is free. + + +But as the MP3 craze has demonstrated, there is another use of +phonograph records that is effectively free. Because these recordings +were made without copy-protection technologies, I am "free" to copy, +or "rip," music from my records onto a computer hard disk. Indeed, +Apple Corporation went so far as to suggest that "freedom" was a right: +In a series of commercials, Apple endorsed the "Rip, Mix, Burn" + capacities +of digital technologies. + + +This "use" of my records is certainly valuable. I have begun a large +process at home of ripping all of my and my wife's CDs, and storing +them in one archive. Then, using Apple's iTunes, or a wonderful + program +called Andromeda, we can build different play lists of our music: +Bach, Baroque, Love Songs, Love Songs of Significant Others--the +potential is endless. And by reducing the costs of mixing play lists, +these technologies help build a creativity with play lists that is itself + independently +valuable. Compilations of songs are creative and + meaningful +in their own right. + + +This use is enabled by unprotected media--either CDs or records. +But unprotected media also enable file sharing. File sharing threatens +(or so the content industry believes) the ability of creators to earn a fair +return from their creativity. And thus, many are beginning to + experiment +with technologies to eliminate unprotected media. These + technologies, +for example, would enable CDs that could not be ripped. Or +they might enable spy programs to identify ripped content on people's +machines. + + +If these technologies took off, then the building of large archives of +your own music would become quite difficult. You might hang in +hacker circles, and get technology to disable the technologies that + protect +the content. Trading in those technologies is illegal, but maybe that +doesn't bother you much. In any case, for the vast majority of people, +these protection technologies would effectively destroy the archiving + + +use of CDs. The technology, in other words, would force us all back to +the world where we either listened to music by manipulating pieces of +plastic or were part of a massively complex "digital rights + management" +system. + + +If the only way to assure that artists get paid were the elimination +of the ability to freely move content, then these technologies to + interfere +with the freedom to move content would be justifiable. But what +if there were another way to assure that artists are paid, without + locking +down any content? What if, in other words, a different system +could assure compensation to artists while also preserving the freedom +to move content easily? + + +My point just now is not to prove that there is such a system. I + offer +a version of such a system in the last chapter of this book. For now, +the only point is the relatively uncontroversial one: If a different system +achieved the same legitimate objectives that the existing copyright + system +achieved, but left consumers and creators much more free, then +we'd have a very good reason to pursue this alternative--namely, + freedom. +The choice, in other words, would not be between property and +piracy; the choice would be between different property systems and the +freedoms each allowed. + + +I believe there is a way to assure that artists are paid without + turning +forty-three million Americans into felons. But the salient feature +of this alternative is that it would lead to a very different market for +producing and distributing creativity. The dominant few, who today +control the vast majority of the distribution of content in the world, +would no longer exercise this extreme of control. Rather, they would go +the way of the horse-drawn buggy. + + +Except that this generation's buggy manufacturers have already +saddled Congress, and are riding the law to protect themselves against +this new form of competition. For them the choice is between + fortythree +million Americans as criminals and their own survival. + + +It is understandable why they choose as they do. It is not + understandable +why we as a democracy continue to choose as we do. Jack + + +Valenti is charming; but not so charming as to justify giving up a + tradition +as deep and important as our tradition of free culture. +There's one more aspect to this corruption that is particularly + important +to civil liberties, and follows directly from any war of + prohibition. +As Electronic Frontier Foundation attorney Fred von Lohmann +describes, this is the "collateral damage" that "arises whenever you turn +a very large percentage of the population into criminals." This is the +collateral damage to civil liberties generally. + + +"If you can treat someone as a putative lawbreaker," von Lohmann +explains, + +
+ +then all of a sudden a lot of basic civil liberty protections + evaporate +to one degree or another. . . . If you're a copyright infringer, +how can you hope to have any privacy rights? If you're a copyright +infringer, how can you hope to be secure against seizures of your +computer? How can you hope to continue to receive Internet +access? . . . Our sensibilities change as soon as we think, "Oh, +well, but that person's a criminal, a lawbreaker." Well, what this +campaign against file sharing has done is turn a remarkable + percentage +of the American Internet-using population into + "lawbreakers." + +
+ +And the consequence of this transformation of the American public +into criminals is that it becomes trivial, as a matter of due process, to +effectively erase much of the privacy most would presume. + + +Users of the Internet began to see this generally in 2003 as the +RIAA launched its campaign to force Internet service providers to turn +over the names of customers who the RIAA believed were violating +copyright law. Verizon fought that demand and lost. With a simple + request +to a judge, and without any notice to the customer at all, the +identity of an Internet user is revealed. + + + + +The RIAA then expanded this campaign, by announcing a general +strategy to sue individual users of the Internet who are alleged to have +downloaded copyrighted music from file-sharing systems. But as we've +seen, the potential damages from these suits are astronomical: If a + family's +computer is used to download a single CD's worth of music, the +family could be liable for $2 million in damages. That didn't stop the +RIAA from suing a number of these families, just as they had sued +Jesse Jordan. + See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single +Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," + Washington +Post, 10 September 2003, E1; Chris Cobbs, "Worried Parents Pull +Plug on File `Stealing'; With the Music Industry Cracking Down on File +Swapping, Parents are Yanking Software from Home PCs to Avoid Being +Sued," Orlando Sentinel Tribune, 30 August 2003, C1; Jefferson Graham, +"Recording Industry Sues Parents," USA Today, 15 September 2003, 4D; +John Schwartz, "She Says She's No Music Pirate. No Snoop Fan, Either," +New York Times, 25 September 2003, C1; Margo Varadi, "Is Brianna a +Criminal?" Toronto Star, 18 September 2003, P7. + + + + +Even this understates the espionage that is being waged by the +RIAA. A report from CNN late last summer described a strategy the +RIAA had adopted to track Napster users. + See "Revealed: How RIAA Tracks Downloaders: Music Industry + Discloses +Some Methods Used," CNN.com, available at +link #47. + + Using a sophisticated +hashing algorithm, the RIAA took what is in effect a fingerprint of +every song in the Napster catalog. Any copy of one of those MP3s will +have the same "fingerprint." + + +So imagine the following not-implausible scenario: Imagine a +friend gives a CD to your daughter--a collection of songs just like the +cassettes you used to make as a kid. You don't know, and neither does +your daughter, where these songs came from. But she copies these +songs onto her computer. She then takes her computer to college and +connects it to a college network, and if the college network is + "cooperating" +with the RIAA's espionage, and she hasn't properly protected +her content from the network (do you know how to do that yourself ?), +then the RIAA will be able to identify your daughter as a "criminal." +And under the rules that universities are beginning to deploy, + See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," Boston +Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued +over Music Sites; Industry Group Targets File Sharing at Colleges," + Washington +Post, 4 April 2003, E1; Elizabeth Armstrong, "Students `Rip, Mix, +Burn' at Their Own Risk," Christian Science Monitor, 2 September 2003, +20; Robert Becker and Angela Rozas, "Music Pirate Hunt Turns to + Loyola; +Two Students Names Are Handed Over; Lawsuit Possible," Chicago +Tribune, 16 July 2003, 1C; Beth Cox, "RIAA Trains Antipiracy Guns on +Universities," Internet News, 30 January 2003, available at +link #48; Benny +Evangelista, "Download Warning 101: Freshman Orientation This Fall to +Include Record Industry Warnings Against File Sharing," San Francisco +Chronicle, 11 August 2003, E11; "Raid, Letters Are Weapons at + Universities," +USA Today, 26 September 2000, 3D. + + your +daughter can lose the right to use the university's computer network. +She can, in some cases, be expelled. + + +Now, of course, she'll have the right to defend herself. You can hire +a lawyer for her (at $300 per hour, if you're lucky), and she can plead +that she didn't know anything about the source of the songs or that +they came from Napster. And it may well be that the university believes +her. But the university might not believe her. It might treat this + "contraband" +as presumptive of guilt. And as any number of college students + + +have already learned, our presumptions about innocence disappear in +the middle of wars of prohibition. This war is no different. +Says von Lohmann, + +
+ +So when we're talking about numbers like forty to sixty million +Americans that are essentially copyright infringers, you create a +situation where the civil liberties of those people are very much in +peril in a general matter. [I don't] think [there is any] analog +where you could randomly choose any person off the street and be +confident that they were committing an unlawful act that could +put them on the hook for potential felony liability or hundreds of +millions of dollars of civil liability. Certainly we all speed, but +speeding isn't the kind of an act for which we routinely forfeit +civil liberties. Some people use drugs, and I think that's the + closest +analog, [but] many have noted that the war against drugs has +eroded all of our civil liberties because it's treated so many + Americans +as criminals. Well, I think it's fair to say that file sharing +is an order of magnitude larger number of Americans than drug +use. . . . If forty to sixty million Americans have become + lawbreakers, +then we're really on a slippery slope to lose a lot of civil +liberties for all forty to sixty million of them. + +
+ +When forty to sixty million Americans are considered "criminals" +under the law, and when the law could achieve the same objective-- +securing rights to authors--without these millions being considered +"criminals," who is the villain? Americans or the law? Which is + American, +a constant war on our own people or a concerted effort through +our democracy to change our law? + + + + + + + +BALANCES + + + +So here's the picture: You're standing at the side of the road. Your +car is on fire. You are angry and upset because in part you helped start +the fire. Now you don't know how to put it out. Next to you is a bucket, +filled with gasoline. Obviously, gasoline won't put the fire out. + + +As you ponder the mess, someone else comes along. In a panic, she +grabs the bucket. Before you have a chance to tell her to stop--or + before +she understands just why she should stop--the bucket is in the air. +The gasoline is about to hit the blazing car. And the fire that gasoline +will ignite is about to ignite everything around. + + +A war about copyright rages all around--and we're all focusing on the +wrong thing. No doubt, current technologies threaten existing + businesses. +No doubt they may threaten artists. But technologies change. +The industry and technologists have plenty of ways to use technology +to protect themselves against the current threats of the Internet. This +is a fire that if let alone would burn itself out. + + + +Yet policy makers are not willing to leave this fire to itself. Primed +with plenty of lobbyists' money, they are keen to intervene to eliminate +the problem they perceive. But the problem they perceive is not the real +threat this culture faces. For while we watch this small fire in the + corner, +there is a massive change in the way culture is made that is + happening +all around. + + +Somehow we have to find a way to turn attention to this more + important +and fundamental issue. Somehow we have to find a way to +avoid pouring gasoline onto this fire. + + +We have not found that way yet. Instead, we seem trapped in a + simpler, +binary view. However much many people push to frame this + debate +more broadly, it is the simple, binary view that remains. We +rubberneck to look at the fire when we should be keeping our eyes on +the road. + + +This challenge has been my life these last few years. It has also been +my failure. In the two chapters that follow, I describe one small brace +of efforts, so far failed, to find a way to refocus this debate. We must +understand these failures if we're to understand what success will + require. + + + + +CHAPTER THIRTEEN: Eldred + + +In 1995, a father was frustrated that his daughters didn't seem to like +Hawthorne. No doubt there was more than one such father, but at least +one did something about it. Eric Eldred, a retired computer + programmer +living in New Hampshire, decided to put Hawthorne on the +Web. An electronic version, Eldred thought, with links to pictures and +explanatory text, would make this nineteenth-century author's work +come alive. + + +It didn't work--at least for his daughters. They didn't find + Hawthorne +any more interesting than before. But Eldred's experiment gave +birth to a hobby, and his hobby begat a cause: Eldred would build a +library of public domain works by scanning these works and making +them available for free. + + +Eldred's library was not simply a copy of certain public domain +works, though even a copy would have been of great value to people +across the world who can't get access to printed versions of these +works. Instead, Eldred was producing derivative works from these +public domain works. Just as Disney turned Grimm into stories more + +accessible to the twentieth century, Eldred transformed Hawthorne, +and many others, into a form more accessible--technically + accessible--today. + + +Eldred's freedom to do this with Hawthorne's work grew from the +same source as Disney's. Hawthorne's Scarlet Letter had passed into the +public domain in 1907. It was free for anyone to take without the + permission +of the Hawthorne estate or anyone else. Some, such as Dover +Press and Penguin Classics, take works from the public domain and +produce printed editions, which they sell in bookstores across the +country. Others, such as Disney, take these stories and turn them into +animated cartoons, sometimes successfully (Cinderella), sometimes not +(The Hunchback of Notre Dame, Treasure Planet). These are all + commercial +publications of public domain works. + + +The Internet created the possibility of noncommercial publications +of public domain works. Eldred's is just one example. There are + literally +thousands of others. Hundreds of thousands from across the world +have discovered this platform of expression and now use it to share +works that are, by law, free for the taking. This has produced what we +might call the "noncommercial publishing industry," which before the +Internet was limited to people with large egos or with political or + social +causes. But with the Internet, it includes a wide range of + individuals +and groups dedicated to spreading culture generally. + There's a parallel here with pornography that is a bit hard to describe, but +it's a strong one. One phenomenon that the Internet created was a world +of noncommercial pornographers--people who were distributing porn +but were not making money directly or indirectly from that distribution. +Such a class didn't exist before the Internet came into being because the +costs of distributing porn were so high. Yet this new class of distributors +got special attention in the Supreme Court, when the Court struck down +the Communications Decency Act of 1996. It was partly because of the +burden on noncommercial speakers that the statute was found to exceed +Congress's power. The same point could have been made about + noncommercial +publishers after the advent of the Internet. The Eric Eldreds of the +world before the Internet were extremely few. Yet one would think it at +least as important to protect the Eldreds of the world as to protect + noncommercial +pornographers. + + + + +As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's +collection of poems New Hampshire was slated to pass into the public +domain. Eldred wanted to post that collection in his free public library. +But Congress got in the way. As I described in chapter 10, in 1998, for +the eleventh time in forty years, Congress extended the terms of + existing +copyrights--this time by twenty years. Eldred would not be free to +add any works more recent than 1923 to his collection until 2019. + Indeed, +no copyrighted work would pass into the public domain until +that year (and not even then, if Congress extends the term again). By +contrast, in the same period, more than 1 million patents will pass into +the public domain. + + + + +This was the Sonny Bono Copyright Term Extension Act +(CTEA), enacted in memory of the congressman and former musician +Sonny Bono, who, his widow, Mary Bono, says, believed that + "copyrights +should be forever." + The full text is: "Sonny [Bono] wanted the term of copyright protection to +last forever. I am informed by staff that such a change would violate the +Constitution. I invite all of you to work with me to strengthen our + copyright +laws in all of the ways available to us. As you know, there is also Jack +Valenti's proposal for a term to last forever less one day. Perhaps the + Committee +may look at that next Congress," 144 Cong. Rec. H9946, 9951-2 +(October 7, 1998). + + + + +Eldred decided to fight this law. He first resolved to fight it through +civil disobedience. In a series of interviews, Eldred announced that he +would publish as planned, CTEA notwithstanding. But because of a +second law passed in 1998, the NET (No Electronic Theft) Act, his act +of publishing would make Eldred a felon--whether or not anyone +complained. This was a dangerous strategy for a disabled programmer +to undertake. + + +It was here that I became involved in Eldred's battle. I was a + constitutional +scholar whose first passion was constitutional + interpretation. +And though constitutional law courses never focus upon the +Progress Clause of the Constitution, it had always struck me as + importantly +different. As you know, the Constitution says, + +
+ +Congress has the power to promote the Progress of Science . . . +by securing for limited Times to Authors . . . exclusive Right to +their . . . Writings. . . . + +
+ +As I've described, this clause is unique within the power-granting +clause of Article I, section 8 of our Constitution. Every other clause +granting power to Congress simply says Congress has the power to do +something--for example, to regulate "commerce among the several +states" or "declare War." But here, the "something" is something quite + specific--to +"promote . . . Progress"--through means that are also specific-- +by "securing" "exclusive Rights" (i.e., copyrights) "for limited Times." + + +In the past forty years, Congress has gotten into the practice of + extending +existing terms of copyright protection. What puzzled me +about this was, if Congress has the power to extend existing terms, +then the Constitution's requirement that terms be "limited" will have + +no practical effect. If every time a copyright is about to expire, + Congress +has the power to extend its term, then Congress can achieve what +the Constitution plainly forbids--perpetual terms "on the installment +plan," as Professor Peter Jaszi so nicely put it. + + +As an academic, my first response was to hit the books. I remember +sitting late at the office, scouring on-line databases for any serious + consideration +of the question. No one had ever challenged Congress's +practice of extending existing terms. That failure may in part be why +Congress seemed so untroubled in its habit. That, and the fact that the +practice had become so lucrative for Congress. Congress knows that +copyright owners will be willing to pay a great deal of money to see +their copyright terms extended. And so Congress is quite happy to +keep this gravy train going. + + +For this is the core of the corruption in our present system of +government. "Corruption" not in the sense that representatives are bribed. +Rather, "corruption" in the sense that the system induces the + beneficiaries +of Congress's acts to raise and give money to Congress to induce +it to act. There's only so much time; there's only so much Congress can +do. Why not limit its actions to those things it must do--and those +things that pay? Extending copyright terms pays. + + +If that's not obvious to you, consider the following: Say you're one +of the very few lucky copyright owners whose copyright continues to +make money one hundred years after it was created. The Estate of +Robert Frost is a good example. Frost died in 1963. His poetry + continues +to be extraordinarily valuable. Thus the Robert Frost estate + benefits +greatly from any extension of copyright, since no publisher would +pay the estate any money if the poems Frost wrote could be published +by anyone for free. + + +So imagine the Robert Frost estate is earning $100,000 a year from +three of Frost's poems. And imagine the copyright for those poems +is about to expire. You sit on the board of the Robert Frost estate. +Your financial adviser comes to your board meeting with a very grim +report: + + +"Next year," the adviser announces, "our copyrights in works A, B, + + +and C will expire. That means that after next year, we will no longer be +receiving the annual royalty check of $100,000 from the publishers of +those works. + + +"There's a proposal in Congress, however," she continues, "that +could change this. A few congressmen are floating a bill to extend the +terms of copyright by twenty years. That bill would be extraordinarily +valuable to us. So we should hope this bill passes." + + +"Hope?" a fellow board member says. "Can't we be doing something +about it?" + + +"Well, obviously, yes," the adviser responds. "We could contribute +to the campaigns of a number of representatives to try to assure that +they support the bill." + + +You hate politics. You hate contributing to campaigns. So you want +to know whether this disgusting practice is worth it. "How much +would we get if this extension were passed?" you ask the adviser. "How +much is it worth?" + + +"Well," the adviser says, "if you're confident that you will continue +to get at least $100,000 a year from these copyrights, and you use the +`discount rate' that we use to evaluate estate investments (6 percent), +then this law would be worth $1,146,000 to the estate." + + +You're a bit shocked by the number, but you quickly come to the +correct conclusion: + + +"So you're saying it would be worth it for us to pay more than +$1,000,000 in campaign contributions if we were confident those + contributions +would assure that the bill was passed?" + + +"Absolutely," the adviser responds. "It is worth it to you to + contribute +up to the `present value' of the income you expect from these +copyrights. Which for us means over $1,000,000." + + +You quickly get the point--you as the member of the board and, I +trust, you the reader. Each time copyrights are about to expire, every +beneficiary in the position of the Robert Frost estate faces the same +choice: If they can contribute to get a law passed to extend copyrights, + +they will benefit greatly from that extension. And so each time + copyrights +are about to expire, there is a massive amount of lobbying to get +the copyright term extended. + + +Thus a congressional perpetual motion machine: So long as + legislation +can be bought (albeit indirectly), there will be all the incentive in +the world to buy further extensions of copyright. + + +In the lobbying that led to the passage of the Sonny Bono + Copyright +Term Extension Act, this "theory" about incentives was proved +real. Ten of the thirteen original sponsors of the act in the House +received the maximum contribution from Disney's political action +committee; in the Senate, eight of the twelve sponsors received + contributions. + Associated Press, "Disney Lobbying for Copyright Extension No Mickey +Mouse Effort; Congress OKs Bill Granting Creators 20 More Years," +Chicago Tribune, 17 October 1998, 22. + + The RIAA and the MPAA are estimated to have spent over +$1.5 million lobbying in the 1998 election cycle. They paid out more +than $200,000 in campaign contributions. + See Nick Brown, "Fair Use No More?: Copyright in the Information +Age," available at +link #49. + + Disney is estimated to have +contributed more than $800,000 to reelection campaigns in the +cycle. + Alan K. Ota, "Disney in Washington: The Mouse That Roars," + Congressional +Quarterly This Week, 8 August 1990, available at +link #50. + + + + +Constitutional law is not oblivious to the obvious. Or at least, +it need not be. So when I was considering Eldred's complaint, this + reality +about the never-ending incentives to increase the copyright term +was central to my thinking. In my view, a pragmatic court committed +to interpreting and applying the Constitution of our framers would see +that if Congress has the power to extend existing terms, then there +would be no effective constitutional requirement that terms be + "limited." +If they could extend it once, they would extend it again and again +and again. + + +It was also my judgment that this Supreme Court would not allow +Congress to extend existing terms. As anyone close to the Supreme +Court's work knows, this Court has increasingly restricted the power +of Congress when it has viewed Congress's actions as exceeding the +power granted to it by the Constitution. Among constitutional + scholars, +the most famous example of this trend was the Supreme Court's + + +decision in 1995 to strike down a law that banned the possession of +guns near schools. + + +Since 1937, the Supreme Court had interpreted Congress's granted +powers very broadly; so, while the Constitution grants Congress the +power to regulate only "commerce among the several states" (aka + "interstate +commerce"), the Supreme Court had interpreted that power to +include the power to regulate any activity that merely affected + interstate +commerce. + + +As the economy grew, this standard increasingly meant that there +was no limit to Congress's power to regulate, since just about every + activity, +when considered on a national scale, affects interstate commerce. +A Constitution designed to limit Congress's power was instead + interpreted +to impose no limit. + + +The Supreme Court, under Chief Justice Rehnquist's command, +changed that in United States v. Lopez. The government had argued +that possessing guns near schools affected interstate commerce. Guns +near schools increase crime, crime lowers property values, and so on. In +the oral argument, the Chief Justice asked the government whether +there was any activity that would not affect interstate commerce under +the reasoning the government advanced. The government said there +was not; if Congress says an activity affects interstate commerce, then +that activity affects interstate commerce. The Supreme Court, the + government +said, was not in the position to second-guess Congress. + + +"We pause to consider the implications of the government's + arguments," +the Chief Justice wrote. + United States v. Lopez, 514 U.S. 549, 564 (1995). + + If anything Congress says is interstate +commerce must therefore be considered interstate commerce, then +there would be no limit to Congress's power. The decision in Lopez was +reaffirmed five years later in United States v. Morrison. + United States v. Morrison, 529 U.S. 598 (2000). + + + + +If a principle were at work here, then it should apply to the Progress +Clause as much as the Commerce Clause. + If it is a principle about enumerated powers, then the principle carries +from one enumerated power to another. The animating point in the + context +of the Commerce Clause was that the interpretation offered by the +government would allow the government unending power to regulate +commerce--the limitation to interstate commerce notwithstanding. The +same point is true in the context of the Copyright Clause. Here, too, the +government's interpretation would allow the government unending power +to regulate copyrights--the limitation to "limited times" notwithstanding. + + And if it is applied to the +Progress Clause, the principle should yield the conclusion that + Congress + +can't extend an existing term. If Congress could extend an + existing +term, then there would be no "stopping point" to Congress's power +over terms, though the Constitution expressly states that there is such +a limit. Thus, the same principle applied to the power to grant + copyrights +should entail that Congress is not allowed to extend the term of +existing copyrights. + + +If, that is, the principle announced in Lopez stood for a principle. +Many believed the decision in Lopez stood for politics--a conservative +Supreme Court, which believed in states' rights, using its power over +Congress to advance its own personal political preferences. But I + rejected +that view of the Supreme Court's decision. Indeed, shortly after +the decision, I wrote an article demonstrating the "fidelity" in such an +interpretation of the Constitution. The idea that the Supreme Court +decides cases based upon its politics struck me as extraordinarily + boring. +I was not going to devote my life to teaching constitutional law if +these nine Justices were going to be petty politicians. + + +Now let's pause for a moment to make sure we understand what +the argument in Eldred was not about. By insisting on the + Constitution's +limits to copyright, obviously Eldred was not endorsing piracy. +Indeed, in an obvious sense, he was fighting a kind of piracy--piracy of +the public domain. When Robert Frost wrote his work and when Walt +Disney created Mickey Mouse, the maximum copyright term was just +fifty-six years. Because of interim changes, Frost and Disney had + already +enjoyed a seventy-five-year monopoly for their work. They had +gotten the benefit of the bargain that the Constitution envisions: In +exchange for a monopoly protected for fifty-six years, they created new +work. But now these entities were using their power--expressed +through the power of lobbyists' money--to get another twenty-year +dollop of monopoly. That twenty-year dollop would be taken from the +public domain. Eric Eldred was fighting a piracy that affects us all. + + +Some people view the public domain with contempt. In their brief + + +before the Supreme Court, the Nashville Songwriters Association +wrote that the public domain is nothing more than "legal piracy." + Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 U.S. +186 (2003) (No. 01-618), n.10, available at +link #51. + + But +it is not piracy when the law allows it; and in our constitutional system, +our law requires it. Some may not like the Constitution's requirements, +but that doesn't make the Constitution a pirate's charter. + + +As we've seen, our constitutional system requires limits on + copyright +as a way to assure that copyright holders do not too heavily + influence +the development and distribution of our culture. Yet, as Eric +Eldred discovered, we have set up a system that assures that copyright +terms will be repeatedly extended, and extended, and extended. We +have created the perfect storm for the public domain. Copyrights have +not expired, and will not expire, so long as Congress is free to be +bought to extend them again. + + +It is valuable copyrights that are responsible for terms being + extended. +Mickey Mouse and "Rhapsody in Blue." These works are too +valuable for copyright owners to ignore. But the real harm to our + society +from copyright extensions is not that Mickey Mouse remains + Disney's. +Forget Mickey Mouse. Forget Robert Frost. Forget all the works +from the 1920s and 1930s that have continuing commercial value. The +real harm of term extension comes not from these famous works. The +real harm is to the works that are not famous, not commercially + exploited, +and no longer available as a result. + + +If you look at the work created in the first twenty years (1923 to +1942) affected by the Sonny Bono Copyright Term Extension Act, +2 percent of that work has any continuing commercial value. It was the +copyright holders for that 2 percent who pushed the CTEA through. +But the law and its effect were not limited to that 2 percent. The law +extended the terms of copyright generally. + The figure of 2 percent is an extrapolation from the study by the + Congressional +Research Service, in light of the estimated renewal ranges. See Brief +of Petitioners, Eldred v. Ashcroft, 7, available at +link #52. + + + + +Think practically about the consequence of this + extension--practically, +as a businessperson, and not as a lawyer eager for more legal + + +work. In 1930, 10,047 books were published. In 2000, 174 of those +books were still in print. Let's say you were Brewster Kahle, and you +wanted to make available to the world in your iArchive project the + remaining +9,873. What would you have to do? + + +Well, first, you'd have to determine which of the 9,873 books were +still under copyright. That requires going to a library (these data are +not on-line) and paging through tomes of books, cross-checking the +titles and authors of the 9,873 books with the copyright registration +and renewal records for works published in 1930. That will produce a +list of books still under copyright. + + +Then for the books still under copyright, you would need to locate +the current copyright owners. How would you do that? + + +Most people think that there must be a list of these copyright + owners +somewhere. Practical people think this way. How could there be +thousands and thousands of government monopolies without there +being at least a list? + + +But there is no list. There may be a name from 1930, and then in +1959, of the person who registered the copyright. But just think + practically +about how impossibly difficult it would be to track down + thousands +of such records--especially since the person who registered is +not necessarily the current owner. And we're just talking about 1930! + + +"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?" + + +Well, actually, if you think about it, there are plenty of lists of who +owns what property. Think about deeds on houses, or titles to cars. +And where there isn't a list, the code of real space is pretty good at + suggesting +who the owner of a bit of property is. (A swing set in your +backyard is probably yours.) So formally or informally, we have a pretty +good way to know who owns what tangible property. + + +So: You walk down a street and see a house. You can know who +owns the house by looking it up in the courthouse registry. If you see +a car, there is ordinarily a license plate that will link the owner to the + + +car. If you see a bunch of children's toys sitting on the front lawn of a +house, it's fairly easy to determine who owns the toys. And if you + happen +to see a baseball lying in a gutter on the side of the road, look +around for a second for some kids playing ball. If you don't see any +kids, then okay: Here's a bit of property whose owner we can't easily +determine. It is the exception that proves the rule: that we ordinarily +know quite well who owns what property. + + +Compare this story to intangible property. You go into a library. +The library owns the books. But who owns the copyrights? As I've + already +described, there's no list of copyright owners. There are authors' +names, of course, but their copyrights could have been assigned, or +passed down in an estate like Grandma's old jewelry. To know who +owns what, you would have to hire a private detective. The bottom +line: The owner cannot easily be located. And in a regime like ours, in +which it is a felony to use such property without the property owner's +permission, the property isn't going to be used. + + +The consequence with respect to old books is that they won't be +digitized, and hence will simply rot away on shelves. But the + consequence +for other creative works is much more dire. + + +Consider the story of Michael Agee, chairman of Hal Roach + Studios, +which owns the copyrights for the Laurel and Hardy films. Agee +is a direct beneficiary of the Bono Act. The Laurel and Hardy films +were made between 1921 and 1951. Only one of these films, The Lucky +Dog, is currently out of copyright. But for the CTEA, films made after +1923 would have begun entering the public domain. Because Agee +controls the exclusive rights for these popular films, he makes a great +deal of money. According to one estimate, "Roach has sold about +60,000 videocassettes and 50,000 DVDs of the duo's silent films." + See David G. Savage, "High Court Scene of Showdown on Copyright +Law," Los Angeles Times, 6 October 2002; David Streitfeld, "Classic +Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today +on Striking Down Copyright Extension," Orlando Sentinel Tribune, 9 + October +2002. + + + + +Yet Agee opposed the CTEA. His reasons demonstrate a rare +virtue in this culture: selflessness. He argued in a brief before the +Supreme Court that the Sonny Bono Copyright Term Extension Act +will, if left standing, destroy a whole generation of American film. + + +His argument is straightforward. A tiny fraction of this work has + + +any continuing commercial value. The rest--to the extent it survives at +all--sits in vaults gathering dust. It may be that some of this work not +now commercially valuable will be deemed to be valuable by the + owners +of the vaults. For this to occur, however, the commercial benefit +from the work must exceed the costs of making the work available for +distribution. + + +We can't know the benefits, but we do know a lot about the costs. +For most of the history of film, the costs of restoring film were very +high; digital technology has lowered these costs substantially. While +it cost more than $10,000 to restore a ninety-minute black-and-white +film in 1993, it can now cost as little as $100 to digitize one hour of +mm film. + Brief of Hal Roach Studios and Michael Agee as Amicus Curiae + Supporting +the Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- +618), 12. See also Brief of Amicus Curiae filed on behalf of Petitioners by +the Internet Archive, Eldred v. Ashcroft, available at +link #53. + + + + +Restoration technology is not the only cost, nor the most + important. +Lawyers, too, are a cost, and increasingly, a very important one. In +addition to preserving the film, a distributor needs to secure the rights. +And to secure the rights for a film that is under copyright, you need to +locate the copyright owner. + + +Or more accurately, owners. As we've seen, there isn't only a single +copyright associated with a film; there are many. There isn't a single +person whom you can contact about those copyrights; there are as +many as can hold the rights, which turns out to be an extremely large +number. Thus the costs of clearing the rights to these films is + exceptionally +high. + + +"But can't you just restore the film, distribute it, and then pay the +copyright owner when she shows up?" Sure, if you want to commit a +felony. And even if you're not worried about committing a felony, when +she does show up, she'll have the right to sue you for all the profits you +have made. So, if you're successful, you can be fairly confident you'll be +getting a call from someone's lawyer. And if you're not successful, you +won't make enough to cover the costs of your own lawyer. Either way, +you have to talk to a lawyer. And as is too often the case, saying you have +to talk to a lawyer is the same as saying you won't make any money. + + +For some films, the benefit of releasing the film may well exceed + + +these costs. But for the vast majority of them, there is no way the + benefit +would outweigh the legal costs. Thus, for the vast majority of old +films, Agee argued, the film will not be restored and distributed until +the copyright expires. + + +But by the time the copyright for these films expires, the film will +have expired. These films were produced on nitrate-based stock, and +nitrate stock dissolves over time. They will be gone, and the metal + canisters +in which they are now stored will be filled with nothing more +than dust. + + +Of all the creative work produced by humans anywhere, a tiny +fraction has continuing commercial value. For that tiny fraction, the +copyright is a crucially important legal device. For that tiny fraction, +the copyright creates incentives to produce and distribute the + creative +work. For that tiny fraction, the copyright acts as an "engine of +free expression." + + +But even for that tiny fraction, the actual time during which the +creative work has a commercial life is extremely short. As I've + indicated, +most books go out of print within one year. The same is true of +music and film. Commercial culture is sharklike. It must keep moving. +And when a creative work falls out of favor with the commercial + distributors, +the commercial life ends. + + +Yet that doesn't mean the life of the creative work ends. We don't +keep libraries of books in order to compete with Barnes & Noble, and +we don't have archives of films because we expect people to choose + between +spending Friday night watching new movies and spending + Friday +night watching a 1930 news documentary. The noncommercial life +of culture is important and valuable--for entertainment but also, and +more importantly, for knowledge. To understand who we are, and +where we came from, and how we have made the mistakes that we +have, we need to have access to this history. + + +Copyrights in this context do not drive an engine of free expression. + + +In this context, there is no need for an exclusive right. Copyrights in +this context do no good. + + +Yet, for most of our history, they also did little harm. For most of +our history, when a work ended its commercial life, there was no +copyright-related use that would be inhibited by an exclusive right. +When a book went out of print, you could not buy it from a publisher. +But you could still buy it from a used book store, and when a used book +store sells it, in America, at least, there is no need to pay the copyright +owner anything. Thus, the ordinary use of a book after its commercial +life ended was a use that was independent of copyright law. + + +The same was effectively true of film. Because the costs of restoring +a film--the real economic costs, not the lawyer costs--were so high, it +was never at all feasible to preserve or restore film. Like the remains of +a great dinner, when it's over, it's over. Once a film passed out of its +commercial life, it may have been archived for a bit, but that was the +end of its life so long as the market didn't have more to offer. + + +In other words, though copyright has been relatively short for most +of our history, long copyrights wouldn't have mattered for the works +that lost their commercial value. Long copyrights for these works +would not have interfered with anything. + + +But this situation has now changed. + + +One crucially important consequence of the emergence of digital +technologies is to enable the archive that Brewster Kahle dreams of. +Digital technologies now make it possible to preserve and give access +to all sorts of knowledge. Once a book goes out of print, we can now +imagine digitizing it and making it available to everyone, forever. Once +a film goes out of distribution, we could digitize it and make it + available +to everyone, forever. Digital technologies give new life to + copyrighted +material after it passes out of its commercial life. It is now +possible to preserve and assure universal access to this knowledge and +culture, whereas before it was not. + + + +And now copyright law does get in the way. Every step of + producing +this digital archive of our culture infringes on the exclusive right of +copyright. To digitize a book is to copy it. To do that requires + permission +of the copyright owner. The same with music, film, or any other +aspect of our culture protected by copyright. The effort to make these +things available to history, or to researchers, or to those who just want +to explore, is now inhibited by a set of rules that were written for a + radically +different context. + + +Here is the core of the harm that comes from extending terms: +Now that technology enables us to rebuild the library of Alexandria, +the law gets in the way. And it doesn't get in the way for any useful +copyright purpose, for the purpose of copyright is to enable the + commercial +market that spreads culture. No, we are talking about culture +after it has lived its commercial life. In this context, copyright is + serving +no purpose at all related to the spread of knowledge. In this + context, +copyright is not an engine of free expression. Copyright is a brake. + + +You may well ask, "But if digital technologies lower the costs for +Brewster Kahle, then they will lower the costs for Random House, too. +So won't Random House do as well as Brewster Kahle in spreading +culture widely?" + + +Maybe. Someday. But there is absolutely no evidence to suggest +that publishers would be as complete as libraries. If Barnes & Noble +offered to lend books from its stores for a low price, would that + eliminate +the need for libraries? Only if you think that the only role of a + library +is to serve what "the market" would demand. But if you think the +role of a library is bigger than this--if you think its role is to archive +culture, whether there's a demand for any particular bit of that culture +or not--then we can't count on the commercial market to do our + library +work for us. + + +I would be the first to agree that it should do as much as it can: We +should rely upon the market as much as possible to spread and enable +culture. My message is absolutely not antimarket. But where we see the +market is not doing the job, then we should allow nonmarket forces the + + +freedom to fill the gaps. As one researcher calculated for American + culture, +94 percent of the films, books, and music produced between +and 1946 is not commercially available. However much you love the +commercial market, if access is a value, then 6 percent is a failure to +provide that value. + Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20 + December +2002, available at +link #54. + + + + +In January 1999, we filed a lawsuit on Eric Eldred's behalf in + federal +district court in Washington, D.C., asking the court to declare the +Sonny Bono Copyright Term Extension Act unconstitutional. The two +central claims that we made were (1) that extending existing terms + violated +the Constitution's "limited Times" requirement, and (2) that + extending +terms by another twenty years violated the First Amendment. + + +The district court dismissed our claims without even hearing an + argument. +A panel of the Court of Appeals for the D.C. Circuit also + dismissed +our claims, though after hearing an extensive argument. But +that decision at least had a dissent, by one of the most conservative +judges on that court. That dissent gave our claims life. + + +Judge David Sentelle said the CTEA violated the requirement that +copyrights be for "limited Times" only. His argument was as elegant as +it was simple: If Congress can extend existing terms, then there is no +"stopping point" to Congress's power under the Copyright Clause. The +power to extend existing terms means Congress is not required to grant +terms that are "limited." Thus, Judge Sentelle argued, the court had to +interpret the term "limited Times" to give it meaning. And the best + interpretation, +Judge Sentelle argued, would be to deny Congress the +power to extend existing terms. + + +We asked the Court of Appeals for the D.C. Circuit as a whole to +hear the case. Cases are ordinarily heard in panels of three, except for +important cases or cases that raise issues specific to the circuit as a +whole, where the court will sit "en banc" to hear the case. + + +The Court of Appeals rejected our request to hear the case en banc. +This time, Judge Sentelle was joined by the most liberal member of the + + +D.C. Circuit, Judge David Tatel. Both the most conservative and the +most liberal judges in the D.C. Circuit believed Congress had + overstepped +its bounds. + + +It was here that most expected Eldred v. Ashcroft would die, for the +Supreme Court rarely reviews any decision by a court of appeals. (It +hears about one hundred cases a year, out of more than five thousand +appeals.) And it practically never reviews a decision that upholds a +statute when no other court has yet reviewed the statute. + + +But in February 2002, the Supreme Court surprised the world by +granting our petition to review the D.C. Circuit opinion. Argument +was set for October of 2002. The summer would be spent writing +briefs and preparing for argument. + + +It is over a year later as I write these words. It is still astonishingly +hard. If you know anything at all about this story, you know that we +lost the appeal. And if you know something more than just the + minimum, +you probably think there was no way this case could have been +won. After our defeat, I received literally thousands of missives by +well-wishers and supporters, thanking me for my work on behalf of +this noble but doomed cause. And none from this pile was more + significant +to me than the e-mail from my client, Eric Eldred. + + +But my client and these friends were wrong. This case could have +been won. It should have been won. And no matter how hard I try to +retell this story to myself, I can never escape believing that my own +mistake lost it. + + +The mistake was made early, though it became obvious only at the +very end. Our case had been supported from the very beginning by an + extraordinary +lawyer, Geoffrey Stewart, and by the law firm he had moved +to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of heat + +from its copyright-protectionist clients for supporting us. They + ignored +this pressure (something that few law firms today would ever +do), and throughout the case, they gave it everything they could. + + +There were three key lawyers on the case from Jones Day. Geoff +Stewart was the first, but then Dan Bromberg and Don Ayer became +quite involved. Bromberg and Ayer in particular had a common view +about how this case would be won: We would only win, they repeatedly +told me, if we could make the issue seem "important" to the Supreme +Court. It had to seem as if dramatic harm were being done to free +speech and free culture; otherwise, they would never vote against "the +most powerful media companies in the world." + + +I hate this view of the law. Of course I thought the Sonny Bono Act +was a dramatic harm to free speech and free culture. Of course I still +think it is. But the idea that the Supreme Court decides the law based +on how important they believe the issues are is just wrong. It might be +"right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be +that way." As I believed that any faithful interpretation of what the +framers of our Constitution did would yield the conclusion that the +CTEA was unconstitutional, and as I believed that any faithful + interpretation +of what the First Amendment means would yield the +conclusion that the power to extend existing copyright terms is + unconstitutional, +I was not persuaded that we had to sell our case like soap. +Just as a law that bans the swastika is unconstitutional not because the +Court likes Nazis but because such a law would violate the + Constitution, +so too, in my view, would the Court decide whether Congress's +law was constitutional based on the Constitution, not based on whether +they liked the values that the framers put in the Constitution. + + +In any case, I thought, the Court must already see the danger and +the harm caused by this sort of law. Why else would they grant review? +There was no reason to hear the case in the Supreme Court if they +weren't convinced that this regulation was harmful. So in my view, we +didn't need to persuade them that this law was bad, we needed to show +why it was unconstitutional. + + +There was one way, however, in which I felt politics would matter + + +and in which I thought a response was appropriate. I was convinced +that the Court would not hear our arguments if it thought these were +just the arguments of a group of lefty loons. This Supreme Court was +not about to launch into a new field of judicial review if it seemed that +this field of review was simply the preference of a small political + minority. +Although my focus in the case was not to demonstrate how bad the +Sonny Bono Act was but to demonstrate that it was unconstitutional, +my hope was to make this argument against a background of briefs that +covered the full range of political views. To show that this claim against +the CTEA was grounded in law and not politics, then, we tried to +gather the widest range of credible critics--credible not because they +were rich and famous, but because they, in the aggregate, demonstrated +that this law was unconstitutional regardless of one's politics. + + +The first step happened all by itself. Phyllis Schlafly's organization, +Eagle Forum, had been an opponent of the CTEA from the very + beginning. +Mrs. Schlafly viewed the CTEA as a sellout by Congress. In +November 1998, she wrote a stinging editorial attacking the + Republican +Congress for allowing the law to pass. As she wrote, "Do you +sometimes wonder why bills that create a financial windfall to narrow +special interests slide easily through the intricate legislative process, +while bills that benefit the general public seem to get bogged down?" +The answer, as the editorial documented, was the power of money. +Schlafly enumerated Disney's contributions to the key players on the +committees. It was money, not justice, that gave Mickey Mouse twenty +more years in Disney's control, Schlafly argued. + + +In the Court of Appeals, Eagle Forum was eager to file a brief + supporting +our position. Their brief made the argument that became the +core claim in the Supreme Court: If Congress can extend the term of +existing copyrights, there is no limit to Congress's power to set terms. +That strong conservative argument persuaded a strong conservative +judge, Judge Sentelle. + + +In the Supreme Court, the briefs on our side were about as diverse +as it gets. They included an extraordinary historical brief by the Free + + +Software Foundation (home of the GNU project that made GNU/ +Linux possible). They included a powerful brief about the costs of + uncertainty +by Intel. There were two law professors' briefs, one by + copyright +scholars and one by First Amendment scholars. There was an +exhaustive and uncontroverted brief by the world's experts in the + history +of the Progress Clause. And of course, there was a new brief by +Eagle Forum, repeating and strengthening its arguments. + + +Those briefs framed a legal argument. Then to support the legal +argument, there were a number of powerful briefs by libraries and +archives, including the Internet Archive, the American Association of +Law Libraries, and the National Writers Union. + + +But two briefs captured the policy argument best. One made the + argument +I've already described: A brief by Hal Roach Studios argued that +unless the law was struck, a whole generation of American film would +disappear. The other made the economic argument absolutely clear. + + +This economists' brief was signed by seventeen economists, including +five Nobel Prize winners, including Ronald Coase, James Buchanan, +Milton Friedman, Kenneth Arrow, and George Akerlof. The + economists, +as the list of Nobel winners demonstrates, spanned the political +spectrum. Their conclusions were powerful: There was no plausible +claim that extending the terms of existing copyrights would do anything +to increase incentives to create. Such extensions were nothing more +than "rent-seeking"--the fancy term economists use to describe +special-interest legislation gone wild. + + +The same effort at balance was reflected in the legal team we + gathered +to write our briefs in the case. The Jones Day lawyers had been +with us from the start. But when the case got to the Supreme Court, +we added three lawyers to help us frame this argument to this Court: +Alan Morrison, a lawyer from Public Citizen, a Washington group +that had made constitutional history with a series of seminal victories +in the Supreme Court defending individual rights; my colleague and +dean, Kathleen Sullivan, who had argued many cases in the Court, and + + +who had advised us early on about a First Amendment strategy; and + finally, +former solicitor general Charles Fried. + + +Fried was a special victory for our side. Every other former solicitor +general was hired by the other side to defend Congress's power to give +media companies the special favor of extended copyright terms. Fried +was the only one who turned down that lucrative assignment to stand +up for something he believed in. He had been Ronald Reagan's chief +lawyer in the Supreme Court. He had helped craft the line of cases that +limited Congress's power in the context of the Commerce Clause. And +while he had argued many positions in the Supreme Court that I + personally +disagreed with, his joining the cause was a vote of confidence in +our argument. + + +The government, in defending the statute, had its collection of +friends, as well. Significantly, however, none of these "friends" included +historians or economists. The briefs on the other side of the case were +written exclusively by major media companies, congressmen, and +copyright holders. + + +The media companies were not surprising. They had the most to +gain from the law. The congressmen were not surprising either--they +were defending their power and, indirectly, the gravy train of + contributions +such power induced. And of course it was not surprising that the +copyright holders would defend the idea that they should continue to +have the right to control who did what with content they wanted to +control. + + +Dr. Seuss's representatives, for example, argued that it was better for +the Dr. Seuss estate to control what happened to Dr. Seuss's work-- +better than allowing it to fall into the public domain--because if this +creativity were in the public domain, then people could use it to + "glorify +drugs or to create pornography." + Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. +(2003) (No. 01-618), 19. + + That was also the motive of +the Gershwin estate, which defended its "protection" of the work of +George Gershwin. They refuse, for example, to license Porgy and Bess +to anyone who refuses to use African Americans in the cast. + Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey +Mouse Joins the Fray," New York Times, 28 March 1998, B7. + + That's + + +their view of how this part of American culture should be controlled, +and they wanted this law to help them effect that control. + + +This argument made clear a theme that is rarely noticed in this + debate. +When Congress decides to extend the term of existing + copyrights, +Congress is making a choice about which speakers it will favor. +Famous and beloved copyright owners, such as the Gershwin estate +and Dr. Seuss, come to Congress and say, "Give us twenty years to + control +the speech about these icons of American culture. We'll do better +with them than anyone else." Congress of course likes to reward the +popular and famous by giving them what they want. But when + Congress +gives people an exclusive right to speak in a certain way, that's just +what the First Amendment is traditionally meant to block. + + +We argued as much in a final brief. Not only would upholding the +CTEA mean that there was no limit to the power of Congress to extend +copyrights--extensions that would further concentrate the market; it +would also mean that there was no limit to Congress's power to play + favorites, +through copyright, with who has the right to speak. +Between February and October, there was little I did beyond +preparing for this case. Early on, as I said, I set the strategy. + + +The Supreme Court was divided into two important camps. One +camp we called "the Conservatives." The other we called "the Rest." +The Conservatives included Chief Justice Rehnquist, Justice O'Connor, +Justice Scalia, Justice Kennedy, and Justice Thomas. These five had +been the most consistent in limiting Congress's power. They were the +five who had supported the Lopez/Morrison line of cases that said that +an enumerated power had to be interpreted to assure that Congress's +powers had limits. + + +The Rest were the four Justices who had strongly opposed limits on +Congress's power. These four--Justice Stevens, Justice Souter, Justice +Ginsburg, and Justice Breyer--had repeatedly argued that the + Constitution + +gives Congress broad discretion to decide how best to + implement +its powers. In case after case, these justices had argued that the +Court's role should be one of deference. Though the votes of these four +justices were the votes that I personally had most consistently agreed +with, they were also the votes that we were least likely to get. + + +In particular, the least likely was Justice Ginsburg's. In addition to +her general view about deference to Congress (except where issues of +gender are involved), she had been particularly deferential in the + context +of intellectual property protections. She and her daughter (an + excellent +and well-known intellectual property scholar) were cut from +the same intellectual property cloth. We expected she would agree with +the writings of her daughter: that Congress had the power in this + context +to do as it wished, even if what Congress wished made little sense. + + +Close behind Justice Ginsburg were two justices whom we also +viewed as unlikely allies, though possible surprises. Justice Souter +strongly favored deference to Congress, as did Justice Breyer. But both +were also very sensitive to free speech concerns. And as we strongly + believed, +there was a very important free speech argument against these +retrospective extensions. + + +The only vote we could be confident about was that of Justice +Stevens. History will record Justice Stevens as one of the greatest +judges on this Court. His votes are consistently eclectic, which just +means that no simple ideology explains where he will stand. But he +had consistently argued for limits in the context of intellectual property +generally. We were fairly confident he would recognize limits here. + + +This analysis of "the Rest" showed most clearly where our focus +had to be: on the Conservatives. To win this case, we had to crack open +these five and get at least a majority to go our way. Thus, the single + overriding +argument that animated our claim rested on the Conservatives' +most important jurisprudential innovation--the argument that Judge +Sentelle had relied upon in the Court of Appeals, that Congress's power +must be interpreted so that its enumerated powers have limits. + + +This then was the core of our strategy--a strategy for which I am +responsible. We would get the Court to see that just as with the Lopez + + +case, under the government's argument here, Congress would always +have unlimited power to extend existing terms. If anything was plain +about Congress's power under the Progress Clause, it was that this +power was supposed to be "limited." Our aim would be to get the +Court to reconcile Eldred with Lopez: If Congress's power to regulate +commerce was limited, then so, too, must Congress's power to regulate +copyright be limited. + + +The argument on the government's side came down to this: + Congress +has done it before. It should be allowed to do it again. The + government +claimed that from the very beginning, Congress has been +extending the term of existing copyrights. So, the government argued, +the Court should not now say that practice is unconstitutional. + + +There was some truth to the government's claim, but not much. We +certainly agreed that Congress had extended existing terms in +and in 1909. And of course, in 1962, Congress began extending + existing +terms regularly--eleven times in forty years. + + +But this "consistency" should be kept in perspective. Congress + extended +existing terms once in the first hundred years of the Republic. +It then extended existing terms once again in the next fifty. Those rare +extensions are in contrast to the now regular practice of extending + existing +terms. Whatever restraint Congress had had in the past, that + restraint +was now gone. Congress was now in a cycle of extensions; there +was no reason to expect that cycle would end. This Court had not + hesitated +to intervene where Congress was in a similar cycle of extension. +There was no reason it couldn't intervene here. +Oral argument was scheduled for the first week in October. I + arrived +in D.C. two weeks before the argument. During those two +weeks, I was repeatedly "mooted" by lawyers who had volunteered to + + +help in the case. Such "moots" are basically practice rounds, where +wannabe justices fire questions at wannabe winners. + + +I was convinced that to win, I had to keep the Court focused on a +single point: that if this extension is permitted, then there is no limit to +the power to set terms. Going with the government would mean that +terms would be effectively unlimited; going with us would give + Congress +a clear line to follow: Don't extend existing terms. The moots +were an effective practice; I found ways to take every question back to +this central idea. + + +One moot was before the lawyers at Jones Day. Don Ayer was the +skeptic. He had served in the Reagan Justice Department with + Solicitor +General Charles Fried. He had argued many cases before the +Supreme Court. And in his review of the moot, he let his concern +speak: + + +"I'm just afraid that unless they really see the harm, they won't be +willing to upset this practice that the government says has been a + consistent +practice for two hundred years. You have to make them see the +harm--passionately get them to see the harm. For if they don't see +that, then we haven't any chance of winning." + + +He may have argued many cases before this Court, I thought, but +he didn't understand its soul. As a clerk, I had seen the Justices do the +right thing--not because of politics but because it was right. As a law +professor, I had spent my life teaching my students that this Court +does the right thing--not because of politics but because it is right. As +I listened to Ayer's plea for passion in pressing politics, I understood +his point, and I rejected it. Our argument was right. That was enough. +Let the politicians learn to see that it was also good. +The night before the argument, a line of people began to form +in front of the Supreme Court. The case had become a focus of the +press and of the movement to free culture. Hundreds stood in line + + +for the chance to see the proceedings. Scores spent the night on the +Supreme Court steps so that they would be assured a seat. + + +Not everyone has to wait in line. People who know the Justices can +ask for seats they control. (I asked Justice Scalia's chambers for seats for +my parents, for example.) Members of the Supreme Court bar can get +a seat in a special section reserved for them. And senators and + congressmen +have a special place where they get to sit, too. And finally, of +course, the press has a gallery, as do clerks working for the Justices on +the Court. As we entered that morning, there was no place that was +not taken. This was an argument about intellectual property law, yet +the halls were filled. As I walked in to take my seat at the front of the +Court, I saw my parents sitting on the left. As I sat down at the table, +I saw Jack Valenti sitting in the special section ordinarily reserved for +family of the Justices. + + +When the Chief Justice called me to begin my argument, I began +where I intended to stay: on the question of the limits on Congress's +power. This was a case about enumerated powers, I said, and whether +those enumerated powers had any limit. + + +Justice O'Connor stopped me within one minute of my opening. +The history was bothering her. + +
+ +justice o'connor: Congress has extended the term so often +through the years, and if you are right, don't we run the risk of +upsetting previous extensions of time? I mean, this seems to be a +practice that began with the very first act. + +
+ +She was quite willing to concede "that this flies directly in the face +of what the framers had in mind." But my response again and again +was to emphasize limits on Congress's power. + +
+ +mr. lessig: Well, if it flies in the face of what the framers had in +mind, then the question is, is there a way of interpreting their + +words that gives effect to what they had in mind, and the answer +is yes. + +
+ +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, + +
+ +justice kennedy: Well, I suppose implicit in the argument that +the '76 act, too, should have been declared void, and that we +might leave it alone because of the disruption, is that for all these +years the act has impeded progress in science and the useful arts. +I just don't see any empirical evidence for that. + +
+ +Here follows my clear mistake. Like a professor correcting a + student, +I answered, + +
+ +mr. lessig: Justice, we are not making an empirical claim at all. +Nothing in our Copyright Clause claim hangs upon the empirical +assertion about impeding progress. Our only argument is this is a +structural limit necessary to assure that what would be an + effectively +perpetual term not be permitted under the copyright laws. + +
+ +That was a correct answer, but it wasn't the right answer. The right +answer was instead that there was an obvious and profound harm. Any +number of briefs had been written about it. He wanted to hear it. And +here was the place Don Ayer's advice should have mattered. This was a +softball; my answer was a swing and a miss. + + +The second came from the Chief, for whom the whole case had +been crafted. For the Chief Justice had crafted the Lopez ruling, and we +hoped that he would see this case as its second cousin. + + +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: + + + +
+ +chief justice: Well, but you want more than that. You want the +right to copy verbatim other people's books, don't you? + + +mr. lessig: We want the right to copy verbatim works that +should be in the public domain and would be in the public + domain +but for a statute that cannot be justified under ordinary First +Amendment analysis or under a proper reading of the limits built +into the Copyright Clause. + +
+ +Things went better for us when the government gave its argument; +for now the Court picked up on the core of our claim. As Justice Scalia +asked Solicitor General Olson, + +
+ +justice scalia: You say that the functional equivalent of an + unlimited +time would be a violation [of the Constitution], but that's +precisely the argument that's being made by petitioners here, that +a limited time which is extendable is the functional equivalent of +an unlimited time. + +
+ +When Olson was finished, it was my turn to give a closing rebuttal. +Olson's flailing had revived my anger. But my anger still was directed +to the academic, not the practical. The government was arguing as if +this were the first case ever to consider limits on Congress's Copyright +and Patent Clause power. Ever the professor and not the advocate, I +closed by pointing out the long history of the Court imposing limits on +Congress's power in the name of the Copyright and Patent Clause-- +indeed, the very first case striking a law of Congress as exceeding a + specific +enumerated power was based upon the Copyright and Patent +Clause. All true. But it wasn't going to move the Court to my side. + + +As I left the court that day, I knew there were a hundred points I +wished I could remake. There were a hundred questions I wished I had + + +answered differently. But one way of thinking about this case left me +optimistic. + + +The government had been asked over and over again, what is the +limit? Over and over again, it had answered there is no limit. This +was precisely the answer I wanted the Court to hear. For I could not +imagine how the Court could understand that the government + believed +Congress's power was unlimited under the terms of the + Copyright +Clause, and sustain the government's argument. The solicitor +general had made my argument for me. No matter how often I tried, +I could not understand how the Court could find that Congress's +power under the Commerce Clause was limited, but under the + Copyright +Clause, unlimited. In those rare moments when I let myself + believe +that we may have prevailed, it was because I felt this Court--in +particular, the Conservatives--would feel itself constrained by the rule +of law that it had established elsewhere. + + +The morning of January 15, 2003, I was five minutes late to the office +and missed the 7:00 A.M. call from the Supreme Court clerk. Listening to +the message, I could tell in an instant that she had bad news to report.The +Supreme Court had affirmed the decision of the Court of Appeals. Seven +justices had voted in the majority. There were two dissents. + + +A few seconds later, the opinions arrived by e-mail. I took the +phone off the hook, posted an announcement to our blog, and sat +down to see where I had been wrong in my reasoning. + + +My reasoning. Here was a case that pitted all the money in the +world against reasoning. And here was the last naïve law professor, +scouring the pages, looking for reasoning. + + +I first scoured the opinion, looking for how the Court would + distinguish +the principle in this case from the principle in Lopez. The + argument +was nowhere to be found. The case was not even cited. The +argument that was the core argument of our case did not even appear +in the Court's opinion. + + + + +Justice Ginsburg simply ignored the enumerated powers argument. +Consistent with her view that Congress's power was not limited + generally, +she had found Congress's power not limited here. + + +Her opinion was perfectly reasonable--for her, and for Justice +Souter. Neither believes in Lopez. It would be too much to expect them +to write an opinion that recognized, much less explained, the doctrine +they had worked so hard to defeat. + + +But as I realized what had happened, I couldn't quite believe what I +was reading. I had said there was no way this Court could reconcile +limited powers with the Commerce Clause and unlimited powers with +the Progress Clause. It had never even occurred to me that they could +reconcile the two simply by not addressing the argument. There was no +inconsistency because they would not talk about the two together. +There was therefore no principle that followed from the Lopez case: In +that context, Congress's power would be limited, but in this context it +would not. + + +Yet by what right did they get to choose which of the framers' + values +they would respect? By what right did they--the silent five--get to +select the part of the Constitution they would enforce based on the + values +they thought important? We were right back to the argument that +I said I hated at the start: I had failed to convince them that the issue +here was important, and I had failed to recognize that however much I +might hate a system in which the Court gets to pick the constitutional +values that it will respect, that is the system we have. + + +Justices Breyer and Stevens wrote very strong dissents. Stevens's +opinion was crafted internal to the law: He argued that the tradition of +intellectual property law should not support this unjustified extension +of terms. He based his argument on a parallel analysis that had + governed +in the context of patents (so had we). But the rest of the Court +discounted the parallel--without explaining how the very same words +in the Progress Clause could come to mean totally different things + depending +upon whether the words were about patents or copyrights. +The Court let Justice Stevens's charge go unanswered. + + + + +Justice Breyer's opinion, perhaps the best opinion he has ever + written, +was external to the Constitution. He argued that the term of + copyrights +has become so long as to be effectively unlimited. We had said +that under the current term, a copyright gave an author 99.8 percent of +the value of a perpetual term. Breyer said we were wrong, that the + actual +number was 99.9997 percent of a perpetual term. Either way, the +point was clear: If the Constitution said a term had to be "limited," and +the existing term was so long as to be effectively unlimited, then it was +unconstitutional. + + +These two justices understood all the arguments we had made. But +because neither believed in the Lopez case, neither was willing to push +it as a reason to reject this extension. The case was decided without +anyone having addressed the argument that we had carried from Judge +Sentelle. It was Hamlet without the Prince. + + +Defeat brings depression. They say it is a sign of health when +depression gives way to anger. My anger came quickly, but it didn't cure +the depression. This anger was of two sorts. + + +It was first anger with the five "Conservatives." It would have been +one thing for them to have explained why the principle of Lopez didn't +apply in this case. That wouldn't have been a very convincing + argument, +I don't believe, having read it made by others, and having tried +to make it myself. But it at least would have been an act of integrity. +These justices in particular have repeatedly said that the proper mode +of interpreting the Constitution is "originalism"--to first understand +the framers' text, interpreted in their context, in light of the structure +of the Constitution. That method had produced Lopez and many other +"originalist" rulings. Where was their "originalism" now? + + +Here, they had joined an opinion that never once tried to explain +what the framers had meant by crafting the Progress Clause as they +did; they joined an opinion that never once tried to explain how the +structure of that clause would affect the interpretation of Congress's + + +power. And they joined an opinion that didn't even try to explain why +this grant of power could be unlimited, whereas the Commerce Clause +would be limited. In short, they had joined an opinion that did not + apply +to, and was inconsistent with, their own method for interpreting +the Constitution. This opinion may well have yielded a result that they +liked. It did not produce a reason that was consistent with their own +principles. + + +My anger with the Conservatives quickly yielded to anger with + myself. +For I had let a view of the law that I liked interfere with a view of +the law as it is. + + +Most lawyers, and most law professors, have little patience for + idealism +about courts in general and this Supreme Court in particular. +Most have a much more pragmatic view. When Don Ayer said that +this case would be won based on whether I could convince the Justices +that the framers' values were important, I fought the idea, because I +didn't want to believe that that is how this Court decides. I insisted on +arguing this case as if it were a simple application of a set of principles. +I had an argument that followed in logic. I didn't need to waste my +time showing it should also follow in popularity. + + +As I read back over the transcript from that argument in October, I +can see a hundred places where the answers could have taken the + conversation +in different directions, where the truth about the harm that +this unchecked power will cause could have been made clear to this +Court. Justice Kennedy in good faith wanted to be shown. I, idiotically, +corrected his question. Justice Souter in good faith wanted to be shown +the First Amendment harms. I, like a math teacher, reframed the + question +to make the logical point. I had shown them how they could strike +this law of Congress if they wanted to. There were a hundred places +where I could have helped them want to, yet my stubbornness, my + refusal +to give in, stopped me. I have stood before hundreds of audiences +trying to persuade; I have used passion in that effort to persuade; but I + +refused to stand before this audience and try to persuade with the + passion +I had used elsewhere. It was not the basis on which a court should +decide the issue. + + +Would it have been different if I had argued it differently? Would it +have been different if Don Ayer had argued it? Or Charles Fried? Or +Kathleen Sullivan? + + +My friends huddled around me to insist it would not. The Court +was not ready, my friends insisted. This was a loss that was destined. It +would take a great deal more to show our society why our framers were +right. And when we do that, we will be able to show that Court. + + +Maybe, but I doubt it. These Justices have no financial interest in +doing anything except the right thing. They are not lobbied. They have +little reason to resist doing right. I can't help but think that if I had +stepped down from this pretty picture of dispassionate justice, I could +have persuaded. + + +And even if I couldn't, then that doesn't excuse what happened in +January. For at the start of this case, one of America's leading + intellectual +property professors stated publicly that my bringing this case was +a mistake. "The Court is not ready," Peter Jaszi said; this issue should +not be raised until it is. + + +After the argument and after the decision, Peter said to me, and +publicly, that he was wrong. But if indeed that Court could not have +been persuaded, then that is all the evidence that's needed to know that +here again Peter was right. Either I was not ready to argue this case in +a way that would do some good or they were not ready to hear this case +in a way that would do some good. Either way, the decision to bring +this case--a decision I had made four years before--was wrong. +While the reaction to the Sonny Bono Act itself was almost +unanimously negative, the reaction to the Court's decision was mixed. +No one, at least in the press, tried to say that extending the term of +copyright was a good idea. We had won that battle over ideas. Where + + +the decision was praised, it was praised by papers that had been + skeptical +of the Court's activism in other cases. Deference was a good thing, +even if it left standing a silly law. But where the decision was attacked, +it was attacked because it left standing a silly and harmful law. The New +York Times wrote in its editorial, + +
+ +In effect, the Supreme Court's decision makes it likely that we are +seeing the beginning of the end of public domain and the birth of +copyright perpetuity. The public domain has been a grand + experiment, +one that should not be allowed to die. The ability to draw +freely on the entire creative output of humanity is one of the + reasons +we live in a time of such fruitful creative ferment. + +
+ +The best responses were in the cartoons. There was a gaggle of + hilarious +images--of Mickey in jail and the like. The best, from my view +of the case, was Ruben Bolling's, reproduced on the next page. The +"powerful and wealthy" line is a bit unfair. But the punch in the face felt +exactly like that. + + +The image that will always stick in my head is that evoked by the +quote from The New York Times. That "grand experiment" we call the +"public domain" is over? When I can make light of it, I think, "Honey, +I shrunk the Constitution." But I can rarely make light of it. We had in +our Constitution a commitment to free culture. In the case that I + fathered, +the Supreme Court effectively renounced that commitment. A +better lawyer would have made them see differently. + + + + +CHAPTER FOURTEEN: Eldred II + +The day Eldred was decided, fate would have it that I was to travel to +Washington, D.C. (The day the rehearing petition in Eldred was + denied--meaning +the case was really finally over--fate would have it that +I was giving a speech to technologists at Disney World.) This was a +particularly long flight to my least favorite city. The drive into the city +from Dulles was delayed because of traffic, so I opened up my + computer +and wrote an op-ed piece. + + +It was an act of contrition. During the whole of the flight from San +Francisco to Washington, I had heard over and over again in my head +the same advice from Don Ayer: You need to make them see why it is +important. And alternating with that command was the question of +Justice Kennedy: "For all these years the act has impeded progress in +science and the useful arts. I just don't see any empirical evidence for +that." And so, having failed in the argument of constitutional principle, +finally, I turned to an argument of politics. + + +The New York Times published the piece. In it, I proposed a simple +fix: Fifty years after a work has been published, the copyright owner + +would be required to register the work and pay a small fee. If he paid +the fee, he got the benefit of the full term of copyright. If he did not, +the work passed into the public domain. + + +We called this the Eldred Act, but that was just to give it a name. +Eric Eldred was kind enough to let his name be used once again, but as +he said early on, it won't get passed unless it has another name. + + +Or another two names. For depending upon your perspective, this +is either the "Public Domain Enhancement Act" or the "Copyright +Term Deregulation Act." Either way, the essence of the idea is clear +and obvious: Remove copyright where it is doing nothing except +blocking access and the spread of knowledge. Leave it for as long as +Congress allows for those works where its worth is at least $1. But for +everything else, let the content go. + + +The reaction to this idea was amazingly strong. Steve Forbes + endorsed +it in an editorial. I received an avalanche of e-mail and letters +expressing support. When you focus the issue on lost creativity, people +can see the copyright system makes no sense. As a good Republican +might say, here government regulation is simply getting in the way of +innovation and creativity. And as a good Democrat might say, here the +government is blocking access and the spread of knowledge for no +good reason. Indeed, there is no real difference between Democrats +and Republicans on this issue. Anyone can recognize the stupid harm +of the present system. + + +Indeed, many recognized the obvious benefit of the registration + requirement. +For one of the hardest things about the current system for +people who want to license content is that there is no obvious place to +look for the current copyright owners. Since registration is not + required, +since marking content is not required, since no formality at all +is required, it is often impossibly hard to locate copyright owners to ask +permission to use or license their work. This system would lower these +costs, by establishing at least one registry where copyright owners +could be identified. + + + +As I described in chapter 10, formalities in copyright law were + removed +in 1976, when Congress followed the Europeans by + abandoning +any formal requirement before a copyright is granted. + Until the 1908 Berlin Act of the Berne Convention, national copyright +legislation sometimes made protection depend upon compliance with + formalities +such as registration, deposit, and affixation of notice of the + author's +claim of copyright. However, starting with the 1908 act, every text +of the Convention has provided that "the enjoyment and the exercise" of +rights guaranteed by the Convention "shall not be subject to any + formality." +The prohibition against formalities is presently embodied in Article +5(2) of the Paris Text of the Berne Convention. Many countries continue +to impose some form of deposit or registration requirement, albeit not as +a condition of copyright. French law, for example, requires the deposit of +copies of works in national repositories, principally the National Museum. +Copies of books published in the United Kingdom must be deposited in +the British Library. The German Copyright Act provides for a Registrar +of Authors where the author's true name can be filed in the case of + anonymous +or pseudonymous works. Paul Goldstein, International Intellectual +Property Law, Cases and Materials (New York: Foundation Press, 2001), +153­54. + + The + Europeans +are said to view copyright as a "natural right." Natural rights +don't need forms to exist. Traditions, like the Anglo-American + tradition +that required copyright owners to follow form if their rights were +to be protected, did not, the Europeans thought, properly respect the +dignity of the author. My right as a creator turns on my creativity, not +upon the special favor of the government. + + +That's great rhetoric. It sounds wonderfully romantic. But it is + absurd +copyright policy. It is absurd especially for authors, because a +world without formalities harms the creator. The ability to spread +"Walt Disney creativity" is destroyed when there is no simple way to +know what's protected and what's not. + + +The fight against formalities achieved its first real victory in Berlin +in 1908. International copyright lawyers amended the Berne + Convention +in 1908, to require copyright terms of life plus fifty years, as well as +the abolition of copyright formalities. The formalities were hated + because +the stories of inadvertent loss were increasingly common. It was +as if a Charles Dickens character ran all copyright offices, and the + failure +to dot an i or cross a t resulted in the loss of widows' only income. + + +These complaints were real and sensible. And the strictness of the +formalities, especially in the United States, was absurd. The law should +always have ways of forgiving innocent mistakes. There is no reason +copyright law couldn't, as well. Rather than abandoning formalities + totally, +the response in Berlin should have been to embrace a more + equitable +system of registration. + + +Even that would have been resisted, however, because registration +in the nineteenth and twentieth centuries was still expensive. It was +also a hassle. The abolishment of formalities promised not only to save +the starving widows, but also to lighten an unnecessary regulatory + burden +imposed upon creators. + + +In addition to the practical complaint of authors in 1908, there was +a moral claim as well. There was no reason that creative property + + +should be a second-class form of property. If a carpenter builds a table, +his rights over the table don't depend upon filing a form with the + government. +He has a property right over the table "naturally," and he can +assert that right against anyone who would steal the table, whether or +not he has informed the government of his ownership of the table. + + +This argument is correct, but its implications are misleading. For +the argument in favor of formalities does not depend upon creative +property being second-class property. The argument in favor of + formalities +turns upon the special problems that creative property + presents. +The law of formalities responds to the special physics of creative +property, to assure that it can be efficiently and fairly spread. + + +No one thinks, for example, that land is second-class property just +because you have to register a deed with a court if your sale of land is +to be effective. And few would think a car is second-class property just +because you must register the car with the state and tag it with a + license. +In both of those cases, everyone sees that there is an important +reason to secure registration--both because it makes the markets more +efficient and because it better secures the rights of the owner. Without +a registration system for land, landowners would perpetually have to +guard their property. With registration, they can simply point the + police +to a deed. Without a registration system for cars, auto theft would +be much easier. With a registration system, the thief has a high burden +to sell a stolen car. A slight burden is placed on the property owner, but +those burdens produce a much better system of protection for property +generally. + + +It is similarly special physics that makes formalities important in +copyright law. Unlike a carpenter's table, there's nothing in nature that +makes it relatively obvious who might own a particular bit of creative +property. A recording of Lyle Lovett's latest album can exist in a billion +places without anything necessarily linking it back to a particular +owner. And like a car, there's no way to buy and sell creative property +with confidence unless there is some simple way to authenticate who is +the author and what rights he has. Simple transactions are destroyed in + + +a world without formalities. Complex, expensive, lawyer transactions +take their place. + + +This was the understanding of the problem with the Sonny Bono +Act that we tried to demonstrate to the Court. This was the part it +didn't "get." Because we live in a system without formalities, there is no +way easily to build upon or use culture from our past. If copyright +terms were, as Justice Story said they would be, "short," then this +wouldn't matter much. For fourteen years, under the framers' system, a +work would be presumptively controlled. After fourteen years, it would +be presumptively uncontrolled. + + +But now that copyrights can be just about a century long, the + inability +to know what is protected and what is not protected becomes a +huge and obvious burden on the creative process. If the only way a + library +can offer an Internet exhibit about the New Deal is to hire a +lawyer to clear the rights to every image and sound, then the copyright +system is burdening creativity in a way that has never been seen before +because there are no formalities. + + +The Eldred Act was designed to respond to exactly this problem. If +it is worth $1 to you, then register your work and you can get the +longer term. Others will know how to contact you and, therefore, how +to get your permission if they want to use your work. And you will get +the benefit of an extended copyright term. + + +If it isn't worth it to you to register to get the benefit of an extended +term, then it shouldn't be worth it for the government to defend your +monopoly over that work either. The work should pass into the public +domain where anyone can copy it, or build archives with it, or create a +movie based on it. It should become free if it is not worth $1 to you. + + +Some worry about the burden on authors. Won't the burden of + registering +the work mean that the $1 is really misleading? Isn't the hassle +worth more than $1? Isn't that the real problem with registration? + + +It is. The hassle is terrible. The system that exists now is awful. I +completely agree that the Copyright Office has done a terrible job (no +doubt because they are terribly funded) in enabling simple and cheap + + +registrations. Any real solution to the problem of formalities must + address +the real problem of governments standing at the core of any + system +of formalities. In this book, I offer such a solution. That solution +essentially remakes the Copyright Office. For now, assume it was +Amazon that ran the registration system. Assume it was one-click + registration. +The Eldred Act would propose a simple, one-click + registration +fifty years after a work was published. Based upon historical data, +that system would move up to 98 percent of commercial work, + commercial +work that no longer had a commercial life, into the public + domain +within fifty years. What do you think? + + +When Steve Forbes endorsed the idea, some in Washington began +to pay attention. Many people contacted me pointing to + representatives +who might be willing to introduce the Eldred Act. And I had a few +who directly suggested that they might be willing to take the first step. + + +One representative, Zoe Lofgren of California, went so far as to get +the bill drafted. The draft solved any problem with international law. It +imposed the simplest requirement upon copyright owners possible. In +May 2003, it looked as if the bill would be introduced. On May 16, I +posted on the Eldred Act blog, "we are close." There was a general + reaction +in the blog community that something good might happen here. + + +But at this stage, the lobbyists began to intervene. Jack Valenti and +the MPAA general counsel came to the congresswoman's office to +give the view of the MPAA. Aided by his lawyer, as Valenti told me, +Valenti informed the congresswoman that the MPAA would oppose +the Eldred Act. The reasons are embarrassingly thin. More importantly, +their thinness shows something clear about what this debate is + really +about. + + +The MPAA argued first that Congress had "firmly rejected the + central +concept in the proposed bill"--that copyrights be renewed. That +was true, but irrelevant, as Congress's "firm rejection" had occurred + +long before the Internet made subsequent uses much more likely. + Second, +they argued that the proposal would harm poor copyright + owners--apparently +those who could not afford the $1 fee. Third, they + argued +that Congress had determined that extending a copyright term +would encourage restoration work. Maybe in the case of the small + percentage +of work covered by copyright law that is still commercially +valuable, but again this was irrelevant, as the proposal would not cut off +the extended term unless the $1 fee was not paid. Fourth, the MPAA +argued that the bill would impose "enormous" costs, since a registration +system is not free. True enough, but those costs are certainly less than +the costs of clearing the rights for a copyright whose owner is not +known. Fifth, they worried about the risks if the copyright to a story +underlying a film were to pass into the public domain. But what risk is +that? If it is in the public domain, then the film is a valid derivative use. + + +Finally, the MPAA argued that existing law enabled copyright +owners to do this if they wanted. But the whole point is that there are +thousands of copyright owners who don't even know they have a + copyright +to give. Whether they are free to give away their copyright or +not--a controversial claim in any case--unless they know about a +copyright, they're not likely to. + + +At the beginning of this book, I told two stories about the law + reacting +to changes in technology. In the one, common sense prevailed. +In the other, common sense was delayed. The difference between the +two stories was the power of the opposition--the power of the side that +fought to defend the status quo. In both cases, a new technology + threatened +old interests. But in only one case did those interest's have the +power to protect themselves against this new competitive threat. + + +I used these two cases as a way to frame the war that this book has +been about. For here, too, a new technology is forcing the law to react. +And here, too, we should ask, is the law following or resisting common +sense? If common sense supports the law, what explains this common +sense? + + + + +When the issue is piracy, it is right for the law to back the copyright +owners. The commercial piracy that I described is wrong and harmful, +and the law should work to eliminate it. When the issue is p2p + sharing, +it is easy to understand why the law backs the owners still: Much +of this sharing is wrong, even if much is harmless. When the issue is +copyright terms for the Mickey Mouses of the world, it is possible still +to understand why the law favors Hollywood: Most people don't + recognize +the reasons for limiting copyright terms; it is thus still possible +to see good faith within the resistance. + + +But when the copyright owners oppose a proposal such as the + Eldred +Act, then, finally, there is an example that lays bare the naked + selfinterest +driving this war. This act would free an extraordinary range of +content that is otherwise unused. It wouldn't interfere with any + copyright +owner's desire to exercise continued control over his content. It +would simply liberate what Kevin Kelly calls the "Dark Content" that +fills archives around the world. So when the warriors oppose a change +like this, we should ask one simple question: + + +What does this industry really want? + + +With very little effort, the warriors could protect their content. So +the effort to block something like the Eldred Act is not really about +protecting their content. The effort to block the Eldred Act is an effort +to assure that nothing more passes into the public domain. It is another +step to assure that the public domain will never compete, that there +will be no use of content that is not commercially controlled, and that +there will be no commercial use of content that doesn't require their +permission first. + + +The opposition to the Eldred Act reveals how extreme the other +side is. The most powerful and sexy and well loved of lobbies really has +as its aim not the protection of "property" but the rejection of a + tradition. +Their aim is not simply to protect what is theirs. Their aim is to + assure +that all there is is what is theirs. + + +It is not hard to understand why the warriors take this view. It is not +hard to see why it would benefit them if the competition of the public + + +domain tied to the Internet could somehow be quashed. Just as RCA +feared the competition of FM, they fear the competition of a public +domain connected to a public that now has the means to create with it +and to share its own creation. + + +What is hard to understand is why the public takes this view. It is +as if the law made airplanes trespassers. The MPAA stands with the +Causbys and demands that their remote and useless property rights be +respected, so that these remote and forgotten copyright holders might +block the progress of others. + + +All this seems to follow easily from this untroubled acceptance of +the "property" in intellectual property. Common sense supports it, and +so long as it does, the assaults will rain down upon the technologies of +the Internet. The consequence will be an increasing "permission + society." +The past can be cultivated only if you can identify the owner and +gain permission to build upon his work. The future will be controlled +by this dead (and often unfindable) hand of the past. + + + + + +CONCLUSION + +There are more than 35 million people with the AIDS virus +worldwide. Twenty-five million of them live in sub-Saharan Africa. +Seventeen million have already died. Seventeen million Africans +is proportional percentage-wise to seven million Americans. More +importantly, it is seventeen million Africans. + + +There is no cure for AIDS, but there are drugs to slow its + progression. +These antiretroviral therapies are still experimental, but they have +already had a dramatic effect. In the United States, AIDS patients who +regularly take a cocktail of these drugs increase their life expectancy +by ten to twenty years. For some, the drugs make the disease almost +invisible. + + +These drugs are expensive. When they were first introduced in the +United States, they cost between $10,000 and $15,000 per person per +year. Today, some cost $25,000 per year. At these prices, of course, no +African nation can afford the drugs for the vast majority of its + population: +$15,000 is thirty times the per capita gross national product of +Zimbabwe. At these prices, the drugs are totally unavailable. + Commission on Intellectual Property Rights, "Final Report: Integrating +Intellectual Property Rights and Development Policy" (London, 2002), +available at +link #55. According to a World Health Organization press + release +issued 9 July 2002, only 230,000 of the 6 million who need drugs in +the developing world receive them--and half of them are in Brazil. + + + + +These prices are not high because the ingredients of the drugs are +expensive. These prices are high because the drugs are protected by +patents. The drug companies that produced these life-saving mixes + enjoy +at least a twenty-year monopoly for their inventions. They use that +monopoly power to extract the most they can from the market. That +power is in turn used to keep the prices high. + + +There are many who are skeptical of patents, especially drug +patents. I am not. Indeed, of all the areas of research that might be + supported +by patents, drug research is, in my view, the clearest case where +patents are needed. The patent gives the drug company some assurance +that if it is successful in inventing a new drug to treat a disease, it will +be able to earn back its investment and more. This is socially an + extremely +valuable incentive. I am the last person who would argue that +the law should abolish it, at least without other changes. + + +But it is one thing to support patents, even drug patents. It is + another +thing to determine how best to deal with a crisis. And as African +leaders began to recognize the devastation that AIDS was bringing, +they started looking for ways to import HIV treatments at costs + significantly +below the market price. + + +In 1997, South Africa tried one tack. It passed a law to allow the +importation of patented medicines that had been produced or sold in +another nation's market with the consent of the patent owner. For + example, +if the drug was sold in India, it could be imported into Africa +from India. This is called "parallel importation," and it is generally + permitted +under international trade law and is specifically permitted +within the European Union. + See Peter Drahos with John Braithwaite, Information Feudalism: Who +Owns the Knowledge Economy? (New York: The New Press, 2003), 37. + + + +However, the United States government opposed the bill. Indeed, +more than opposed. As the International Intellectual Property + Association +characterized it, "The U.S. government pressured South Africa . . . +not to permit compulsory licensing or parallel imports." + International Intellectual Property Institute (IIPI), Patent Protection and +Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report + Prepared +for the World Intellectual Property Organization (Washington, D.C., +2000), 14, available at +link #56. For a firsthand account of the struggle over +South Africa, see Hearing Before the Subcommittee on Criminal Justice, +Drug Policy, and Human Resources, House Committee on Government +Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150­57 +(statement of James Love). + + Through the +Office of the United States Trade Representative, the government +asked South Africa to change the law--and to add pressure to that + request, +in 1998, the USTR listed South Africa for possible trade sanctions. + +That same year, more than forty pharmaceutical companies + began +proceedings in the South African courts to challenge the + government's +actions. The United States was then joined by other governments +from the EU. Their claim, and the claim of the pharmaceutical + companies, +was that South Africa was violating its obligations under + international +law by discriminating against a particular kind of patent-- +pharmaceutical patents. The demand of these governments, with the +United States in the lead, was that South Africa respect these patents +as it respects any other patent, regardless of any effect on the treatment +of AIDS within South Africa. + International Intellectual Property Institute (IIPI), Patent Protection and +Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report + Prepared +for the World Intellectual Property Organization (Washington, D.C., +2000), 15. + + + +We should place the intervention by the United States in context. +No doubt patents are not the most important reason that Africans +don't have access to drugs. Poverty and the total absence of an effective +health care infrastructure matter more. But whether patents are the +most important reason or not, the price of drugs has an effect on their +demand, and patents affect price. And so, whether massive or + marginal, +there was an effect from our government's intervention to stop +the flow of medications into Africa. + + +By stopping the flow of HIV treatment into Africa, the United +States government was not saving drugs for United States citizens. +This is not like wheat (if they eat it, we can't); instead, the flow that the +United States intervened to stop was, in effect, a flow of knowledge: +information about how to take chemicals that exist within Africa, and +turn those chemicals into drugs that would save 15 to 30 million lives. + + +Nor was the intervention by the United States going to protect the +profits of United States drug companies--at least, not substantially. It +was not as if these countries were in the position to buy the drugs for +the prices the drug companies were charging. Again, the Africans are +wildly too poor to afford these drugs at the offered prices. Stopping the +parallel import of these drugs would not substantially increase the sales +by U.S. companies. + + +Instead, the argument in favor of restricting this flow of + information, +which was needed to save the lives of millions, was an argument + +about the sanctity of property. + See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's +Needs at Odds with Firms' Profit Motive," San Francisco Chronicle, 24 +May 1999, A1, available at +link #57 ("compulsory licenses and gray + markets +pose a threat to the entire system of intellectual property protection"); +Robert Weissman, "AIDS and Developing Countries: Democratizing + Access +to Essential Medicines," Foreign Policy in Focus 4:23 (August 1999), +available at +link #58 (describing U.S. policy); John A. Harrelson, "TRIPS, +Pharmaceutical Patents, and the HIV/AIDS Crisis: Finding the Proper +Balance Between Intellectual Property Rights and Compassion, a + Synopsis," +Widener Law Symposium Journal (Spring 2001): 175. + + + It was because "intellectual property" +would be violated that these drugs should not flow into Africa. It was +a principle about the importance of "intellectual property" that led +these government actors to intervene against the South African + response +to AIDS. + + +Now just step back for a moment. There will be a time thirty years +from now when our children look back at us and ask, how could we have +let this happen? How could we allow a policy to be pursued whose + direct +cost would be to speed the death of 15 to 30 million Africans, and +whose only real benefit would be to uphold the "sanctity" of an idea? +What possible justification could there ever be for a policy that results +in so many deaths? What exactly is the insanity that would allow so +many to die for such an abstraction? + + +Some blame the drug companies. I don't. They are corporations. +Their managers are ordered by law to make money for the corporation. +They push a certain patent policy not because of ideals, but because it is +the policy that makes them the most money. And it only makes them the +most money because of a certain corruption within our political system-- +a corruption the drug companies are certainly not responsible for. + + +The corruption is our own politicians' failure of integrity. For the +drug companies would love--they say, and I believe them--to sell their +drugs as cheaply as they can to countries in Africa and elsewhere. +There are issues they'd have to resolve to make sure the drugs didn't get +back into the United States, but those are mere problems of + technology. +They could be overcome. + + +A different problem, however, could not be overcome. This is the +fear of the grandstanding politician who would call the presidents of +the drug companies before a Senate or House hearing, and ask, "How +is it you can sell this HIV drug in Africa for only $1 a pill, but the same +drug would cost an American $1,500?" Because there is no "sound +bite" answer to that question, its effect would be to induce regulation +of prices in America. The drug companies thus avoid this spiral by +avoiding the first step. They reinforce the idea that property should be + +sacred. They adopt a rational strategy in an irrational context, with the +unintended consequence that perhaps millions die. And that rational +strategy thus becomes framed in terms of this ideal--the sanctity of an +idea called "intellectual property." + + +So when the common sense of your child confronts you, what will +you say? When the common sense of a generation finally revolts +against what we have done, how will we justify what we have done? +What is the argument? + + +A sensible patent policy could endorse and strongly support the +patent system without having to reach everyone everywhere in exactly +the same way. Just as a sensible copyright policy could endorse and +strongly support a copyright system without having to regulate the +spread of culture perfectly and forever, a sensible patent policy could +endorse and strongly support a patent system without having to block +the spread of drugs to a country not rich enough to afford market +prices in any case. A sensible policy, in other words, could be a balanced +policy. For most of our history, both copyright and patent policies were +balanced in just this sense. + + +But we as a culture have lost this sense of balance. We have lost the +critical eye that helps us see the difference between truth and + extremism. +A certain property fundamentalism, having no connection to our +tradition, now reigns in this culture--bizarrely, and with consequences +more grave to the spread of ideas and culture than almost any other +single policy decision that we as a democracy will make. +A simple idea blinds us, and under the cover of darkness, much +happens that most of us would reject if any of us looked. So uncritically +do we accept the idea of property in ideas that we don't even notice +how monstrous it is to deny ideas to a people who are dying without +them. So uncritically do we accept the idea of property in culture that +we don't even question when the control of that property removes our + +ability, as a people, to develop our culture democratically. Blindness + becomes +our common sense. And the challenge for anyone who would +reclaim the right to cultivate our culture is to find a way to make this +common sense open its eyes. + + +So far, common sense sleeps. There is no revolt. Common sense +does not yet see what there could be to revolt about. The extremism +that now dominates this debate fits with ideas that seem natural, and +that fit is reinforced by the RCAs of our day. They wage a frantic war +to fight "piracy," and devastate a culture for creativity. They defend +the idea of "creative property," while transforming real creators into +modern-day sharecroppers. They are insulted by the idea that rights +should be balanced, even though each of the major players in this +content war was itself a beneficiary of a more balanced ideal. The +hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even +noticed. Powerful lobbies, complex issues, and MTV attention spans +produce the "perfect storm" for free culture. + + +In August 2003, a fight broke out in the United States about a +decision by the World Intellectual Property Organization to cancel a +meeting. + Jonathan Krim, "The Quiet War over Open-Source," Washington Post, +August 2003, E1, available at +link #59; William New, "Global Group's +Shift on `Open Source' Meeting Spurs Stir," National Journal's Technology +Daily, 19 August 2003, available at +link #60; William New, "U.S. Official +Opposes `Open Source' Talks at WIPO," National Journal's Technology +Daily, 19 August 2003, available at +link #61. + + At the request of a wide range of interests, WIPO had + decided +to hold a meeting to discuss "open and collaborative projects to +create public goods." These are projects that have been successful in +producing public goods without relying exclusively upon a proprietary +use of intellectual property. Examples include the Internet and the +World Wide Web, both of which were developed on the basis of + protocols +in the public domain. It included an emerging trend to support +open academic journals, including the Public Library of Science + project +that I describe in the Afterword. It included a project to develop +single nucleotide polymorphisms (SNPs), which are thought to have +great significance in biomedical research. (That nonprofit project + comprised +a consortium of the Wellcome Trust and pharmaceutical and +technological companies, including Amersham Biosciences, AstraZeneca, + +Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, + Glaxo-SmithKline, +IBM, Motorola, Novartis, Pfizer, and Searle.) It included +the Global Positioning System, which Ronald Reagan set free in the +early 1980s. And it included "open source and free software." + + +The aim of the meeting was to consider this wide range of projects +from one common perspective: that none of these projects relied upon +intellectual property extremism. Instead, in all of them, intellectual +property was balanced by agreements to keep access open or to impose +limitations on the way in which proprietary claims might be used. + + +From the perspective of this book, then, the conference was ideal. + I should disclose that I was one of the people who asked WIPO for the +meeting. + +The projects within its scope included both commercial and + noncommercial +work. They primarily involved science, but from many + perspectives. +And WIPO was an ideal venue for this discussion, since +WIPO is the preeminent international body dealing with intellectual +property issues. + + +Indeed, I was once publicly scolded for not recognizing this fact +about WIPO. In February 2003, I delivered a keynote address to a +preparatory conference for the World Summit on the Information + Society +(WSIS). At a press conference before the address, I was asked +what I would say. I responded that I would be talking a little about the +importance of balance in intellectual property for the development of +an information society. The moderator for the event then promptly + interrupted +to inform me and the assembled reporters that no question +about intellectual property would be discussed by WSIS, since those +questions were the exclusive domain of WIPO. In the talk that I had +prepared, I had actually made the issue of intellectual property + relatively +minor. But after this astonishing statement, I made intellectual +property the sole focus of my talk. There was no way to talk about an +"Information Society" unless one also talked about the range of + information +and culture that would be free. My talk did not make my + immoderate +moderator very happy. And she was no doubt correct that the +scope of intellectual property protections was ordinarily the stuff of + +WIPO. But in my view, there couldn't be too much of a conversation +about how much intellectual property is needed, since in my view, the +very idea of balance in intellectual property had been lost. + + +So whether or not WSIS can discuss balance in intellectual + property, +I had thought it was taken for granted that WIPO could and +should. And thus the meeting about "open and collaborative projects to +create public goods" seemed perfectly appropriate within the WIPO +agenda. + + +But there is one project within that list that is highly controversial, +at least among lobbyists. That project is "open source and free + software." +Microsoft in particular is wary of discussion of the subject. From +its perspective, a conference to discuss open source and free software +would be like a conference to discuss Apple's operating system. Both +open source and free software compete with Microsoft's software. And +internationally, many governments have begun to explore requirements +that they use open source or free software, rather than "proprietary +software," for their own internal uses. + + +I don't mean to enter that debate here. It is important only to make +clear that the distinction is not between commercial and + noncommercial +software. There are many important companies that depend + fundamentally +upon open source and free software, IBM being the most +prominent. IBM is increasingly shifting its focus to the GNU/Linux +operating system, the most famous bit of "free software"--and IBM is +emphatically a commercial entity. Thus, to support "open source and +free software" is not to oppose commercial entities. It is, instead, to +support a mode of software development that is different from + Microsoft's. + Microsoft's position about free and open source software is more + sophisticated. +As it has repeatedly asserted, it has no problem with "open source" +software or software in the public domain. Microsoft's principal + opposition +is to "free software" licensed under a "copyleft" license, meaning a + license +that requires the licensee to adopt the same terms on any derivative +work. See Bradford L. Smith, "The Future of Software: Enabling the + Marketplace +to Decide," Government Policy Toward Open Source Software +(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, +American Enterprise Institute for Public Policy Research, 2002), 69, +available at +link #62. See also Craig Mundie, Microsoft senior vice + president, +The Commercial Software Model, discussion at New York University +Stern School of Business (3 May 2001), available at +link #63. + + + +More important for our purposes, to support "open source and free +software" is not to oppose copyright. "Open source and free + software" +is not software in the public domain. Instead, like Microsoft's +software, the copyright owners of free and open source software insist +quite strongly that the terms of their software license be respected by + +adopters of free and open source software. The terms of that license are +no doubt different from the terms of a proprietary software license. +Free software licensed under the General Public License (GPL), for +example, requires that the source code for the software be made + available +by anyone who modifies and redistributes the software. But that +requirement is effective only if copyright governs software. If copyright +did not govern software, then free software could not impose the same +kind of requirements on its adopters. It thus depends upon copyright +law just as Microsoft does. + + +It is therefore understandable that as a proprietary software + developer, +Microsoft would oppose this WIPO meeting, and + understandable +that it would use its lobbyists to get the United States government +to oppose it, as well. And indeed, that is just what was reported to have +happened. According to Jonathan Krim of the Washington Post, + Microsoft's +lobbyists succeeded in getting the United States government +to veto the meeting. + Krim, "The Quiet War over Open-Source," available at +link #64. + + And without U.S. backing, the meeting was + canceled. + + +I don't blame Microsoft for doing what it can to advance its own + interests, +consistent with the law. And lobbying governments is plainly +consistent with the law. There was nothing surprising about its + lobbying +here, and nothing terribly surprising about the most powerful + software +producer in the United States having succeeded in its lobbying +efforts. + + +What was surprising was the United States government's reason for +opposing the meeting. Again, as reported by Krim, Lois Boland, acting +director of international relations for the U.S. Patent and Trademark +Office, explained that "open-source software runs counter to the + mission +of WIPO, which is to promote intellectual-property rights." She +is quoted as saying, "To hold a meeting which has as its purpose to + disclaim +or waive such rights seems to us to be contrary to the goals of +WIPO." + + +These statements are astonishing on a number of levels. + + + +First, they are just flat wrong. As I described, most open source and +free software relies fundamentally upon the intellectual property right +called "copyright." Without it, restrictions imposed by those licenses +wouldn't work. Thus, to say it "runs counter" to the mission of + promoting +intellectual property rights reveals an extraordinary gap in + understanding--the +sort of mistake that is excusable in a first-year law +student, but an embarrassment from a high government official + dealing +with intellectual property issues. + + +Second, who ever said that WIPO's exclusive aim was to "promote" +intellectual property maximally? As I had been scolded at the + preparatory +conference of WSIS, WIPO is to consider not only how best to +protect intellectual property, but also what the best balance of + intellectual +property is. As every economist and lawyer knows, the hard + question +in intellectual property law is to find that balance. But that there +should be limits is, I had thought, uncontested. One wants to ask Ms. +Boland, are generic drugs (drugs based on drugs whose patent has +expired) contrary to the WIPO mission? Does the public domain +weaken intellectual property? Would it have been better if the + protocols +of the Internet had been patented? + + +Third, even if one believed that the purpose of WIPO was to + maximize +intellectual property rights, in our tradition, intellectual property +rights are held by individuals and corporations. They get to decide +what to do with those rights because, again, they are their rights. If they +want to "waive" or "disclaim" their rights, that is, within our tradition, +totally appropriate. When Bill Gates gives away more than $20 billion +to do good in the world, that is not inconsistent with the objectives of +the property system. That is, on the contrary, just what a property + system +is supposed to be about: giving individuals the right to decide what +to do with their property. + + +When Ms. Boland says that there is something wrong with a + meeting +"which has as its purpose to disclaim or waive such rights," she's +saying that WIPO has an interest in interfering with the choices of + +the individuals who own intellectual property rights. That somehow, +WIPO's objective should be to stop an individual from "waiving" or + "disclaiming" +an intellectual property right. That the interest of WIPO is +not just that intellectual property rights be maximized, but that they also +should be exercised in the most extreme and restrictive way possible. + + +There is a history of just such a property system that is well known +in the Anglo-American tradition. It is called "feudalism." Under + feudalism, +not only was property held by a relatively small number of + individuals +and entities. And not only were the rights that ran with that +property powerful and extensive. But the feudal system had a strong +interest in assuring that property holders within that system not +weaken feudalism by liberating people or property within their control +to the free market. Feudalism depended upon maximum control and +concentration. It fought any freedom that might interfere with that +control. + + +As Peter Drahos and John Braithwaite relate, this is precisely the +choice we are now making about intellectual property. + See Drahos with Braithwaite, Information Feudalism, 210­20. + + We will have +an information society. That much is certain. Our only choice now is +whether that information society will be free or feudal. The trend is + toward +the feudal. + + +When this battle broke, I blogged it. A spirited debate within the +comment section ensued. Ms. Boland had a number of supporters who +tried to show why her comments made sense. But there was one + comment +that was particularly depressing for me. An anonymous poster +wrote, + +
+ +George, you misunderstand Lessig: He's only talking about the +world as it should be ("the goal of WIPO, and the goal of any +government, should be to promote the right balance of + intellectualproperty +rights, not simply to promote intellectual property +rights"), not as it is. If we were talking about the world as it is, +then of course Boland didn't say anything wrong. But in the world + +as Lessig would have it, then of course she did. Always pay + attention +to the distinction between Lessig's world and ours. + +
+ +I missed the irony the first time I read it. I read it quickly and +thought the poster was supporting the idea that seeking balance was +what our government should be doing. (Of course, my criticism of Ms. +Boland was not about whether she was seeking balance or not; my +criticism was that her comments betrayed a first-year law student's +mistake. I have no illusion about the extremism of our government, +whether Republican or Democrat. My only illusion apparently is about +whether our government should speak the truth or not.) + + +Obviously, however, the poster was not supporting that idea. + Instead, +the poster was ridiculing the very idea that in the real world, the +"goal" of a government should be "to promote the right balance" of + intellectual +property. That was obviously silly to him. And it obviously +betrayed, he believed, my own silly utopianism. "Typical for an + academic," +the poster might well have continued. + + +I understand criticism of academic utopianism. I think utopianism +is silly, too, and I'd be the first to poke fun at the absurdly unrealistic +ideals of academics throughout history (and not just in our own + country's +history). + + +But when it has become silly to suppose that the role of our + government +should be to "seek balance," then count me with the silly, for +that means that this has become quite serious indeed. If it should be +obvious to everyone that the government does not seek balance, that +the government is simply the tool of the most powerful lobbyists, that +the idea of holding the government to a different standard is absurd, +that the idea of demanding of the government that it speak truth and +not lies is just naïve, then who have we, the most powerful democracy +in the world, become? + + +It might be crazy to expect a high government official to speak +the truth. It might be crazy to believe that government policy will be +something more than the handmaiden of the most powerful interests. + +It might be crazy to argue that we should preserve a tradition that has +been part of our tradition for most of our history--free culture. + + +If this is crazy, then let there be more crazies. Soon. +There are moments of hope in this struggle. And moments that +surprise. When the FCC was considering relaxing ownership rules, +which would thereby further increase the concentration in media + ownership, +an extraordinary bipartisan coalition formed to fight this +change. For perhaps the first time in history, interests as diverse as the +NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and +CodePink Women for Peace organized to oppose this change in FCC +policy. An astonishing 700,000 letters were sent to the FCC, + demanding +more hearings and a different result. + + +This activism did not stop the FCC, but soon after, a broad + coalition +in the Senate voted to reverse the FCC decision. The hostile + hearings +leading up to that vote revealed just how powerful this movement +had become. There was no substantial support for the FCC's decision, +and there was broad and sustained support for fighting further + concentration +in the media. + + +But even this movement misses an important piece of the puzzle. +Largeness as such is not bad. Freedom is not threatened just because +some become very rich, or because there are only a handful of big + players. +The poor quality of Big Macs or Quarter Pounders does not mean +that you can't get a good hamburger from somewhere else. + + +The danger in media concentration comes not from the + concentration, +but instead from the feudalism that this concentration, tied to the +change in copyright, produces. It is not just that there are a few + powerful +companies that control an ever expanding slice of the media. It +is that this concentration can call upon an equally bloated range of +rights--property rights of a historically extreme form--that makes +their bigness bad. + + + +It is therefore significant that so many would rally to demand + competition +and increased diversity. Still, if the rally is understood as being +about bigness alone, it is not terribly surprising. We Americans have a +long history of fighting "big," wisely or not. That we could be + motivated +to fight "big" again is not something new. + + +It would be something new, and something very important, if an +equal number could be rallied to fight the increasing extremism built +within the idea of "intellectual property." Not because balance is alien +to our tradition; indeed, as I've argued, balance is our tradition. But + because +the muscle to think critically about the scope of anything called +"property" is not well exercised within this tradition anymore. + + +If we were Achilles, this would be our heel. This would be the place +of our tragedy. + + +As I write these final words, the news is filled with stories about +the RIAA lawsuits against almost three hundred individuals. + John Borland, "RIAA Sues 261 File Swappers," CNET News.com, +September 2003, available at +link #65; Paul R. La Monica, "Music + Industry +Sues Swappers," CNN/Money, 8 September 2003, available at +link #66; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a +Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," New York Daily +News, 9 September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet + Surprised +Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among +Defendants," Washington Post, 10 September 2003, E1; Katie Dean, +"Schoolgirl Settles with RIAA," Wired News, 10 September 2003, + available +at +link #67. + + + Eminem +has just been sued for "sampling" someone else's music. + Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com, +17 September 2003, available at +link #68. + + The +story about Bob Dylan "stealing" from a Japanese author has just + finished +making the rounds. + Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for + Dylan +Songs," Kansascity.com, 9 July 2003, available at +link #69. + + + An insider from Hollywood--who insists +he must remain anonymous--reports "an amazing conversation with +these studio guys. They've got extraordinary [old] content that they'd +love to use but can't because they can't begin to clear the rights. They've +got scores of kids who could do amazing things with the content, but +it would take scores of lawyers to clean it first." Congressmen are + talking +about deputizing computer viruses to bring down computers thought +to violate the law. Universities are threatening expulsion for kids who +use a computer to share content. + + +Yet on the other side of the Atlantic, the BBC has just announced +that it will build a "Creative Archive," from which British citizens can +download BBC content, and rip, mix, and burn it. + "BBC Plans to Open Up Its Archive to the Public," BBC press release, +24 August 2003, available at +link #70. + + And in Brazil, the +culture minister, Gilberto Gil, himself a folk hero of Brazilian music, +has joined with Creative Commons to release content and free licenses +in that Latin American country. + "Creative Commons and Brazil," Creative Commons Weblog, 6 August +2003, available at +link #71. + + +I've told a dark story. The truth is more mixed. A technology has +given us a new freedom. Slowly, some begin to understand that this +freedom need not mean anarchy. We can carry a free culture into the +twenty-first century, without artists losing and without the potential of +digital technology being destroyed. It will take some thought, and +more importantly, it will take some will to transform the RCAs of our +day into the Causbys. + + +Common sense must revolt. It must act to free culture. Soon, if this +potential is ever to be realized. + + + + + + +AFTERWORD + + + +At least some who have read this far will agree with me that + something +must be done to change where we are heading. The balance of +this book maps what might be done. + + +I divide this map into two parts: that which anyone can do now, +and that which requires the help of lawmakers. If there is one lesson +that we can draw from the history of remaking common sense, it is that +it requires remaking how many people think about the very same issue. + + +That means this movement must begin in the streets. It must + recruit +a significant number of parents, teachers, librarians, creators, + authors, +musicians, filmmakers, scientists--all to tell this story in their +own words, and to tell their neighbors why this battle is so important. + + +Once this movement has its effect in the streets, it has some hope of +having an effect in Washington. We are still a democracy. What people +think matters. Not as much as it should, at least when an RCA stands +opposed, but still, it matters. And thus, in the second part below, I +sketch changes that Congress could make to better secure a free culture. + + + + +US, NOW + +Common sense is with the copyright warriors because the debate so +far has been framed at the extremes--as a grand either/or: either + property +or anarchy, either total control or artists won't be paid. If that + really +is the choice, then the warriors should win. + + +The mistake here is the error of the excluded middle. There are + extremes +in this debate, but the extremes are not all that there is. There +are those who believe in maximal copyright--"All Rights Reserved"-- +and those who reject copyright--"No Rights Reserved." The "All +Rights Reserved" sorts believe that you should ask permission before +you "use" a copyrighted work in any way. The "No Rights Reserved" +sorts believe you should be able to do with content as you wish, + regardless +of whether you have permission or not. + + +When the Internet was first born, its initial architecture effectively +tilted in the "no rights reserved" direction. Content could be copied +perfectly and cheaply; rights could not easily be controlled. Thus, + regardless +of anyone's desire, the effective regime of copyright under the + + +original design of the Internet was "no rights reserved." Content was +"taken" regardless of the rights. Any rights were effectively + unprotected. + + +This initial character produced a reaction (opposite, but not quite +equal) by copyright owners. That reaction has been the topic of this +book. Through legislation, litigation, and changes to the network's +design, copyright holders have been able to change the essential + character +of the environment of the original Internet. If the original + architecture +made the effective default "no rights reserved," the future +architecture will make the effective default "all rights reserved." The + architecture +and law that surround the Internet's design will increasingly +produce an environment where all use of content requires permission. +The "cut and paste" world that defines the Internet today will become +a "get permission to cut and paste" world that is a creator's nightmare. + + +What's needed is a way to say something in the middle--neither "all +rights reserved" nor "no rights reserved" but "some rights reserved"-- +and thus a way to respect copyrights but enable creators to free content +as they see fit. In other words, we need a way to restore a set of + freedoms +that we could just take for granted before. + + + +Rebuilding Freedoms Previously Presumed: Examples + +If you step back from the battle I've been describing here, you will + recognize +this problem from other contexts. Think about privacy. Before +the Internet, most of us didn't have to worry much about data about +our lives that we broadcast to the world. If you walked into a bookstore +and browsed through some of the works of Karl Marx, you didn't need +to worry about explaining your browsing habits to your neighbors or +boss. The "privacy" of your browsing habits was assured. + + +What made it assured? + + + +Well, if we think in terms of the modalities I described in chapter +10, your privacy was assured because of an inefficient architecture for +gathering data and hence a market constraint (cost) on anyone who +wanted to gather that data. If you were a suspected spy for North + Korea, +working for the CIA, no doubt your privacy would not be assured. +But that's because the CIA would (we hope) find it valuable enough to +spend the thousands required to track you. But for most of us (again, +we can hope), spying doesn't pay. The highly inefficient architecture of +real space means we all enjoy a fairly robust amount of privacy. That +privacy is guaranteed to us by friction. Not by law (there is no law + protecting +"privacy" in public places), and in many places, not by norms +(snooping and gossip are just fun), but instead, by the costs that + friction +imposes on anyone who would want to spy. + + +Enter the Internet, where the cost of tracking browsing in + particular +has become quite tiny. If you're a customer at Amazon, then as you +browse the pages, Amazon collects the data about what you've looked +at. You know this because at the side of the page, there's a list of + "recently +viewed" pages. Now, because of the architecture of the Net and +the function of cookies on the Net, it is easier to collect the data than +not. The friction has disappeared, and hence any "privacy" protected by +the friction disappears, too. + + +Amazon, of course, is not the problem. But we might begin to +worry about libraries. If you're one of those crazy lefties who thinks that +people should have the "right" to browse in a library without the + government +knowing which books you look at (I'm one of those lefties, +too), then this change in the technology of monitoring might concern +you. If it becomes simple to gather and sort who does what in electronic +spaces, then the friction-induced privacy of yesterday disappears. + + +It is this reality that explains the push of many to define "privacy" +on the Internet. It is the recognition that technology can remove what +friction before gave us that leads many to push for laws to do what + friction +did. + See, for example, Marc Rotenberg, "Fair Information Practices and the + Architecture +of Privacy (What Larry Doesn't Get)," Stanford Technology Law +Review 1 (2001): par. 6­18, available at +link #72 (describing examples in +which technology defines privacy policy). See also Jeffrey Rosen, The Naked +Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: + Random +House, 2004) (mapping tradeoffs between technology and privacy). + + And whether you're in favor of those laws or not, it is the + pattern +that is important here. We must take affirmative steps to secure a + + +kind of freedom that was passively provided before. A change in + technology +now forces those who believe in privacy to affirmatively act +where, before, privacy was given by default. + + +A similar story could be told about the birth of the free software +movement. When computers with software were first made available +commercially, the software--both the source code and the binaries-- +was free. You couldn't run a program written for a Data General + machine +on an IBM machine, so Data General and IBM didn't care much +about controlling their software. + + +That was the world Richard Stallman was born into, and while he +was a researcher at MIT, he grew to love the community that + developed +when one was free to explore and tinker with the software that +ran on machines. Being a smart sort himself, and a talented + programmer, +Stallman grew to depend upon the freedom to add to or modify +other people's work. + + +In an academic setting, at least, that's not a terribly radical idea. In +a math department, anyone would be free to tinker with a proof that +someone offered. If you thought you had a better way to prove a + theorem, +you could take what someone else did and change it. In a classics +department, if you believed a colleague's translation of a recently + discovered +text was flawed, you were free to improve it. Thus, to Stallman, +it seemed obvious that you should be free to tinker with and improve +the code that ran a machine. This, too, was knowledge. Why shouldn't +it be open for criticism like anything else? + + +No one answered that question. Instead, the architecture of revenue +for computing changed. As it became possible to import programs +from one system to another, it became economically attractive (at least +in the view of some) to hide the code of your program. So, too, as + companies +started selling peripherals for mainframe systems. If I could just +take your printer driver and copy it, then that would make it easier for +me to sell a printer to the market than it was for you. + + +Thus, the practice of proprietary code began to spread, and by the +early 1980s, Stallman found himself surrounded by proprietary code. + +The world of free software had been erased by a change in the + economics +of computing. And as he believed, if he did nothing about it, +then the freedom to change and share software would be + fundamentally +weakened. + + +Therefore, in 1984, Stallman began a project to build a free + operating +system, so that at least a strain of free software would survive. That +was the birth of the GNU project, into which Linus Torvalds's "Linux" +kernel was added to produce the GNU/Linux operating system. + + +Stallman's technique was to use copyright law to build a world of +software that must be kept free. Software licensed under the Free + Software +Foundation's GPL cannot be modified and distributed unless the +source code for that software is made available as well. Thus, anyone +building upon GPL'd software would have to make their buildings free +as well. This would assure, Stallman believed, that an ecology of code +would develop that remained free for others to build upon. His + fundamental +goal was freedom; innovative creative code was a byproduct. + + +Stallman was thus doing for software what privacy advocates now +do for privacy. He was seeking a way to rebuild a kind of freedom that +was taken for granted before. Through the affirmative use of licenses +that bind copyrighted code, Stallman was affirmatively reclaiming a +space where free software would survive. He was actively protecting +what before had been passively guaranteed. + + +Finally, consider a very recent example that more directly resonates +with the story of this book. This is the shift in the way academic and +scientific journals are produced. + + +As digital technologies develop, it is becoming obvious to many +that printing thousands of copies of journals every month and sending +them to libraries is perhaps not the most efficient way to distribute +knowledge. Instead, journals are increasingly becoming electronic, and +libraries and their users are given access to these electronic journals +through password-protected sites. Something similar to this has been +happening in law for almost thirty years: Lexis and Westlaw have had +electronic versions of case reports available to subscribers to their + service. +Although a Supreme Court opinion is not copyrighted, and + anyone +is free to go to a library and read it, Lexis and Westlaw are also free + +to charge users for the privilege of gaining access to that Supreme +Court opinion through their respective services. + + +There's nothing wrong in general with this, and indeed, the ability +to charge for access to even public domain materials is a good incentive +for people to develop new and innovative ways to spread knowledge. +The law has agreed, which is why Lexis and Westlaw have been + allowed +to flourish. And if there's nothing wrong with selling the public +domain, then there could be nothing wrong, in principle, with selling +access to material that is not in the public domain. + + +But what if the only way to get access to social and scientific data +was through proprietary services? What if no one had the ability to +browse this data except by paying for a subscription? + + +As many are beginning to notice, this is increasingly the reality with +scientific journals. When these journals were distributed in paper form, +libraries could make the journals available to anyone who had access to +the library. Thus, patients with cancer could become cancer experts + because +the library gave them access. Or patients trying to understand +the risks of a certain treatment could research those risks by reading all +available articles about that treatment. This freedom was therefore a +function of the institution of libraries (norms) and the technology of +paper journals (architecture)--namely, that it was very hard to control +access to a paper journal. + + +As journals become electronic, however, the publishers are + demanding +that libraries not give the general public access to the journals. This +means that the freedoms provided by print journals in public libraries +begin to disappear. Thus, as with privacy and with software, a changing +technology and market shrink a freedom taken for granted before. + + +This shrinking freedom has led many to take affirmative steps to +restore the freedom that has been lost. The Public Library of Science +(PLoS), for example, is a nonprofit corporation dedicated to making +scientific research available to anyone with a Web connection. Authors + +of scientific work submit that work to the Public Library of Science. +That work is then subject to peer review. If accepted, the work is then +deposited in a public, electronic archive and made permanently + available +for free. PLoS also sells a print version of its work, but the + copyright +for the print journal does not inhibit the right of anyone to +redistribute the work for free. + + +This is one of many such efforts to restore a freedom taken for +granted before, but now threatened by changing technology and + markets. +There's no doubt that this alternative competes with the + traditional +publishers and their efforts to make money from the exclusive +distribution of content. But competition in our tradition is + presumptively +a good--especially when it helps spread knowledge and science. + + + + +Rebuilding Free Culture: One Idea + +The same strategy could be applied to culture, as a response to the + increasing +control effected through law and technology. + + +Enter the Creative Commons. The Creative Commons is a + nonprofit +corporation established in Massachusetts, but with its home at +Stanford University. Its aim is to build a layer of reasonable copyright +on top of the extremes that now reign. It does this by making it easy for +people to build upon other people's work, by making it simple for + creators +to express the freedom for others to take and build upon their +work. Simple tags, tied to human-readable descriptions, tied to + bulletproof +licenses, make this possible. + + +Simple--which means without a middleman, or without a lawyer. +By developing a free set of licenses that people can attach to their +content, Creative Commons aims to mark a range of content that +can easily, and reliably, be built upon. These tags are then linked to +machine-readable versions of the license that enable computers + automatically +to identify content that can easily be shared. These three + expressions +together--a legal license, a human-readable description, and + +machine-readable tags--constitute a Creative Commons license. A +Creative Commons license constitutes a grant of freedom to anyone +who accesses the license, and more importantly, an expression of the +ideal that the person associated with the license believes in something +different than the "All" or "No" extremes. Content is marked with the +CC mark, which does not mean that copyright is waived, but that + certain +freedoms are given. + + +These freedoms are beyond the freedoms promised by fair use. Their +precise contours depend upon the choices the creator makes. The + creator +can choose a license that permits any use, so long as attribution is +given. She can choose a license that permits only noncommercial use. +She can choose a license that permits any use so long as the same + freedoms +are given to other uses ("share and share alike"). Or any use so +long as no derivative use is made. Or any use at all within developing +nations. Or any sampling use, so long as full copies are not made. Or +lastly, any educational use. + + +These choices thus establish a range of freedoms beyond the default +of copyright law. They also enable freedoms that go beyond traditional +fair use. And most importantly, they express these freedoms in a way +that subsequent users can use and rely upon without the need to hire a +lawyer. Creative Commons thus aims to build a layer of content, + governed +by a layer of reasonable copyright law, that others can build +upon. Voluntary choice of individuals and creators will make this + content +available. And that content will in turn enable us to rebuild a + public +domain. + + +This is just one project among many within the Creative + Commons. +And of course, Creative Commons is not the only organization +pursuing such freedoms. But the point that distinguishes the Creative +Commons from many is that we are not interested only in talking +about a public domain or in getting legislators to help build a public +domain. Our aim is to build a movement of consumers and producers + +of content ("content conducers," as attorney Mia Garlick calls them) +who help build the public domain and, by their work, demonstrate the +importance of the public domain to other creativity. + + +The aim is not to fight the "All Rights Reserved" sorts. The aim is +to complement them. The problems that the law creates for us as a + culture +are produced by insane and unintended consequences of laws +written centuries ago, applied to a technology that only Jefferson could +have imagined. The rules may well have made sense against a + background +of technologies from centuries ago, but they do not make sense +against the background of digital technologies. New rules--with + different +freedoms, expressed in ways so that humans without lawyers can +use them--are needed. Creative Commons gives people a way + effectively +to begin to build those rules. + + +Why would creators participate in giving up total control? Some +participate to better spread their content. Cory Doctorow, for example, +is a science fiction author. His first novel, Down and Out in the Magic +Kingdom, was released on-line and for free, under a Creative + Commons +license, on the same day that it went on sale in bookstores. + + +Why would a publisher ever agree to this? I suspect his publisher +reasoned like this: There are two groups of people out there: (1) those +who will buy Cory's book whether or not it's on the Internet, and (2) +those who may never hear of Cory's book, if it isn't made available for +free on the Internet. Some part of (1) will download Cory's book + instead +of buying it. Call them bad-(1)s. Some part of (2) will download +Cory's book, like it, and then decide to buy it. Call them (2)-goods. +If there are more (2)-goods than bad-(1)s, the strategy of releasing +Cory's book free on-line will probably increase sales of Cory's book. + + +Indeed, the experience of his publisher clearly supports that + conclusion. +The book's first printing was exhausted months before the +publisher had expected. This first novel of a science fiction author was +a total success. + + +The idea that free content might increase the value of nonfree + content +was confirmed by the experience of another author. Peter Wayner, + +who wrote a book about the free software movement titled Free for All, +made an electronic version of his book free on-line under a Creative +Commons license after the book went out of print. He then monitored +used book store prices for the book. As predicted, as the number of +downloads increased, the used book price for his book increased, as +well. + + +These are examples of using the Commons to better spread + proprietary +content. I believe that is a wonderful and common use of the +Commons. There are others who use Creative Commons licenses for +other reasons. Many who use the "sampling license" do so because + anything +else would be hypocritical. The sampling license says that others +are free, for commercial or noncommercial purposes, to sample content +from the licensed work; they are just not free to make full copies of the +licensed work available to others. This is consistent with their own +art--they, too, sample from others. Because the legal costs of sampling +are so high (Walter Leaphart, manager of the rap group Public Enemy, +which was born sampling the music of others, has stated that he does +not "allow" Public Enemy to sample anymore, because the legal costs +are so high + Willful Infringement: A Report from the Front Lines of the Real Culture Wars +(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat + Lucre +production, available at +link #72. +), +these artists release into the creative environment content +that others can build upon, so that their form of creativity might grow. + + +Finally, there are many who mark their content with a Creative +Commons license just because they want to express to others the + importance +of balance in this debate. If you just go along with the system +as it is, you are effectively saying you believe in the "All Rights Reserved" +model. Good for you, but many do not. Many believe that however + appropriate +that rule is for Hollywood and freaks, it is not an appropriate +description of how most creators view the rights associated with their +content. The Creative Commons license expresses this notion of "Some +Rights Reserved," and gives many the chance to say it to others. + + +In the first six months of the Creative Commons experiment, over +1 million objects were licensed with these free-culture licenses. The next +step is partnerships with middleware content providers to help them +build into their technologies simple ways for users to mark their content + + +with Creative Commons freedoms. Then the next step is to watch and +celebrate creators who build content based upon content set free. + + +These are first steps to rebuilding a public domain. They are not +mere arguments; they are action. Building a public domain is the first +step to showing people how important that domain is to creativity and +innovation. Creative Commons relies upon voluntary steps to achieve +this rebuilding. They will lead to a world in which more than voluntary +steps are possible. + + +Creative Commons is just one example of voluntary efforts by + individuals +and creators to change the mix of rights that now govern the +creative field. The project does not compete with copyright; it + complements +it. Its aim is not to defeat the rights of authors, but to make it +easier for authors and creators to exercise their rights more flexibly and +cheaply. That difference, we believe, will enable creativity to spread +more easily. + + + + + + +THEM, SOON + +We will not reclaim a free culture by individual action alone. It will +also take important reforms of laws. We have a long way to go before +the politicians will listen to these ideas and implement these reforms. +But that also means that we have time to build awareness around the +changes that we need. + + +In this chapter, I outline five kinds of changes: four that are general, +and one that's specific to the most heated battle of the day, music. Each +is a step, not an end. But any of these steps would carry us a long way +to our end. + + + +1. More Formalities + +If you buy a house, you have to record the sale in a deed. If you buy land +upon which to build a house, you have to record the purchase in a deed. +If you buy a car, you get a bill of sale and register the car. If you buy an +airplane ticket, it has your name on it. + + + +These are all formalities associated with property. They are + requirements +that we all must bear if we want our property to be protected. + + +In contrast, under current copyright law, you automatically get a +copyright, regardless of whether you comply with any formality. You +don't have to register. You don't even have to mark your content. The +default is control, and "formalities" are banished. + + +Why? + + +As I suggested in chapter 10, the motivation to abolish formalities +was a good one. In the world before digital technologies, formalities +imposed a burden on copyright holders without much benefit. Thus, it +was progress when the law relaxed the formal requirements that a +copyright owner must bear to protect and secure his work. Those + formalities +were getting in the way. + + +But the Internet changes all this. Formalities today need not be a +burden. Rather, the world without formalities is the world that + burdens +creativity. Today, there is no simple way to know who owns what, +or with whom one must deal in order to use or build upon the + creative +work of others. There are no records, there is no system to trace-- +there is no simple way to know how to get permission. Yet given the +massive increase in the scope of copyright's rule, getting permission is +a necessary step for any work that builds upon our past. And thus, the +lack of formalities forces many into silence where they otherwise could +speak. + + +The law should therefore change this requirement + The proposal I am advancing here would apply to American works only. +Obviously, I believe it would be beneficial for the same idea to be adopted +by other countries as well. +--but it should +not change it by going back to the old, broken system. We should + require +formalities, but we should establish a system that will create the +incentives to minimize the burden of these formalities. + + +The important formalities are three: marking copyrighted work, + registering +copyrights, and renewing the claim to copyright. Traditionally, +the first of these three was something the copyright owner did; the + second +two were something the government did. But a revised system of +formalities would banish the government from the process, except for +the sole purpose of approving standards developed by others. + + + + + +REGISTRATION AND RENEWAL + +Under the old system, a copyright owner had to file a registration with +the Copyright Office to register or renew a copyright. When filing that +registration, the copyright owner paid a fee. As with most government +agencies, the Copyright Office had little incentive to minimize the +burden of registration; it also had little incentive to minimize the fee. +And as the Copyright Office is not a main target of government + policymaking, +the office has historically been terribly underfunded. Thus, +when people who know something about the process hear this idea +about formalities, their first reaction is panic--nothing could be worse +than forcing people to deal with the mess that is the Copyright Office. + + +Yet it is always astonishing to me that we, who come from a + tradition +of extraordinary innovation in governmental design, can no longer +think innovatively about how governmental functions can be designed. +Just because there is a public purpose to a government role, it doesn't +follow that the government must actually administer the role. Instead, +we should be creating incentives for private parties to serve the public, +subject to standards that the government sets. + + +In the context of registration, one obvious model is the Internet. +There are at least 32 million Web sites registered around the world. +Domain name owners for these Web sites have to pay a fee to keep their +registration alive. In the main top-level domains (.com, .org, .net), +there is a central registry. The actual registrations are, however, + performed +by many competing registrars. That competition drives the cost +of registering down, and more importantly, it drives the ease with which +registration occurs up. + + +We should adopt a similar model for the registration and renewal of +copyrights. The Copyright Office may well serve as the central registry, +but it should not be in the registrar business. Instead, it should + establish +a database, and a set of standards for registrars. It should approve +registrars that meet its standards. Those registrars would then compete +with one another to deliver the cheapest and simplest systems for + registering +and renewing copyrights. That competition would + substantially +lower the burden of this formality--while producing a database + +of registrations that would facilitate the licensing of content. + + + + +MARKING + +It used to be that the failure to include a copyright notice on a creative +work meant that the copyright was forfeited. That was a harsh + punishment +for failing to comply with a regulatory rule--akin to imposing +the death penalty for a parking ticket in the world of creative rights. +Here again, there is no reason that a marking requirement needs to be +enforced in this way. And more importantly, there is no reason a + marking +requirement needs to be enforced uniformly across all media. + + +The aim of marking is to signal to the public that this work is + copyrighted +and that the author wants to enforce his rights. The mark also +makes it easy to locate a copyright owner to secure permission to use +the work. + + +One of the problems the copyright system confronted early on was +that different copyrighted works had to be differently marked. It wasn't +clear how or where a statue was to be marked, or a record, or a film. A +new marking requirement could solve these problems by recognizing +the differences in media, and by allowing the system of marking to +evolve as technologies enable it to. The system could enable a special +signal from the failure to mark--not the loss of the copyright, but the +loss of the right to punish someone for failing to get permission first. + + +Let's start with the last point. If a copyright owner allows his work +to be published without a copyright notice, the consequence of that +failure need not be that the copyright is lost. The consequence could +instead be that anyone has the right to use this work, until the + copyright +owner complains and demonstrates that it is his work and he +doesn't give permission. + There would be a complication with derivative works that I have not +solved here. In my view, the law of derivatives creates a more complicated +system than is justified by the marginal incentive it creates. + + The meaning of an unmarked work would +therefore be "use unless someone complains." If someone does + complain, +then the obligation would be to stop using the work in any new + +work from then on though no penalty would attach for existing uses. +This would create a strong incentive for copyright owners to mark +their work. + + +That in turn raises the question about how work should best be +marked. Here again, the system needs to adjust as the technologies +evolve. The best way to ensure that the system evolves is to limit the +Copyright Office's role to that of approving standards for marking +content that have been crafted elsewhere. + + +For example, if a recording industry association devises a method +for marking CDs, it would propose that to the Copyright Office. The +Copyright Office would hold a hearing, at which other proposals could +be made. The Copyright Office would then select the proposal that it +judged preferable, and it would base that choice solely upon the + consideration +of which method could best be integrated into the registration +and renewal system. We would not count on the government to + innovate; +but we would count on the government to keep the product of + innovation +in line with its other important functions. + + +Finally, marking content clearly would simplify registration + requirements. +If photographs were marked by author and year, there +would be little reason not to allow a photographer to reregister, for + example, +all photographs taken in a particular year in one quick step. The +aim of the formality is not to burden the creator; the system itself +should be kept as simple as possible. + + +The objective of formalities is to make things clear. The existing +system does nothing to make things clear. Indeed, it seems designed to +make things unclear. + + +If formalities such as registration were reinstated, one of the most +difficult aspects of relying upon the public domain would be removed. +It would be simple to identify what content is presumptively free; it +would be simple to identify who controls the rights for a particular +kind of content; it would be simple to assert those rights, and to renew +that assertion at the appropriate time. + + + + + + +2. Shorter Terms + +The term of copyright has gone from fourteen years to ninety-five +years for corporate authors, and life of the author plus seventy years for +natural authors. + + +In The Future of Ideas, I proposed a seventy-five-year term, granted +in five-year increments with a requirement of renewal every five years. +That seemed radical enough at the time. But after we lost Eldred v. +Ashcroft, the proposals became even more radical. The Economist + endorsed +a proposal for a fourteen-year copyright term. + "A Radical Rethink," Economist, 366:8308 (25 January 2003): 15, available +at +link #74. + + Others have +proposed tying the term to the term for patents. + + +I agree with those who believe that we need a radical change in + copyright's +term. But whether fourteen years or seventy-five, there are four +principles that are important to keep in mind about copyright terms. + + + + +Keep it short: The term should be as long as necessary to +give incentives to create, but no longer. If it were tied to very +strong protections for authors (so authors were able to reclaim +rights from publishers), rights to the same work (not + derivative +works) might be extended further. The key is not to tie the +work up with legal regulations when it no longer benefits an +author. + + + +Keep it simple: The line between the public domain and +protected content must be kept clear. Lawyers like the + fuzziness +of "fair use," and the distinction between "ideas" and + "expression." +That kind of law gives them lots of work. But our +framers had a simpler idea in mind: protected versus + unprotected. +The value of short terms is that there is little need to +build exceptions into copyright when the term itself is kept +short. A clear and active "lawyer-free zone" makes the + complexities +of "fair use" and "idea/expression" less necessary to +navigate. + + + + +Keep it alive: Copyright should have to be renewed. + Especially +if the maximum term is long, the copyright owner +should be required to signal periodically that he wants the +protection continued. This need not be an onerous burden, +but there is no reason this monopoly protection has to be +granted for free. On average, it takes ninety minutes for a + veteran +to apply for a pension. + Department of Veterans Affairs, Veteran's Application for Compensation +and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), +available at +link #75. + + If we make veterans suffer that +burden, I don't see why we couldn't require authors to spend +ten minutes every fifty years to file a single form. + + + +Keep it prospective: Whatever the term of copyright should +be, the clearest lesson that economists teach is that a term +once given should not be extended. It might have been a + mistake +in 1923 for the law to offer authors only a fifty-six-year +term. I don't think so, but it's possible. If it was a mistake, then +the consequence was that we got fewer authors to create in +1923 than we otherwise would have. But we can't correct that +mistake today by increasing the term. No matter what we do +today, we will not increase the number of authors who wrote +in 1923. Of course, we can increase the reward that those who +write now get (or alternatively, increase the copyright burden +that smothers many works that are today invisible). But + increasing +their reward will not increase their creativity in 1923. +What's not done is not done, and there's nothing we can do +about that now. + + + +These changes together should produce an average copyright term +that is much shorter than the current term. Until 1976, the average +term was just 32.2 years. We should be aiming for the same. + + +No doubt the extremists will call these ideas "radical." (After all, I +call them "extremists.") But again, the term I recommended was longer +than the term under Richard Nixon. How "radical" can it be to ask for +a more generous copyright law than Richard Nixon presided over? + + + + + + +3. Free Use Vs. Fair Use + +As I observed at the beginning of this book, property law originally +granted property owners the right to control their property from the +ground to the heavens. The airplane came along. The scope of property +rights quickly changed. There was no fuss, no constitutional challenge. +It made no sense anymore to grant that much control, given the + emergence +of that new technology. + + +Our Constitution gives Congress the power to give authors + "exclusive +right" to "their writings." Congress has given authors an exclusive +right to "their writings" plus any derivative writings (made by others) that +are sufficiently close to the author's original work. Thus, if I write a book, +and you base a movie on that book, I have the power to deny you the +right to release that movie, even though that movie is not "my writing." + + +Congress granted the beginnings of this right in 1870, when it + expanded +the exclusive right of copyright to include a right to control +translations and dramatizations of a work. + Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia +University Press, 1967), 32. + + The courts have expanded +it slowly through judicial interpretation ever since. This expansion has +been commented upon by one of the law's greatest judges, Judge + Benjamin +Kaplan. + +
+ +So inured have we become to the extension of the monopoly to a +large range of so-called derivative works, that we no longer sense +the oddity of accepting such an enlargement of copyright while +yet intoning the abracadabra of idea and expression. + Ibid., 56. + + +
+ +I think it's time to recognize that there are airplanes in this field and +the expansiveness of these rights of derivative use no longer make +sense. More precisely, they don't make sense for the period of time that +a copyright runs. And they don't make sense as an amorphous grant. +Consider each limitation in turn. + + +Term: If Congress wants to grant a derivative right, then that right +should be for a much shorter term. It makes sense to protect John + + +Grisham's right to sell the movie rights to his latest novel (or at least +I'm willing to assume it does); but it does not make sense for that right +to run for the same term as the underlying copyright. The derivative +right could be important in inducing creativity; it is not important long +after the creative work is done. + + +Scope: Likewise should the scope of derivative rights be narrowed. +Again, there are some cases in which derivative rights are important. +Those should be specified. But the law should draw clear lines around +regulated and unregulated uses of copyrighted material. When all +"reuse" of creative material was within the control of businesses, + perhaps +it made sense to require lawyers to negotiate the lines. It no longer +makes sense for lawyers to negotiate the lines. Think about all the + creative +possibilities that digital technologies enable; now imagine + pouring +molasses into the machines. That's what this general requirement +of permission does to the creative process. Smothers it. + + +This was the point that Alben made when describing the making of +the Clint Eastwood CD. While it makes sense to require negotiation +for foreseeable derivative rights--turning a book into a movie, or a +poem into a musical score--it doesn't make sense to require + negotiation +for the unforeseeable. Here, a statutory right would make much +more sense. + + +In each of these cases, the law should mark the uses that are + protected, +and the presumption should be that other uses are not + protected. +This is the reverse of the recommendation of my colleague Paul +Goldstein. + Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial + Jukebox +(Stanford: Stanford University Press, 2003), 187­216. + + His view is that the law should be written so that expanded +protections follow expanded uses. + + +Goldstein's analysis would make perfect sense if the cost of the + legal +system were small. But as we are currently seeing in the context of +the Internet, the uncertainty about the scope of protection, and the + incentives +to protect existing architectures of revenue, combined with a +strong copyright, weaken the process of innovation. + + +The law could remedy this problem either by removing protection + +beyond the part explicitly drawn or by granting reuse rights upon + certain +statutory conditions. Either way, the effect would be to free a great +deal of culture to others to cultivate. And under a statutory rights +regime, that reuse would earn artists more income. + + + + +4. Liberate the Music--Again + +The battle that got this whole war going was about music, so it wouldn't +be fair to end this book without addressing the issue that is, to most +people, most pressing--music. There is no other policy issue that + better +teaches the lessons of this book than the battles around the sharing +of music. + + +The appeal of file-sharing music was the crack cocaine of the + Internet's +growth. It drove demand for access to the Internet more + powerfully +than any other single application. It was the Internet's killer +app--possibly in two senses of that word. It no doubt was the + application +that drove demand for bandwidth. It may well be the application +that drives demand for regulations that in the end kill innovation on +the network. + + +The aim of copyright, with respect to content in general and music +in particular, is to create the incentives for music to be composed, + performed, +and, most importantly, spread. The law does this by giving +an exclusive right to a composer to control public performances of his +work, and to a performing artist to control copies of her performance. + + +File-sharing networks complicate this model by enabling the +spread of content for which the performer has not been paid. But of +course, that's not all the file-sharing networks do. As I described in +chapter 5, they enable four different kinds of sharing: + + + + +There are some who are using sharing networks as substitutes +for purchasing CDs. + + + +There are also some who are using sharing networks to sample, +on the way to purchasing CDs. + + + + +There are many who are using file-sharing networks to get + access +to content that is no longer sold but is still under copyright +or that would have been too cumbersome to buy off the Net. + + + +There are many who are using file-sharing networks to get + access +to content that is not copyrighted or to get access that the +copyright owner plainly endorses. + + + +Any reform of the law needs to keep these different uses in focus. It +must avoid burdening type D even if it aims to eliminate type A. The +eagerness with which the law aims to eliminate type A, moreover, +should depend upon the magnitude of type B. As with VCRs, if the net +effect of sharing is actually not very harmful, the need for regulation is +significantly weakened. + + +As I said in chapter 5, the actual harm caused by sharing is + controversial. +For the purposes of this chapter, however, I assume the harm is +real. I assume, in other words, that type A sharing is significantly +greater than type B, and is the dominant use of sharing networks. + + +Nonetheless, there is a crucial fact about the current technological +context that we must keep in mind if we are to understand how the law +should respond. + + +Today, file sharing is addictive. In ten years, it won't be. It is addictive +today because it is the easiest way to gain access to a broad range of + content. +It won't be the easiest way to get access to a broad range of content +in ten years. Today, access to the Internet is cumbersome and slow--we +in the United States are lucky to have broadband service at 1.5 MBs, and +very rarely do we get service at that speed both up and down. Although +wireless access is growing, most of us still get access across wires. Most +only gain access through a machine with a keyboard. The idea of the + always +on, always connected Internet is mainly just an idea. + + +But it will become a reality, and that means the way we get access to +the Internet today is a technology in transition. Policy makers should +not make policy on the basis of technology in transition. They should + +make policy on the basis of where the technology is going. The + question +should not be, how should the law regulate sharing in this world? +The question should be, what law will we require when the network +becomes the network it is clearly becoming? That network is one in +which every machine with electricity is essentially on the Net; where +everywhere you are--except maybe the desert or the Rockies--you can +instantaneously be connected to the Internet. Imagine the Internet as +ubiquitous as the best cell-phone service, where with the flip of a + device, +you are connected. + + +In that world, it will be extremely easy to connect to services that +give you access to content on the fly--such as Internet radio, content +that is streamed to the user when the user demands. Here, then, is the +critical point: When it is extremely easy to connect to services that give +access to content, it will be easier to connect to services that give you +access to content than it will be to download and store content on the +many devices you will have for playing content. It will be easier, in other +words, to subscribe than it will be to be a database manager, as + everyone +in the download-sharing world of Napster-like technologies + essentially +is. Content services will compete with content sharing, even if +the services charge money for the content they give access to. Already +cell-phone services in Japan offer music (for a fee) streamed over cell +phones (enhanced with plugs for headphones). The Japanese are + paying +for this content even though "free" content is available in the form +of MP3s across the Web. + See, for example, "Music Media Watch," The J@pan Inc. Newsletter, +3 April 2002, available at +link #76. + + + + +This point about the future is meant to suggest a perspective on the +present: It is emphatically temporary. The "problem" with file + sharing--to +the extent there is a real problem--is a problem that will + increasingly +disappear as it becomes easier to connect to the Internet. +And thus it is an extraordinary mistake for policy makers today to be +"solving" this problem in light of a technology that will be gone + tomorrow. +The question should not be how to regulate the Internet to +eliminate file sharing (the Net will evolve that problem away). The +question instead should be how to assure that artists get paid, during + + +this transition between twentieth-century models for doing business +and twenty-first-century technologies. + + +The answer begins with recognizing that there are different + "problems" +here to solve. Let's start with type D content--uncopyrighted +content or copyrighted content that the artist wants shared. The + "problem" +with this content is to make sure that the technology that would +enable this kind of sharing is not rendered illegal. You can think of it +this way: Pay phones are used to deliver ransom demands, no doubt. +But there are many who need to use pay phones who have nothing to +do with ransoms. It would be wrong to ban pay phones in order to +eliminate kidnapping. + + +Type C content raises a different "problem." This is content that was, +at one time, published and is no longer available. It may be unavailable +because the artist is no longer valuable enough for the record label he +signed with to carry his work. Or it may be unavailable because the work +is forgotten. Either way, the aim of the law should be to facilitate the + access +to this content, ideally in a way that returns something to the artist. + + +Again, the model here is the used book store. Once a book goes out +of print, it may still be available in libraries and used book stores. But +libraries and used book stores don't pay the copyright owner when +someone reads or buys an out-of-print book. That makes total sense, of +course, since any other system would be so burdensome as to eliminate +the possibility of used book stores' existing. But from the author's + perspective, +this "sharing" of his content without his being compensated is +less than ideal. + + +The model of used book stores suggests that the law could simply +deem out-of-print music fair game. If the publisher does not make +copies of the music available for sale, then commercial and + noncommercial +providers would be free, under this rule, to "share" that content, +even though the sharing involved making a copy. The copy here would +be incidental to the trade; in a context where commercial publishing +has ended, trading music should be as free as trading books. + + + + +Alternatively, the law could create a statutory license that would + ensure +that artists get something from the trade of their work. For + example, +if the law set a low statutory rate for the commercial sharing of +content that was not offered for sale by a commercial publisher, and if +that rate were automatically transferred to a trust for the benefit of the +artist, then businesses could develop around the idea of trading this +content, and artists would benefit from this trade. + + +This system would also create an incentive for publishers to keep +works available commercially. Works that are available commercially +would not be subject to this license. Thus, publishers could protect +the right to charge whatever they want for content if they kept the +work commercially available. But if they don't keep it available, and + instead, +the computer hard disks of fans around the world keep it alive, +then any royalty owed for such copying should be much less than the +amount owed a commercial publisher. + + +The hard case is content of types A and B, and again, this case is +hard only because the extent of the problem will change over time, as +the technologies for gaining access to content change. The law's + solution +should be as flexible as the problem is, understanding that we are +in the middle of a radical transformation in the technology for + delivering +and accessing content. + + +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. + + +Stripped of the rhetoric about the sanctity of property, the basic +claim of the content industry is this: A new technology (the Internet) +has harmed a set of rights that secure copyright. If those rights are to +be protected, then the content industry should be compensated for that +harm. Just as the technology of tobacco harmed the health of millions +of Americans, or the technology of asbestos caused grave illness to +thousands of miners, so, too, has the technology of digital networks +harmed the interests of the content industry. + + + +I love the Internet, and so I don't like likening it to tobacco or + asbestos. +But the analogy is a fair one from the perspective of the law. +And it suggests a fair response: Rather than seeking to destroy the + Internet, +or the p2p technologies that are currently harming content +providers on the Internet, we should find a relatively simple way to +compensate those who are harmed. + + +The idea would be a modification of a proposal that has been +floated by Harvard law professor William Fisher. + William Fisher, Digital Music: Problems and Possibilities (last revised: +10 October 2000), available at +link #77; William Fisher, Promises to Keep: +Technology, Law, and the Future of Entertainment (forthcoming) (Stanford: +Stanford University Press, 2004), ch. 6, available at +link #78. Professor + Netanel +has proposed a related idea that would exempt noncommercial + sharing +from the reach of copyright and would establish compensation to +artists to balance any loss. See Neil Weinstock Netanel, "Impose a + Noncommercial +Use Levy to Allow Free P2P File Sharing," available at +link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back +Broadband?" Washington Post, 8 January 2002, A17; Philip S. Corwin on +behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., +Chairman of the Senate Foreign Relations Committee, 26 February 2002, +available at +link #80; Serguei Osokine, A Quick Case for Intellectual Property +Use Fee (IPUF), 3 March 2002, available at +link #81; Jefferson Graham, +"Kazaa, Verizon Propose to Pay Artists Directly," USA Today, 13 May +2002, available at +link #82; Steven M. Cherry, "Getting Copyright Right," +IEEE Spectrum Online, 1 July 2002, available at +link #83; Declan + McCullagh, +"Verizon's Copyright Campaign," CNET News.com, 27 August +2002, available at +link #84. +Fisher's proposal is very similar to Richard Stallman's proposal for +DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly +proportionally, though more popular artists would get more than the less +popular. As is typical with Stallman, his proposal predates the current + debate +by about a decade. See +link #85. + + Fisher suggests a +very clever way around the current impasse of the Internet. Under his +plan, all content capable of digital transmission would (1) be marked +with a digital watermark (don't worry about how easy it is to evade +these marks; as you'll see, there's no incentive to evade them). Once the +content is marked, then entrepreneurs would develop (2) systems to +monitor how many items of each content were distributed. On the + basis +of those numbers, then (3) artists would be compensated. The + compensation +would be paid for by (4) an appropriate tax. + + +Fisher's proposal is careful and comprehensive. It raises a million +questions, most of which he answers well in his upcoming book, +Promises to Keep. The modification that I would make is relatively + simple: +Fisher imagines his proposal replacing the existing copyright + system. +I imagine it complementing the existing system. The aim of the +proposal would be to facilitate compensation to the extent that harm +could be shown. This compensation would be temporary, aimed at + facilitating +a transition between regimes. And it would require renewal +after a period of years. If it continues to make sense to facilitate free + exchange +of content, supported through a taxation system, then it can be +continued. If this form of protection is no longer necessary, then the +system could lapse into the old system of controlling access. + + +Fisher would balk at the idea of allowing the system to lapse. His +aim is not just to ensure that artists are paid, but also to ensure that the +system supports the widest range of "semiotic democracy" possible. But +the aims of semiotic democracy would be satisfied if the other changes +I described were accomplished--in particular, the limits on derivative + + +uses. A system that simply charges for access would not greatly burden +semiotic democracy if there were few limitations on what one was + allowed +to do with the content itself. + + +No doubt it would be difficult to calculate the proper measure of +"harm" to an industry. But the difficulty of making that calculation +would be outweighed by the benefit of facilitating innovation. This +background system to compensate would also not need to interfere +with innovative proposals such as Apple's MusicStore. As experts + predicted +when Apple launched the MusicStore, it could beat "free" by + being +easier than free is. This has proven correct: Apple has sold millions +of songs at even the very high price of 99 cents a song. (At 99 cents, the +cost is the equivalent of a per-song CD price, though the labels have +none of the costs of a CD to pay.) Apple's move was countered by Real +Networks, offering music at just 79 cents a song. And no doubt there +will be a great deal of competition to offer and sell music on-line. + + +This competition has already occurred against the background of +"free" music from p2p systems. As the sellers of cable television have +known for thirty years, and the sellers of bottled water for much more +than that, there is nothing impossible at all about "competing with +free." Indeed, if anything, the competition spurs the competitors to + offer +new and better products. This is precisely what the competitive +market was to be about. Thus in Singapore, though piracy is rampant, +movie theaters are often luxurious--with "first class" seats, and meals +served while you watch a movie--as they struggle and succeed in + finding +ways to compete with "free." + + +This regime of competition, with a backstop to assure that artists +don't lose, would facilitate a great deal of innovation in the delivery of +content. That competition would continue to shrink type A sharing. It +would inspire an extraordinary range of new innovators--ones who +would have a right to the content, and would no longer fear the + uncertain +and barbarically severe punishments of the law. + + +In summary, then, my proposal is this: + + + + +The Internet is in transition. We should not be regulating a + technology +in transition. We should instead be regulating to minimize the +harm to interests affected by this technological change, while enabling, +and encouraging, the most efficient technology we can create. + + +We can minimize that harm while maximizing the benefit to + innovation +by + + + + +guaranteeing the right to engage in type D sharing; + + + +permitting noncommercial type C sharing without liability, +and commercial type C sharing at a low and fixed rate set by +statute; + + + +while in this transition, taxing and compensating for type A +sharing, to the extent actual harm is demonstrated. + + + +But what if "piracy" doesn't disappear? What if there is a + competitive +market providing content at a low cost, but a significant number of +consumers continue to "take" content for nothing? Should the law do +something then? + + +Yes, it should. But, again, what it should do depends upon how the +facts develop. These changes may not eliminate type A sharing. But +the real issue is not whether it eliminates sharing in the abstract. +The real issue is its effect on the market. Is it better (a) to have a + technology +that is 95 percent secure and produces a market of size x, or +(b) to have a technology that is 50 percent secure but produces a + market +of five times x? Less secure might produce more unauthorized +sharing, but it is likely to also produce a much bigger market in + authorized +sharing. The most important thing is to assure artists' + compensation +without breaking the Internet. Once that's assured, then it +may well be appropriate to find ways to track down the petty pirates. + + +But we're a long way away from whittling the problem down to this +subset of type A sharers. And our focus until we're there should not be +on finding ways to break the Internet. Our focus until we're there + + +should be on how to make sure the artists are paid, while protecting the +space for innovation and creativity that the Internet is. + + + + +5. Fire Lots of Lawyers + +I'm a lawyer. I make lawyers for a living. I believe in the law. I believe +in the law of copyright. Indeed, I have devoted my life to working in +law, not because there are big bucks at the end but because there are +ideals at the end that I would love to live. + + +Yet much of this book has been a criticism of lawyers, or the role +lawyers have played in this debate. The law speaks to ideals, but it is +my view that our profession has become too attuned to the client. And +in a world where the rich clients have one strong view, the + unwillingness +of the profession to question or counter that one strong view queers +the law. + + +The evidence of this bending is compelling. I'm attacked as a + "radical" +by many within the profession, yet the positions that I am + advocating +are precisely the positions of some of the most moderate and +significant figures in the history of this branch of the law. Many, for + example, +thought crazy the challenge that we brought to the Copyright +Term Extension Act. Yet just thirty years ago, the dominant scholar +and practitioner in the field of copyright, Melville Nimmer, thought it +obvious. + Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer +Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069­70. + + + + +However, my criticism of the role that lawyers have played in this +debate is not just about a professional bias. It is more importantly +about our failure to actually reckon the costs of the law. + + +Economists are supposed to be good at reckoning costs and + benefits. +But more often than not, economists, with no clue about how the +legal system actually functions, simply assume that the transaction +costs of the legal system are slight. + A good example is the work of Professor Stan Liebowitz. Liebowitz is to +be commended for his careful review of data about infringement, leading +him to question his own publicly stated position--twice. He initially + predicted +that downloading would substantially harm the industry. He then +revised his view in light of the data, and he has since revised his view again. +Compare Stan J. Liebowitz, Rethinking the Network Economy: The True +Forces That Drive the Digital Marketplace (New York: Amacom, 2002), +(reviewing his original view but expressing skepticism) with Stan J. +Liebowitz, "Will MP3s Annihilate the Record Industry?" working paper, +June 2003, available at +link #86. +Liebowitz's careful analysis is extremely valuable in estimating the + effect +of file-sharing technology. In my view, however, he underestimates the +costs of the legal system. See, for example, Rethinking, 174­76. + + They see a system that has been +around for hundreds of years, and they assume it works the way their +elementary school civics class taught them it works. + + + +But the legal system doesn't work. Or more accurately, it doesn't +work for anyone except those with the most resources. Not because the +system is corrupt. I don't think our legal system (at the federal level, at +least) is at all corrupt. I mean simply because the costs of our legal + system +are so astonishingly high that justice can practically never be done. + + +These costs distort free culture in many ways. A lawyer's time is +billed at the largest firms at more than $400 per hour. How much time +should such a lawyer spend reading cases carefully, or researching + obscure +strands of authority? The answer is the increasing reality: very + little. +The law depended upon the careful articulation and development +of doctrine, but the careful articulation and development of legal + doctrine +depends upon careful work. Yet that careful work costs too much, +except in the most high-profile and costly cases. + + +The costliness and clumsiness and randomness of this system mock +our tradition. And lawyers, as well as academics, should consider it +their duty to change the way the law works--or better, to change the +law so that it works. It is wrong that the system works well only for the +top 1 percent of the clients. It could be made radically more efficient, +and inexpensive, and hence radically more just. + + +But until that reform is complete, we as a society should keep the +law away from areas that we know it will only harm. And that is + precisely +what the law will too often do if too much of our culture is left +to its review. + + +Think about the amazing things your kid could do or make with +digital technology--the film, the music, the Web page, the blog. Or +think about the amazing things your community could facilitate with +digital technology--a wiki, a barn raising, activism to change + something. +Think about all those creative things, and then imagine cold +molasses poured onto the machines. This is what any regime that + requires +permission produces. Again, this is the reality of Brezhnev's +Russia. + + +The law should regulate in certain areas of culture--but it should +regulate culture only where that regulation does good. Yet lawyers + + +rarely test their power, or the power they promote, against this simple +pragmatic question: "Will it do good?" When challenged about the + expanding +reach of the law, the lawyer answers, "Why not?" + + +We should ask, "Why?" Show me why your regulation of culture is +needed. Show me how it does good. And until you can show me both, +keep your lawyers away. + + + + + + +NOTES + +Throughout this text, there are references to links on the World Wide Web. As +anyone who has tried to use the Web knows, these links can be highly unstable. I +have tried to remedy the instability by redirecting readers to the original source +through the Web site associated with this book. For each link below, you can go to +http://free-culture.cc/notes and locate the original source by clicking on the +number after the # sign. If the original link remains alive, you will be redirected to +that link. If the original link has disappeared, you will be redirected to an + appropriate +reference for the material. + + + + + +ACKNOWLEDGMENTS + +This book is the product of a long and as yet unsuccessful struggle that +began when I read of Eric Eldred's war to keep books free. Eldred's +work helped launch a movement, the free culture movement, and it is +to him that this book is dedicated. + + +I received guidance in various places from friends and academics, +including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard +Posner, Mark Rose, and Kathleen Sullivan. And I received correction +and guidance from many amazing students at Stanford Law School +and Stanford University. They included Andrew B. Coan, John Eden, +James P. Fellers, Christopher Guzelian, Erica Goldberg, Robert + Hallman, +Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, +Alina Ng, and Erica Platt. I am particularly grateful to Catherine +Crump and Harry Surden, who helped direct their research, and to +Laura Lynch, who brilliantly managed the army that they assembled, +and provided her own critical eye on much of this. + + +Yuko Noguchi helped me to understand the laws of Japan as well as +its culture. I am thankful to her, and to the many in Japan who helped +me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, +Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro + +Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama, +and the Tokyo University Business Law Center, for giving me the +chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu +Yamagami for their generous help while I was there. + + +These are the traditional sorts of help that academics regularly +draw upon. But in addition to them, the Internet has made it possible +to receive advice and correction from many whom I have never even +met. Among those who have responded with extremely helpful advice +to requests on my blog about the book are Dr. Mohammad Al-Ubaydli, +David Gerstein, and Peter DiMauro, as well as a long list of those who +had specific ideas about ways to develop my argument. They included +Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob +Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy +Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James + Lindenschmidt, +K. L. Mann, Mark Manning, Nora McCauley, Jeffrey +McHugh, Evan McMullen, Fred Norton, John Pormann, Pedro A. D. +Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, +Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, +Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger +Wood, "Ximmbo da Jazz," and Richard Yanco. (I apologize if I have +missed anyone; with computers come glitches, and a crash of my +e-mail system meant I lost a bunch of great replies.) + + +Richard Stallman and Michael Carroll each read the whole book +in draft, and each provided extremely helpful correction and advice. +Michael helped me to see more clearly the significance of the + regulation +of derivitive works. And Richard corrected an embarrassingly large +number of errors. While my work is in part inspired by Stallman's, he +does not agree with me in important places throughout this book. + + +Finally, and forever, I am thankful to Bettina, who has always + insisted +that there would be unending happiness away from these battles, +and who has always been right. This slow learner is, as ever, grateful for +her perpetual patience and love. + + + + +