Fri kultur

Hvordan store mediaaktører bruker teknologi og loven til å låse ned kulturen +og kontrollere kreativiteten

Lawrence Lessig

Versjon 2004-02-10

+Denne versjonen av Fri Kultur er lisensert med en Creative Commons-lisens. +Denne lisensen tillater ikke-kommersiell utnyttelse av verket, hvis +opphavsinnehaveren er navngitt. For mer informasjon om lisensen, klikk på +ikonet over eller besøk http://creativecommons.org/licenses/by-nc/1.0/ +

2004-03-25

Om forfatteren

+Lawrense Lessig (http://www.lessig.org), professor i +juss og en John A. Wilson Distinguished Faculty Scholar ved Stanford Law +School, er stifteren av Stanford Center for Internet and Society og +styreleder i Creative Commons (http://creativecommons.org). +Forfatteren har gitt ut av The Future of Ideas (Random House, 2001) og Code: +And other Laws of Cyberspace (Basic Books, 1999), og er medlem av styrene i +Public Library of Science, the Electronic Frontier Foundation, og Public +Knowledge. Han har vunnet Free Software Foundation's Award for the +Advancement of Free Software, to ganger vært oppført i BusinessWeek's "e.biz +25," og omtalt som en av Scientific American's "50 visjonærer". Etter +utdanning ved University of Pennsylvania, Cambridge University, og Yale Law +School, assisterte Lessig dommer Richard Posner ved U.S. Seventh Circuit +Court of Appeals. +

Dedikasjon

+Til Eric Eldred — hvis arbeid først trakk meg til denne saken, og for +hvem saken fortsetter. +

Figur 1. Creative Commons, noen rettigheter reservert

Innholdsfortegnelse

Forord

1. Introduksjon

2. "Piratvirksomhet"

Kapittel en: Skaperne

Kapittel to: "Kun etter-apere"

Kapittel tre: Kataloger

Kapittel fire: "Pirater"

Film
Innspilt musikk
Radio
Kabel-TV

Kapittel fem: "Piratvirksomhet"

Piracy I
Piracy II

3. "Eiendom"

Kapittel seks: Grunnleggerne

Kapittel sju: Innspillerne

Kapittel åtte: Omformere

Kapittel ni: Samlere

Kapittel ti: "Eiendom"

Hvorfor Hollywood har rett
Opphav
Loven: Varighet
Loven: Virkeområde
Lov og arkitektur: Rekkevidde
Arkitektur og lov: Makt
Marked: Konsentrasjon
Sammen

4. Nøtter

Kapittel elleve: Chimera

Kapittel tolv: Skader

Constraining Creators
Constraining Innovators
Corrupting Citizens

5. Maktfordeling

Kapittel tretten: Eldred
Kapittel fjorten: Eldred II

6. Konklusjon

7. Etterord

Oss, nå

Gjenoppbygging av friheter som tidligere var antatt: Eksempler
Gjenoppbyggeing av fri kultur: En idé

Dem, snart

1. Flere formaliteter
2. Kortere vernetid
3. Fri Bruk vs. rimelig bruk
4. Frigjør musikken—igjen
5. Spark en masse advokater

8. Notater

9. Takk til

Figuroversikt

1. Creative Commons, noen rettigheter reservert
3.1. How four different modalities of regulation interact to support or weaken +the right or regulation.
3.2. Law has a special role in affecting the three.
3.3. Copyright's regulation before the Internet.
3.4. effective state of anarchy after the Internet.
3.5. Copyright's regulation before the Internet.
3.6. "Opphavsrett" i dag.
3.7. Alle potensielle bruk av en bok.
3.8. Eksempler på uregulert bruk av en bok.
3.9. Republishing stands at the core of this circle of possible uses of a +copyrighted work.
3.10. Unregulated copying considered "fair uses."
3.11. Uses that before were presumptively unregulated are now presumptively +regulated.
3.12. Bilde av en gammel versjon av Adobe eBook Reader.
3.13. List of the permissions that the publisher purports to grant.
3.14. E-book of Aristotle;s "Politics"
3.15. Liste med tillatelser for Aristotles "Politics".
3.16. List of the permissions for "The Future of Ideas".
3.17. List of the permissions for "Alice's Adventures in Wonderland".
3.18. VCR/handgun cartoon.
3.19. Mønster for moderne mediaeierskap.

tabelloversikt

2.1. Tabell
3.1.
3.2.
3.3.
3.4.

Kolofon

+Du kan kjøpe en kopi av denne boken ved å klikke på en av lenkene nedenfor: +

+Andre bøker av 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 +

+Fri Kultur +

+Hvordan store mediaaktører bruker teknologi og loven til å låse ned kulturen +og kontrollere kreativiteten +

+Lawrence Lessig +

+The Penguin Press +

+a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New York +

+Opphavsrett © Lawrence Lessig, +

+Alle rettigheter reservert +

+Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc. +

+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 +

+Oversatt til bokmål av Petter Reinholdtsen og Anders Hagen Jarmund. +

+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. +

Forord

+David Pogue, en glimrende skribent og forfatter av utallige tekniske +datarelaterte tekster, skrev dette på slutten av hans gjennomgang av min +første bok, Code: And Other Laws of Cyberspace: +

+I motsetning til faktiske lover, så har ikke internett-programvare +kapasiteten til å straffe. Den påvirker ikke folk som ikke er online (og +kun en veldig liten minoritet av verdens befolkning er online). Og hvis du +ikke liker systemet på internett, så kan du alltid slå av +modemet.^[1] +

+Pogue var skeptisk til argumentet som er kjernen av boken — at +programvaren, eller "koden", fungerte som en slags lov — og foreslo i +sin anmeldelse den lykkelig tanken at hvis livet i cyberspace gikk dårlig, +så kan vi alltid som med en trylleformel slå over en bryter og komme hjem +igjen. Slå av modemet, koble fra datamaskinen, og eventuelle problemer som +finnes der ville ikke "påvirke" oss mer. +

+ +Pogue kan ha hatt rett i 1999 — jeg er skeptisk, men det kan +hende. Men selv om han hadde rett da, så er ikke argumentet gyldig nå. Fri +Kultur er om problemene internett forårsaker selv etter at modemet er slått +av. Den er et argument om hvordan slagene som nå brer om seg i livet +on-line har fundamentalt påvirket "folk som er ikke pålogget." Det finnes +ingen bryter som kan isolere oss fra internettets effekt. +

+Men i motsetning til i boken Code, er argumentet her ikke så mye om +internett i seg selv. Istedet er det om konsekvensen av internett for en del +av vår tradisjon som er mye mer grunnleggende, og uansett hvor hardt dette +er for en geek-wanna-be å innrømme, mye viktigere. +

+Den tradisjonen er måten vår kultur blir laget på. Som jeg vil forklare i +sidene som følger, kommer vi fra en tradisjon av "fri kultur"—ikke +"fri" som i "fri bar" (for å låne et uttrykk fra stifteren av fri +programvarebevegelsen^[2]), men "fri" som i +"talefrihet", "fritt marked", "frihandel", "fri konkurranse", "fri vilje" og +"frie valg". En fri kultur støtter og beskytter skapere og oppfinnere. +Dette gjør den direkte ved å tildele immaterielle rettigheter. Men det gjør +den indirekte ved å begrense rekkevidden for disse rettighetene, for å +garantere at neste generasjon skapere og oppfinnere er så fri som mulig fra +kontroll fra fortiden. En fri kultur er ikke en kultur uten eierskap, like +lite som et fritt marked er et marked der alt er gratis. Det motsatte av +fri kultur er "tillatelseskultur"—en kultur der skapere kun kan skape +med tillatelse fra de mektige, eller fra skaperne fra fortiden. +

+Hvis vi forsto denne endringen, så tror jeg vi ville stå imot den. Ikke +"vi" på venstresiden eller "dere" på høyresiden, men vi som ikke har +investert i den bestemt kulturindustrien som har definert det tjuende +århundre. Enten du er på venstre eller høyresiden, hvis du i denne forstand +ikke har interesser, vil historien jeg forteller her gi deg problemer. For +endringene jeg beskriver påvirker verdier som begge sider av vår politiske +kultur anser som grunnleggende. +

+Vi så et glimt av dette tverrpolitiske raseri på forsommeren i 2003. Da FCC +vurderte endringer i reglene for medieeierskap som ville slakke på +begrensningene rundt mediakonsentrasjon, sendte en ekstraordinær koalisjon +mer enn 700 000 brev til FCC for å motsette seg endringen. Mens William +Safire beskrev å marsjere "ubehagelig sammen med CodePink Women for Peace +and the National Rifle Association, mellom liberale Olympia Snowe og +konservative Ted Stevens", formulerte han kanskje det enkleste uttrykket +for hva som var på spill: konsentrasjonen av makt. Så spurte han: + +

+Høres dette ikke-konservativt ut? Ikke for meg. Denne konsentrasjonen av +makt—politisk, selskapsmessig, pressemessig, kulturelt—bør være +bannlyst av konservative. Spredningen av makt gjennom lokal kontroll, og +derigjennom oppmuntre til individuell deltagelse, er essensen i føderalismen +og det største uttrykk for demokrati.^[3] +

+Denne idéen er et element i argumentet til Fri Kultur, selv om min fokus +ikke bare er på konsentrasjonen av makt som følger av konsentrasjonen i +eierskap, men mer viktig, og fordi det er mindre synlig, på konsentrasjonen +av makt som er resultat av en radikal endring i det effektive virkeområdet +til loven. Loven er i endring, og endringen forandrer på hvordan vår kultur +blir skapt. Den endringen bør bekymre deg—Uansett om du bryr deg om +internett eller ikke, og uansett om du er til venstre for Safires eller til +høyre. Inspirasjonen til tittelen og mye av argumentet i denne boken kommer +fra arbeidet til Richard Stallman og Free Software Foundation. Faktisk, da +jeg leste Stallmans egne tekster på nytt, spesielt essyene i Free Software, +Free Society, innser jeg at alle de teoretiske innsiktene jeg utvikler her +er innsikter som Stallman beskrev for tiår siden. Man kan dermed godt +argumentere for at dette verket kun er et avledet verk. +

+ +Jeg godtar kritikken, hvis det faktisk er kritikk. Arbeidet til en advokat +er alltid avledede verker, og jeg mener ikke å gjøre noe mer i denne boken +enn å minne en kultur om en tradisjon som alltid har vært deres egen. Som +Stallman forsvarer jeg denne tradisjonen på grunnlag av verdier. Som +Stallman tror jeg dette er verdiene til frihet. Og som Stallman, tror jeg +dette er verdier fra vår fortid som må forsvares i vår fremtid. En fri +kultur har vært vår fortid, men vil bare være vår fremtid hvis vi endrer +retningen vi følger akkurat nå. På samme måte som Stallmans argumenter for +fri programvare, treffer argumenter for en fri kultur på forvirring som er +vanskelig å unngå, og enda vanskeligere å forstå. En fri kultur er ikke en +kultur uten eierskap. Det er ikke en kultur der kunstnere ikke får +betalt. En kultur uten eierskap eller en der skaperne ikke kan få betalt, er +anarki, ikke frihet. Anarki er ikke hva jeg fremmer her. +

+I stedet er den frie kulturen som jeg forsvarer i denne boken en balanse +mellom anarki og kontroll. En fri kultur, i likhet med et fritt marked, er +fylt med eierskap. Den er fylt med regler for eierskap og kontrakter som +blir håndhevet av staten. Men på samme måte som det frie markedet blir +pervertert hvis dets eierskap blir føydalt, så kan en fri kultur bli ødelagt +av ekstremisme i eierskapsrettighetene som definerer den. Det er dette jeg +frykter om vår kultur i dag. Det er som motpol til denne ekstremismen at +denne boken er skrevet. +

^[1] +David Pogue, "Don't Just Chat, Do Something," New York Times, 30. januar +2000 +

^[2] +Richard M. Stallman, Fri programvare, Frie samfunn 57 (Joshua Gay, +red. 2002). +

^[3] William Safire, "The Great Media Gulp," New York Times, 22. mai 2003. + +

Kapittel 1. Introduksjon

+17. desember 1903, på en vindfylt strand i Nord-Carolina i såvidt under +hundre sekunder, demonstrerte Wright-brødrene at et selvdrevet fartøy tyngre +enn luft kunne fly. Øyeblikket var elektrisk, og dens betydning ble alment +forstått. Nesten umiddelbart, eksploderte interessen for denne nye +teknologien som muliggjorde bemannet luftfart og en hærskare av oppfinnere +begynte å bygge videre på den. +

+Da Wright-brødrene fant opp flymaskinen, hevdet loven i USA at en grunneier +ble antatt å eie ikke bare overflaten på området sitt, men også alt landet +under bakken, helt ned til senterpunktet i jorda, og alt volumet over +bakken, "i ubestemt grad, oppover".^[4] I +mange år undret lærde over hvordan en best skulle tolke idéen om at +eiendomsretten gikk helt til himmelen. Betød dette at du eide stjernene? +Kunne en dømme gjess for at de regelmessig og med vilje tok seg inn på annen +manns eiendom? +

+Så kom flymaskiner, og for første gang hadde dette prinsippet i lovverket i +USA—dypt nede i grunnlaget for vår tradisjon og akseptert av de +viktigste juridiske tenkerne i vår fortid—en betydning. Hvis min +eiendom rekker til himmelen, hva skjer når United flyr over mitt område? +Har jeg rett til å nekte dem å bruke min eiendom? Har jeg mulighet til å +inngå en eksklusiv avtale med Delta Airlines? Kan vi gjennomføre en auksjon +for å finne ut hvor mye disse rettighetene er verdt? +

+I 1945 ble disse spørsmålene en føderal sak. Da bøndene Thomas Lee og Tinie +Causby i Nord Carolina begynte å miste kyllinger på grunn av lavtflygende +militære fly (vettskremte kyllinger fløy tilsynelatende i låveveggene og +døde), saksøkte Causbyene regjeringen for å trenge seg inn på deres +eiendom. Flyene rørte selvfølgelig aldri overflaten på Causbys' eiendom. Men +hvis det stemte som Blackstone, Kent, og Cola hadde sagt, at deres eiendom +strakk seg "i ubestemt grad, oppover," så hadde regjeringen trengt seg inn +på deres eiendom, og Causbys ønsket å sette en stopper for dette. +

+Høyesterett gikk med på å ta opp Causbys sak. Kongressen hadde vedtatt at +luftfartsveiene var tilgjengelig for alle, men hvis ens eiendom virkelig +rakk til himmelen, da kunne muligens kongressens vedtak ha vært i strid med +grunnlovens forbud mot å "ta" eiendom uten kompensasjon. Retten erkjente at +"det er gammel doktrine etter sedvane at en eiendom rakk til utkanten av +universet.", men dommer Douglas hadde ikke tålmodighet for forhistoriske +doktriner. I et enkelt avsnitt, ble hundrevis av år med +eiendomslovgivningen strøket. Som han skrev på vegne av retten, +

+[Denne] doktrinen har ingen plass i den moderne verden. Luften er en +offentlig motorvei, slik kongressen har erklært. Hvis det ikke var +tilfelle, ville hver eneste transkontinentale flyrute utsette operatørene +for utallige søksmål om inntrenging på annen manns eiendom. Idéen er i +strid med sunn fornuft. Å anerkjenne slike private krav til luftrommet +ville blokkere disse motorveiene, seriøst forstyrre muligheten til kontroll +og utvikling av dem i fellesskapets interesse og overføre til privat +eierskap det som kun fellesskapet har et rimelig krav til.^[5] +

+"Idéen er i strid med sunn fornuft." +

+ +Det er hvordan loven vanligvis fungerer. Ikke ofte like brått eller +utålmodig, men til slutt er dette hvordan loven fungerer. Det var ikke +stilen til Douglas å utbrodere. Andre dommere ville ha skrevet mange flere +sider før de nådde sin konklusjon, men for Douglas holdt det med en enkel +linje: "Idéen er i strid med sunn fornuft.". Men uansett om det tar flere +sider eller kun noen få ord, så er det en genial egenskap med et +lovpraksis-system, slik som vårt er, at loven tilpasser seg til aktuelle +teknologiene. Og mens den tilpasser seg, så endres den. Idéer som var +solide som fjell i en tidsalder knuses i en annen. +

+Eller, det er hvordan ting skjer når det ikke er noen mektige på andre siden +av endringen. Causbyene var bare bønder. Og selv om det uten tvil var +mange som dem som var lei av den økende trafikken i luften (og en håper ikke +for mange kyllinger flakset seg inn i vegger), ville Causbyene i verden +finne det svært hardt å samles for å stoppe idéen, og teknologien, som +Wright-brødrene hadde ført til verden. Wright-brødrene spyttet flymaskiner +inn i den teknologiske meme-dammen. Idéen spredte seg deretter som et virus +i en kyllingfarm. Causbyene i verden fant seg selv omringet av "det synes +rimelig" gitt teknologien som Wright-brødrene hadde produsert. De kunne stå +på sine gårder, med døde kyllinger i hendene, og heve knyttneven mot disse +nye teknologiene så mye de ville. De kunne ringe sine representanter eller +til og med saksøke. Men når alt kom til alt, ville kraften i det som virket +"åpenbart" for alle andre—makten til "sunn fornuft"—ville vinne +frem. Deres "personlige interesser" ville ikke få lov til å nedkjempe en +åpenbar fordel for fellesskapet. +

+Edwin Howard Armstrong er en av USAs glemte oppfinnergenier. Han dukket opp +på oppfinnerscenen etter titaner som Thomas Edison og Alexander Graham +Bell. Alle hans bidrag på området radioteknologi gjør han til kanskje den +viktigste av alle enkeltoppfinnere i de første femti årene av radio. Han +var bedre utdannet enn Michael Faraday, som var bokbinderlærling da han +oppdaget elektrisk induksjon i 1831. Men han hadde like god intuisjon om +hvordan radioverden virket, og ved minst tre anledninger, fant Armstrong opp +svært viktig teknologier som brakte vår forståelse av radio et hopp videre. + +

+Dagen etter julaften i 1933, ble fire patenter utstedt til Armstrong for +hans mest signifikante oppfinnelse—FM-radio. Inntil da hadde +forbrukerradioer vært amplitude-modulert (AM) radio. Tidens teoretikere +hadde sagt at frekvens-modulert (FM) radio. De hadde rett når det gjelder +et smalt bånd av spektrumet. Men Armstrong oppdaget at frekvens-modulert +radio i et vidt bånd i spektrumet leverte en forbløffende gjengivelse av +lyd, med mye mindre senderstyrke og støy. +

+Den 5. november 1935 demonstrerte han teknologien på et møte hos institutt +for radioingeniører ved Empire State-bygningen i New York City. Han vred +radiosøkeren over en rekke AM-stasjoner, inntil radioen låste seg mot en +kringkasting som han hadde satt opp 27 kilometer unna. Radioen ble helt +stille, som om den var død, og så, med en klarhet ingen andre i rommet noen +gang hadde hørt fra et elektrisk apparat, produserte det lyden av en +opplesers stemme: "Dette er amatørstasjon W2AG ved Yonkers, New York, som +opererer på frekvensmodulering ved to og en halv meter." +

+Publikum hørte noe ingen hadde trodd var mulig: +

+Et glass vann ble fylt opp foran mikrofonen i Yonkers, og det hørtes ut som +et plass som ble fylt opp. . . . Et papir ble krøllet og revet opp, og det +hørtes ut som papir og ikke som en sprakende skogbrann. . . . Sousa-marsjer +ble spilt av fra plater og en pianosolo og et gitarnummer ble +utført. . . . Musikken ble presentert med en livaktighet som sjeldent om +noen gang før hadde vært hørt fra en radio-"musikk-boks".^[6] +

+ +Som vår egen sunn fornuft forteller oss, hadde Armstrong oppdaget en mye +bedre radioteknologi. Men på tidspunktet for hans oppfinnelse, jobbet +Armstrong for RCA. RCA var den dominerende aktøren i det da dominerende +AM-radiomarkedet. I 1935 var det tusen radiostasjoner over hele USA, men +stasjonene i de store byene var alle eid av en liten håndfull selskaper. + +

+Presidenten i RCA, David Sarnoff, en venn av Armstrong, var ivrig etter å få +Armstrong til å oppdage en måte å fjerne støyen fra AM-radio. Så Sarnoff var +ganske spent da Armstrong fortalte ham at han hadde en enhet som fjernet +støy fra "radio.". Men da Armstrong demonstrerte sin oppfinnelse, var ikke +Sarnoff fornøyd. +

+Jeg trodde Armstrong ville finne opp et slags filter for å fjerne skurring +fra AM-radioen vår. Jeg trodde ikke han skulle starte en revolusjon — +starte en hel forbannet ny industri i konkurranse med RCA.^[7] +

+Armstrongs oppfinnelse truet RCAs AM-herredømme, så selskapet lanserte en +kampanje for å knuse FM-radio. Mens FM kan ha vært en overlegen teknologi, +var Sarnoff en overlegen taktiker. En forfatter beskrev det slik, + +

+Kreftene til fordel for FM, i hovedsak ingeniørfaglige, kunne ikke overvinne +tyngden til strategien utviklet av avdelingene for salg, patenter og juss +for å undertrykke denne trusselen til selskapets posisjon. For FM utgjorde, +hvis det fikk utvikle seg uten begrensninger . . . en komplett endring i +maktforholdene rundt radio . . . og muligens fjerningen av det nøye +begrensede AM-systemet som var grunnlaget for RCA stigning til +makt.^[8] +

+RCA holdt først teknologien innomhus, og insistere på at det var nødvendig +med ytterligere tester. Da Armstrong, etter to år med testing, ble +utålmodig, begynte RCA å bruke sin makt hos myndighetene til holde tilbake +den generelle spredningen av FM-radio. I 1936, ansatte RCA den tidligere +lederen av FCC og ga ham oppgaven med å sikre at FCC tilordnet +radiospekteret på en måte som ville kastrere FM—hovedsakelig ved å +flytte FM-radio til et annet band i spekteret. I første omgang lyktes ikke +disse forsøkene. Men mens Armstrong og nasjonen var distrahert av andre +verdenskrig, begynte RCAs arbeid å bære frukter. Like etter at krigen var +over, annonserte FCC et sett med avgjørelser som ville ha en klar effekt: +FM-radio ville bli forkrøplet.Lawrence lessing beskrevet det slik, +

+Serien med slag mot kroppen som FM-radio mottok rett etter krigen, i en +serie med avgjørelser manipulert gjennom FCC av de store radiointeressene, +var nesten utrolige i deres kraft og underfundighet.^[9] +

+For å gjøre plass i spektrumet for RCAs nyeste satsingsområde, televisjon, +skulle FM-radioens brukere flyttes til et helt nytt band i spektrumet. +Sendestyrken til FM-radioene ble også redusert, og gjorde at FM ikke lenger +kunne brukes for å sende programmer fra en del av landet til en annen. +(Denne endringen ble sterkt støttet av AT&T, på grunn av at fjerningen +av FM-videresendingsstasjoner ville bety at radiostasjonene ville bli nødt +til å kjøpe kablede linker fra AT&T.) Spredningen av FM-radio var +dermed kvalt, i hvert fall midlertidig. +

+Armstrong sto imot RCAs innsats. Som svar motsto RCA Armstrongs patenter. +Etter å ha bakt FM-teknologi inn i den nye standarden for TV, erklærte RCS +patentene ugyldige—uten grunn og nesten femten år etter at de ble +utstedet. De nektet dermed å betale ham for bruken av patentene. I seks år +kjempet Armstrong en dyr søksmålskrig for å forsvare patentene sine. Til +slutt, samtidig som patentene utløp, tilbød RCA et forlik så lavt at det +ikke engang dekket Armstrongs advokatregning. Beseiret, knust og nå blakk, +skrev Armstrong i 1954 en kort beskjed til sin kone, før han gikk ut av et +vindu i trettende etasje og falt i døden. +

+ +Dette er slik loven virker noen ganger. Ikke ofte like tragisk, og sjelden +med heltemodig drama, men noen ganger er det slik det virker. Fra starten +har myndigheter og myndighetsorganer blitt tatt til fange. Det er mer +sannsynlig at de blir fanget når en mektig interesse er truet av enten en +juridisk eller teknologisk endring. Denne mektige interessen utøver for +ofte sin innflytelse hos myndighetene til å få myndighetene til å beskytte +den. Retorikken for denne beskyttelsen er naturligvis alltid med fokus på +fellesskapets beste. Realiteten er noe annet. Idéer som kan være solide +som fjell i en tidsalder, men som overlatt til seg selv, vil falle sammen i +en annen, er videreført gjennom denne subtile korrupsjonen i vår politiske +prosess. RCA hadde hva Causby-ene ikke hadde: Makten til å undertrykke +effekten av en teknologisk endring. +

+Det er ingen enkeltoppfinner av Internet. Ei heller er det en god dato som +kan brukes til å markere når det ble født. Likevel har internettet i løpet +av svært kort tid blitt en del av vanlige amerikaneres liv. I følge the Pew +Internet and American Life-prosjektet, har 58 prosent av amerikanerne hatt +tilgang til internettet i 2002, opp fra 49 prosent to år +tidligere.^[10] Det tallet kan uten +problemer passere to tredjedeler av nasjonen ved utgangen av 2004. +

+Etter hvert som internett er blitt integrert inn i det vanlige liv har ting +blitt endret. Noen av disse endringene er teknisk—internettet har +gjort kommunikasjon raskere, det har redusert kostnaden med å samle inn +data, og så videre. Disse tekniske endringene er ikke fokus for denne +boken. De er viktige. De er ikke godt forstått. Men de er den type ting +som ganske enkelt ville blir borte hvis vi alle bare slo av internettet. De +påvirker ikke folk som ikke bruker internettet, eller i det miste påvirker +det ikke dem direkte. De er et godt tema for en bok om internettet. Men +dette er ikke en bok om internettet. +

+I stedet er denne boken om effekten av internettet ut over internettet i seg +selv. En effekt på hvordan kultur blir skapt. Min påstand er at +internettet har ført til en viktig og ukjent endring i denne prosessen. +Denne endringen vil forandre en tradisjon som er like gammel som republikken +selv. De fleste, hvis de la merke til denne endringen, ville avvise den. +Men de fleste legger ikke engang merke til denne endringen som internettet +har introdusert. +

+ +Vi kan få en følelse av denne endringen ved å skille mellom kommersiell og +ikke-kommersiell kultur, ved å knytte lovens reguleringer til hver av dem. +Med "kommersiell kultur" mener jeg den delen av vår kultur som er produsert +og solgt eller produsert for å bli solgt. Med "ikke-kommersiell kultur" +mener jeg alt det andre. Da gamle menn satt rundt i parker eller på +gatehjørner og fortalte historier som unger og andre lyttet til, så var det +ikke-kommersiell kultur. Da Noah Webster publiserte sin "Reader", eller +Joel Barlow sin poesi, så var det kommersiell kultur. +

+Fra historisk tid, og for omtrent hele vår tradisjon, har ikke-kommersiell +kultur i hovedsak ikke vært regulert. Selvfølgelig, hvis din historie var +utuktig, eller hvis dine sanger forstyrret freden, kunne loven gripe inn. +Men loven var aldri direkte interessert i skapingen eller spredningen av +denne form for kultur, og lot denne kulturen være "fri". Den vanlige måten +som vanlige individer delte og formet deres kultur—historiefortelling, +formidling av scener fra teater eller TV, delta i fan-klubber, deling av +musikk, laging av kassetter—ble ikke styrt av lovverket. +

+Fokuset på loven var kommersiell kreativitet. I starten forsiktig, etter +hvert betraktelig, beskytter loven insentivet til skaperne ved å tildele dem +en eksklusiv rett til deres kreative verker, slik at de kan selge disse +eksklusive rettighetene på en kommersiell markedsplass.^[11] Dette er også, naturligvis, en viktig del av +kreativitet og kultur, og det har blitt en viktigere og viktigere del i +USA. Men det var på ingen måte dominerende i vår tradisjon. Det var i +stedet bare en del, en kontrollert del, balansert mot det frie. +

+Denne grove inndelingen mellom den frie og den kontrollerte har nå blitt +fjernet.^[12] Internettet har satt scenen +for denne fjerningen, og pressen frem av store medieaktører har loven nå +påvirket det. For første gang i vår tradisjon, har de vanlige måtene som +individer skaper og deler kultur havnet innen rekekvidde for reguleringene +til loven, som har blitt utvidet til å dra inn i sitt kontrollområde den +enorme mengden kultur og kreativitet som den aldri tidligere har nådd over. +Teknologien som tok vare på den historiske balansen—mellom bruken av +den delen av kulturen vår som var fri og bruken av vår kultur som krevde +tillatelse—har blitt borte. Konsekvensen er at vi er mindre og mindre +en fri kultur, og mer og mer en tillatelseskultur. +

+Denne endringen blir rettferdiggjort som nødvendig for å beskytte +kommersiell kreativitet. Og ganske riktig, proteksjonisme er nøyaktig det +som motiverer endringen. Men proteksjonismen som rettferdiggjør endringene +som jeg skal beskrive lenger ned er ikke den begrensede og balanserte typen +som har definert loven tidligere. Dette er ikke en proteksjonisme for å +beskytte artister. Det er i stedet en proteksjonisme for å beskytte +bestemte forretningsformer. Selskaper som er truet av potensialet til +internettet for å endre måten både kommersiell og ikke-kommersiell kultur +blir skapt og delt, har samlet seg for å få lovgiverne til å bruke loven for +å beskytte selskapene. Dette er historien om RCA og Armstrong, og det er +drømmen til Causbyene. +

+For internettet har sluppet løs en ekstraordinær mulighet for mange til å +delta i prosessen med å bygge og kultivere en kultur som rekker lagt utenfor +lokale grenselinjer. Den makten har endret markedsplassen for å lage og +kultivere kultur generelt, og den endringen truer i neste omgang etablerte +innholdsindustrier. Internettet er dermed for industriene som bygget og +distribuerte innhold i det tjuende århundret hva FM-radio var for AM-radio, +eller hva traileren var for jernbaneindustrien i det nittende århundret: +begynnelsen på slutten, eller i hvert fall en markant endring. Digitale +teknologier, knyttet til internettet, kunne produsere et mye mer +konkurransedyktig og levende marked for å bygge og kultivere kultur. Dette +markedet kunne inneholde en mye videre og mer variert utvalg av skapere. +Disse skaperne kunne produsere og distribuere et mye mer levende utvalg av +kreativitet. Og avhengig av noen få viktige faktorer, så kunne disse +skaperne tjenere mer i snitt fra dette systemet enn skaperne gjør i +dag—så lenge RCA-ene av i dag ikke bruker loven til å beskytte dem +selv mot denne konkurransen. +

+Likevel, som jeg argumenterer for i sidene som følger, er dette nøyaktig det +som skjer i vår kultur i dag. Dette som er dagens ekvivalenter til tidlig +tjuende århundres radio og nittende århundres jernbaner bruker deres makt +til å få loven til å beskytte dem mot dette nye, mer effektive, mer levende +teknologi for å bygge kultur. De lykkes i deres plan om å gjøre om +internettet før internettet gjør om på dem. +

+Det ser ikke slik ut for mange. Kamphandlingene over opphavsrett og +internettet er fjernt for de fleste. For de få som følger dem, virker de i +hovedsak å handle om et enklere sett med spørsmål—hvorvidt +"piratvirksomhet" vil bli akseptert, og hvorvidt "eiendomsretten" vil bli +beskyttet. "Krigen" som har blitt erklært mot teknologiene til +internettet—det presidenten for Motion Picture Association of America +(MPAA) Jack Valenti kaller sin "egen terroristkrig"^[13]—har blitt rammet inn som en kamp om å følge +loven og respektere eiendomsretten. For å vite hvilken side vi bør ta i +denne krigen, de fleste tenker at vi kun trenger å bestemme om hvorvidt vi +er for eiendomsrett eller mot den. +

+Hvis dette virkelig var alternativene, så ville jeg være enig med Jack +Valenti og innholdsindustrien. Jeg tror også på eiendomsretten, og spesielt +på viktigheten av hva Mr. Valenti så pent kaller "kreativ eiendomsrett". +Jeg tror at "piratvirksomhet" er galt, og at loven, riktig innstilt, bør +straffe "piratvirksomhet", både på og utenfor internettet. +

+Men disse enkle trosoppfatninger maskerer et mye mer grunnleggende spørsmål +og en mye mer dramatisk endring. Min frykt er at med mindre vi begynner å +legge merke til denne endringen, så vil krigen for å befri verden fra +internettets "pirater" også fjerne verdier fra vår kultur som har vært +integrert til vår tradisjon helt fra starten. +

+Disse verdiene bygget en tradisjon som, for i hvert fall de første 180 årene +av vår republikk, garanterte skaperne rettigheten til å bygge fritt på deres +fortid, og beskyttet skaperne og innovatørene fra både statlig og privat +kontroll. Det første grunnlovstillegget beskyttet skaperne fra statlig +kontroll. Og som professor Neil Netanel kraftfylt argumenterer,^[14] opphavsrettslov, skikkelig balansert, beskyttet +skaperne mot privat kontroll. Vår tradisjon var dermed hverken Sovjet eller +tradisjonen til velgjørere. I stedet skar det ut en bred manøvreringsrom +hvor skapere kunne kultivere og utvide vår kultur. +

+Likevel har lovens respons til internettet, når det knyttes sammen til +endringer i teknologien i internettet selv, ført til massiv økting av den +effektive reguleringen av kreativitet i USA. For å bygge på eller kritisere +kulturen rundt oss må en spørre, som Oliver Twist, om tillatelse først. +Tillatelse er, naturligvis, ofte innvilget—men det er ikke ofte +innvilget til den kritiske eller den uavhengige. Vi har bygget en slags +kulturell adel. De innen dette adelskapet har et enkelt liv, mens de på +utsiden har det ikke. Men det er adelskap i alle former som er fremmed for +vår tradisjon. +

+Historien som følger er om denne krigen. Er det ikke om "betydningen av +teknologi" i vanlig liv. Jeg tror ikke på guder, hverken digitale eller +andre typer. Det er heller ikke et forsøk på å demonisere noen individer +eller gruppe, jeg tro heller ikke i en djevel, selskapsmessig eller på annen +måte. Det er ikke en moralsk historie. Ei heller er det et rop om hellig +krig mot en industri. +

+Det er i stedet et forsøk på å forstå en håpløst ødeleggende krig som er +inspirert av teknologiene til internettet, men som rekker lang utenfor dens +kode. Og ved å forstå denne kampen er den en innsats for å finne veien til +fred. Det er ingen god grunn for å fortsette dagens batalje rundt +internett-teknologiene. Det vil være til stor skade for vår tradisjon og +kultur hvis den får lov til å fortsette ukontrollert. Vi må forstå kilden +til denne krigen. Vi må finne en løsning snart. +

+Lik Causbyenes kamp er denne krigen, delvis, om "eiendomsrett". Eiendommen i +denne krigen er ikke like håndfast som den til Causbyene, og ingen uskyldige +kyllinger har så langt mistet livet. Likevel er idéene rundt denne +"eiendomsretten" like åpenbare for de fleste som Causbyenes krav om +ukrenkeligheten til deres bondegård var for dem. De fleste av oss tar for +gitt de uvanlig mektige krav som eierne av "immaterielle rettigheter" nå +hevder. De fleste av oss, som Causbyene, behandler disse kravene som +åpenbare. Og dermed protesterer vi, som Causbyene,, når ny teknologi griper +inn i denne eiendomsretten. Det er så klart for oss som det var fro dem at +de nye teknologiene til internettet "tar seg til rette" mot legitime krav +til "eiendomsrett". Det er like klart for oss som det var for dem at loven +skulle ta affære for å stoppe denne inntrengingen i annen manns eiendom. +

+ +Og dermed, når nerder og teknologer forsvarer sin tids Armstrong og +Wright-brødenes teknologi, får de lite sympati fra de fleste av oss. Sunn +fornuft gjør ikke opprør. I motsetning til saken til de uheldige Causbyene, +er sunn fornuft på samme side som eiendomseierne i denne krigen. I +motsetning til hos de heldige Wright-brødrene, har internettet ikke +inspirert en revolusjon til fordel for seg. +

+Mitt håp er å skyve denne sunne fornuften videre. Jeg har blitt stadig mer +overrasket over kraften til denne idéen om immaterielle rettigheter og, mer +viktig, dets evne til å slå av kritisk tanke hos lovmakere og innbyggere. +Det har aldri før i vår historie vært så mye av vår "kultur" som har vært +"eid" enn det er nå. Og likevel har aldri før konsentrasjonen av makt til å +kontrollere bruken av kulturen vært mer akseptert uten spørsmål enn det er +nå. +

+Gåten er, hvorfor det? Er det fordi vi fått en innsikt i sannheten om +verdien og betydningen av absolutt eierskap over idéer og kultur? Er det +fordi vi har oppdaget at vår tradisjon med å avvise slike absolutte krav var +feil? +

+Eller er det på grunn av at idéer om absolutt eierskap over idéer og kultur +gir fordeler til RCA-ene i vår tid, og passer med vår ureflekterte +intuisjon? +

+Er denne radikale endringen vekk fra vår tradisjon om fri kultur en +forekomst av USA som korrigerer en feil fra sin fortid, slik vi gjorde det +etter en blodig krig mot slaveri, og slik vi sakte gjør det mot +forskjellsbehandling? Eller er denne radikale endringen vekk fra vår +tradisjon med fri kultur nok et eksempel på at vårt politiske system er +fanget av noen få mektige særinteresser? +

+Fører sunn fornuft til det ekstreme i dette spørsmålet på grunn av at sunn +fornuft faktisk tror på dette ekstreme? Eller står sunn fornuft i stillhet +i møtet med dette ekstreme fordi, som med Armstrong versus RCA, at den mer +mektige siden har sikret seg at det har et mye mer mektig synspunkt? +

+ +Jeg forsøker ikke å være mystisk. Mine egne synspunkter er klare. Jeg mener +det var riktig for sunn fornuft å gjøre opprør mot ekstremismen til +Causbyene. Jeg mener det ville være riktig for sunn fornuft å gjøre opprør +mot de ekstreme krav som gjøres i dag på vegne av "immaterielle +rettigheter". Det som loven krever i dag er mer å mer like dumt som om +lensmannen skulle arrestere en flymaskin for å trenge inn på annen manns +eiendom. Men konsekvensene av den nye dumskapen vil bli mye mer +dyptgripende. + +

+Basketaket som pågår akkurat nå senterer seg rundt to idéer: +"piratvirksomhet" og "eiendom". Mitt mål med denne bokens neste to deler er +å utforske disse to idéene. +

+Metoden min er ikke den vanlige metoden for en akademiker. Jeg ønsker ikke +å pløye deg inn i et komplisert argument, steinsatt med referanser til +obskure franske teoretikere—uansett hvor naturlig det har blitt for +den rare sorten vi akademikere har blitt. Jeg vil i stedet begynne hver del +med en samling historier som etablerer en sammenheng der disse +tilsynelatende enkle idéene kan bli fullt ut forstått. +

+De to delene setter opp kjernen i påstanden til denne boken: at mens +internettet faktisk har produsert noe fantastisk og nytt, bidrar våre +myndigheter, presset av store medieaktører for å møte dette "noe nytt" til å +ødelegge noe som er svært gammelt. I stedet for å forstå endringene som +internettet kan gjøre mulig, og i stedet for å ta den tiden som trengs for å +la "sunn fornuft" finne ut hvordan best svare på utfordringen, så lar vi de +som er mest truet av endringene bruke sin makt til å endre loven—og +viktigere, å bruke sin makt til å endre noe fundamentalt om hvordan vi +alltid har fungert. +

+Jeg tror vi tillater dette, ikke fordi det er riktig, og heller ikke fordi +de fleste av oss tror på disse endringene. Vi tillater det på grunn av at +de interessene som er mest truet er blant de mest mektige aktørene i vår +deprimerende kompromitterte prosess for å utforme lover. Denne boken er +historien om nok en konsekvens for denne type korrupsjon—en konsekvens +for de fleste av oss forblir ukjent med. +

^[4] +St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: +Rothman Reprints, 1969), 18. +

^[5] +USA mot Causby, U.S. 328 (1946): 256, 261. Domstolen fant at det kunne være +å "ta" hvis regjeringens bruk av sitt land reelt sett hadde ødelagt verdien +av eiendomen til Causby. Dette eksemplet ble foreslått for meg i Keith +Aokis flotte stykke, "(intellectual) Property and Sovereignty: Notes Toward +a cultural Geography of Authorship", Stanford Law Review 48 (1996): 1293, +1333. Se også Paul Goldstein, Real Property (Mineola, N.Y.: Foundation Press +(1984)), 1112–13. +

^[6] +Lawrence Lessing, Man of High Fidelity:: Edwin Howard Armstrong +(Philadelphia: J. B. Lipincott Company, 1956), 209. +

^[7] Se "Saints: The Heroes and Geniuses of the Electronic Era," første +elektroniske kirke i USA, hos www.webstationone.com/fecha, tilgjengelig fra +link #1. +

^[8]Lessing, 226. +

^[9] +Lessing, 256. +

^[10] +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, tilgjengelig fra link #2. +

^[11] +Dette er ikke det eneste formålet med opphavsrett, men det er helt klart +hovedformålet med opphavsretten slik den er etablert i føderal grunnlov. +Opphavsrettslovene i delstatene beskyttet historisk ikke bare kommersielle +interesse når det gjalt publikasjoner, men også personverninteresser. Ved å +gi forfattere eneretten til å publisere først, ga delstatenes +opphavsrettslovene forfatterne makt til å kontrollere spredningen av fakta +om seg selv. Se Samuel D. Warren og Louis Brandeis, "The Right to Privacy", +Harvard Law Review 4 (1890): 193, 198–200. +

^[12] +Se Jessica Litman, Digital Copyright (New York: Prometheus bøker, 2001), +kap. 13. +

^[13] +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. januar +2002. +

^[14] +Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law +Journal 106 (1996): 283. +

Kapittel 2. "Piratvirksomhet"

Innholdsfortegnelse

Kapittel en: Skaperne

Kapittel to: "Kun etter-apere"

Kapittel tre: Kataloger

Kapittel fire: "Pirater"

Film
Innspilt musikk
Radio
Kabel-TV

Kapittel fem: "Piratvirksomhet"

Piracy I
Piracy II

+Helt siden loven begynte å regulere kreative eierrettigheter, har det vært +en krig mot "piratvirksomhet". De presise konturene av dette konseptet, +"piratvirksomhet", har vært vanskelig å tegne opp, men bildet av +urettferdighet er enkelt å beskrive. Som Lord Mansfield skrev i en sak som +utvidet rekkevidden for engelsk opphavsrettslov til å inkludere noteark, +

+En person kan bruke kopien til å spille den, men han har ingen rett til å +robbe forfatteren for profitten, ved å lage flere kopier og distribuere +etter eget forgodtbefinnende.^[15] +

+ +I dag er vi midt inne i en annen "krig" mot "piratvirksomhet". Internettet +har fremprovosert denne krigen. Internettet gjør det mulig å effektivt spre +innhold. Peer-to-peer (p2p) fildeling er blant det mest effektive av de +effektive teknologier internettet muliggjør. Ved å bruke distribuert +intelligens, kan p2p-systemer muliggjøre enkel spredning av innhold på en +måte som ingen forestilte seg for en generasjon siden. + +

+Denne effektiviteten respekterer ikke de tradisjonelle skillene i +opphavsretten. Nettverket skiller ikke mellom deling av +opphavsrettsbeskyttet og ikke opphavsrettsbeskyttet innhold. Dermed har det +vært deling av en enorm mengde opphavsrettsbeskyttet innhold. Denne +delingen har i sin tur ansporet til krigen, på grunn av at eiere av +opphavsretter frykter delingen vil "frata forfatteren overskuddet." +

+Krigerne har snudd seg til domstolene, til lovgiverne, og i stadig større +grad til teknologi for å forsvare sin "eiendom" mot denne +"piratvirksomheten". En generasjon amerikanere, advarer krigerne, blir +oppdratt til å tro at "eiendom" skal være "gratis". Glem tatoveringer, ikke +tenk på kroppspiercing—våre barn blir tyver! +

+Det er ingen tvil om at "piratvirksomhet" er galt, og at pirater bør +straffes. Men før vi roper på bødlene, bør vi sette dette +"piratvirksomhets"-begrepet i en sammenheng. For mens begrepet blir mer og +mer brukt, har det i sin kjerne en ekstraordinær idé som nesten helt sikkert +er feil. +

+Idéen høres omtrent slik ut: +

+Kreativt arbeid har verdi. Når jeg bruker, eller tar, eller bygger på det +kreative arbeidet til andre, så tar jeg noe fra dem som har verdi. Når jeg +tar noe av verdi fra noen andre, bør jeg få tillatelse fra dem. Å ta noe +som har verdi fra andre uten tillatelse er galt. Det er en form for +piratvirksomhet. +

+Dette synet går dypt i de pågående debattene. Det er hva jussprofessor +Rochelle Dreyfuss ved NYU kritiserer som "hvis verdi, så rettighet"-teorien +for kreative eierrettigheter ^[16]—hvis det finnes verdi, så må noen ha rettigheten til denne +verdien. Det er perspektivet som fikk komponistenes rettighetsorganisasjon, +ASCAP, til å saksøke jentespeiderne for å ikke betale for sangene som +jentene sagt rundt jentespeidernes leirbål.^[17] Det fantes "verdi" (sangene), så det måtte ha vært en +"rettighet"—til og med mot jentespeiderne. +

+ +Denne idéen er helt klart en mulig forståelse om hvordan kreative +eierrettigheter bør virke. Det er helt klart et mulig design for et +lovsystem som beskytter kreative eierrettigheter. Men teorien om "hvis +verdi, så rettighet" for kreative eierrettigheter har aldri vært USAs teori +for kreative eierrettigheter. It har aldri stått rot i vårt lovverk. +

+I vår tradisjon har immaterielle rettigheter i stedet vært et instrument. +Det bygger fundamentet for et rikt kreativt samfunn, men er fortsatt servilt +til verdien av kreativitet. Dagens debatt har snudd dette helt rundt. Vi +har blitt så opptatt av å beskytte instrumentet at vi mister verdien av +syne. +

+Kilden til denne forvirringen er et skille som loven ikke lenger bryr seg om +å markere—skillet mellom å gjenpublisere noens verk på den ene siden, +og bygge på og gjøre om verket på den andre. Da opphavsretten kom var det +kun publisering som ble berørt. Opphavsretten i dag regulerer begge. +

+Før teknologiene til internettet dukket opp, betød ikke denne begrepsmessige +sammenblandingen mye. Teknologiene for å publisere var kostbare, som betød +at det meste av publisering var kommersiell. Kommersielle aktører kunne +håndtere byrden pålagt av loven—til og med byrden som den bysantiske +kompleksiteten som opphavsrettsloven har blitt. Det var bare nok en kostnad +ved å drive forretning. +

+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."^[18] Unfortunately, we are also seeing an extraordinary rise of +regulation of this creative class. +

+Disse byrdene gir ingen mening i vår tradisjon. Vi bør begynne med å forstå +den tradisjonen litt mer, og ved å plassere dagens slag om oppførsel med +merkelappen "piratvirksomhet" i sin rette sammenheng. +

Kapittel en: Skaperne

+I 1928 ble en tegnefilmfigur født. En tidlig Mikke Mus debuterte i mai +dette året, i en stille flopp ved navn Plane Crazy. I november, i Colony +teateret i New York City, ble den første vidt distribuerte tegnefilmen med +synkronisert lyd, Steamboat Willy, vist frem med figuren som skulle bli til +Mikke Mus. +

+Film med sykronisert lyd hadde blitt introdusert et år tidligere i filmen +The Jazz Singer. Suksessen fikk Walt Disney til å kopiere teknikken og +mikse lyd med tegnefilm. Ingen visste hvorvidt det ville virke eller ikke, +og om det fungere, hvorvidt publikum villa ha sans for det. Men da Disney +gjorde en test sommeren 1928, var resutlatet entydig. Som Disney beskriver +dette første eksperimentet, +

+ +Et par av guttene mine kunne lese noteark, og en av dem kunne spille +munnspill. Vi stappet dem inn i et rom hvor de ikke kunne se skjermen, og +gjorde det slik at lyden de spilte ble sendt videre til et rom hvor våre +koner og venner var plassert for å se på bildet. + +
+Guttene brukte et note- og lydeffekt-ark. Etter noen dårlige oppstarter, +kom endelig lyd og handlig i gang med et smell. Munnspilleren spilte +melodien, og resten av oss i lydavdelingen slamret på tinnkasseroller og +blåste på slide-fløyte til rytmen. Synkroniseringen var nesten helt riktig. +
+Effekten på vårt lille publikum var intet mindre enn elektrisk. De reagerte +nesten instiktivt til denne union av lyd og bevegelse. Jeg trodde de tullet +med meg. Så de puttet meg i publikum og satte igang på nytt. Det var +grufult, men det var fantastisk. Og det var noe nytt!^[19] +

+Disneys daværende partner, og en av animasjonsverdenens mest ekstraordinære +talenter, Ub Iwerks, uttalte det sterkere: "Jeg har aldri vært så begeistret +i hele mitt liv. Ingenting annet har noen sinne vært like bra." +

+Disney hadde laget noe helt nyt, basert på noe relativt nytt. Synkronisert +lyd ga liv til en form for kreativitet som sjeldent hadde—unntatt fra +Disneys hender—vært noe annet en fyllstoff for andre filmer. Gjennom +animasjonens tidligere historie var det Disneys oppfinnelse som satte +standarden som andre måtte sloss for å oppfylle. Og ganske ofte var Disneys +store geni, hans gnist av kreativitet, bygget på arbeidet til andre. +

+Dette er kjent stoff. Det du kanskje ikke vet er at 1928 også markerer en +annen viktig overgang. I samme år laget et komedie-geni (i motsetning til +tegnefilm-geni) sin siste uavhengig produserte stumfilm. Dette geniet var +Buster Keaton. Filmen var Steamboat Bill, Jr. +

+Keaton ble født inn i en vauderville-familie i 1895. I stumfilm-æraen hadde +han mestret bruken av bredpenslet fysisk komedie på en måte som tente +ukontrollerbar latter fra hans publikum. Steamboat Bill, Jr. var en klassier +av denne typen, berømt blant film-elskere for sine utrolige stunts. Filmen +var en klassisk Keaton—fantastisk populær og blant de beste i sin +sjanger. +

+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,^[20] 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. +

+Denne "låningen" var ikke unik, hverken for Disney eller for industrien. +Disney apet alltid etter full-lengde massemarkedsfilmene rundt +ham.^[21] Det samme gjorde mange andre. +Tidlige tegnefilmer er stappfulle av etterapninger—små variasjoner +over suksessfulle temaer, gamle historier fortalt på nytt. Nøkkelen til +suksess var brilliansen i forskjellene. Med Disney var det lyden som ga +gnisten til hans animasjoner. Senere var det kvaliteten på hans arbeide +relativt til de masseproduserte tegnefilmene som han konkurrerte med. +Likevel var disse bidragene bygget på toppen av fundamentet som var lånt. +Disney bygget på arbeidet til andre som kom før han, og skapte noe nytt ut +av noe som bare var litt gammelt. +

+Noen ganger var låningen begrenset, og noen ganger var den betydelig. Tenkt +på eventurene til brødrene Grimm. Hvis du er like ubevisst som jeg var, så +tror du sannsynlighvis at disse fortellingene er glade, søte historier som +passer for ethvert barn ved leggetid. Realiteten er at Grimm-eventyrene er, +for oss, ganske dystre. Det er noen sjeldne og kanskje spesielt ambisiøse +foreldre som ville våge å lese disse blodige moralistiske historiene til +sine barn, ved leggetid eller hvilken som helst annet tidspunkt. +

+ +Disney tok disse historiene og fortalte dem på nytt på en måte som førte dem +inn i en ny tidsalder. Han ga historiene liv, med både karakterer og +lys. Uten å fjerne bitene av frykt og fare helt, gjorde han morsomt det som +var mørkt og satte inn en ekte følelse av medfølelse der det før var +frykt. Og ikke bare med verkene av brødrene Grimm. Faktisk er katalogen +over Disney-arbeid som baserer seg på arbeidet til andre ganske forbløffende +når den blir samlet: Snøhvit (1937), Fantasia (1940), Pinocchio (1940), +Dumbo (1941), Bambi (1942), Song of the South (1946), Askepott (1950), Alice +in Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady og +landstrykeren (1955), Mulan (1998), Tornerose (1959), 101 dalmatinere +(1961), Sverdet i steinen (1963), og Jungelboken (1967)—for ikke å +nevne et nylig eksempel som vi bør kanskje glemme raskt, Treasure Planet +(2003). I alle disse tilfellene, har Disney (eller Disney, Inc.) hentet +kreativitet fra kultur rundt ham, blandet med kreativiteten fra sitt eget +ekstraordinære talent, og deretter brent denne blandingen inn i sjelen til +sin kultur. Hente, blande og brenne. +

+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.^[22] 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. +

+Men mitt formål her er ikke å forstå manga. Det er a beskrive en variant av +manga som fra en avokats perspektiv er ganske merkelig, men som fra en +Disneys perspektiv er ganske godt kjent. +

+ +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.^[23] +

+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.^[24] +

+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."^[25] 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? +

+Frie kulturer er kulturer som etterlater mye åpent for andre å bygge på. +Ufrie, eller tillatelse-kulturer etterlater mye mindre. Vår var en fri +kultur. Den er på tur til å bli mindre fri. +

Kapittel to: "Kun etter-apere"

+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."^[26] 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.^[27] +

+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.^[28] Eastman +Kodak's sales during the same period experienced an average annual increase +of over 17 percent.^[29] +

+ + +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."^[30] +

+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.^[31] +

+ +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.^[32]) 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.^[33]) +

+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."^[34] 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,^[35] 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."^[36] 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.^[37] +

+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."^[38] It is to enable students "to communicate in the +language of the twenty-first century."^[39] +

+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.^[40] +

+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.^[41] 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.^[42] 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.^[43] +

+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.^[44] 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.^[45] 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.^[46] 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.^[47] 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. +

Kapittel tre: Kataloger

+Høsten 2001, ble Jesse Jordan fra Oceanside, New York, innrullert som +førsteårsstudent ved Rensselaer Polytechnic Institute, i Troy, New York. +Hans studieprogram ved RPI var informasjonsteknologi. Selv om han ikke var +en programmerer, bestemte Jesse seg i oktober å begynne å fikle med en +søkemotorteknologi som var tilgjengelig på RPI-nettverket. +

+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.^[48] +

+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. +

+Så Jesse hadde et mafia-lignende valg: $250,000 og en sjanse til å vinne, +eller $12.000 og et forlik. +

+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.^[49] 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?^[50] +

+23. juni overførte Jesse alle sine oppsparte midler til advokaten som jobbet +for RIA. Saken mot ham ble trukket. Og med dette, ble unggutten som hadde +fiklet med en datamaskin og blitt saksøkt for 15 millioner dollar en +aktivist: +

+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." +

Kapittel fire: "Pirater"

+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.^[51] 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.^[52] +

+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."^[53] 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. +

Innspilt musikk

+Plateindustrien ble født av en annen type piratvirksomhet, dog for å forstå +hvordan krever at en setter seg inn i detaljer om hvordan loven regulerer +musikk. +

+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.^[54] +

+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,"^[55] and the "music publishing +industry" was thereby "at the complete mercy of this one +pirate."^[56] 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."^[57] +

+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.^[58] 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."^[59] +

+ +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.^[60] +

+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.^[61] +

+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.^[62] 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. +

Kabel-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."^[63] +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?"^[64] 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.^[65] +

+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.^[66] +

+Disse var "gratispassasjerer", sa presidenten Charlton Heston i Screen +Actor's Guild, som "tok lønna fra skuespillerne"^[67] +

+Men igjen, det er en annen side i debatten. Som assisterende justisminister +Edwin Zimmerman sa det, +

+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.^[68] +

+Opphavsrettinnehaverne tok kabelselskapene til retten. Høyesterett fant to +ganger at kabelselskaper ikke skyldte opphavsrettinnehaverne noen ting. +

+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^[69] — 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. +

Kapittel fem: "Piratvirksomhet"

+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^[70] (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.^[71] 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.^[72] +

+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."^[73] 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^[74]), 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.^[75] 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.^[76] 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.^[77] 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. +

+ + +Fildelerne deler ulike typer innhold. Vi kan derel disse ulike typene inn i +fire typer. +

+ +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. +

+Hvordan balanserer disse ulike delingstypene? +

+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.^[78] 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."^[79] 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."^[80] +

+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.^[81] 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."^[82] 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."^[83] +

+ + + +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.^[84] +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.^[85] 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. +

+Men er ikke krigen bare en krig mot ulovlig deling? Er ikke angrepsmålet +bare det du kaller type A-deling? +

+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."^[86] +

+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."^[87] +"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."^[88] Indeed, as surveys would later +show, percent of VCR owners had movie libraries of ten videos or +more^[89] — 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 infringementwithout creating a +mechanism to compensate copyrightowners," 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."^[90] +

+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.^[91] +

+ +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.^[92] +

+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: +

Tabell 2.1. Tabell

CASE	WHOSE VALUE WAS "PIRATED"	RESPONSE OF THE COURTS	RESPONSE OF CONGRESS
Innspillinger	Komponister	Ingen beskyttelse	Statutory license
Radio	Innspillingsartister	N/A	Ingenting
Kabel-TV	Kringkastere	Ingen beskyttelse	Statutory license
VCR	Filmskapere	Ingen beskyttelse	Ingenting

+In each case throughout our history, a new technology changed the way +content was distributed.^[93] 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."^[94] 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."^[95] +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." +

^[15] + + +Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield). +

^[16] + + +Se Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language in the +Pepsi Generation," Notre Dame Law Review 65 (1990): 397. +

^[17] + +Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay Up," +Wall Street Journal, 21. august 1996, tilgjengelig fra link #3; Jonathan Zittrain, +"Calling Off the Copyright War: In Battle of Property vs. Free Speech, No +One Wins," Boston Globe, 24. november 2002. +

^[18] + +I The Rise of the Creative Class (New York: Basic Books, 2002), dokumenterer +Richard Florida en endring i arbeidsstokken mot kreativitetsarbeide. Hans +tekst omhandler derimot ikke direkte de juridiske vilkår som kreativiteten +blir muliggjort eller hindret under. Jeg er helt klart enig med ham i +viktigheten og betydningen av denne endringen, men jeg tror også at +vilkårene som disse endringene blir aktivert under er mye vanskeligere. + +

^[19] + + +Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons +(New York: Penguin Books, 1987), 34–35. +

^[20] + + +Jeg er takknemlig overfor David Gerstein og hans nøyaktige historie, +beskrevet på link #4. I +følge Dave Smith ved the Disney Archives, betalte Disney for å bruke +musikken til fem sanger i Steamboat Willie: "Steamboat Bill," "The +Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1" +(Baron), og "Gawky Rube" (Lakay). En sjette sang, "The Turkey in the Straw," +var allerede allemannseie. Brev fra David Smith til Harry Surden, 10. juli +2003, tilgjenglig i arkivet til forfatteren. +

^[21] + + +Han var også tilhenger av allmannseiet. Se Chris Sprigman, "The Mouse that +Ate the Public Domain," Findlaw, 5. mars 2002, fra link #5. +

^[22] + + +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. +

^[23] + + +For en utmerket historie, se Scott McCloud, Reinventing Comics (New York: +Perennial, 2000). +

^[24] + + +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." +

^[25] + +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. + +

^[26] + + +Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University +Press, 1975), 112. +

^[27] + +Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), +53. +

^[28] + + +Jenkins, 177. +

^[29] + + +Basert på et diagram i Jenkins, s. 178. +

^[30] + + +Coe, 58. +

^[31] + + +For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 +S.E. +

^[32] + +Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law +Review 4 (1890): 193. +

^[33] + + +See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary +Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law +Review 48 (1960) 398–407; White v. Samsung Electronics America, Inc., +971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). +

^[34] + + +H. Edward Goldberg, "Essential Presentation Tools: Hardware and Software You +Need to Create Digital Multimedia Presentations," cadalyst, februar 2002, +tilgjengelig fra link #7. +

^[35] + + +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. +

^[36] + +Intervju med Elizabeth Daley og Stephanie Barish, 13. desember 2002. + +

^[37] + + +Se Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4. november +2000, tilgjengelig fra link +#8; "Timeline," 22. november 2000, tilgjengelig fra link #9. +

^[38] + +Intervju med Daley og Barish. +

^[39] + + +Ibid. +

^[40] + + +See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, +trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16. +

^[41] + + +Bruce Ackerman and James Fishkin, "Deliberation Day," Journal of Political +Philosophy 10 (2) (2002): 129. +

^[42] + + +Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), +65–80, 175, 182, 183, 192. +

^[43] + + +Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New York +Times, 16 January 2003, G5. +

^[44] + + +Telefonintervju med David Winer, 16. april 2003. +

^[45] + + +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. +

^[46] + +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.") +

^[47] + + +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. +

^[48] + + +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, +tilgjengelig fra 2003 WL 55179443. +

^[49] + + +Occupational Employment Survey, U.S. Dept. of Labor (2001) +(27–2042—Musicians and Singers). See also National Endowment for +the Arts, More Than One in a Blue Moon (2000). +

^[50] + + +Douglas Lichtman kommer med et relatert poeng i "KaZaA and Punishment," Wall +Street Journal, 10. september 2003, A24. +

^[51] + +I am grateful to Peter DiMauro for pointing me to this extraordinary +history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, +87–93, which details Edison's "adventures" with copyright and patent. + +

^[52] + + +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.

^[53] + + +Marc Wanamaker, "The First Studios," The Silents Majority, arkivert på +link #12. +

^[54] + + +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). +

^[55] + + +To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of +Nathan Burkan, attorney for the Music Publishers Association). +

^[56] + + +To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of +Nathan Burkan, attorney for the Music Publishers Association). +

^[57] + + +To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of +John Philip Sousa, composer). +

^[58] + + + +To Amend and Consolidate the Acts Respecting Copyright, 283–84 +(statement of Albert Walker, representative of the Auto-Music Perforating +Company of New York). +

^[59] + + +To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared +memorandum of Philip Mauro, general patent counsel of the American +Graphophone Company Association). +

^[60] + + +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). +

^[61] + + +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.

^[62] + +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. +

^[63] + + +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). +

^[64] + + +Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, +general counsel of the National Association of Broadcasters). +

^[65] + + +Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes, +general counsel of the Association of Maximum Service Telecasters, Inc.). +

^[66] + + +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.). +

^[67] + + +Copyright Law Revision—CATV, 209 (vitnemål fra Charlton Heston, +president i Screen Actors Guild). +

^[68] + +Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, +acting assistant attorney general). +

^[69] + + +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." +

^[70] + + +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. +

^[71] + +See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the +Knowledge Economy? (New York: The New Press, 2003), 10–13, 209. The +Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement +obligates member nations to create administrative and enforcement mechanisms +for intellectual property rights, a costly proposition for developing +countries. Additionally, patent rights may lead to higher prices for staple +industries such as agriculture. Critics of TRIPS question the disparity +between burdens imposed upon developing countries and benefits conferred to +industrialized nations. TRIPS does permit governments to use patents for +public, noncommercial uses without first obtaining the patent holder's +permission. Developing nations may be able to use this to gain the benefits +of foreign patents at lower prices. This is a promising strategy for +developing nations within the TRIPS framework. +

^[72] + +For an analysis of the economic impact of copying technology, see Stan +Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), +144–90. "In some instances . . . the impact of piracy on the copyright +holder's ability to appropriate the value of the work will be +negligible. One obvious instance is the case where the individual engaging +in pirating would not have purchased an original even if pirating were not +an option." Ibid., 149. +

^[73] + + +Bach v. Longman, 98 Eng. Rep. 1274 (1777). +

^[74] + +See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary +National Bestseller That Changed the Way We Do Business (New York: +HarperBusiness, 2000). Professor Christensen examines why companies that +give rise to and dominate a product area are frequently unable to come up +with the most creative, paradigm-shifting uses for their own products. This +job usually falls to outside innovators, who reassemble existing technology +in inventive ways. For a discussion of Christensen's ideas, see Lawrence +Lessig, Future, 89–92, 139. +

^[75] + + +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. +

^[76] + + + +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. +

^[77] + + +Amy Harmon, "Industry Offers a Carrot in Online Music Fight," New York +Times, 6 June 2003, A1. +

^[78] + +Se Liebowitz, Rethinking the Network Economy,148–49. +

^[79] + + +See Cap Gemini Ernst & Young, Technology Evolution and the Music +Industry's Business Model Crisis (2003), 3. This report describes the music +industry's effort to stigmatize the budding practice of cassette taping in +the 1970s, including an advertising campaign featuring a cassette-shape +skull and the caption "Home taping is killing music." At the time digital +audio tape became a threat, the Office of Technical Assessment conducted a +survey of consumer behavior. In 1988, 40 percent of consumers older than ten +had taped music to a cassette format. U.S. Congress, Office of Technology +Assessment, Copyright and Home Copying: Technology Challenges the Law, +OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October +1989), 145–56.

^[80] + + +U.S. Congress, Copyright and Home Copying, 4. +

^[81] + + +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)." +

^[82] +Jane Black, "Big Music's Broken Record," BusinessWeek online, 13. februar +2003, tilgjengelig fra link +#17. +

^[83] + + +Ibid. +

^[84] + + +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. +

^[85] + + +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. +

^[86] + + +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), 269–82. +

^[87] + + +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.). +

^[88] + + +Copyright Infringements (Audio and Video Recorders), 475. +

^[89] + + +Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, +(C.D. Cal., 1979). +

^[90] + + +Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack +Valenti). +

^[91] + + +Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th +Cir. 1981). +

^[92] + + +Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 +(1984). +

^[93] + +These are the most important instances in our history, but there are other +cases as well. The technology of digital audio tape (DAT), for example, was +regulated by Congress to minimize the risk of piracy. The remedy Congress +imposed did burden DAT producers, by taxing tape sales and controlling the +technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the +United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 +U.S.C. §1001. Again, however, this regulation did not eliminate the +opportunity for free riding in the sense I've described. See Lessig, Future, +71. See also Picker, "From Edison to the Broadcast Flag," University of +Chicago Law Review 70 (2003): 293–96. +

^[94] + + +Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984). +

^[95] + + +John Schwartz, "New Economy: The Attack on Peer-to-Peer Software Echoes Past +Efforts," New York Times, 22 September 2003, C3. +

Kapittel 3. "Eiendom"

Innholdsfortegnelse

Kapittel seks: Grunnleggerne

Kapittel sju: Innspillerne

Kapittel åtte: Omformere

Kapittel ni: Samlere

Kapittel ti: "Eiendom"

Hvorfor Hollywood har rett
Opphav
Loven: Varighet
Loven: Virkeområde
Lov og arkitektur: Rekkevidde
Arkitektur og lov: Makt
Marked: Konsentrasjon
Sammen

+ + + +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."^[96] +

+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.^[97] +

+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. +

Kapittel seks: Grunnleggerne

+William Shakespeare skrev "Romeo og Julie" i 1595. Skuespillet ble først +utgitt i 1597. Det var det ellevte store skuespillet Shakespeare hadde +skrevet. Han fortsatte å skrive skuespill helt til 1613, og stykkene han +skrevhar fortsatt å definere angloamerikansk kultur siden. Så dypt har +verkene av en 1500-talls forfatter sunket inn i vår kultur at vi ofte ikke +engang kjenner kilden. Jeg overhørte en gang noen som kommentere Kenneth +Branaghs utgave av Henry V: "Jeg likte det, men Shakespeare er så full av +klisjeer." +

+ +I 1774, nesten 180 år etter at Romeo og Julie ble skrevet, mente mange at +"opphavsretten" kun tilhørte én eneste utgiver i London, John +Tonson. ^[98] Tonson var den mest +fremstående av en liten gruppe utgivere kalt "the Conger"^[99], som kontrollerte boksalget i England gjennom hele +1700-tallet. The Conger hevdet at de hadde en evigvarende rett over "kopier" +av bøker de hadde fått av forfatterne. Denne evigvarende retten innebar at +ingen andre kunne publisere kopier av disse bøkene. Slik ble prisen på +klassiske bøker holdt oppe; alle konkurrenter som lagde bedre eller +billigere utgaver, ble fjernet. +

+Men altså, det er noe spennende med året 1774 for alle som vet litt om +opphavsretts-lovgivning. Det mest kjente året for opphavsrett er 1710, da +det britiske parlamentet vedtok den første loven. Denne loven er kjent som +"Statute of Anne" og sa at alle publiserte verk skulle være beskyttet i +fjorten år, en periode som kunne fornyes én gang dersom forfatteren ennå +levde, og at alle verk publisert i eller før 1710 skulle ha en ekstraperiode +på 22 tillegsår.^[100] På grunn av denne +loven, så skulle "Rome og Julie" ha falt i det fri i 1731. Hvordan kunne da +Tonson fortsatt ha kontroll over verket i 1774? +

+Årsaken var ganske enkelt at engelskmennene ikke hadde bestemt hva +opphavsrett innebar -- faktisk hadde ingen i verden det. På den tiden da +engelskmennene vedtok "Statute of Anne", var det ingen annen lovgivning om +opphavsrett. Den siste loven som regulerte utgivere var lisensieringsloven +av 1662, utløpt i 1695. At loven ga utgiverne monopol over publiseringen, +noe som gjorde det enklere for kronen å kontrollere hva ble publisert. Men +etter at det har utløpt, var det ingen positiv lov som sa at utgiverne hadde +en eksklusiv rett til å trykke bøker. +

+At det ikke fantes noen positiv lov, betydde ikke at det ikke fantes noen +lov. Den anglo-amerikanske juridiske tradisjon ser både til lover skapt av +politikere (det lovgivende statsorgen)og til lover (prejudikater) skapt av +domstolene for å bestemme hvordan folket skal leve. Vi kaller politikernes +lover for positiv lov og vi kaller lovene fra dommerne sedvanerett."Common +law" angir bakgrunnen for de lovgivendes lovgivning; retten til lovgiving, +vanligvis kan trumfe at bakgrunnen bare hvis det går gjennom en lov til å +forskyve den. Og så var det virkelige spørsmålet etter lisensiering lover +hadde utløpt om felles lov beskyttet opphavsretten, uavhengig av lovverket +positiv. +

+ +Dette spørsmålet var viktig for utgiverne eller "bokselgere," som de ble +kalt, fordi det var økende konkurranse fra utenlandske utgivere, Særlig fra +Skottland hvor publiseringen og eksporten av bøker til England hadde økt +veldig. Denne konkurransen reduserte fortjenesten til "The Conger", som +derfor krevde at parlamentet igjen skulle vedta en lov for å gi dem +eksklusiv kontroll over publisering. Dette kravet resulterte i "Statute of +Anne". +

+"Statute of Anne" ga forfatteren eller "eieren" av en bok en eksklusiv rett +til å publisere denne boken. Men det var, til bokhandernes forferdelse en +viktig begrensning, nemlig hvor lenge denne retten skulle vare. Etter dette +gikk trykkeretten bort og verket falt i det fri og kunne trykkes av hvem som +helst. Det var ihvertfall det lovgiverne hadde tenkt. +

+Men nå det mest interessante med dette: Hvorfor ville parlamentet begrense +trykkeretten? Sprøsmålet er ikke hvorfor de bestemte seg for denne perioden, +men hvorfor ville de begrense den i det hele tatt? +

+Bokhandlerne, og forfatterne som de representerte, hadde et veldig sterkt +krav. Ta romeo og Julie som et eksempel: Skuespillet ble skrevet av +Shakespeare. Det var hans kreativitet som brakte det til verden. Han krenket +ikke noens rett da han skrev dette verket (det er en kontroversiell +påstanden, men det er urelevant), og med sin egen rett skapte han verket, +han gjorde det ikke noe vanskeligere for andre til å lage skuespill. Så +hvorfor skulle loven tillate at noen annen kunne komme og ta Shakespeares +verkuten hans, eller hans arvingers, tillatelse? Hvilke grunner finnes for å +tillate at noen "stjeler" Shakespeares verk? +

+Svaret er todel. Først må vi se på noe spesielt med oppfatningen av +opphavsrett som fantes på tidspunktet da "Statute of Anne" ble +vedtatt. Deretter må vi se på noe spesielt med bokhandlerne. +

+ +Først om opphavsretten. I de siste tre hundre år har vi kommet til å bruke +begrepet "copyright" i stadig videre forstand. Men i 1710 var det ikke så +mye et konsept som det var en bestemt rett. Opphavsretten ble født som et +svært spesifikt sett med begrensninger: den forbød andre å reprodusere en +bok. I 1710 var "kopi-rett" en rett til å bruke en bestemt maskin til å +replikere en bestemt arbeid. Den gikk ikke utover dette svært smale +formålet. Denkontrollerte ikke mer generelt hvordan et verk kunne +brukes. Idag inkluderer retten en stor samling av restriksjoner på andres +frihet: den gir forfatteren eksklusiv rett til å kopiere, eksklusiv rett til +å distribuere, eksklusiv rett til å fremføre, og så videre. +

+Så selv om f. eks. opphavsretten til Shakespeares verker var evigvarende, +betydde det under den opprinnelige betydningen av begrepet at ingen kunne +trykke Shakespeares arbeid uten tillatelse fra Shakespeares arvinger. Den +ville ikke ha kontrollert noe mer, for eksempel om hvordan verket kunne +fremføres, om verket kunne oversettes eller om Kenneth Branagh ville hatt +lov til å lage filmer. "Kopi-retten" var bare en eksklusiv rett til å +trykke--ikke noe mindre, selvfølgelig, men heller ikke mer. +

+Selv dnne begrensede retten ble møtt med skepsis av britene. De hadde hatt +en lang og stygg erfaring med "eksklusive rettigheter," spesielt "enerett" +gitt av kronen. Engelskmennene hadde utkjempet en borgerkrig delvis mot +kronens praksis med å dele ut monopoler--spesielt monopoler for verk som +allerede eksisterte. Kong Henrik VIII hadde gitt patent til å trykke Bibelen +og monopol til Darcy for å lage spillkort. Det engelske parlamentet begynte +å kjempe tilbake mot denne makten hos kronen. I 1656 ble "Statute of +Monopolis" vedtatt for å begrense monopolene på patenter for nye +oppfinnelser. Og i 1710 var parlamentet ivrig etter å håndtere det voksende +monopolet på publisering. +

+Dermed ble "kopi-retten", når den sees på som en monopolrett, en rettighet +som bør være begrenset. (Uansett hvor overbevisende påstanden om at "det er +min eiendom, og jeg skal ha for alltid," prøv hvor overbevisende det er når +men sier "det er mitt monopol, og jeg skal ha det for alltid.") Staten ville +beskytte eneretten, men bare så lenge det gavnet samfunnet. Britene så +skadene særinteresserte kunne skape; de vedtok en lov for å stoppe dem. +

+Dernest, om bokhandlerne. Det var ikke bare at kopiretten var et +monopol. Det var også et monopol holdt av bokhandlerne. En bokhandler høres +greie og ufarlige ut for oss, men slik var det ikke i syttenhundretallets +England. Medlemmene i "the Conger" ble av en voksende mengde sett på som +monopolister av verste sort - et verktøy for kronens undertrykkelse, de +solgte Englands frihet mot å være garantert en monopolskinntekt. Men +monopolistene ble kvast kritisert: Milton beskrev dem som "gamle +patentholdere og monopolister i bokhandlerkunsten"; de var "menn som derfor +ikke hadde et ærlig arbeide hvor utdanning er nødvendig."^[101] +

+Mange trodde at den makten bokhandlerne utøvde over spredning av kunnskap, +var til skade for selve spredningen, men på dette tidspunktet viste +Opplysningen viktigheten av utdannelse og kunnskap for alle. idéen om at +kunnskap burde være gratis er et kjennetegn for tiden, og disse kraftige +kommersielle interesser forstyrret denne idéen. +

+For å balansere denne makten, besluttet Parlamentet å øke konkurransen blant +bokhandlerne, og den enkleste måten å gjøre det på, var å spre mengden av +verdifulle bøker. Parlamentet begrenset derfor begrepet om opphavsrett, og +garantert slik at verdifulle bøker ville bli frie for alle utgiver å +publisere etter en begrenset periode. Slik ble det å gi eksisterende verk en +periode på tjueen år et kompromiss for å bekjempe bokhandlernes +makt. Begrensninger med dato var en indirekte måte å skape konkurranse +mellom utgivere, og slik en skapelse og spredning av kultur. +

+Når 1731 (1710+21) kom, ble bokhandlerne engstelige. De så konsekvensene av +mer konkurranse, og som alle konkurrenter, likte de det ikke. Først +ignorerte bokhandlere ganske enkelt "Statute of Anne", og fortsatte å kreve +en evigvarende rett til å kontrollere publiseringen. Men i 1735 og 1737 de +prøvde å tvinge Parlamentet til å utvide periodene. Tjueen år var ikke nok, +sa de; de trengte mer tid. +

+Parlamentet avslo kravene, Som en pamflett sa, i en vending som levere ennå +idag, +

+Jeg ser ingen grunn til å gi en utvidet perioden nå som ikke ville kunne gi +utvidelser om igjen og om igjen, så fort de gamle utgår; så dersom dette +lovforslaget blir vedtatt, vil effekten være: at et evig monopol blir skapt, +et stort nederlag for handelen, et angrep mot kunnskapen, ingen fordel for +forfatterne, men en stor avgift for folket; og alt dette kun for å øke +bokhandlernes personlige rikdom.^[102] +

+Etter å ha mislyktes i Parlamentet gikk utgiverne til rettssalen i en rekke +saker. Deres argument var enkelt og direkte: "Statute of Anne" ga +forfatterne en viss beskyttelse gjennom positiv loven, men denne +beskyttelsenvar ikke ment som en erstatning for felles lov. Istedet var de +ment å supplere felles lov. Ifølge sedvanerett var det galt å ta en annen +persons kreative eiendom og bruke den uten hans tillatelse. "Statute of +Anne", hevdet bokhandlere, endret ikke dette faktum. Derfor betydde ikke det +at beskyttelsen gitt av "Statute of Anne" utløp, at beskyttelsen fra +sedvaneretten utløp: Ifølge sedvaneretten hadde de rett til å fordømme +publiseringen av en bok, selv følgelig om "Statute of Anne" sa at de var +falt i det fri. Dette, mente de, var den eneste måten å beskytte +forfatterne. +

+Dette var et godt argument, og hadde støtte fra flere av den tidens ledende +jurister. Det viste også en ekstraordinær chutzpah. Inntail da, som +jusprofessor Raymond Pattetson har sagt, "var utgiverne ... like bekymret +for forfatterne som en gjeter for sine lam."^[103] Bokselgerne brydde seg ikke det spor om forfatternes +rettigheter. Deres bekymring var den monopolske inntekten forfatterens verk +ga. +

+Men bokhandlernes argument ble ikke godtatt uten kamp. Helten fra denne +kampen var den skotske bokselgeren Alexander Donaldson.^[104] +

+Donaldson var en fremmed for Londons "the Conger". Han startet in karriere i +Edinburgh i 1750. Hans forretningsidé var billige kopier av standardverk +falt i det fri, ihvertfall fri ifølge "Statute of Anne".^[105] Donaldsons forlag vokste og ble "et sentrum for +litterære skotter." "Blant dem," skriver professor Mark Rose, var "den unge +James Boswell som, sammen med sin venn Andrew Erskine, publiserte en hel +antologi av skotsk samtidspoesi sammen med Donaldson."^[106] +

+Da Londons bokselgere prøvde å få stengt Donaldsons butikk i Skottland, så +flyttet han butikken til London. Her solgte han billige utgaver av "de mest +populære, engelske bøker, i kamp mot sedvanerettens rett til litterær +eiendom." ^[107] Bøkene hans var mellom 30% +og 50% billigere enn "the Conger"s, og han baserte sin rett til denne +konkurransen på at bøkene, takket være "Statute of Anne", var falt i det +fri. +

+Londons bokselgere begynte straks å slå ned mot "pirater" som +Donaldson. Flere tiltak var vellykkede, den viktigste var den tidlig seieren +i kampen mellom Millar og Taylor. +

+Millar var en bokhandler som i 1729 hadde kjøpt opp rettighetene til James +Thomsons dikt "The Seasons". Millar hadde da full beskyttelse gjennom +"Statute of Anne", men etter at denne beskyttelsen var uløpt, begynte Robert +Taylor å trykke et konkurrerende bind. Millar gikk til sak, og hevdet han +hadde en evig rett gjennom sedvaneretten, uansett hva "Statute of Anne" +sa.^[108] +

+Til moderne juristers forbløffelse, var en av, ikke bare datidens, men en av +de største dommere i engelsk historie, Lord Mansfield, enig med +bokhandlerne. Uansett hvilken beskyttelse "Statute of Anne" gav +bokhandlerne, så sa han at den ikke fortrengte noe fra +sedvaneretten. Spørsmålet var hvorvidt sedvaneretten beskyttet forfatterne +mot pirater. Mansfield svar var ja: Sedvaneretten nektet Taylor å +reprodusere Thomsons dikt uten Millars tillatelse. Slik gav sedvaneretten +bokselgerne en evig publiseringsrett til bøker solgt til dem. +

+ +Ser man på det som et spørsmål innen abstrakt jus - dersom man resonnere som +om rettferdighet bare var logisk deduksjon fra de første bud - kunne +Mansfields konklusjon gitt mening. Men den overså det Parlamentet hadde +kjempet for i 1710: Hvordan man på best mulig vis kunne innskrenke +utgivernes monopolmakt. Parlamentets strategi hadde vært å kjøpe fred +gjennom å tilby en beskyttelsesperiode også for eksisterende verk, men +perioden måtte være så kort at kulturen ble utsatt for konkurranse innen +rimelig tid. Storbritannia skulle vokse fra den kontrollerte kulturen under +kronen, inn i en fri og åpen kultur. +

+Kampen for å forsvare "Statute of Anne"s begrensninger sluttet uansett ikke +der, for nå kommer Donaldson. +

+Millar døde kort tid etter sin seier. Boet hans solgte rettighetene over +Thomsons dikt til et syndikat av utgivere, deriblant Thomas +Beckett.^[109] Da ga Donaldson ut en +uautorisert utgave av Thomsons verk. Etter avgjørelsen i Millar-saken, gikk +Beckett til sak mot Donaldson. Donaldson tok saken inn for Overhuset, som da +fungerte som en slags høyesterett. I februar 1774 hadde dette organet +muligheten til å tolke Parlamentets mening med utøpsdatoen fra seksti år +før. +

+Rettssaken Donaldson mot Beckett fikk en enorm oppmerksomhet i hele +Storbritannia. Donaldsons advokater mente at selv om det før fantes en del +rettigheter i sedvaneretten, så var disse fortrengt av "Statute of +Anne". Etter at "Statute of Anne" var blitt vedtatt, skulle den eneste +lovlige beskyttelse for trykkerett kom derfra. Og derfor, mente de, i tråd +med vilkårene i "Statute of Anne", falle i det fri så fort +beskyttelsesperioden var over. +

+Overhuset var en merkelig institusjon. Juridiske spørsmål ble presentert for +huset, og ble først stemt over av "juslorder", medlemmer av enspesiell +rettslig gruppe som fungerte nesten slik som justiariusene i vår +Høyesterett. Deretter, etter at "juslordene" hadde stemt, stemte resten av +Overhuset. +

+ +Rapportene om juslordene stemmer er uenige. På enkelte punkter ser det ut +som om evigvarende beskyttelse fikk flertall. Men det er ingen tvil om +hvordan resten av Overhuset stemte. Med en majoritet på to mot en (22 mot +11) stemte de ned forslaget om en evig beskyttelse. Uansett hvordan man +hadde tolket sedvaneretten, var nå kopiretten begrenset til en periode, og +etter denne ville verket falle i det fri. +

+"Å falle i det fri". Før rettssaken Donaldson mot Beckett var det ingen klar +oppfatning om hva å falle i det fri innebar. Før 1774 var det jo en allmenn +oppfatning om at kopiretten var evigvarende. Men etter 1774 ble Public +Domain født.For første gang i angloamerikansk historie var den lovlige +beskyttelsen av et verk utgått, og de største verk i engelsk historie - +inkludert Shakespeare, Bacon, Milton, Johnson og Bunyan - var frie. + +

+Vi kan knapt forestille oss det, men denne avgjørelsen fra Overhuset fyrte +opp under en svært populær og politisk reaksjon. I Skottland, hvor de fleste +piratugiverne hadde holdt til, ble avgjørelsen feiret i gatene. Som +Edinburgh Advertiser skrev "Ingen privatsak har noen gang fått slik +oppmerksomhet fra folket, og ingen sak som har blitt prøvet i Overhuset har +interessert så mange enkeltmennesker." "Stor glede i Edinburgh etter seieren +over litterær eiendom: bål og *illuminations*.^[110] +

+I London, ihvertfall blant utgiverne, var reaksjonen like sterk, men i +motsatt retning. Morning Chronicle skrev: +

+Gjennom denne avgjørelsen ... er verdier til nesten 200 000 pund, som er +blitt ærlig kjøpt gjennom allment salg, og som i går var eiendom, er nå +redusert til ingenting. Bokselgerne i London og Westminster, mange av dem +har solgt hus og eiendom for å kjøpe kopirettigheter, er med ett ruinerte, +og mange som gjennom mange år har opparbeidet kompetanse for å brødfø +familien, sitter nå uten en shilling til sine.^[111] +

+ + +Ruinert er en overdrivelse. Men det er ingen overdrivelse å si at endringen +var stor. Vedtaket fra Overhuset betydde at bokhandlerne ikke lenger kunnen +kontrollere hvordan kulturen i England ville vokse og utvikle seg. Kulturen +i England var etter dette fri. Ikke i den betydning at kopiretten ble +ignorert, for utgiverne hadde i en begrenset periode rett over +trykkingen. Og heller ikke i den betydningen at bøker kunne stjeles, for +selv etter at boken var falt i det fri, så måtte den kjøpes. Men i den +betydningen at kulturen og dens vekst ikke lenger var kontrollert av en +liten gruppe utgivere. Som alle frie markeder, ville dette markedet vokse og +utvikle seg etter tilbud og etterspørsel. Den engelske kulturen ble nå +formet slik flertallet Englands lesere ville at det skulle formes - gjennom +valget av hva de kjøpte og skrev, gjennom valget av *memes* de gjentok og +beundret. Valg i en konkurrerende sammenheng, ikke der hvor valgene var om +hvilken kultur som skulle være tilgjengelig for folket og hvor deres tilgang +til den ble styrt av noen få, på tros av flertallets ønsker. +

+Til sist, dette var en verden hvor Parlamentet var anitmonopolistisk, og +holdt stand mot utgivernes krav. I en verden hvor Parlamentet er mer +medgjørlig, vil den frie kultur være mindre beskyttet. +

Kapittel sju: Innspillerne

+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."^[112] 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. +

Kapittel åtte: Omformere

+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."^[113] +

+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."^[114] 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. +

+Videoen var en glimrende sammenstilling av filmer fra hver periode i det +tjuende århundret, rammet inn rundt idéen om en episode i TV-serien 60 +Minutes. Utførelsen var perfekt, ned til seksti minutter +stoppeklokken. Dommerne elsket enhver minutt av den. +

+Da lysene kom på, kikket jeg over til min medpaneldeltager, David Nimmer, +kanskje den ledende opphavsrettakademiker og utøver i nasjonen. Han hadde en +forbauset uttrykk i ansiktet sitt, mens han tittet ut over rommet med over +250 godt underholdte dommere. Med en en illevarslende tone, begynte han sin +tale med et spørsmål: "Vet dere hvor mange føderale lover som nettopp brutt +i dette rommet?" +

+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. +

Kapittel ni: Samlere

+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.^[115] +

+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.^[116] +

+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^[117]). 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. +

Kapittel ti: "Eiendom"

+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.^[118] +

+ +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,^[119] 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: +

Figur 3.1. How four different modalities of regulation interact to support or weaken +the right or regulation.

+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.^[120] 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. +

Figur 3.2. Law has a special role in affecting the three.

+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.^[121] +

Hvorfor Hollywood har rett

+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: +

Figur 3.3. 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. +

Figur 3.4. effective state of anarchy after the Internet.

+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.^[122] 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."^[123] 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. +

+Her kommer metaforen som vil forklare argumentet. +

+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.^[124] 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. +

Opphav

+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: +

Figur 3.5. Copyright's regulation before the Internet.

+Vi kommer til å ende opp her: +

Figur 3.6. "Opphavsrett" i dag.

+ +La meg forklare hvordan. + +

Loven: Varighet

+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.^[125] 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. +

+Selv om det ble skapt mange verker i USA i de første 10 årene til +republikken, så ble kun 5 prosent av verkene registrert under det føderale +opphavsrettsregimet. Av alle verker skapt i USA både før 1790 og fra 1790 +fram til 1800, så ble 95 prosent øyeblikkelig allemannseie (public +domain). Resten ble allemannseie etter maksimalt 20 år, og som oftest etter +14 år.^[126] +

+ +Dette fornyelsessystemet var en avgjørende del av det amerikanske systemet +for opphavsrett. Det sikret at maksimal vernetid i opphavsretten bare ble +gitt til verker der det var ønsket. Etter den første perioden på fjorten år, +hvis forfatteren ikke så verdien av å fornye sin opphavsrett, var det heller +ikke verdt det for samfunnet å håndheve opphavsretten. +

+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.^[127] +

+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.^[128] 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.^[129] +

Loven: Virkeområde

+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. +

+Vurder et praktisk eksempel for å forstå omfanget av disse forskjellene. +

+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.^[130] 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.^[131] 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.^[132] 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. +

Lov og arkitektur: Rekkevidde

+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.^[133] +

+ + +"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,^[134] +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. +

Figur 3.7. Alle potensielle bruk av en bok.

+ + +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. +

Figur 3.8. Eksempler på uregulert bruk av en bok.

+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." +

Figur 3.9. Republishing stands at the core of this circle of possible uses of a +copyrighted work.

+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. +

Figur 3.10. Unregulated copying considered "fair uses."

Figur 3.11. Uses that before were presumptively unregulated are now presumptively +regulated.

+ + +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.^[135] 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. +

Arkitektur og lov: Makt

+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. +

+Det er en berømt historie om en kamp mellom Marx-brødrene (the Marx +Brothers) og Warner Brothers. Marx-brødrene planla å lage en parodi av +Casablanca. Warner Brothers protesterte. De skrev et ufint brev til +Marx-brødrene og advarte dem om at det ville få seriøse juridiske +konsekvenser hvis de gikk videre med sin plan.^[136] +

+Dette fikk Marx-brødrene til å svare tilbake med samme mynt. De advarte +Warner Brothers om at Marx-brødrene "var brødre lenge før dere var +det".^[137] Marx-brødrene eide derfor ordet +Brothers, og hvis Warner Brothers insisterte på å forsøke å kontrollere +Casablanca, så ville Marx-brødrene insistere på kontroll over Brothers. +

+Det var en absurd og hul trussel, selvfølgelig, fordi Warner Brothers, på +samme måte som Marx-brødrene, visste at ingen domstol noensinne ville +håndheve et slikt dumt krav. Denne ekstremismen var irrelevant for de ekte +friheter som alle (inkludert Warner Brothers) nøt godt av. +

+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. +

+La oss se på livet til min Adobe eBook Reader. +

+En ebok er en bok levert i elektronisk form. En Adobe eBook er ikke en bok +som Adobe har publisert. Adobe produserer kun programvaren som utgivere +bruker å levere e-bøker. Den bidrar med teknologien, og utgiveren leverer +innholdet ved hjelp av teknologien. +

+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. +

Figur 3.12. Bilde av en gammel versjon av Adobe 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. +

Figur 3.13. List of the permissions that the publisher purports to grant.

+ + +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. +

Figur 3.14. E-book of 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. +

Figur 3.15. Liste med tillatelser for Aristotles "Politics".

+Finally (and most embarrassingly), here are the permissions for the original +e-book version of my last book, The Future of Ideas: +

Figur 3.16. List of the permissions for "The Future of Ideas".

+Ingen kopiering, ingen utskrift, og våg ikke å prøve å lytte til denne +boken! +

+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.^[138] 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: +

Figur 3.17. List of the permissions for "Alice's Adventures in Wonderland".

+ + +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.^[139] 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.^[140] +

+ + +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. +

Figur 3.18. VCR/handgun cartoon.

+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.^[141] +

+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. +

Marked: Konsentrasjon

+ +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. +

+Det er her to sorter endringer: omfanget av konsentrasjon, og dens natur. +

+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."^[142] 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.^[143] The +"five largest cable companies pipe programming to 74 percent of the cable +subscribers nationwide."^[144] +

+ +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.^[145] +

+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: +

Figur 3.19. Mønster for moderne mediaeierskap.

+ + +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. +

+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.^[146] +

+ + + +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."^[147] 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%."^[148] +

+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.^[149] +

+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.^[150] 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.^[151] +

+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. +

Sammen

+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.^[152] +

+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: +

Tabell 3.1.

	Publiser	TRANSFORM
Kommersiell	©	Fri
Ikke-kommersiell	Fri	Fri

+ +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: +

Tabell 3.2.

	Publiser	TRANSFORM
Kommersiell	©	©
Ikke-kommersiell	Fri	Fri

+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: +

Tabell 3.3.

	Kopier	TRANSFORM
Kommersiell	©	©
Ikke-kommersiell	©/Fri	Fri

+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: +

Tabell 3.4.

	Kopier	TRANSFORM
Kommersiell	©	©
Ikke-kommersiell	©	©

+ +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^[153]) 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. +

^[96] + + +Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The +Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery +Bergh, eds., 1903), 330, 333–34. +

^[97] + + +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. +

^[98] + + +Jacob Tonson er vanligvis husket for sin omgang med 1700-tallets litterære +storheter, spesielt John Dryden, og for hans kjekke"ferdige versjoner" av +klassiske verk. I tillegg til Romeo og Julie, utga han en utrolig rekke +liste av verk som ennå er hjertet av den engelske kanon, inkludert de +samlede verk av Shakespeare, Ben Jonson, John Milton, og John Dryden. Se +Keith Walker: "Jacob Tonson, Bookseller," American Scholar 61:3 (1992): +424-31. +

^[99] + + +Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: +Vanderbilt University Press, 1968), 151–52. +

^[100] + +Som Siva Vaidhyanathan så pent argumenterer, er det feilaktige å kalle dette +en "opphavsrettslov." Se Vaidhyanathan, Copyrights and Copywrongs, 40. + +

^[101] + + +Philip Wittenberg, The Protection and Marketing of Literary Property (New +York: J. Messner, Inc., 1937), 31. +

^[102] + + +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). +

^[103] + +Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt Law +Review 40 (1987): 28. For en fantastisk overbevisende fortelling, se +Vaidhyanathan, 37–48. +

^[104] + + +For a compelling account, see David Saunders, Authorship and Copyright +(London: Routledge, 1992), 62–69. +

^[105] + + +Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), +92. +

^[106] + + +Ibid., 93. +

^[107] + + +Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting +Borwell). +

^[108] + + +Howard B. Abrams, "The Historic Foundation of American Copyright Law: +Exploding the Myth of Common Law Copyright," Wayne Law Review 29 (1983): +1152. +

^[109] + + +Ibid., 1156. +

^[110] + + +Rose, 97. +

^[111] + + +Ibid. +

^[112] + + +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. +

^[113] + +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. +

^[114] + + +U.S. Department of Commerce Office of Acquisition Management, Seven Steps to +Performance-Based Services Acquisition, available at link #22. +

^[115] + + +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. +

^[116] + + +Doug Herrick, "Toward a National Film Collection: Motion Pictures at the +Library of Congress," Film Library Quarterly 13 nos. 2–3 (1980): 5; +Anthony Slide, Nitrate Won't Wait: A History of Film Preservation in the +United States ( Jefferson, N.C.: McFarland & Co., 1992), 36. +

^[117] + + +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. +

^[118] + + +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). +

^[119] + + +Lawyers speak of "property" not as an absolute thing, but as a bundle of +rights that are sometimes associated with a particular object. Thus, my +"property right" to my car gives me the right to exclusive use, but not the +right to drive at 150 miles an hour. For the best effort to connect the +ordinary meaning of "property" to "lawyer talk," see Bruce Ackerman, Private +Property and the Constitution (New Haven: Yale University Press, 1977), +26–27. +

^[120] + + +By describing the way law affects the other three modalities, I don't mean +to suggest that the other three don't affect law. Obviously, they do. Law's +only distinction is that it alone speaks as if it has a right +self-consciously to change the other three. The right of the other three is +more timidly expressed. See Lawrence Lessig, Code: And Other Laws of +Cyberspace (New York: Basic Books, 1999): 90–95; Lawrence Lessig, "The +New Chicago School," Journal of Legal Studies, June 1998. +

^[121] + +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. +

^[122] + + +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. +

^[123] + + +Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71. +

^[124] + + +Se, for eksempel, James Boyle, "A Politics of Intellectual Property: +Environmentalism for the Net?" Duke Law Journal 47 (1997): 87. +

^[125] + +William W. Crosskey, Politics and the Constitution in the History of the +United States (London: Cambridge University Press, 1953), vol. 1, +485–86: "extinguish[ing], by plain implication of `the supreme Law of +the Land,' the perpetual rights which authors had, or were supposed by some +to have, under the Common Law" (emphasis added). +

^[126] + + +Although 13,000 titles were published in the United States from 1790 to +1799, only 556 copyright registrations were filed; John Tebbel, A History of +Book Publishing in the United States, vol. 1, The Creation of an Industry, +1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints +recorded before 1790, only twelve were copyrighted under the 1790 act; +William J. Maher, Copyright Term, Retrospective Extension and the Copyright +Law of 1790 in Historical Context, 7–10 (2002), available at 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.

^[127] + + +Few copyright holders ever chose to renew their copyrights. For instance, of +the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For +a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, +"Study No. 31: Renewal of Copyright," Studies on Copyright, vol. 1 (New +York: Practicing Law Institute, 1963), 618. For a more recent and +comprehensive analysis, see William M. Landes and Richard A. Posner, +"Indefinitely Renewable Copyright," University of Chicago Law Review 70 +(2003): 471, 498–501, and accompanying figures.

^[128] + + +Se Ringer, kap. 9, n. 2.

^[129] + + +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. +

^[130] + + +See Thomas Bender and David Sampliner, "Poets, Pirates, and the Creation of +American Literature," 29 New York University Journal of International Law +and Politics 255 (1997), and James Gilraeth, ed., Federal Copyright Records, +1790–1800 (U.S. G.P.O., 1987). +

^[131] + +Jonathan Zittrain, "The Copyright Cage," Legal Affairs, juli/august 2003, +tilgjengelig fra link +#26. +

^[132] + + +Professor Rubenfeld has presented a powerful constitutional argument about +the difference that copyright law should draw (from the perspective of the +First Amendment) between mere "copies" and derivative works. See Jed +Rubenfeld, "The Freedom of Imagination: Copyright's Constitutionality," Yale +Law Journal 112 (2002): 1–60 (see especially pp. 53–59). +

^[133] + + +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. +

^[134] + + +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. +

^[135] + + +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. +

^[136] + + +Se David Lange, "Recognizing the Public Domain," Law and Contemporary +Problems 44 (1981): 172–73. +

^[137] + +Ibid. Se også Vaidhyanathan, Copyrights and Copywrongs, 1–3. + +

^[138] + + +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. +

^[139] + +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. + +

^[140] + + +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), 270–71. +

^[141] + + +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. +

^[142] + + +FCC Oversight: Hearing Before the Senate Commerce, Science and +Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement +of Senator John McCain).

^[143] + + +Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to Slide," +New York Times, 23 December 2002. +

^[144] + + +Molly Ivins, "Media Consolidation Must Be Stopped," Charleston Gazette, 31 +May 2003. +

^[145] + +James Fallows, "The Age of Murdoch," Atlantic Monthly (september 2003): 89. + +

^[146] + + +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). +

^[147] + + +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. +

^[148] + + +Ibid. +

^[149] + + +"Barry Diller Takes on Media Deregulation," Now with Bill Moyers, Bill +Moyers, 25 April 2003, edited transcript available at link #31. +

^[150] + + +Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National +Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business +School Press, 1997). Christensen acknowledges that the idea was first +suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of Design +Hierarchies and Market Concepts in Technological Evolution," Research Policy +14 (1985): 235–51. For a more recent study, see Richard Foster and +Sarah Kaplan, Creative Destruction: Why Companies That Are Built to Last +Underperform the Market—and How to Successfully Transform Them (New +York: Currency/Doubleday, 2001).

^[151] + +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): 449–79, +and for a more recent summary of the stance of the FCC and the courts, see +Radio-Television News Directors Association v. FCC, 184 F. 3d 872 +(D.C. Cir. 1999). Municipal authorities exercise the same authority as the +networks. In a recent example from San Francisco, the San Francisco transit +authority rejected an ad that criticized its Muni diesel buses. Phillip +Matier and Andrew Ross, "Antidiesel Group Fuming After Muni Rejects Ad," +SFGate.com, 16 June 2003, available at link #32. The ground was that +the criticism was "too controversial." +

^[152] + +Siva Vaidhyanathan fanger et lignende poeng i hans "fire kapitulasjoner" for +opphavsrettsloven i den digitale tidsalder. Se Vaidhyanathan, 159–60. + +

^[153] + + +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). +

Kapittel 4. Nøtter

Innholdsfortegnelse

Kapittel elleve: Chimera

Kapittel tolv: Skader

Constraining Creators
Constraining Innovators
Corrupting Citizens

Kapittel elleve: 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.^[154] 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.^[155] + +

+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.^[156] +

+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. +

Kapittel tolv: Skader

+ +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. +

+ +Teknologien har dermed gitt oss en mulighet til å gjøre noe med kultur som +bare har vært mulig for enkeltpersoner i små grupper, isolert fra andre +grupper. Forestill deg en gammel mann som forteller en historie til en +samling med naboer i en liten landsby. Forestill deg så den samme +historiefortellingen utvidet til å nå over hele verden. +

+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.^[157] 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.^[158] 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.^[159] 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. +

+Den delen av historien har jeg fortalt før. Nå kommer konklusjonen. +

+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. +

+ +Den åpenbare hensikten med dette søksmålet (som ble avsluttet med et forlik +for et uspesifisert beløp like etter at saken ikke lenger fikk +pressedekning), var å sende en melding som ikke kan misforstås til advokater +som gir råd til klienter på dette området: Det er ikke bare dine klienter +som får lide hvis innholdsindustrien retter sine våpen mot dem. Det får +også du. Så de av dere som tror loven burde være mindre restriktiv bør +innse at et slikt syn på loven vil koste deg og ditt firma dyrt. +

+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).^[160] 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. . . . ^[161] +

+Dette er verden til mafiaen—fylt med "penger eller livet"-trusler, som +ikke er regulert av domstolene men av trusler som loven gir +rettighetsinnehaver mulighet til å komme med. Det er et system som åpenbart +og nødvendigvis vil kvele ny innovasjon. Det er vanskelig nok å starte et +selskap. Det blir helt umulig hvis selskapet er stadig truet av søksmål. +

+ + + +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.^[162] 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.^[163] + +

+ +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.^[164] 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,^[165] +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.^[166] It has been mirrored in the responses threatened +and actually implemented by Congress. I won't catalog all of those responses +here.^[167] 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.^[168] +

+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"^[169] 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.^[170] 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.^[171] 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.^[172] 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.^[173] We have launched a war +on drugs aimed at reducing the consumption of regulated narcotics that 7 +percent (or 16 million) Americans now use.^[174] 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.^[175] 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. + +

+"Hvis du kan behandle noen som en antatt lovbryter," forklarer von Lohmann, + +

+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.^[176] + +

+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.^[177] 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,^[178] 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? +

^[154] + + +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). +

^[155] + +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. +

^[156] + +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. +

^[157] + +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. +

^[158] + 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. +

^[159] + +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. +

^[160] + +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. +

^[161] + +Rafe Needleman, "Driving in Cars with MP3s," Business 2.0, 16. juni 2003, +tilgjengelig via link +#43. Jeg er Dr. Mohammad Al-Ubaydli takknemlig mot for dette +eksemplet. +

^[162] + +"Copyright and Digital Media in a Post-Napster World," GartnerG2 and the +Berkman Center for Internet and Society at Harvard Law School (2003), +33–35, available at link +#44. +

^[163] + +GartnerG2, 26–27. +

^[164] + +See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, February +2002 (Entertainment). +

^[165] + +Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001). +

^[166] + +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. +

^[167] + +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, 33–34, available at link #44. +

^[168] + + +Lessing, 239. +

^[169] + + +Ibid., 229. +

^[170] + +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." +

^[171] + +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. +

^[172] + + +Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," Los +Angeles Times, 10 September 2003, Business. +

^[173] + + +Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During +Prohibition," American Economic Review 81, no. 2 (1991): 242. +

^[174] + + +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). +

^[175] + + +See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax Compliance," +Journal of Economic Literature 36 (1998): 818 (survey of compliance +literature). +

^[176] + + +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. +

^[177] + + +See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some +Methods Used," CNN.com, available at link #47. +

^[178] + + +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. +

Kapittel 5. Maktfordeling

Innholdsfortegnelse

Kapittel tretten: Eldred
Kapittel fjorten: Eldred II

+Så her er bildet: Du står på siden av veien. Bilen din er på brann. Du er +sint og opprørt fordi du delvis bidro til å starte brannen. Nå vet du ikke +hvordan du slokker den. Ved siden av deg er en bøtte, fylt med +bensin. bensin vil selvfølgelig ikke slukke brannen. +

+Mens du tenker over situasjonen, kommer noen andre forbi. I panikk griper +hun bøtta, og før du har hatt sjansen til å be henne stoppe—eller før +hun forstår hvorfor hun bør stoppe—er bøtten i svevet. Bensinen er på +tur mot den brennende bilen. Og brannen som bensinen vil tenne vil straks +sette fyr på alt i omgivelsene. +

+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. +

Kapittel tretten: 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.^[179] +

+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."^[180] + +

+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.^[181] 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.^[182] Disney is +estimated to have contributed more than $800,000 to reelection campaigns in +the cycle.^[183] + +

+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.^[184] 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.^[185] + +

+ +If a principle were at work here, then it should apply to the Progress +Clause as much as the Commerce Clause.^[186] +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."^[187] 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.^[188] + +

+ +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."^[189] +

+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.^[190] + +

+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.^[191] + +

+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. +

+Men min klient og disse vennene tok feil. Denne saken kunne vært vunnet. Det +burde ha vært vunnet. Og uansett hvor hardt jeg prøver å fortelle den +historien til meg selv, kan jeg aldri unnslippe troen på at det er min feil +at vi ikke vant. +

+ +Feil ble gjort tidlig, skjønt den ble først åpenbart på slutten. Vår sak +hadde støtte hos en ekstraordinær advokat, Geoffrey Stewart, helt fra +starten, og hos advokatfirmaet hadde han flyttet til, Jones, Day, Reavis og +Pogue. Jones Day mottok mye press fra sine opphavsrettsbeskyttende klienter +på grunn av sin støtte til oss. De ignorert dette presset (noe veldig få +advokatfirmaer noen sinne ville gjøre), og ga alt de hadde gjennom hele +saken. +

+Det var tre viktige advokater på saken fra Jones DaY. Geoff Stewart var den +først, men siden ble Dan Bromberg og Don Ayer ganske involvert. Bromberg og +Ayer spesielt hadde en felles oppfatning om hvordan denne saken ville bli +vunnet: vi ville bare vinne, fortalte de gjentatte ganger til meg, hvis vi +få problemet til å virke "viktig" for Høyesterett. Det måtte synes som om +dramatisk skade ble gjort til ytringsfriheten og fri kultur, ellers ville de +aldri stemt mot "de mektigste mediaselskapene i verden". +

+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."^[192] 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.^[193] 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. +

Kapittel fjorten: 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.^[194] 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. +

+Noen bekymrer seg over byrden på forfattere. Gjør ikke byrden med å +registrere verket at beløpet $1 egentlig er misvisende? Er ikke +ekstraarbeidet verdt mer enn $1? Er ikke dette det virkelige problemet med +registrering? +

+ +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? +

+Da Steve Forbes støttet idéen, begynte enkelte i Washington å følge +med. Mange kontaktet meg med tips til representanter som kan være villig til +å introdusere en Eldred-lov. og jeg hadde noen få som foreslo direkte at de +kan være villige til å ta det første skrittet. +

+En representant, Zoe Lofgren fra California, gikk så langt som å få +lovforslaget utarbeidet. Utkastet løste noen problemer med internasjonal +lov. Det påla de enklest mulige forutsetninger på innehaverne av +opphavsretter. I mai 2003 så det ut som om loven skulle være introdusert. +16. mai, postet jeg på Eldred Act-bloggen, "vi er nære". Det oppstod en +generell reaksjon i blogg-samfunnet om at noe godt kunne skje her. + +

+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. +

+Jeg brukte disse to tilfellene som en måte å ramme inn krigen som denne +boken har handlet om. For her er det også en ny teknologi som tvinger loven +til å reagere. Og her bør vi også spørre, er loven i tråd med eller i strid +med sunn fornuft. Hvis sunn fornuft støtter loven, hva forklarer denne +sunne fornuften? +

+ + + +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: +

+Hva ønsker denne industrien egentlig? +

+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. +

^[179] + + +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.

^[180] + + +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). +

^[181] + +Associated Press, "Disney Lobbying for Copyright Extension No Mickey Mouse +Effort; Congress OKs Bill Granting Creators 20 More Years," Chicago Tribune, +17. oktober 1998, 22. +

^[182] + +Se Nick Brown, "Fair Use No More?: Copyright in the Information Age," +tilgjengelig fra link +#49. +

^[183] + +Alan K. Ota, "Disney in Washington: The Mouse That Roars," Congressional +Quarterly This Week, 8. august 1990, tilgjengelig fra link #50. +

^[184] + +United States v. Lopez, 514 U.S. 549, 564 (1995). +

^[185] + +United States v. Morrison, 529 U.S. 598 (2000). +

^[186] + +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. +

^[187] + +Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 +U.S. 186 (2003) (No. 01-618), n.10, available at link #51. +

^[188] + +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. +

^[189] + + +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. +

^[190] + +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. +

^[191] + + +Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20 December +2002, tilgjengelig fra link +#54. +

^[192] + + +Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. +(2003) (No. 01-618), 19. +

^[193] + + +Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey Mouse Joins +the Fray," New York Times, 28 March 1998, B7. +

^[194] + + +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), 153–54.

Kapittel 6. Konklusjon

+Det er mer enn trettifem millioner mennesker over hele verden med +AIDS-viruset. Tjuefem millioner av dem bor i Afrika sør for Sahara. Sytten +millioner har allerede dødd. Sytten millioner afrikanere er prosentvis +proporsjonalt med syv millioner amerikanere. Viktigere er det at dette er +17 millioner afrikanere. +

+Det finnes ingen kur for AIDS, men det finnes medisiner som kan hemme +sykdommens utvikling. Disse antiretrovirale terapiene er fortsatt +eksperimentelle, men de har hatt en dramatisk effekt allerede. I USA øker +AIDS-pasienter som regelmessig tar en cocktail av disse medisinene sin +levealder med ti til tjue år. For noen gjøre medisinene sykdommen nesten +usynlig. +

+Disse medisinene er dyre. Da de ble først introdusert i USA, kostet de +mellom $10 000 og $15 000 pr. person hvert år. I dag koster noen av dem $25 +000 pr. år. Med disse prisene har, selvfølgelig, ingen afrikansk stat råd +til medisinen for det store flertall av sine innbyggere: $15 000 er tredve +ganger brutto nasjonalprodukt pr. innbygger i Zimbabwe. Med slike priser er +disse medisinene fullstendig utilgjengelig.^[195] +

+ + +Disse prisene er ikke høye fordi ingrediensene til medisinene er dyre. +Disse prisene er høye fordi medisinene er beskyttet av patenter. +Farmasiselskapene som produserer disse livreddende blandingene nyter minst +tjue års monopol på sine oppfinnelser. De bruker denne monopolmakten til å +hente ut så mye de kan fra markedet. Ved hjelp av denne makten holder de +prisene høye. +

+Det er mange som er skeptiske til patenter, spesielt patenter på +medisiner. Det er ikke jeg. Faktisk av alle forskningsområder som kan være +støttet av patenter, er forskning på medisiner, etter min mening, det +klareste tilfelle der patenter er nødvendig. Patenter gir et farmasøytiske +firma en viss forsikring om at hvis det lykkes i å finne opp et nytt +medikament som kan behandle en sykdom, vil det kunne tjene tilbake +investeringen og mer til. Dette ber sosialt et ekstremt verdifullt +insentiv. Jeg er den siste personen som vil argumentere for at loven skal +avskaffe dette, i det minste uten andre endringer. +

+Men det er én ting å støtte patenter, selv patenter på medisiner. Det er en +annen ting å avgjøre hvordan en best skal håndtere en krise. Og i det +afrikanske ledere begynte å erkjenne ødeleggelsen AIDS brakte, begynte de å +se etter måter å importere HIV-medisiner til kostnader betydelig under +markedspris. +

+I 1997 forsøkte Sør-Afrika seg på en tilnærming. Landet vedtok en lov som +tillot import av patenterte medisiner som hadde blitt produsert og solgt i +en annen nasjons marked med godkjenning fra patenteieren. For eksempel, +hvis medisinen var solgt i India, så kunne den bli importert inn til Afrika +fra India. Dette kalles "parallellimport" og er generelt tillatt i +internasjonal handelslovgivning, og spesifikt tillatt i den europeiske +union.^[196] +

+Men USA var imot lovendringen. Og de nøyde seg ikke med å være imot. Som +International Intellectual Property Association karakteriserte det, +"Myndighetene i USA presset Sør-Afrika . . . til å ikke tillate tvungen +lisensiering eller parallellimport"^[197] +Gjennom kontoret til USAs handelsrepresentant (USTR), ba myndighetene +Sør-Afrika om å endre loven—og for å legge press bak den +forespørselen, listet USTR i 1998 opp Sør-Afrika som et land som burde +vurderes for handelsrestriksjoner. Samme år gikk mer enn førti +farmasiselskaper til retten for å utfordre myndighetenes handlinger. USA +fikk selskap av andre myndigheter fra EU. Deres påstand, og påstanden til +farmasiselskapene, var at Sør-Afrika brøt sine internasjonale forpliktelser +ved å distriminere mot en bestemt type patenter—farmasøytiske +patenter. Kravet fra disse myndighetene, med USA i spissen, var at +Sør-Afrika skulle respektere disse patentene på samme måte som alle andre +patenter, uavhengig av eventuell effekt på behandlingen av AIDS i +Sør-Afrika.^[198] +

+Vi bør sette intervensjonen til USA i sammenheng. Det er ingen tvil om at +patenter ikke er den viktigste årsaken til at Afrikanere ikke har tilgang +til medisiner. Fattigdom og den totale mangel på effektivt helsevesen betyr +mer. Men uansett om patenter er en viktigste grunnen eller ikke, så har +prisen på medisiner en effekt på etterspørselen, og patenter påvirker +prisen. Så uansett, massiv eller marginal, så var det en effekt av våre +myndigheters intervensjon for å stoppe flyten av medisiner inn til Afrika. +

+Ved å stoppe flyten av HIV-behandling til Afrika, sikret ikke myndighetene i +USA medisiner til USA borgere. Dette er ikke som hvete (hvis de spise det så +kan ikke vi spise det). Det som USA i effekt intervenerte for å stoppe, var +flyten av kunnskap: Informasjon om hvordan en kan ta kjemikalier som finnes +i Afrika og gjøre disse kjemikaliene om til medisiner som kan redde 15 til +30 millioner liv. +

+Intervensjonen fra USA ville heller ikke beskytte fortjenesten til +medisinselskapene i USA— i hvert fall ikke betydelig. Det var jo ikke +slik at disse landene hadde mulighet til å kjøpe medisinene til de prisene +som medisinselskapene forlangte. Igjen var afrikanerne for fattige til å ha +råd til disse medisinene til de tilbudte prisene. Å blokkere for +parallellimport av disse medisinene ville ikke øke salget til de amerikanske +selskapene betydelig. +

+I stedet var argumentet til fordel for restriksjoner på denne flyten av +informasjon, som var nødvendig for å redde millioner av liv, et argument om +eiendoms ukrenkelighet.^[199] Det var på +grunn av at "intellektuell eiendom" ville bli krenket at disse medisinene +ikke skulle flomme inn til Afrika. Det var prinsippet om viktigheten av +"intellektuell eiendom" som fikk disse myndighetsaktørene til å intervenere +mot Sør-Afrikas mottiltak mot AIDS. +

+La oss ta et skritt tilbake for et øyeblikk. En gang om tredve år vil våre +barn se tilbake på oss og spørre, hvordan kunne vi la dette skje? Hvordan +kunne vi tillate å gjennomføre en politikk hvis direkte kostnad var få 15 +til 30 millioner afrikanere til å dø raskere, og hvis eneste virkelige +fordel var å opprettholde "ukrenkeligheten" til en idé? Hva slags +berettigelse kan noen sinne eksistere for en politikk som resulterer i så +mange døde? Hva slags galskap er det egentlig som tillater at så mange dør +for slik en abstraksjon? +

+Noen skylder på farmasiselskapene. Det gjør ikke jeg. De er selskaper, og +deres ledere er lovpålagt å tjene penger for selskapene. De presser på for +en bestemt patentpolitikk, ikke på grunn av idealer, men fordi det er dette +som gjør at de tjener mest penger. Og dette gjør kun at de tjener mest +penger på grunn av en slags korrupsjon i vårt politiske system— en +korrupsjon som farmasiselskapene helt klart ikke er ansvarlige for. +

+Denne korrupsjonen er våre egne politikeres manglende integritet. For +medisinprodusentene ville elske—sier de selv, og jeg tror dem — +å selge sine medisiner så billig som de kan til land i Afrika og andre +steder. Det er utfordringer de må løse å sikre at medisinene ikke kommer +tilbake til USA, men dette er bare teknologiske utfordring. De kan bli +overvunnet. +

+ +Et annet problem kan derimot ikke løses. Det er frykten for at en politiker +som skal vise seg og kaller inn lederne hos medisinprodusentene til høring i +senatet eller representantenes hus og spør, "hvordan har det seg at du kan +selge HIV-medisinen i Afrika for bare $1 pr. pille, mens samme pille koster +en amerikansker $1500?" Da det ikke finnes et "kjapt svar" på det +spørsmålet, ville effekten bli regulering av priser i Amerika. +Medisinprodusentene unngård dermed denne spiralen ved å sikre at det første +steget ikke tas. De forsterker idéen om at eierrettigheter skal være +ukrenkelige. De legger seg på en rasjonell strategi i en irrasjonell +omgivelse, med den utilsiktede konsekvens at kanskje millioner dør. Og den +rasjonelle strategien rammes dermed inn ved hjel av dette +ideal—helligheten til en idé som kalles "immaterielle rettigheter". +

+Så når du konfronteres av ditt barns sunne fornuft, hva vil du si? Når den +sunne fornuften hos en generasjon endelig gjør opprør mot hva vi har gjort, +hvordan vil vi rettferdiggjøre det? Hva er argumentet? +

+En fornuftig patentpolitikk kunne gå god for og gi sterk støtte til +patentsystemet uten å måtte nå alle overalt på nøyaktig samme måte. På samme +måte som en fornuftig opphavsrettspolitikk kunne gå god for og gi sterk +støtte til et opphavsretts-system uten å måtte regulere spredningen av +kultur perfekt og for alltid. En fornuftig patentpolitikk kunne gå god for +og gi sterk støtte til et patentsystem uten å måtte blokkere spredning av +medisiner til et land som uansett ikke er rikt nok til å ha råd til +markedsprisen. En fornuftig politikk kan en dermed si kunne være en +balansert politikk. For det meste av vår historie har både opphavsrett- og +patentpolitikken i denne forstand vært balansert. +

+ +Men vi som kultur har mistet denne følelsen for balanse. Vi har mistet det +kritiske blikket som hjelper oss til å se forkjellen mellom sannhet og +ekstremisme. En slags eiendomsfundamentalisme, uten grunnlag i vår +tradisjon, hersker nå i vår kultur—sært, og med konsekvenser mer +alvorlig for spredningen av idéer og kultur enn nesten enhver annen politisk +enkeltavgjørelse vi som demokrati kan fatte. En enkel idé blender oss, og +under dekke av mørket skjer mye som de fleste av oss ville avvist hvis vi +hadde fulgt med. Så ukritisk aksepterer vi idéen om eierskap til idéer at +vi ikke engang legger merke til hvor uhyrlig det er å nekte tilgang til +idéer for et folk som dør uten dem. Så ukritisk aksepterer vi idéen om +eiendom til kulturen at vi ikke engang stiller spørsmål ved når kontrollen +over denne eiendommen fjerner vår evne, som folk, til å utvikle vår kultur +demokratisk. Blindhet blir vår sunne fornuft, og utfordringen for enhver +som vil gjenvinne retten til å dyrke vår kultur er å finne en måte å få +denne sunne fornuften til å åpne sine øyne. +

+Så langt sover sunn fornuft. Det er intet opprør. Sunn fornuft ser ennå +ikke hva det er å gjøre opprør mot. Ekstremismen som nå domunerer denne +debatten resonerer med idéer som virker naturlige, og resonansen er +forsterket av våre moderne RCA-ene. De fører en frenetisk krig for å +bekjempe "piratvirksomhet" og knuser kreativitetskultur. De forsvarer idéen +om "kreativt eierskap", mens de endrer ekte skapere til moderne +leilendinger. De blir fornermet av idéen om at rettigheter skulle være +balanserte, selv om hver av hovedaktørene i denne innholdskrigen selv hadde +fordeler av et mer balansert ideal. Hykleriet rår. Men i en by som +Washington blir ikke hykleriet en gang lakt merke til. Mektige lobbyister, +kompliserte problemer og MTV-oppmerksomhetsspenn gir en "perfekt storm" for +fri kultur. +

+I august 2003 brøt en kamp ut i USA om en avgjørelse fra World Intellectual +Property Organiation om å avlyse et møte.^[200] På forespørsel fra en lang rekke med interresenter hadde WIPO +bestemt å avholde et møte for å diskutere "åpne og sammarbeidende prosjekter +for å skape goder for felleskapet". Disse prosjektene som hadde lyktes i å +produsere goder for fellesskapet uten å basere seg eksklusivt på bruken av +proprietære immaterielle rettigheter. Eksempler inkluderer internettet og +verdensveven, begge som ble utviklet på grunnlag av protokoller i +allemannseie. Det hadde med en begynnende trend for å støtte åpne +akademiske tidsskrifter, og inkluderte Public Library of Science-prosjektet +som jeg beskriver i etterordet. Det inkluderte et prosjekt for a utvikle +enkeltnukleotidforskjeller (SNPs), som er antatt å få stor betydning i +biomedisinsk forskning. (Dette ideelle prosjektet besto av et konsortium av +Wellcome Trust og farmasøytiske og teknologiske selskaper, inkludert +Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, +Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, og +Searle.) Det inkluderte Globalt posisjonssystem (GPS) som Ronald Reagen +frigjorde tidlig på 1980-tallet. Og det inkluderte "åpen kildekode og fri +programvare". +

+Formålet med møtet var å vurdere denne rekken av prosjekter fra et felles +perspektiv: at ingen av disse prosjektene hadde som grunnlag immateriell +ekstremisme. I stedet, hos alle disse, ble immaterielle rettigheter +balansert med avtaler om å holde tilgang åpen, eller for å legge +begrensninger på hvordan proprietære krav kan bli brukt. +

+Dermed var, fra perspektivet i denne boken, denne konferansen +ideell.^[201] Prosjektene innenfor temaet var +både kommersielle og ikkekommersielle verker. De involverte i hovedsak +vitenskapet, men fra mange perspektiver. Og WIPO var et ideelt sted for +denne diskusjonen, siden WIPO var den fremstående internasjonale aktør som +drev med immaterielle rettighetsspørsmål. +

+ +Faktisk fikk jeg en gang offentlig kjeft for å ikke anerkjenne dette faktum +om WIPO. I februar 2003 leverte jeg et hovedinnlegg på en forberedende +konferanse for World Summit on the Information Society (WSIS). På en +pressekonferanse før innlegget, ble jeg spurt hva jeg skulle snakke om. Jeg +svarte at jeg skulle snakke litt om viktigheten av balanse rundt +immaterielle verdier for utviklingen av informasjonssamfunnet. Ordstyreren +på arrangementet avbrøt meg da brått for å informere meg og journalistene +tilstede at ingen spørsmål rundt immaterielle verdier ville bli diskutert av +WSIS, da slike spørsmål kun skulle diskuteres i WIPO. I innlegget jeg hadde +forberedt var temaet om immaterielle verdier en forholdvis liten del av det +hele. Men etter denne forbløffende uttalelsen, gjorde jeg immaterielle +verdier til hovedfokus for mitt innlegg. Det var ikke mulig å snakke om et +"informasjonssamfunn" uten at en også snakket om andelen av informasjon og +kultur som ikke er vernet av opphavsretten. Mitt innlegg gjorde ikke min +overivrige moderator veldig glad. Og hun hadde uten tvil rett i at omfanget +til vern av immaterielle rettigheter normalt hørte inn under WIPO. Men +etter mitt syn, kunne det ikke bli for mye diskusjon om hvor mye +immaterielle rettigheter som trengs, siden etter mitt syn, hadde selve ideen +om en balanse rundt immaterielle rettigheter hadde gått tapt. +

+Så uansett om WSIS kan diskutere balanse i intellektuell eiendom eller ikke, +så hadde jeg trodd det var tatt for gitt at WIPO kunne og burde. Og dermed +møtet om "åpne og samarbeidende prosjekter for å skape fellesgoder" virker å +passe perfekt for WIPOs agenda. +

+Men det er ett prosjekt i listen som er svært kontroversielt, i hvert fall +blant lobbyister. Dette prosjektet er "åpen kildekode og fri +programvare". Microsoft spesielt er skeptisk til diskusjon om emnet. Fra +deres perspektiv, ville en konferanse for å diskutere åpen kildekode og fri +programvare være som en konferanse for å diskutere Apples operativsystem. +Både åpen kildekode og fri programvare konkurrerer med Microsofts +programvare. Og internasjonalt har mange myndigheter begynt å utforske krav +om at de skal bruke åpen kildekode eller fri programvare, i stedet for +"proprietær programvare," til sine egne interne behov. +

+Jeg mener ikke å gå inn i den debatten her. Det er viktig kun for å gjøre +det klart at skillet ikke er mellom kommersiell og ikke-kommersiell +programvare. Det er mange viktige selskaper som er fundamentalt avhengig av +fri programvare, der IBM er den mest fremtredende. IBM har i stadig større +grad skiftet sitt fokus til GNU/Linux-operativsystemet, det mest berømte +biten av "fri programvare"—og IBM er helt klart en kommernsiell +aktør. Dermed er det å støtte "fri programvare" ikke å motsette seg +kommersielle aktører. Det er i stedet å støtte en måte å drive +programvareutvikling som er forskjellig fra Microsofts.^[202] +

+ +Mer viktig for våre formål, er at å støtte "åpen kildekode og fri +programvare" ikke er å motsette seg opphasvrett. "Åpen kildekode og fri +programvare" er ikke programvare uten opphavsrettslig vern. Istedet, på +samme måte som programvare fra Microsoft, insisterer opphavsrettsinnehaverne +av fri programvare ganske sterkt at vilkårene i deres programvarelisens blir +respektert av de som tar i bruk fri programvare. Vilkårene i den lisensen +er uten tvil forskjellig fra vilkårene i en proprietær programvarelisens. +For eksempel krever fri programvare lisensiert med den generelle offentlige +lisensen (GPL), at kildekoden for programvare gjøres tilgjengelig for alle +som endrer og redistribuerer programvaren. Men dette kravet er kun +effektivt hvis opphavsrett råder over programvare. Hvis opphavsretten ikke +råder over programvare, så kunne ikke fri programvare pålegge slike krav på +de som tar i bruk programvaren. Den er dermed like avhengig av +opphavsrettsloven som Microsoft. +

+Det er dermed forståelig at Microsoft, som utviklere av proprietær +programvare, gikk imot et slikt WIPO-møte, og like fullt forståelig at de +bruker sine lobbyister til å få USAs myndigheter til å gå imot møtet. Og +ganske riktig, det er akkurat dette som i følge rapporter hadde skjedd. I +følge Jonathan Krim i Washington Post, lyktes Microsofts lobbyister i å få +USAs myndigheter til å legge ned veto mot et slikt møte.^[203] Og uten støtte fra USA ble møtet avlyst. +

+Jeg klandrer ikke Microsoft for å gjøre det de kan for å fremme sine egne +interesser i samsvar med loven. Og lobbyvirksomhet mot myndighetene er +åpenbart i samsvar med loven. Det er ikke noe overraskende her med deres +lobbyvirksomhet, og ikke veldig overraskende at den mektigste +programvareprodusenten i USA har lyktes med sin lobbyvirksomhet. +

+Det som var overraskende var USAs regjerings begrunnelse for å være imot +møtet. Igjen, siterert av krim, forklarte Lois Boland, direktør for +internasjonale forbindelser ved USAs patent og varemerkekontor, at +"programvare med åpen kildekode går imot til formålet til WIPO, som er å +fremme immatterielle rettigheter.". Hun skal i følge sitatet ha sagt, "Å +holde et møte som har som formål å fraskrive seg eller frafalle slike +rettigheter synes for oss å være i strid med formålene til WIPO." +

+Disse utsagnene er forbløffende på flere nivåer. +

+For det første er de ganske enkelt enkelt ikke riktige. Som jeg beskrev, er +det meste av åpen kildekode og fri programvare fundamentalt avhengig av den +immaterielle retten kalt "opphavsrett". Uten den vil begresningene definert +av disse lisensene ikke fungere. Dermed er det å si at de "går imot" +formålet om å fremme immaterielle rettigheter å avsløre en ekstraordinær +mangel på forståelse—den type feil som er tilgivelig hos en førsteårs +jusstudent, men pinlig fra en høyt plassert statstjenestemann som håndterer +utfordringer rundt immaterielle rettigheter. +

+For det andre, hvem har noen gang hevdet at WIPOs eksklusive mål var å +"fremme" immaterielle rettigheter maksimalt? Som jeg fikk kjeft om på den +forberedende konferansen til WSIS, skal WIPO vurdere ikke bare hvordan best +beskytte immaterielle rettigheter, men også hva som er den beste balansen +rundt immaterielle rettigheter. Som enhver økonom og advokat vet, er det +vanskelige spørsmålet i immaterielle rettighetsjuss å finne den balansen. +Men at det skulle være en grense, trodde jeg, var ubestridt. Man ønsker å +spørre Ms. boland om generelle medisiner (medisiner basert på medisiner med +patenter som er utløpt) i strid med WIPOs oppdrag? Svekker allemannseie +immaterielle rettigheter? Ville det vært bedre om internettets protokoller +hadde vært patentert? +

+For det tredje, selv om en tror at formålet med WIPO var å maksimere +immaterielle rettigheter, så innehas immaterielle rettigheter, i vår +tradisjon, av individer og selskaper. De får bestemme hva som skal gjøres +med disse rettighetene, igjen fordi det er de som eier rettigetene. Hvis de +ønsker å "frafalle" eller "frasi" seg sine rettigheter, så er det helt etter +boka i vår tradisjon. Når Bill Gates gir bort mer enn $20 milliarder til +gode formål, så er ikke det uforenelig med målene til eiendomssystemet. Det +er heller tvert i mot, akkurat hva eiendomssysstemet er ment å oppnå, at +individer har retten til å bestemme hva de vil gjøre med sin eiendom. + +

+ +Når Ms. Boland sier at det er noe galt med et møte "som har som sitt formål +å fraskrive eller frafalle slike rettigheter", så sier hun at WIPO har en +interesse i å påvirke valgene til enkeltpersoner som eier immaterielle +rettigheter. At på en eller annen WIPOs oppdrag bør være å stoppe individer +fra å "frakrive" eller "frafalle" seg sine immaterielle rettigheter. At +interessen til WIPO ikke bare er maksimale immaterielle rettigheter, men +også at de skal utøves på den mest ekstreme og restriktive mulig måten. +

+Det er en historie om akkurat et slikt eierskapssystem som er velkjent i den +anglo-amerikansk tradisjon. Det kalles "føydalisme". Under føydalismen var +eiendommer ikke bare kontrollert av et relativt lite antall individer og +aktører. Men det føydale systemet hadde en sterk interesse i å sikre at +landeier i systemet ikke svekke føydalismen ved å frigjøre folkene og +eiendomene som de kontrollerte til det frie markedet. Føydalismen var +avhengig av maksimal kontroll og konsentrasjon. Det sloss mot enhver frihet +som kunne forstyrre denne kontrollen. +

+Som Peter Drahos og John Braithwaite beskriver, dette er nøyaktig det valget +vi nå gjør om immaterielle rettigheter.^[204] +Vi kommer til å få et informasjonssamfunn. Så mye er sikkert. Vårt eneste +valg nå er hvorvidt dette informasjonssamfunnet skal være fritt eller +føydalt. Trenden er mot det føydale. +

+Da denne bataljen brøt ut, blogget jeg om dette. En heftig debatt brøt ut i +kommentarfeltet. Ms. Boland hadde en rekke støttespillere som forsøkte å +vise hvorfor hennes kommentarer ga mening. Men det var spesielt en +kommentar som gjorde meg trist. En anonym kommentator skrev, +

+ +George, du misforstår Lessig: Han snakker bare om verden slik den burde være +("målet til WIPO, og målet til enhver regjering, bør være å fremme den +riktige balansen for immaterielle rettigheter, ikke bare å fremme +immaterielle rettigheter"), ikke som den er. Hvis vi snakket om verden slik +den er, så har naturligvis Boland ikke sagt noe galt. Men i verden slik +Lessig vil at den skal være, er det åpenbart at hun har sagt noe galt. En +må alltid være oppmerksom på forskjellen mellom Lessigs og vår verden. +

+Jeg gikk glipp av ironien først gangen jeg leste den. Jeg lese den raskt og +trodde forfatteren støttet idéen om at det våre myndigheter burde gjøre var +å søke balanse. (Min kritikk av Ms Boland, selvfølgelig, var ikke om +hvorvidt hun søkte balanse eller ikke; min kritikk var at hennes kommentarer +avslørte en feil kun en førsteårs jussstudent burde kunne gjøre. Jeg har +noen illusjon om ekstremismen hos våre myndigheter, uansett om de er +republikanere eller demokrater. Min eneste tilsynelatende illusjon er +hvorvidt våre myndigheter bør snakke sant eller ikke.) +

+Det var dermot åpenbart at den som postet meldingen ikke støttet idéen. I +stedet latterliggjorde forfatteren selve idéen om at i den virkelig verden +skulle "målet" til myndighetene være "å fremme den riktige balanse" for +immaterielle rettigheter. Det var åpenbart tåpelig for ham. Og det +avslørte åpenbart, trodde han, min egen tåpelige utopisme. "Typisk for en +akademiker", kunne forfatteren like gjerne ha fortsatt. +

+Jeg forstår kritikken av akademisk utopisme. Jeg mener også at utopisme er +tåpelig, og jeg vil være blant de første til å gjøre narr av de aburde +urealisistiske idealer til akademikere gjennom historien (og ikke bare i +vårt eget lands historie). +

+Men når det har blitt dumt å anta at rollen til våre myndigheter bør være å +"oppnå balanse", da kan du regne meg blant de dumme, for det betyr at dette +faktisk har blitt ganske seriøst. Hvis det bør være åpenbart for alle at +myndighetene ikke søker å oppnå balanse, at myndighetene ganske enkelt et +verktøy for de mektigste lobbyistene, at ideen om å forvente bedre av +myndighetene er absurd, at ideen om å kreve at myndighetene snakker sant og +ikke lyver bare er naiv, hva har da vi, det mektigste demokratiet i verden, +blitt? +

+ +Det kan være galskap å forvente at en mektig myndigshetsperson skal si +sannheten. Det kan være galskap å tro at myndighetenes politikk skal gjøre +mer enn å tjene de mektigste interesser. Det kan være galskap å argumentere +for å bevare en tradisjon som har vært en del av vår tradisjon for +mesteparten av vår historie—fri kultur. +

+Hvis dette er galskap, så la det være mer gærninger. Snart. Det finnes +øyeblikk av håp i denne kampen. Og øyeblikk som overrasker. Da FCC vurderte +mindre strenge eierskapregler, som ville ytterligere konsentrere +mediaeierskap, dannet det seg en en ekstraordinær koalisjon på tvers av +partiene for å bekjempe endringen. For kanskje første gang i historien +organiserte interesser så forskjellige som NRA, ACLU, moveon.org, William +Safire, Ted Turner og Codepink Women for Piece seg for å protestere på denne +endringen i FCC-reglene. Så mange som 700 000 brev ble sendt til FCC med +krav om flere høringer og et annet resultat. +

+Disse protestene stoppet ikke FCC, men like etter stemte en bred koalisjon i +senatet for å reversere avgjørelsen i FCC. De fientlige høringene som ledet +til avstemmingen avslørte hvor mektig denne bevegelsen hadde blitt. Det var +ingen betydnigsfull støtte for FCCs avgjørelse, mens det var bred og +vedvarende støtte for å bekjempe ytterligere konsentrasjon i media. +

+Men selv denne bevegelsen går glipp av en viktig brikke i puslespillet. Å +være stor er ikke ille i seg selv. Frihet er ikke truet bare på grunn av at +noen blir veldig rik, eller på grunn av at det bare er en håndfull store +aktører. Den dårlige kvaliteten til Big Macs eller Quartar Punders betyr +ikke at du ikke kan få en god hamburger andre steder. +

+Faren med mediakonsentrasjon kommer ikke fra selve konsentrasjonen, men +kommer fra føydalismen som denne konsentrasjonen fører til når den kobles +til endringer i opphavsretten. Det er ikke kun at det er noen mektige +selskaper som styrer en stadig voksende andel av mediene. Det er at denne +konsentrasjonen kan påkalle en like oppsvulmet rekke +rettigheter—eiendomsrettigheter i en historisk ekstrem form—som +gjør størrelsen ille. +

+Det er derfor betydningsfullt at så mange vil kjempe for å kreve konkurranse +og økt mangfold. Likevel, hvis kampanjen blir forstått til å kun gjelde +størrelse, så er ikke det veldig overraskende. Vi amerikanere har en lang +historie med å slåss mot "stort", klokt eller ikke. At vi kan være motivert +til å slåss mot "store" igjen ikke noe nytt. +

+Det ville vært noe nytt, og noe veldig viktig, hvis like mange kan være med +på en kampanje for å bekjempe økende ekstremisme bygget inn i idéen om +"intellektuell eiendom". Ikke fordi balanse er fremmed for vår +tradisjon. Jeg agumenterer for at balanse er vår tradisjon. Men fordi evnen +til å tenke kritisk på omfanget av alt som kalles "eiendom" ikke er lenger +er godt trent i denne tradisjonen. +

+Hvis vi var Akilles, så ville dette være vår hæl. Dette ville være stedet +for våre tragedie. +

+Mens jeg skriver disse avsluttende ordene, er nyhetene fylt med historier om +at RIAA saksøker nesten tre hundre individer.^[205] Eminem har nettopp blitt saksøkt for å ha "samplet" noen andres +musikk.^[206] Historien om hvordan Bob Dylan +har "stjålet" fra en japansk forfatter har nettopp gått verden +over.^[207] En på innsiden i +Hollywood—som insisterer på at han må forbli anonym—rapporterer +"en utrolig samtale med disse studiofolkene. De har fantastisk [gammelt] +innhold som de ville elske å bruke, men det kan de ikke på grunn av at de +først må klarere rettighetene. De har hauger med ungdommer som kunne gjøre +fantastiske ting med innholdet, men det vil først kreve hauger med advokater +for å klarere det først". Kongressrepresentanter snakker om å gi datavirus +politimyndighet for å ta ned datamaskiner som antas å bryte loven. +Universiteter truer med å utvise ungdommer som bruker en datamaskin for å +dele innhold. +

+ +I mens på andre siden av atlanteren har BBC nettopp annonsert at de vil +bygge opp et "kreativt arkiv" som britiske borgere kan laste ned BBC-innhold +fra, og rippe, mikse og brenne det ut.^[208] +Og i Brasil har kulturministeren, Gilberto Gil, i seg selv en folkehelt i +brasiliansk musikk, slått seg sammen med Creative Commons for å gi ut +innhold og frie lisenser i dette latinamerikanske landet.^[209] Jeg har fortalt en mørk historie. Sannheten mer +mer blandet. En teknologi har gitt oss mer frihet. Sakte begynner noen å +forstå at denne friheten trenger ikke å bety anarki. Vi kan få med oss fri +kultur inn i det tjueførste århundre, uten at artister taper og uten at +potensialet for digital teknologi blir knust. Det vil kreve omtanke, og +viktigere, det vil kreve at noen omforme RCAene av i dag til Causbyere. +

+ +Sunn fornuft må gjøre opprør. Den må handle for å frigjøre kulturen. Og +snart, hvis dette potensialet skal noen gang bli realisert. + + + +

^[195] + +Commission on Intellectual Property Rights, "Final Report: Integrating +Intellectual Property Rights and Development Policy" (London, 2002), +tilgjengelig fra link +#55. I følge en pressemelding fra verdens helseorganisasjon sendt ut +9. juli 2002, mottar kun 320 000 av de 6 millioner som trenger medisiner i +utviklingsland dem de trenger—og halvparten av dem er i Brasil. +

^[196] + +Se Peter Drahos og John Braithwaite, Information Feudalism: Who Owns the +Knowledge Economy? (New York: The New Press, 2003), 37. +

^[197] + +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), 150–57 (statement of James Love). +

^[198] + + +International Intellectual Property Institute (IIPI), Patent Protection and +Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, en rapport +forberedt for the World Intellectual Property Organization (Washington, +D.C., 2000), 15.

^[199] + + + +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. + +

^[200] + +Jonathan Krim, "The Quiet War over Open-Source," Washington Post, august +2003, E1, tilgjengelig fra link +#59; William New, "Global Group's Shift on `Open Source' Meeting +Spurs Stir," National Journal's Technology Daily, 19. august 2003, +tilgjengelig fra link +#60; William New, "U.S. Official Opposes `Open Source' Talks at +WIPO," National Journal's Technology Daily, 19. august 2003, tilgjengelig +fra link #61. +

^[201] + +Jeg bør nevne at jeg var en av folkene som ba WIPO om dette møtet. +

^[202] + + +Microsofts posisjon om åpen kildekode og fri programvare er mer +sofistikert. De har flere ganger forklart at de har ikke noe problem med +programvare som er "åpen kildekode" eller programvare som er allemannseie. +Microsofts prinsipielle motstand er mot "fri programvare" lisensiert med en +"copyleft"-lisens, som betyr at lisensen krever at de som lisensierer skal +adoptere same vilkår for ethvert avledet verk. Se 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, tilgjengelig fra link #62. Se også Craig Mundie, +Microsoft senior vice president, The Commercial Software Model, diskusjon +ved New York University Stern School of Business (3. mai 2001), tilgjengelig +fra link #63. +

^[203] + + +Krim, "The Quiet War over Open-Source," tilgjengelig fra link #64. +

^[204] + +Se Drahos og Braithwaite, Information Feudalism, 210–20. +

^[205] + + +John Borland, "RIAA Sues 261 File Swappers," CNET News.com, september 2003, +tilgjengelig fra link +#65; Paul R. La Monica, "Music Industry Sues Swappers," CNN/Money, 8 +september 2003, tilgjengelig fra link #66; Soni Sangha og Phyllis +Furman sammen med 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, tilgjengelig fra link #67. +

^[206] + + +Jon Wiederhorn, "Eminem Gets Sued . . . by a Little Old Lady," mtv.com, +17. september 2003, tilgjengelig fra link #68. +

^[207] + + + +Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for Dylan +Songs," Kansascity.com, 9. juli 2003, tilgjengelig fra link #69. + +

^[208] + +"BBC Plans to Open Up Its Archive to the Public," pressemelding fra BBC, +24. august 2003, tilgjengelig fra link #70. +

^[209] + + +"Creative Commons and Brazil," Creative Commons Weblog, 6. august 2003, +tilgjengelig fra link +#71. +

Kapittel 7. Etterord

Innholdsfortegnelse

Oss, nå

Gjenoppbygging av friheter som tidligere var antatt: Eksempler
Gjenoppbyggeing av fri kultur: En idé

Dem, snart

1. Flere formaliteter
2. Kortere vernetid
3. Fri Bruk vs. rimelig bruk
4. Frigjør musikken—igjen
5. Spark en masse advokater

+ + + +I hvert fall noen av de som har lest helt hit vil være enig med meg om at +noe må gjøres for å endre retningen vi holder. Balansen i denne boken +kartlegger hva som kan gjøres. +

+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. +

Oss, nå

+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. +

Gjenoppbygging av friheter som tidligere var antatt: Eksempler

+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. +

+Hva gjorde at det var sikret? +

+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.^[210] 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. +

+Dette var verden Richard Stallman ble født inn i, og mens han var forsker +ved MIT, lærte han til å elske samfunnet som utviklet seg når en var fri til +å utforske og fikle med programvaren som kjørte på datamaskiner. Av den +smarte sorten selv, og en talentfull programmerer, begynte Stallman å basere +seg frihet til å legge til eller endre på andre personers arbeid. +

+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. +

Gjenoppbyggeing av fri kultur: En idé

+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^[211]), +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. +

Dem, snart

+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. Flere formaliteter

+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^[212]—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. +

Registrering og fornying

+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. +

Merking

+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.^[213] 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. Kortere vernetid

+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.^[214] +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.
+ + + +Gjør det enkelt: Skillelinjen mellom verker uten opphavsrettslig vern og +innhold som er beskyttet må forbli klart. Advokater liker uklarheten som +"rimelig bruk" og forskjellen mellom "idéer" og "uttrykk" har. Denne type +lovverk gir dem en masse arbeid. Men de som skrev grunnloven hadde en +enklere idé: vernet versus ikke vernet. Verdien av korte vernetider er at +det er lite behov for å bygge inn unntak i opphavsretten når vernetiden +holdes kort. En klar og aktiv "advokat-fri sone" gjør komplesiteten av +"rimelig bruk" og "idé/uttrykk" mindre nødvendig å håndtere. + +
+ +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.^[215] 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.

+Disse endringene vil sammen gi en gjennomsnittlig opphavsrettslig vernetid +som er mye kortere enn den gjeldende vernetiden. Frem til 1976 var +gjennomsnittelig vernetid kun 32.2 år. Vårt mål bør være det samme. +

+Uten tvil vil ekstremistene kalle disse idéene "radikale". (Tross alt, så +kaller jeg dem "ekstremister".) Men igjen, vernetiden jeg anbefalte var +lengre enn vernetiden under Richard Nixon. hvor "radikalt" kan det være å be +om en mer sjenerøs opphavsrettighet enn da Richard Nixon var president? +

3. Fri Bruk vs. rimelig bruk

+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.^[216] 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.^[217] +

+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.^[218] 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. Frigjør musikken—igjen

+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: +

+ + +Det er noen som bruker delingsnettverk som erstatninger for å kjøpe CDer. +
+ + +There are also some who are using sharing networks to sample, on the way to +purchasing CDs. +
+ + + + +Det er mange som bruker fildelingsnettverk til å få tilgang til innhold som +ikke lenger er i salg, men fortsatt er vernet av opphavsrett eller som ville +ha vært altfor vanskelig å få kjøpt via nettet. +
+ + +Det er mange som bruker fildelingsnettverk for å få tilgang til innhold som +ikke er opphavsrettsbeskyttet, eller for å få tilgang som +opphavsrettsinnehaveren åpenbart går god for. +

+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. +

+Uansett, det er et avgjørende faktum om den gjeldende teknologiske +omgivelsen som vi må huske på hvis vi skal forstå hvordan loven bør reagere. +

+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.^[219] + +

+ +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. +

+Så her er en løsning som i første omgang kan virke veldig undelig for begge +sider i denne krigen, men som jeg tror vil gi mer mening når en får tenkt +seg om. +

+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. +

+ + +Jeg elsker internett, så jeg liker ikke å sammenligne det med tobakk eller +asbest. Men analogien er rimelig når en ser det fra lovens perspektiv. Og +det foreslår en rimelig respons: I stedet for å forsøke å ødelegge internett +eller p2p-teknologien som i dag skader innholdsleverandører på internett, så +bør vi finne en relativt enkel måte å kompensere de som blir skadelidende. +

+The idea would be a modification of a proposal that has been floated by +Harvard law professor William Fisher.^[220] +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." +

+Dette konkurranseregimet, med en sikringsmekanisme å sikre at kunstnere ikke +taper, ville bidra mye til nyskapning innen levering av +innhold. Konkurransen ville fortsette å redusere type-A-deling. Det ville +inspirere en ekstraordinær rekke av nye innovatører—som ville ha +retten til a bruke innhold, og ikke lenger frykte usikre og barbarisk +strenge straffer fra loven. +

+Oppsummert, så er dette mitt forslag: +

+ + + +Internett er i endring. Vi bør ikke regulere en teknologi i endring. Vi bør +i stedet regulere for å minimere skaden påført interesser som er berørt av +denne teknologiske endringen, samtidig vi muliggjør, og oppmuntrer, den mest +effektive teknologien vi kan lage. +

+Vi kan minimere skaden og samtidig maksimere fordelen med innovasjon ved å +

+ + +garantere retten til å engasjere seg i type-D-deling; +
+ + +tillate ikke-kommersiell type-C-deling uten erstatningsansvar, og +kommersiell type-C-deling med en lav og fast rate fastsatt ved lov. +
+ + +mens denne overgangen pågår, skattlegge og kompensere for type-A-deling, i +den grad faktiske skade kan påvises. +

+Men hva om "piratvirksomheten" ikke forsvinner? Hva om det finnes et +konkurranseutsatt marked som tilbyr innhold til en lav kostnad, men et +signifikant antall av forbrukere fortsetter å "ta" innhold uten å betale? +Burde loven gjøre noe da? +

+Ja, det bør den. Men, nok en gang, hva den bør gjøre avhenger hvordan +realitetene utvikler seg. Disse endringene fjerner kanskje ikke all +type-A-deling. Men det virkelige spørmålet er ikke om de eliminerer deling i +abstrakt betydning. Det virkelige spørsmålet er hvilken effekt det har på +markedet. Er det bedre (a) å ha en teknologi som er 95 prosent sikker og +gir et marked av størrelse x, eller (b) å ha en teknologi som er 50 prosent +sikker, og som gir et marked som er fem ganger større enn x? Mindre sikker +kan gi mer uautorisert deling, men det vil sannsynligvis også gi et mye +større marked for autorisert deling. Det viktigste er å sikre kunstneres +kompensasjon uten å ødelegge internettet. Når det er på plass, kan det +hende det er riktig å finne måter å spore opp de smålige piratene. +

+ +Men vi er langt unna å spikke problemet ned til dette delsettet av +type-A-delere. Og vårt fokus inntil er der bør ikke være å finne måter å +ødelegge internettet. Var fokus inntil vi er der bør være hvordan sikre at +artister får betalt, mens vi beskytter rommet for nyskapning og kreativitet +som internettet er. +

5. Spark en masse advokater

+Jeg er en advokat. Jeg lever av å utdanne advokater. Jeg tror på loven. Jeg +tror på opphavsrettsloven. Jeg har faktisk viet livet til å jobbe med loven, +ikke fordi det er mye penger å tjene, men fordi det innebærer idealer som +jeg elsker å leve opp til. +

+Likevel har mye av denne boken vært kritikk av advokater, eller rollen +advokater har spilt i denne debatten. Loven taler om idealer, mens det er +min oppfatning av vår yrkesgruppe er blitt for knyttet til klienten. Og i +en verden der rike klienter har sterke synspunkter vil uviljen hos vår +yrkesgruppe til å stille spørsmål med eller protestere mot dette sterke +synet ødelegge loven. +

+Indisiene for slik bøyning er overbevisene. Jeg er angrepet som en +"radikal" av mange innenfor yrket, og likevel er meningene jeg argumenterer +for nøyaktig de meningene til mange av de mest moderate og betydningsfulle +personene i historien til denne delen av loven. Mange trodde for eksempel at +vår utfordring til lovforslaget om å utvide opphavsrettens vernetid var +galskap. Mens bare tredve år siden mente den dominerende foreleser og +utøver i opphavsrettsfeltet, Melville Nimmer, at den var +åpenbar.^[221] + +

+Min kritikk av rollen som advokater har spilt i denne debatten handler +imidlertid ikke bare om en profesjonell skjevhet. Det handler enda viktigere +om vår manglende evne til å faktisk ta inn over oss hva loven koster. +

+Økonomer er forventet å være gode til å forstå utgifter og inntekter. Men +som oftest antar økonomene uten peiling på hvordan det juridiske systemet +egentlig fungerer, at transaksjonskostnaden i det juridiske systemet er +lav.^[222] De ser et system som har +eksistert i hundrevis av år, og de antar at det fungerer slik grunnskolens +samfunnsfagsundervisning lærte dem at det fungerer. +

+ + +Men det juridiske systemet fungerer ikke. Eller for å være mer nøyaktig, det +fungerer kun for de med mest ressurser. Det er ikke fordi systemet er +korrupt. Jeg tror overhodet ikke vårt juridisk system (på føderalt nivå, i +hvert fall) er korrupt. Jeg mener ganske enkelt at på grunn av at kostnadene +med vårt juridiske systemet er så hårreisende høyt vil en praktisk talt +aldri oppnå rettferdighet. +

+Disse kostnadene forstyrrer fri kultur på mange vis. En advokats tid +faktureres hos de største firmaene for mer enn $400 pr. time. Hvor mye tid +bør en slik advokat bruke på å lese sakene nøye, eller undersøke obskure +rettskilder. Svaret er i økende grad: svært lite. Jussen er avhengig av +nøye formulering og utvikling av doktrine, men nøye formulering og utvikling +av doktrine er avhengig av nøyaktig arbeid. Men nøyaktig arbeid koster for +mye, bortsett fra i de mest høyprofilerte og kostbare sakene. +

+Kostbarheten, klomsetheten og tilfeldigheten til dette systemet håner vår +tradisjon. Og advokater, såvel som akademikere, bør se det som sin plikt å +endre hvordan loven praktiseres— eller bedre, endre loven slik at den +fungerer. Det er galt at systemet fungerer godt bare for den øverste +1-prosenten av klientene. Det kan gjøres radikalt mer effektivt, og billig, +og dermed radikalt mer rettferdig. +

+Men inntil en slik reform er gjennomført, bør vi som samfunn holde lover +unna områder der vi vet den bare vil skade. Og det er nettopp det loven +altfor ofte vil gjøre hvis for mye av vår kultur er lovregulert. +

+Tenk på de fantastiske tingene ditt barn kan gjøre eller lage med digital +teknologi—filmen, musikken, web-siden, bloggen. Eller tenk på de +fantastiske tingene ditt fellesskap kunne få til med digital +teknologi—en wiki, oppsetting av låve, kampanje til å endre noe. Tenk +på alle de kreative tingene, og tenk deretter på kald sirup helt inn i +maskinene. Dette er hva et hvert regime som krever tillatelser fører +til. Dette er virkeligheten slik den var i Brezhnevs Russland. +

+ +Loven bør regulere i visse områder av kulturen—men det bør regulere +kultur bare der reguleringen bidrar positivt. Likevel tester advokater +sjeldent sin kraft, eller kraften som de fremmer, mot dette enkle pragmatisk +spørsmålet: "vil det bidra positivt?". Når de blir utfordret om det +utvidede rekkevidden til loven, er advokat-svaret, "Hvorfor ikke?" +

+Vi burde spørre: "Hvorfor?". Vis meg hvorfor din regulering av kultur er +nødvendig og vis meg hvordan reguleringen bidrar positivt. Før du kan vise +meg begge, holde advokatene din unna. +

^[210] + + + +See, for example, Marc Rotenberg, "Fair Information Practices and the +Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology Law +Review 1 (2001): par. 6–18, available at 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).

^[211] + + + +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. +

^[212] + + +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.

^[213] + + +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. +

^[214] + + +"A Radical Rethink," Economist, 366:8308 (25. januar 2003): 15, tilgjengelig +fra link #74. +

^[215] + + +Department of Veterans Affairs, Veteran's Application for Compensation +and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), tilgjengelig +fra link #75. +

^[216] + + +Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia +University Press, 1967), 32. +

^[217] + +Ibid., 56. +

^[218] + +Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox +(Stanford: Stanford University Press, 2003), 187–216. +

^[219] + + +For eksempel, se, "Music Media Watch," The J@pan Inc. Newsletter, 3 April +2002, tilgjengelig fra link +#76. +

^[220] + 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. + +

^[221] + + +Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer Memorial +Lecture), UCLA law Review 48 (2001): 1057, 1069–70. +

^[222] + +Et godt eksempel er arbeidet til professor Stan Liebowitz. Liebowitz bør få +ros for sin nøye gjennomgang av data om opphavsrettsbrudd, som fikk ham til +å stille spørsmål med sin egen uttalte posisjon—to ganger. I starten +predicated han at nedlasting ville påføre industrien vesentlig skade. Han +endret så sitt syn etter i lys av dataene, og han har siden endret sitt syn +på nytt. Sammenlign Stan J. Liebowitz, Rethinking the Network Economy: The +True Forces That Drive the Digital Marketplace (New York: Amacom, 2002), +(gikk igjennom hans originale syn men uttrykte skepsis) med Stan J. +Liebowitz, "Will MP3s Annihilate the Record Industry?" artikkelutkast, juni +2003, tilgjengelig fra link +#86. Den nøye analysen til Liebowitz er ekstremt verdifull i sin +estimering av effekten av fildelingsteknologi. Etter mitt syn +underestimerer han forøvrig kostnaden til det juridiske system. Se, for +eksempel, Rethinking, 174–76. +

Kapittel 8. Notater

+I denne teksten er det referanser til lenker på verdensveven. Og som alle +som har forsøkt å bruke nettet vet, så vil disse lenkene være svært +ustabile. Jeg har forsøkt å motvirke denne ustabiliteten ved å omdirigere +lesere til den originale kilden gjennom en nettside som hører til denne +boken. For hver lenke under, så kan du gå til http://free-culture.cc/notes +og finne den originale kilden ved å klikke på nummeret etter #-tegnet. Hvis +den originale lenken fortsatt er i live, så vil du bli omdirigert til den +lenken. Hvis den originale lenken har forsvunnet, så vil du bli omdirigert +til en passende referanse til materialet. +

Kapittel 9. Takk til

+Denne boken er produktet av en lang og så langt mislykket kamp som begynte +da jeg leste om Eric Eldreds krig for å sørge for at bøker forble +frie. Eldreds innsats bidro til å lansere en bevegelse, fri +kultur-bevegelsen, og denne boken er tilegnet ham. +

+Jeg fikk veiledning på ulike steder fra venner og akademikere, inkludert +Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose og +Kathleen Sullivan. Og jeg fikk korreksjoner og veiledning fra mange +fantastiske studenter ved Stanford Law School og Stanford University. Det +inkluderer Andrew B. Coan, John Eden, James P. Fellers, Christopher +Guzelian, Erica Goldberg, Robert Hallman, Andrew Harris, Matthew Kahn, +Brian-Link, Ohad Mayblum, Alina Ng og Erica Platt. Jeg er særlig takknemlig +overfor Catherine Crump og Harry Surden, som hjalp til med å styre deres +forskning og til Laura Lynch, som briljant håndterte hæren de samlet, samt +bidro med sitt egen kritisk blikk på mye av dette. +

+ +Yuko Noguchi hjalp meg å forstå lovene i Japan, så vel som Japans +kultur. Jeg er henne takknemlig, og til de mange i Japan som hjalp meg med +forundersøkelsene til denne boken: Joi Ito, Takayuki Matsutani, Naoto +Misaki, Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata og Yoshihiro +Yonezawa. Jeg er også takknemlig til professor Nobuhiro Nakayama og Tokyo +University Business Law Center, som ga meg muligheten til å bruke tid i +Japan, og Tadashi Shiraishi og Kiyokazu Yamagami for deres generøse hjelp +mens jeg var der. +

+Dette er de tradisjonelle former for hjelp som akademikere regelmessig +trekker på. Men i tillegg til dem, har Internett gjort det mulig å motta råd +og korrigering fra mange som jeg har aldri møtt. Blant de som har svart med +svært nyttig råd etter forespørsler om boken på bloggen min er Dr. Muhammed +Al-Ubaydli, David Gerstein og Peter Dimauro, I tillegg en lang liste med de +som hadde spesifikke ideer om måter å utvikle mine argumenter på. De +inkluderte 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," og Richard Yanco. (jeg beklager hvis jeg gikk +glipp av noen, med datamaskiner kommer feil og en krasj i e-postsystemet +mitt gjorde at jeg mistet en haug med flotte svar.) +

+Richard Stallman og Michael Carroll har begge lest hele boken i utkast, og +hver av dem har bidratt med svært nyttige korreksjoner og råd. Michael hjalp +meg å se mer tydelig betydningen av regulering for avledede verker . Og +Richard korrigerte en pinlig stor mengde feil. Selv om mitt arbeid er +delvis inspirert av Stallmans, er han ikke enig med meg på vesentlige steder +i denne boken. +

+Til slutt, og for evig, er jeg Bettina takknemlig, som alltid har insistert +på at det ville være endeløs lykke utenfor disse kampene, og som alltid har +hatt rett. Denne trege eleven er som alltid takknemlig for hennes +evigvarende tålmodighet og kjærlighet. +