From: Petter Reinholdtsen Date: Fri, 16 Oct 2015 08:50:27 +0000 (+0200) Subject: Generated. X-Git-Tag: edition-2015-10-15^0 X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/commitdiff_plain/6d250fde8c4a769d82c6308337a658238179a44c Generated. --- diff --git a/archive/freeculture.epub b/archive/freeculture.epub index 2535d47..d2657b0 100644 Binary files a/archive/freeculture.epub and b/archive/freeculture.epub differ diff --git a/archive/freeculture.html b/archive/freeculture.html index d977798..24368e1 100644 --- a/archive/freeculture.html +++ b/archive/freeculture.html @@ -1,5 +1,5 @@ Free Culture

Free Culture

How big media uses technology and the law to lock down - culture and control creativity

Lawrence Lessig

Version 2004-02-10

Copyright © 2004 Lawrence Lessig

+ culture and control creativity

Lawrence Lessig

Version 2004-02-10

Copyright © 2004 Lawrence Lessig

Creative Commons, Some rights reserved

This book is licensed under a Creative Commons license. This license @@ -40,7 +40,7 @@ Code: And Other Laws of Cyberspace (1999)

To Eric Eldred — whose work first drew me to this cause, and for whom it continues still. -

Preface
Introduction
I. “Piracy”
1. Chapter One: Creators
2. Chapter Two: “Mere Copyists”
3. Chapter Three: Catalogs
4. Chapter Four: “Pirates”
4.1. Film
4.2. Recorded Music
4.3. Radio
4.4. Cable TV
5. Chapter Five: “Piracy”
5.1. Piracy I
5.2. Piracy II
II. “Property”
6. Chapter Six: Founders
7. Chapter Seven: Recorders
8. Chapter Eight: Transformers
9. Chapter Nine: Collectors
10. Chapter Ten: “Property”
10.1. Why Hollywood Is Right
10.2. Beginnings
10.3. Law: Duration
10.4. Law: Scope
10.5. Law and Architecture: Reach
10.6. Architecture and Law: Force
10.7. Market: Concentration
10.8. Together
III. Puzzles
11. Chapter Eleven: Chimera
12. Chapter Twelve: Harms
12.1. Constraining Creators
12.2. Constraining Innovators
12.3. Corrupting Citizens
IV. Balances
13. Chapter Thirteen: Eldred
14. Chapter Fourteen: Eldred II
Conclusion
Afterword
1. Us, now
1.1. Rebuilding Freedoms Previously Presumed: Examples
1.2. Rebuilding Free Culture: One Idea
2. Them, soon
2.1. 1. More Formalities
2.1.1. Registration and renewal
2.1.2. Marking
2.2. 2. Shorter Terms
2.3. 3. Free Use Vs. Fair Use
2.4. 4. Liberate the Music—Again
2.5. 5. Fire Lots of Lawyers
Notes
Index
Acknowledgments
About this edition
Index

Preface

+

Preface
Introduction
I. “Piracy”
1. Chapter One: Creators
2. Chapter Two: “Mere Copyists”
3. Chapter Three: Catalogs
4. Chapter Four: “Pirates”
4.1. Film
4.2. Recorded Music
4.3. Radio
4.4. Cable TV
5. Chapter Five: “Piracy”
5.1. Piracy I
5.2. Piracy II
II. “Property”
6. Chapter Six: Founders
7. Chapter Seven: Recorders
8. Chapter Eight: Transformers
9. Chapter Nine: Collectors
10. Chapter Ten: “Property”
10.1. Why Hollywood Is Right
10.2. Beginnings
10.3. Law: Duration
10.4. Law: Scope
10.5. Law and Architecture: Reach
10.6. Architecture and Law: Force
10.7. Market: Concentration
10.8. Together
III. Puzzles
11. Chapter Eleven: Chimera
12. Chapter Twelve: Harms
12.1. Constraining Creators
12.2. Constraining Innovators
12.3. Corrupting Citizens
IV. Balances
13. Chapter Thirteen: Eldred
14. Chapter Fourteen: Eldred II
Conclusion
Afterword
1. Us, now
1.1. Rebuilding Freedoms Previously Presumed: Examples
1.2. Rebuilding Free Culture: One Idea
2. Them, soon
2.1. 1. More Formalities
2.1.1. Registration and renewal
2.1.2. Marking
2.2. 2. Shorter Terms
2.3. 3. Free Use Vs. Fair Use
2.4. 4. Liberate the Music—Again
2.5. 5. Fire Lots of Lawyers
Notes
Index
Acknowledgments
About this edition
Index

Preface

At the end of his review of my first book, Code: And Other Laws of Cyberspace, David Pogue, a brilliant writer and author of countless technical and @@ -67,7 +67,7 @@ causes even after the modem is turned off. It is an argument about how the battles that now rage regarding life on-line have fundamentally affected “people who aren't online.” There is no switch that will insulate us from the Internet's effect. -

+

But unlike Code, the argument here is not much about the Internet itself. It is instead about the consequence of the Internet to a part of our tradition that is much more fundamental, @@ -77,7 +77,7 @@ important. That tradition is the way our culture gets made. As I explain in the pages that follow, we come from a tradition of “free culture”—not “free” as in “free beer” (to borrow a phrase from the founder of the -free software movement[2]), but “free” as in “free speech,” “free markets,” +free software movement[2]), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so @@ -97,7 +97,7 @@ Whether you are on the Left or the Right, if you are in this sense disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental. -

+

We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC considered changes in media ownership rules that would relax limits on media concentration, an extraordinary coalition @@ -112,7 +112,7 @@ Does that sound unconservative? Not to me. The concentration of power—political, corporate, media, cultural—should be anathema to conservatives. The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and -the greatest expression of democracy.[3] +the greatest expression of democracy.[3]

This idea is an element of the argument of Free Culture, though my focus is not just on the concentration of power produced by @@ -122,7 +122,7 @@ the effective scope of the law. The law is changing; that change is altering the way our culture gets made; that change should worry you—whether or not you care about the Internet, and whether you're on Safire's left or on his right. -

+

The inspiration for the title and for much of the argument of this book comes from the work of Richard Stallman and the Free Software Foundation. Indeed, as I reread @@ -158,11 +158,11 @@ fear about our culture today. It is against that extremism that this book is written.


[1] David Pogue, “Don't Just Chat, Do Something,” New York Times, 30 January 2000. -

[2] Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002). -

[3] William Safire, +

[3] William Safire, “The Great Media Gulp,” New York Times, 22 May 2003. - +

Chapter . Introduction

On December 17, 1903, on a windy North Carolina beach for just shy of one hundred seconds, the Wright brothers demonstrated that a @@ -174,12 +174,12 @@ flight, and a gaggle of innovators began to build upon it. At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, -and all the space above, to “an indefinite extent, upwards.”[4] +and all the space above, to “an indefinite extent, upwards.”[4] For many years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass? -

+

Then came airplanes, and for the first time, this principle of American law—deep within the foundations of our tradition, and acknowledged by the most important legal thinkers of our past—mattered. If @@ -187,7 +187,7 @@ my land reaches to the heavens, what happens when United flies over my field? Do I have the right to banish it from my property? Am I allowed to enter into an exclusive license with Delta Airlines? Could we set up an auction to decide how much these rights are worth? -

+

In 1945, these questions became a federal case. When North Carolina farmers Thomas Lee and Tinie Causby started losing chickens because of low-flying military aircraft (the terrified chickens apparently @@ -197,7 +197,7 @@ of course, never touched the surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had said, their land reached to “an indefinite extent, upwards,” then the government was trespassing on their property, and the Causbys wanted it to stop. -

+

The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the heavens, then Congress's declaration could well have been an unconstitutional @@ -214,10 +214,10 @@ trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only -the public has a just claim.[5] +the public has a just claim.[5]

“Common sense revolts at the idea.” -

+

This is how the law usually works. Not often this abruptly or impatiently, but eventually, this is how it works. It was Douglas's style not to dither. Other justices would have blathered on for pages to reach the @@ -227,7 +227,7 @@ at the idea.” But whether it takes pages or a few words, it genius of a common law system, as ours is, that the law adjusts to the technologies of the time. And as it adjusts, it changes. Ideas that were as solid as rock in one age crumble in another. -

+

Or at least, this is how things happen when there's no one powerful on the other side of the change. The Causbys were just farmers. And though there were no doubt many like them who were upset by the @@ -244,7 +244,7 @@ They could call their representatives or even file a lawsuit. But in the end, the force of what seems “obvious” to everyone else—the power of “common sense”—would prevail. Their “private interest” would not be allowed to defeat an obvious public gain. -

+

Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He came to the great American inventor scene just after the titans Thomas Edison and Alexander @@ -284,7 +284,7 @@ and torn; it sounded like paper and not like a crackling forest fire. … Sousa marches were played from records and a piano solo and guitar number were performed. … The music was projected with a live-ness rarely if ever heard before from a radio “music -box.”[6] +box.”[6]

As our own common sense tells us, Armstrong had discovered a vastly superior radio technology. But at the time of his invention, Armstrong @@ -293,7 +293,7 @@ AM radio market. By 1935, there were a thousand radio stations across the United States, but the stations in large cities were all owned by a handful of networks. -

+

RCA's president, David Sarnoff, a friend of Armstrong's, was eager that Armstrong discover a way to remove static from AM radio. So Sarnoff was quite excited when Armstrong told him he had a device @@ -303,8 +303,8 @@ his invention, Sarnoff was not pleased. I thought Armstrong would invent some kind of a filter to remove static from our AM radio. I didn't think he'd start a revolution— start up a whole damn new industry to compete with -RCA.[7] -

+RCA.[7] +

Armstrong's invention threatened RCA's AM empire, so the company launched a campaign to smother FM radio. While FM may have been a superior technology, Sarnoff was a superior tactician. As one author @@ -315,7 +315,7 @@ of strategy devised by the sales, patent, and legal offices to subdue this threat to corporate position. For FM, if allowed to develop unrestrained, posed … a complete reordering of radio power … and the eventual overthrow of the carefully restricted AM system -on which RCA had grown to power.[8] +on which RCA had grown to power.[8]

RCA at first kept the technology in house, insisting that further tests were needed. When, after two years of testing, Armstrong grew @@ -332,8 +332,8 @@ radio would be crippled. As Lawrence Lessing described it, The series of body blows that FM radio received right after the war, in a series of rulings manipulated through the FCC by the big radio interests, were almost incredible in their force and -deviousness.[9] -

+deviousness.[9] +

To make room in the spectrum for RCA's latest gamble, television, FM radio users were to be moved to a totally new spectrum band. The power of FM radio stations was also cut, meaning FM could no longer @@ -342,7 +342,7 @@ be used to beam programs from one part of the country to another. FM relaying stations would mean radio stations would have to buy wired links from AT&T.) The spread of FM radio was thus choked, at least temporarily. -

+

Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's patents. After incorporating FM technology into the emerging standard for television, RCA declared the patents @@ -353,7 +353,7 @@ just as the patents expired, RCA offered a settlement so low that it would not even cover Armstrong's lawyers' fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of a thirteenth-story window to his death. -

+

This is how the law sometimes works. Not often this tragically, and rarely with heroic drama, but sometimes, this is how it works. From the beginning, government and government agencies have been subject to @@ -368,13 +368,13 @@ to themselves, would crumble in another, are sustained through this subtle corruption of our political process. RCA had what the Causbys did not: the power to stifle the effect of technological change. -

+

There's no single inventor of the Internet. Nor is there any good date upon which to mark its birth. Yet in a very short time, the Internet has become part of ordinary American life. According to the Pew Internet and American Life Project, 58 percent of Americans had access to the Internet in 2002, up from 49 percent two years -before.[10] +before.[10] That number could well exceed two thirds of the nation by the end of 2004.

@@ -395,7 +395,7 @@ process. That change will radically transform a tradition that is as old as the Republic itself. Most, if they recognized this change, would reject it. Yet most don't even see the change that the Internet has introduced. -

+

We can glimpse a sense of this change by distinguishing between commercial and noncommercial culture, and by mapping the law's regulation of each. By “commercial culture” I mean that part of our @@ -421,14 +421,14 @@ The focus of the law was on commercial creativity. At first slightly, then quite extensively, the law protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial -marketplace.[11] +marketplace.[11] This is also, of course, an important part of creativity and culture, and it has become an increasingly important part in America. But in no sense was it dominant within our tradition. It was instead just one part, a controlled part, balanced with the free. -

+

This rough divide between the free and the controlled has now -been erased.[12] +been erased.[12] The Internet has set the stage for this erasure and, pushed by big media, the law has now affected it. For the first time in our tradition, the ordinary ways in which individuals create and share @@ -439,7 +439,7 @@ the balance of our history—between uses of our culture that were free and uses of our culture that were only upon permission—has been undone. The consequence is that we are less and less a free culture, more and more a permission culture. -

+

This change gets justified as necessary to protect commercial creativity. And indeed, protectionism is precisely its motivation. But the protectionism that justifies the changes that I @@ -451,7 +451,7 @@ change the way both commercial and noncommercial culture are made and shared have united to induce lawmakers to use the law to protect them. It is the story of RCA and Armstrong; it is the dream of the Causbys. -

+

For the Internet has unleashed an extraordinary possibility for many to participate in the process of building and cultivating a culture that reaches far beyond local boundaries. That power has changed the @@ -477,7 +477,7 @@ using their power to get the law to protect them against this new, more efficient, more vibrant technology for building culture. They are succeeding in their plan to remake the Internet before the Internet remakes them. -

+

It doesn't seem this way to many. The battles over copyright and the Internet seem remote to most. To the few who follow them, they seem @@ -485,7 +485,7 @@ mainly about a much simpler brace of questions—whether “property” will be protected. The “war” that has been waged against the technologies of the Internet—what Motion Picture Association of America (MPAA) president Jack Valenti -calls his “own terrorist war”[13]—has been framed as a battle about the +calls his “own terrorist war”[13]—has been framed as a battle about the rule of law and respect for property. To know which side to take in this war, most think that we need only decide whether we're for property or against it. @@ -501,12 +501,12 @@ But those simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet “pirates” will also rid our culture of values that have been integral to our tradition from the start. -

+

These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. -And as Professor Neil Netanel powerfully argues,[14] +And as Professor Neil Netanel powerfully argues,[14] copyright law, properly balanced, protected creators against private control. Our tradition was thus neither Soviet nor the tradition of patrons. It instead carved out a wide berth within which creators @@ -536,7 +536,7 @@ peace. There is no good reason for the current struggle around Internet technologies to continue. There will be great harm to our tradition and culture if it is allowed to continue unchecked. We must come to understand the source of this war. We must resolve it soon. -

+

Like the Causbys' battle, this war is, in part, about “property.” The property of this war is not as tangible as the Causbys', and no innocent chicken has yet to lose its life. Yet the ideas surrounding @@ -550,7 +550,7 @@ us as it was to them that the new technologies of the Internet are “trespassing” upon legitimate claims of “property.” It is as plain to us as it was to them that the law should intervene to stop this trespass. -

+

And thus, when geeks and technologists defend their Armstrong or Wright brothers technology, most of us are simply unsympathetic. Common sense does not revolt. Unlike in the case of the unlucky @@ -559,7 +559,7 @@ war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on its side. -

+

My hope is to push this common sense along. I have become increasingly amazed by the power of this idea of intellectual property and, more importantly, its power to disable critical thought by policy makers @@ -588,7 +588,7 @@ sense actually believes in these extremes? Or does common sense stand silent in the face of these extremes because, as with Armstrong versus RCA, the more powerful side has ensured that it has the more powerful view? -

+

I don't mean to be mysterious. My own views are resolved. I believe it was right for common sense to revolt against the extremism of the Causbys. I believe it would be right for common sense to revolt @@ -597,7 +597,7 @@ property.” What the law demands today is increasingly as si sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound. -

+

The struggle that rages just now centers on two ideas: “piracy” and “property.” My aim in this book's next two parts is to explore these two ideas. @@ -625,10 +625,10 @@ interests most threatened are among the most powerful players in our depressingly compromised process of making law. This book is the story of one more consequence of this form of corruption—a consequence to which most of us remain oblivious. -


[4] +


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

[5] United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that there could be a “taking” if the government's use of its land effectively destroyed the value of the Causbys' land. This example was @@ -637,25 +637,25 @@ Property and Sovereignty: Notes Toward a Cultural Geography of Authorship,” Stanford Law Review 48 (1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), 1112–13. - - -

[6] + + +

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

[7] See “Saints: The Heroes and Geniuses of the +

[7] See “Saints: The Heroes and Geniuses of the Electronic Era,” First Electronic Church of America, at www.webstationone.com/fecha, available at link #1. -

[8] Lessing, 226. -

[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, available at link #2. -

[11] This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. State copyright law historically protected not just the commercial interest in @@ -664,20 +664,20 @@ right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193, 198–200. - -

[12] See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 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 January 2002. -

[14] Neil W. Netanel, “Copyright and a Democratic Civil Society,” Yale Law Journal 106 (1996): 283. - -

Part I. “Piracy”

+ +

Part I. “Piracy”

Since the inception of the law regulating creative property, there has been a war against “piracy.” The precise contours of this concept, “piracy,” are hard to sketch, but the animating injustice is easy to @@ -686,8 +686,8 @@ English copyright law to include sheet music,

A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying copies and disposing -of them for his own use.[15] -

+of them for his own use.[15] +

Today we are in the middle of another “war” against “piracy.” The Internet has provoked this war. The Internet makes possible the efficient spread of content. Peer-to-peer (p2p) file sharing is among @@ -702,7 +702,7 @@ and uncopyrighted content. Thus has there been a vast amount of sharing of copyrighted content. That sharing in turn has excited the war, as copyright owners fear the sharing will “rob the author of the profit.” -

+

The warriors have turned to the courts, to the legislatures, and increasingly to technology to defend their “property” against this “piracy.” A generation of Americans, the warriors warn, is being @@ -723,24 +723,24 @@ value. Whenever I take something of value from someone else, I should have their permission. The taking of something of value from someone else without permission is wrong. It is a form of piracy. -

+

This view runs deep within the current debates. It is what NYU law professor Rochelle Dreyfuss criticizes as the “if value, then right” -theory of creative property[16] +theory of creative property[16] —if there is value, then someone must have a right to that value. It is the perspective that led a composers' rights organization, ASCAP, to sue the Girl Scouts for failing to pay for the -songs that girls sang around Girl Scout campfires.[17] +songs that girls sang around Girl Scout campfires.[17] There was “value” (the songs) so there must have been a “right”—even against the Girl Scouts. -

+

This idea is certainly a possible understanding of how creative property should work. It might well be a possible design for a system of law protecting creative property. But the “if value, then right” theory of creative property has never been America's theory of creative property. It has never taken hold within our law. -

+

Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity. The current debate has this @@ -752,14 +752,14 @@ takes care to draw—the distinction between republishing someone's work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. -

+

Before the technologies of the Internet, this conflation didn't matter all that much. The technologies of publishing were expensive; that meant the vast majority of publishing was commercial. Commercial entities could bear the burden of the law—even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. -

+

But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of commercial creators but effectively that of anyone. Although that @@ -777,29 +777,29 @@ 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] +Class.”[18] Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class. -

+

These burdens make no sense in our tradition. We should begin by understanding that tradition a bit more and by placing in their proper context the current battles about behavior labeled “piracy.” -


[15] +


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

[16] See 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, available at link #3; Jonathan Zittrain, “Calling Off the Copyright War: In Battle of Property vs. Free Speech, No One Wins,” Boston Globe, 24 November 2002. - -

[18] In The Rise of the Creative Class (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of @@ -809,8 +809,8 @@ enabled or stifled. I certainly agree with him about the importance and significance of this change, but I also believe the conditions under which it will be enabled are much more tenuous. - - + +

Chapter 1. Chapter One: Creators

In 1928, a cartoon character was born. An early Mickey Mouse made his debut in May of that year, in a silent flop called Plane Crazy. @@ -841,8 +841,8 @@ The effect on our little audience was nothing less than electric. They responded almost instinctively to this union of sound and motion. I thought they were kidding me. So they put me in the audience and ran the action again. It was terrible, but it was wonderful! And -it was something new![19] -

+it was something new![19] +

Disney's then partner, and one of animation's most extraordinary talents, Ub Iwerks, put it more strongly: “I have never been so thrilled in my life. Nothing since has ever equaled it.” @@ -854,7 +854,7 @@ filler for other films. Throughout animation's early history, it was Disney's invention that set the standard that others struggled to match. And quite often, Disney's great genius, his spark of creativity, was built upon the work of others. -

+

This much is familiar. What you might not know is that 1928 also marks another important transition. In that year, a comic (as opposed to cartoon) genius created his last independently produced silent film. @@ -871,17 +871,17 @@ and among the best of its genre. Willie. The coincidence of titles is not coincidental. Steamboat Willie is a -direct cartoon parody of Steamboat Bill,[20] +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. -

+

This “borrowing” was nothing unique, either for Disney or for the industry. Disney was always parroting the feature-length mainstream -films of his day.[21] +films of his day.[21] So did many others. Early cartoons are filled with knockoffs—slight variations on winning themes; retellings of ancient stories. The key to success was the brilliance of the @@ -920,7 +920,7 @@ that we should perhaps quickly forget, Treasure Planet

+

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 @@ -928,11 +928,11 @@ its importance. We could call this ““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 +

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] +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 @@ -945,7 +945,7 @@ zone.” Thus, most of the content from the nineteenth century 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 @@ -957,7 +957,7 @@ 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 @@ -1008,7 +1008,7 @@ 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 @@ -1021,7 +1021,7 @@ Jr. Under both Japanese and American law, that “< 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 @@ -1030,23 +1030,23 @@ 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] -

+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] -

+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 @@ -1056,7 +1056,7 @@ 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 @@ -1073,7 +1073,7 @@ 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 @@ -1083,11 +1083,11 @@ 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] +“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 @@ -1109,19 +1109,19 @@ 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 @@ -1144,7 +1144,7 @@ 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?” @@ -1159,11 +1159,11 @@ a studio or not? Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so. -


[19] +


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

[20] I am grateful to David Gerstein and his careful history, described at link #4. @@ -1173,12 +1173,12 @@ Simpleton” (Delille), ““Gawky Rube” (Lakay). A sixth song, “The Turkey in the Straw,” was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author. -

[21] He was also a fan of the public domain. See Chris Sprigman, “The Mouse that Ate the Public Domain,” Findlaw, 5 March 2002, at link #5. -

[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 @@ -1190,11 +1190,11 @@ 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 an excellent history, see 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 @@ -1204,9 +1204,9 @@ 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 @@ -1214,7 +1214,7 @@ University Press, 2001). See also Lawrence Lessig, The Fut describes a set of “property” rights — copyright, patents, trademark, and trade-secret — but the nature of those rights is very different. -

Chapter 2. Chapter Two: “Mere Copyists”

+

Chapter 2. Chapter Two: “Mere Copyists”

In 1839, Louis Daguerre invented the first practical technology for producing what we would call “photographs.” Appropriately enough, they were called @@ -1223,7 +1223,7 @@ 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 @@ -1248,7 +1248,7 @@ 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: +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 @@ -1258,8 +1258,8 @@ 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] -

+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, @@ -1269,9 +1269,9 @@ 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 11 -percent.[28] Eastman Kodak's sales during the same period experienced -an average annual increase of over 17 percent.[29] -

+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 @@ -1283,8 +1283,8 @@ 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] -

+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 @@ -1296,7 +1296,7 @@ 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 @@ -1304,8 +1304,8 @@ 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] -

+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 @@ -1315,16 +1315,16 @@ 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 +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 @@ -1333,8 +1333,8 @@ 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]) -

+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 @@ -1348,7 +1348,7 @@ from the “image-right” 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 @@ -1362,7 +1362,7 @@ 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 @@ -1382,27 +1382,27 @@ 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] +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] +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 @@ -1417,14 +1417,14 @@ 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 @@ -1432,7 +1432,7 @@ 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] +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 @@ -1440,8 +1440,8 @@ 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] -

+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 @@ -1471,8 +1471,8 @@ 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] +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 @@ -1484,7 +1484,7 @@ 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 @@ -1507,7 +1507,7 @@ 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, @@ -1536,7 +1536,7 @@ camera and … saying, “Let's 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 @@ -1549,7 +1549,7 @@ 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 @@ -1567,7 +1567,7 @@ the screen. There was a formula to interviews. There was  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 @@ -1580,7 +1580,7 @@ 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 @@ -1597,7 +1597,7 @@ 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 @@ -1605,7 +1605,7 @@ 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 @@ -1628,7 +1628,7 @@ 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 @@ -1642,11 +1642,11 @@ 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] -

+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] +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. @@ -1656,9 +1656,9 @@ 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 +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. @@ -1675,12 +1675,12 @@ 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 @@ -1690,14 +1690,14 @@ 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] +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 @@ -1705,7 +1705,7 @@ 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 @@ -1715,12 +1715,12 @@ have to take the conflict of interest” out of journalism, Wi “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] +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 @@ -1728,14 +1728,14 @@ 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] +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 @@ -1745,7 +1745,7 @@ 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] +have been told to curtail their blogging.[46] But it is clear that we are still in transition. “A @@ -1754,7 +1754,7 @@ 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 @@ -1768,7 +1768,7 @@ 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 @@ -1822,7 +1822,7 @@ text. “The Web … says if you 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 @@ -1843,7 +1843,7 @@ 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] +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.

@@ -1861,110 +1861,110 @@ 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. -


[26] +


[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] Based on a chart in Jenkins, p. 178. -

[30] Coe, 58. -

[31] For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 S.E. 68 (Ga. 1905); Foster-Milburn Co. v. Chinn, 123090 S.W. 364, 366 (Ky. 1909); Corliss v. Walker, 64 F. 280 (Mass. Dist. Ct. 1894). -

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

[33] + + +

[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, February 2002, available at 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] Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. - - -

[37] + + +

[37] See Scott Steinberg, “Crichton Gets Medieval on PCs,” E!online, 4 November 2000, available at link #8; “Timeline,” 22 November 2000, available at link #9. -

[38] Interview with Daley and 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] Telephone interview with 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 @@ -1973,12 +1973,12 @@ 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. -

Chapter 3. Chapter Three: Catalogs

+

Chapter 3. Chapter Three: Catalogs

In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer Polytechnic Institute, in Troy, New York. His major at RPI was @@ -2017,7 +2017,7 @@ 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 @@ -2028,13 +2028,13 @@ 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 @@ -2042,7 +2042,7 @@ 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 @@ -2056,7 +2056,7 @@ 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 @@ -2076,7 +2076,7 @@ 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 @@ -2086,7 +2086,7 @@ call “statutory damages. 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 @@ -2096,14 +2096,14 @@ 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] -

+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 @@ -2113,7 +2113,7 @@ 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 @@ -2125,18 +2125,18 @@ paper saying he and his family were bankrupt.

So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement. -

+

The recording industry insists this is a matter of law and morality. Let's put the law aside for a moment and think about the morality. Where is the morality in a lawsuit like this? What is the virtue in scapegoatism? The RIAA is an extraordinarily powerful lobby. The president of the RIAA is reported to make more than $1 million a year. Artists, on the other hand, are not well paid. The average recording -artist makes $45,900.[49] +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] -

+student for running a search engine?[50] +

On June 23, Jesse wired his savings to the lawyer working for the RIAA. The case against him was then dismissed. And with this, this kid who had tinkered a computer into a $15 million lawsuit became an @@ -2152,22 +2152,22 @@ his father told me, Jesse “conside 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.” -


[48] +


[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, available at 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 makes a related point in “KaZaA and Punishment,” Wall Street Journal, 10 September 2003, A24. -

Chapter 4. Chapter Four: “Pirates”

+

Chapter 4. Chapter Four: “Pirates”

If “piracy” means using the creative property of others without their permission—if “if value, then right” is @@ -2177,8 +2177,8 @@ 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. -

4.1. Film

-The film industry of Hollywood was built by fleeing pirates.[51] +

4.1. 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 @@ -2198,7 +2198,7 @@ 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 @@ -2208,20 +2208,20 @@ 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] +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] +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 @@ -2230,10 +2230,10 @@ patent holder a truly “limited

4.2. Recorded Music

+

4.2. Recorded Music

The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. -

+

At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of @@ -2242,7 +2242,7 @@ 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 @@ -2259,42 +2259,42 @@ 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] -

+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] +genius of American composers,”[55] and the “music publishing industry” -was thereby “at the complete mercy of this one pirate.”[56] +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] -

+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 +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] -

+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 @@ -2323,7 +2323,7 @@ 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 @@ -2335,8 +2335,8 @@ 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] -

+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 @@ -2355,15 +2355,15 @@ 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] -

+choice.[61] +

By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit.

4.3. 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] +“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. @@ -2378,7 +2378,7 @@ 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. - +

@@ -2402,14 +2402,14 @@ 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. -

4.4. Cable TV

+

4.4. Cable TV

Cable TV was also born of a kind of piracy.

When cable entrepreneurs first started wiring communities with cable @@ -2421,30 +2421,30 @@ 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] +“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] +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] +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] -

+think there are harsher words which would fit it.[66] +

These were “free-ride[rs],” Screen Actor's Guild president Charlton Heston said, who were “depriving actors of -compensation.”[67] +compensation.”[67]

But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it, @@ -2456,8 +2456,8 @@ 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] - +how far back they should carry their right to compensation.[68] +

Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing. @@ -2472,23 +2472,23 @@ 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] +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. -



[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 @@ -2501,12 +2501,12 @@ 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, archived at 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 @@ -2514,31 +2514,31 @@ 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 @@ -2546,12 +2546,12 @@ 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] +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 @@ -2562,40 +2562,40 @@ station. See RCA Manufacturing Co. v. “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] + + +

[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 (statement of Charlton Heston, president of the 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 @@ -2619,12 +2619,12 @@ 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. -

5.1. Piracy I

+

5.1. 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] +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.

@@ -2661,16 +2661,16 @@ 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 +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] +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 @@ -2683,7 +2683,7 @@ 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 @@ -2700,7 +2700,7 @@ 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 @@ -2712,14 +2712,14 @@ 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 @@ -2765,30 +2765,30 @@ should push us to find a way to protect artists while enabling this sharing to survive.

5.2. 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] +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 +(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] +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 @@ -2796,14 +2796,14 @@ 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] +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] +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 @@ -2816,11 +2816,11 @@ complicated than one might think. So consider—a bit more carefully than the polarized voices around this debate usually do—the kinds of sharing that file sharing enables, and the kinds of harm it entails. -

+

File sharers share different kinds of content. We can divide these different kinds into four types. -

  1. +

    1. There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna CD is released, rather than buying @@ -2860,13 +2860,13 @@ a local collector. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. -

    +

How do these different types of sharing balance out?

Let's start with some simple but important points. From the perspective of the law, only type D sharing is clearly legal. From the perspective of economics, only type A sharing is clearly -harmful.[78] +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 @@ -2886,12 +2886,12 @@ 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] +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, @@ -2899,8 +2899,8 @@ turnaround. “In the end, 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] -

+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 @@ -2926,19 +2926,19 @@ 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] +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] +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] +$19.99.”[83]

@@ -2962,7 +2962,7 @@ 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 @@ -2972,18 +2972,18 @@ 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] +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] +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 @@ -2992,7 +2992,7 @@ 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 @@ -3011,7 +3011,7 @@ 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 @@ -3027,7 +3027,7 @@ 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 @@ -3038,7 +3038,7 @@ understandably says, “This is how “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 @@ -3065,8 +3065,8 @@ 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] -

+“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 @@ -3076,7 +3076,7 @@ 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 @@ -3084,7 +3084,7 @@ 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 @@ -3102,7 +3102,7 @@ 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 @@ -3119,7 +3119,7 @@ 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 @@ -3131,7 +3131,7 @@ in copyright infringement. Because the device that Sony built had a 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 @@ -3145,29 +3145,29 @@ 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] +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] +and plain common sense.”[88] Indeed, as surveys would later show, 45 -percent of VCR owners had movie libraries of ten videos or more[89] +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 infringement without creating a mechanism to compensate copyright owners,” Valenti testified, Congress would “take from the owners the very essence of their property: the exclusive right to control who may use their work, that is, who may copy it and thereby -profit from its reproduction.”[90] -

+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 @@ -3178,9 +3178,9 @@ 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] - -

+technology.[91] + +

But the Supreme Court reversed the decision of the Ninth Circuit. @@ -3196,16 +3196,16 @@ for copyrighted materials. Congress has the constitutional and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated -by such new technology.[92] -

+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: -

CASEWHOSE VALUE WAS “PIRATED”RESPONSE OF THE COURTSRESPONSE OF CONGRESS
RecordingsComposersNo protectionStatutory license
RadioRecording artistsN/ANothing
Cable TVBroadcastersNo protectionStatutory license
VCRFilm creatorsNo protectionNothing

+

CASEWHOSE VALUE WAS “PIRATED”RESPONSE OF THE COURTSRESPONSE OF CONGRESS
RecordingsComposersNo protectionStatutory license
RadioRecording artistsN/ANothing
Cable TVBroadcastersNo protectionStatutory license
VCRFilm creatorsNo protectionNothing

In each case throughout our history, a new technology changed the -way content was distributed.[93] +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. @@ -3220,7 +3220,7 @@ the behavior of the “pirates.

+

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 @@ -3231,11 +3231,11 @@ 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] +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 @@ -3264,7 +3264,7 @@ 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] +fight.”[95]

Yet when anyone begins to talk about “balance,” the copyright warriors raise a different @@ -3281,14 +3281,14 @@ arrest him?” “It is our property,” the warriors insist. “And it should be protected just as any other property is protected.” -



[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 @@ -3305,9 +3305,9 @@ 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] + + +

[72] For an analysis of the economic impact of copying technology, see Stan Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), @@ -3316,13 +3316,13 @@ 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 @@ -3332,8 +3332,8 @@ 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,” @@ -3341,25 +3341,25 @@ Francisco Chronicle, 24 September 2002, A1; “” 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] See 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 @@ -3371,10 +3371,10 @@ 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] +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 @@ -3390,15 +3390,15 @@ 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 February 2003, available at 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 @@ -3406,9 +3406,9 @@ 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 @@ -3419,7 +3419,7 @@ 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 @@ -3429,32 +3429,32 @@ MHP, available at 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, @@ -3466,13 +3466,13 @@ controlling the technology of DAT. See Audio Home Recording Act of 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] + + +

[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. @@ -3495,7 +3495,7 @@ when I take the good idea you had to put 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 @@ -3507,8 +3507,8 @@ 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] -

+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 @@ -3519,7 +3519,7 @@ 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] +“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 @@ -3529,12 +3529,12 @@ 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. -


[96] +


[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 @@ -3543,7 +3543,7 @@ 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. -

Chapter 6. Chapter Six: Founders

+

Chapter 6. Chapter Six: Founders

William Shakespeare wrote Romeo and Juliet in 1595. The play was first published in 1597. It was the eleventh major play that Shakespeare had @@ -3554,12 +3554,12 @@ into our culture that we often don't even recognize their source. I once overheard someone commenting on Kenneth Branagh's adaptation of Henry V: “I liked it, but Shakespeare is so full of clichés.” -

+

In 1774, almost 180 years after Romeo and Juliet was written, the “copy-right” for the work was still thought by many to be the exclusive -right of a single London publisher, Jacob Tonson.[98] +right of a single London publisher, Jacob Tonson.[98] Tonson was the most prominent of a small group of publishers called -the Conger[99] +the Conger[99] who controlled bookselling in England during the eighteenth century. The Conger claimed a perpetual right to control the “copy” of books that they had acquired from authors. That perpetual right meant @@ -3568,7 +3568,7 @@ that no one else could publish copies of a book to which they held the copyright. Prices of the classics were thus kept high; competition to produce better or cheaper editions was eliminated. -

+

Now, there's something puzzling about the year 1774 to anyone who knows a little about copyright law. The better-known year in the history of copyright is 1710, the year that the British Parliament @@ -3576,10 +3576,10 @@ adopted the first “copyright[100] Under this law, Romeo and Juliet should have been +additional years.[100] Under this law, Romeo and Juliet should have been free in 1731. So why was there any issue about it still being under Tonson's control in 1774? -

+

The reason is that the English hadn't yet agreed on what a “copyright” was—indeed, no one had. At the time the English passed the Statute of Anne, there was no other legislation governing copyrights. @@ -3589,7 +3589,7 @@ as a way to make it easier for the Crown to control what was published. But after it expired, there was no positive law that said that the publishers, or “Stationers,” had an exclusive right to print books. -

+

There was no positive law, but that didn't mean that there was no law. The Anglo-American legal tradition looks to both the words of legislatures and the words of judges to know the @@ -3600,7 +3600,7 @@ legislatures legislate; the legislature, ordinarily, can trump that background only if it passes a law to displace it. And so the real question after the licensing statutes had expired was whether the common law protected a copyright, independent of any positive law. -

+

This question was important to the publishers, or “booksellers,” as they were called, because there was growing competition from foreign publishers. The Scottish, in particular, were increasingly publishing @@ -3619,12 +3619,12 @@ bookseller that right for a limited term. At the end of that term, the copyright “expired,” and the work would then be free and could be published by anyone. Or so the legislature is thought to have believed. -

+

Now, the thing to puzzle about for a moment is this: Why would Parliament limit the exclusive right? Not why would they limit it to the particular limit they set, but why would they limit the right at all? -

+

For the booksellers, and the authors whom they represented, had a very strong claim. Take Romeo and Juliet as an example: That play was written by Shakespeare. It was his genius that brought it into the @@ -3634,12 +3634,12 @@ this play, he didn't make it any harder for others to craft a play. So why is it that the law would ever allow someone else to come along and take Shakespeare's play without his, or his estate's, permission? What reason is there to allow someone else to “steal” Shakespeare's work? -

+

The answer comes in two parts. We first need to see something special about the notion of “copyright” that existed at the time of the Statute of Anne. Second, we have to see something important about “booksellers.” -

+

First, about copyright. In the last three hundred years, we have come to apply the concept of “copyright” ever more broadly. But in 1710, it wasn't so much a concept as it was a very particular right. The @@ -3653,7 +3653,7 @@ a work could be used. Today the right inc large collection of restrictions on the freedom of others: It grants the author the exclusive right to copy, the exclusive right to distribute, the exclusive right to perform, and so on. -

+

So, for example, even if the copyright to Shakespeare's works were perpetual, all that would have meant under the original meaning of the term was that no one could reprint Shakespeare's work without the @@ -3662,7 +3662,7 @@ anything, for example, about how the work could be performed, whether the work could be translated, or whether Kenneth Branagh would be allowed to make his films. The “copy-right” was only an exclusive right to print—no less, of course, but also no more. -

+

Even that limited right was viewed with skepticism by the British. They had had a long and ugly experience with “exclusive rights,” especially “exclusive rights” granted by the Crown. The English had @@ -3682,7 +3682,7 @@ sounding convincing when uttering, “

+

Second, about booksellers. It wasn't just that the copyright was a monopoly. It was also that it was a monopoly held by the booksellers. Booksellers sound quaint and harmless to us. They were not viewed @@ -3695,8 +3695,8 @@ England to guarantee themselves a monopoly profit. The attacks against these monopolists were harsh: Milton described them as “old patentees and monopolizers in the trade of book-selling”; they were “men who do not therefore labour in an honest profession to which learning is -indetted.”[101] -

+indetted.”[101] +

Many believed the power the booksellers exercised over the spread of knowledge was harming that spread, just at the time the Enlightenment was teaching the importance of education and knowledge spread @@ -3734,8 +3734,8 @@ establishing a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to Trade, a Discouragement to Learning, no Benefit to the Authors, but a general Tax on the Publick; and all this only to increase the private Gain of the -Booksellers.[102] -

+Booksellers.[102] +

Having failed in Parliament, the publishers turned to the courts in a series of cases. Their argument was simple and direct: The Statute of Anne gave authors certain protections through positive law, but those @@ -3749,49 +3749,49 @@ mean the protections of the common law expired: Under the common law they had the right to ban the publication of a book, even if its Statute of Anne copyright had expired. This, they argued, was the only way to protect authors. -

+

This was a clever argument, and one that had the support of some of the leading jurists of the day. It also displayed extraordinary chutzpah. Until then, as law professor Raymond Patterson has put it, “The publishers … had as much concern for authors as a cattle -rancher has for cattle.”[103] +rancher has for cattle.”[103] The bookseller didn't care squat for the rights of the author. His concern was the monopoly profit that the author's work gave. -

+

The booksellers' argument was not accepted without a fight. The hero of this fight was a Scottish bookseller named Alexander -Donaldson.[104] -

+Donaldson.[104] +

Donaldson was an outsider to the London Conger. He began his career in Edinburgh in 1750. The focus of his business was inexpensive reprints “of standard works whose copyright term had expired,” at least -under the Statute of Anne.[105] +under the Statute of Anne.[105] Donaldson's publishing house prospered and became “something of a center for literary Scotsmen.” “[A]mong them,” Professor Mark Rose writes, was “the young James Boswell who, together with his friend Andrew Erskine, published an anthology -of contemporary Scottish poems with Donaldson.”[106] +of contemporary Scottish poems with Donaldson.”[106]

When the London booksellers tried to shut down Donaldson's shop in Scotland, he responded by moving his shop to London, where he sold inexpensive editions “of the most popular English books, in defiance of the supposed common law right of Literary -Property.”[107] +Property.”[107] His books undercut the Conger prices by 30 to 50 percent, and he rested his right to compete upon the ground that, under the Statute of Anne, the works he was selling had passed out of protection. -

+

The London booksellers quickly brought suit to block “piracy” like Donaldson's. A number of actions were successful against the “pirates,” the most important early victory being Millar v. Taylor. -

+

Millar was a bookseller who in 1729 had purchased the rights to James Thomson's poem “The Seasons.” Millar complied with the requirements of the Statute of Anne, and therefore received the full protection of the statute. After the term of copyright ended, Robert Taylor began printing a competing volume. Millar sued, claiming a perpetual common -law right, the Statute of Anne notwithstanding.[108] +law right, the Statute of Anne notwithstanding.[108]

Astonishingly to modern lawyers, one of the greatest judges in English history, Lord Mansfield, agreed with the booksellers. Whatever @@ -3802,7 +3802,7 @@ Mansfield's answer was yes: The common law would bar Taylor from reprinting Thomson's poem without Millar's permission. That common law rule thus effectively gave the booksellers a perpetual right to control the publication of any book assigned to them. -

+

Considered as a matter of abstract justice—reasoning as if justice were just a matter of logical deduction from first principles—Mansfield's conclusion might make some sense. But @@ -3815,20 +3815,20 @@ short enough to assure that culture would pass into competition within a reasonable period of time. Within twenty-one years, Parliament believed, Britain would mature from the controlled culture that the Crown coveted to the free culture that we inherited. -

+

The fight to defend the limits of the Statute of Anne was not to end there, however, and it is here that Donaldson enters the mix. -

+

Millar died soon after his victory, so his case was not appealed. His estate sold Thomson's poems to a syndicate of printers that included -Thomas Beckett.[109] +Thomas Beckett.[109] Donaldson then released an unauthorized edition of Thomson's works. Beckett, on the strength of the decision in Millar, got an injunction against Donaldson. Donaldson appealed the case to the House of Lords, which functioned much like our own Supreme Court. In February of 1774, that body had the chance to interpret the meaning of Parliament's limits from sixty years before. -

+

As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of attention throughout Britain. Donaldson's lawyers argued that whatever rights may have existed under the common law, the @@ -3837,13 +3837,13 @@ of Anne, the only legal protection for an exclusive right to control publication came from that statute. Thus, they argued, after the term specified in the Statute of Anne expired, works that had been protected by the statute were no longer protected. -

+

The House of Lords was an odd institution. Legal questions were presented to the House and voted upon first by the “law lords,” members of special legal distinction who functioned much like the Justices in our Supreme Court. Then, after the law lords voted, the House of Lords generally voted. -

+

The reports about the law lords' votes are mixed. On some counts, it looks as if perpetual copyright prevailed. But there is no ambiguity @@ -3852,7 +3852,7 @@ about how the House of Lords voted as whole. By a two-to-one majority Whatever one's understanding of the common law, now a copyright was fixed for a limited time, after which the work protected by copyright passed into the public domain. -

+

“The public domain.” Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law @@ -3861,7 +3861,7 @@ born. For the first time in Anglo-American history, the legal control over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint. -

+

It is hard for us to imagine, but this decision by the House of Lords fueled an extraordinarily popular and political reaction. In Scotland, where most of the “pirate publishers” did their work, people @@ -3870,8 +3870,8 @@ reported, “No private cause has so public, and none has been tried before the House of Lords in the decision of which so many individuals were interested.” “Great rejoicing in Edinburgh upon victory over literary property: bonfires -and illuminations.”[110] -

+and illuminations.”[110] +

In London, however, at least among publishers, the reaction was equally strong in the opposite direction. The Morning Chronicle reported: @@ -3883,8 +3883,8 @@ Westminster, many of whom sold estates and houses to purchase Copy-right, are in a manner ruined, and those who after many years industry thought they had acquired a competency to provide for their families now find themselves without a shilling to devise to their -successors.[111] -

+successors.[111] +

“Ruined” is a bit of an exaggeration. But it is not an exaggeration to say that the change was profound. The decision of the House of Lords @@ -3905,15 +3905,15 @@ memes they repeated and endorsed. Chose in a competit context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many. -

+

At least, this was the rule in a world where the Parliament is antimonopoly, resistant to the protectionist pleas of publishers. In a world where the Parliament is more pliant, free culture would be less protected. -


[98] +


[98] - - + + Jacob Tonson is typically remembered for his associations with prominent eighteenth-century literary figures, especially John Dryden, and for his handsome “definitive editions” of classic works. In addition to Romeo and @@ -3921,21 +3921,21 @@ Juliet, he published an astonishing array of works that still remain at the heart of the English canon, including collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See Keith Walker, “Jacob Tonson, Bookseller,” American Scholar 61:3 (1992): 424–31. -

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

[100] - + As Siva Vaidhyanathan nicely argues, it is erroneous to call this a “copyright law.” See 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 @@ -3944,42 +3944,42 @@ 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 a wonderfully compelling account, see 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.

Chapter 7. Chapter Seven: Recorders

@@ -3992,7 +3992,7 @@ 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. @@ -4007,7 +4007,7 @@ and the opera company played Wagner, was The Simpsons 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 @@ -4025,7 +4025,7 @@ 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.” @@ -4039,7 +4039,7 @@ explained to her, “There must be s 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 @@ -4050,7 +4050,7 @@ Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, “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 @@ -4077,11 +4077,11 @@ 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] +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:

@@ -4091,14 +4091,14 @@ 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: -

  1. +

    1. 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. -

    2. +

    3. 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 @@ -4118,12 +4118,12 @@ life,” regardless of the merits of my claim. He made clear t would boil down to who had the bigger legal department and the deeper pockets, me or them. -

    4. +

    5. 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 @@ -4136,14 +4136,14 @@ 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. -


[112] +


[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. -

Chapter 8. Chapter Eight: Transformers

+

Chapter 8. Chapter Eight: Transformers

In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative company founded by Microsoft cofounder Paul Allen to develop digital @@ -4185,7 +4185,7 @@ Slade asked, “Well, what will it t 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] +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 @@ -4214,7 +4214,7 @@ 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, @@ -4244,12 +4244,12 @@ 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] +at all.”[114] Did it make sense, I asked Alben, that this is the way a new work has to be made?

@@ -4297,7 +4297,7 @@ 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 @@ -4308,7 +4308,7 @@ 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 @@ -4322,7 +4322,7 @@ The video was a brilliant collage of film from every period in the twentieth century, all framed around the idea of a 60 Minutes episode. The execution was perfect, down to the sixty-minute stopwatch. The judges loved every minute of it. -

+

When the lights came up, I looked over to my copanelist, David Nimmer, perhaps the leading copyright scholar and practitioner in the nation. He had an astonished look on his face, as he peered across the @@ -4330,11 +4330,11 @@ room of over 250 well-entertained judges. Taking an ominous tone, he began his talk with a question: “Do you know how many federal laws were just violated in this room?”

- - - - - + + + + + For of course, the two brilliantly talented creators who made this film hadn't done what Alben did. They hadn't spent a year clearing the rights to these clips; technically, what they had done violated the @@ -4354,7 +4354,7 @@ 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 @@ -4430,20 +4430,20 @@ 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. -


[113] +


[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] + + +

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

Chapter 9. Chapter Nine: Collectors

+

Chapter 9. Chapter Nine: Collectors

In April 1996, millions of “bots”—computer codes designed to “spider,” or automatically search the Internet and copy @@ -4453,7 +4453,7 @@ 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 @@ -4477,13 +4477,13 @@ 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] -

+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 @@ -4520,7 +4520,7 @@ 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 @@ -4536,7 +4536,7 @@ is available to scholars for a very low fee. “” 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 @@ -4546,7 +4546,7 @@ 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 @@ -4560,7 +4560,7 @@ 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 @@ -4568,7 +4568,7 @@ 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] +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 @@ -4579,7 +4579,7 @@ required they make a copy of each broadcast for the work to be 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 @@ -4589,7 +4589,7 @@ 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), @@ -4639,9 +4639,9 @@ 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 +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 @@ -4680,7 +4680,7 @@ 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 @@ -4692,7 +4692,7 @@ 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 @@ -4713,33 +4713,33 @@ call these “archives,” 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. -


[115] +


[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. -

Chapter 10. Chapter Ten: “Property”

+

Chapter 10. Chapter Ten: “Property”

Jack Valenti has been the president of the Motion Picture Association of America since 1966. He first came to Washington, D.C., with Lyndon Johnson's @@ -4748,7 +4748,7 @@ 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. @@ -4790,7 +4790,7 @@ theme which animates this entire debate: Creative pro 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] +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 @@ -4812,9 +4812,9 @@ it comes to the nature and scope of “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 +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 @@ -4903,7 +4903,7 @@ 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 @@ -4915,7 +4915,7 @@ 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 @@ -4925,7 +4925,7 @@ 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: -

Figure 10.1. 


+

Figure 10.1. 


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 @@ -4940,8 +4940,8 @@ 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 @@ -4960,7 +4960,7 @@ 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 @@ -4974,7 +4974,7 @@ theft, but by nature, by “architec 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 @@ -4989,7 +4989,7 @@ 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 @@ -5005,7 +5005,7 @@ 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] +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 @@ -5017,14 +5017,14 @@ 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. -

Figure 10.2. 


+

Figure 10.2. 


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] -

10.1. Why Hollywood Is Right

+another.[121] +

10.1. Why Hollywood Is Right

The most obvious point that this model reveals is just why, or just how, Hollywood is right. The copyright warriors have rallied Congress and the courts to defend copyright. This model helps us see why that @@ -5032,7 +5032,7 @@ rallying makes sense.

Let's say this is the picture of copyright's regulation before the Internet: -

Figure 10.3. 


+

Figure 10.3. 


There is balance between law, norms, market, and architecture. The law limits the ability to copy and share content, by imposing penalties on @@ -5044,14 +5044,14 @@ 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 @@ -5060,7 +5060,7 @@ Iraq after the fall of Saddam, but this time no government is justifying the looting that results. -

Figure 10.4. 


+

Figure 10.4. 


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, @@ -5071,7 +5071,7 @@ 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 @@ -5087,21 +5087,21 @@ 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] +of digital cameras.[122] Does anyone believe the government should ban digital cameras just to support Kodak? Highways have weakened the freight business for @@ -5114,7 +5114,7 @@ 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 @@ -5123,7 +5123,7 @@ 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] +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 @@ -5140,7 +5140,7 @@ 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 @@ -5153,7 +5153,7 @@ shall make no law … abridging the freedom of speech.” 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 @@ -5173,7 +5173,7 @@ 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 @@ -5186,10 +5186,10 @@ 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] +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 @@ -5202,7 +5202,7 @@ 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 @@ -5212,11 +5212,11 @@ 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. -

10.2. Beginnings

+

10.2. Beginnings

America copied English copyright law. Actually, we copied and improved English copyright law. Our Constitution makes the purpose of “creative property” rights clear; its express limitations reinforce the English @@ -5236,7 +5236,7 @@ does not say. It does not say Congress has the power to grant 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 @@ -5245,7 +5245,7 @@ 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 @@ -5259,13 +5259,13 @@ 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 @@ -5276,20 +5276,20 @@ We will end here:

Figure 10.6. 


Let me explain how. -

10.3. Law: Duration

+

10.3. Law: Duration

When the first Congress enacted laws to protect creative property, it faced the same uncertainty about the status of creative property that the English had confronted in 1774. Many states had passed laws protecting creative property, and some believed that these laws simply supplemented common law rights that already protected creative -authorship.[125] +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 @@ -5302,15 +5302,15 @@ federal copyright and secured that copyright for fourteen years. If the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain. -

+

While there were many works created in the United States in the first ten years of the Republic, only 5 percent of the works were actually registered under the federal copyright regime. Of all the work created in the United States both before 1790 and from 1790 through 1800, 95 percent immediately passed into the public domain; the balance would pass into the pubic domain within twenty-eight years at most, and more -likely within fourteen years.[126] -

+likely within fourteen years.[126] +

This system of renewal was a crucial part of the American system of copyright. It assured that the maximum terms of copyright would be @@ -5323,11 +5323,11 @@ 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] -

+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 +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 @@ -5340,7 +5340,7 @@ 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 @@ -5349,7 +5349,7 @@ 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 @@ -5359,7 +5359,7 @@ 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 @@ -5368,7 +5368,7 @@ 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 @@ -5385,20 +5385,20 @@ 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] -

10.4. Law: Scope

+years.[129] +

10.4. Law: Scope

The “scope” of a copyright is the range of rights granted by the law. The scope of American copyright has changed dramatically. Those changes are not necessarily bad. But we should understand the extent of the changes if we're to keep this debate in context. -

+

In 1790, that scope was very narrow. Copyright covered only “maps, charts, and books.” That means it didn't cover, for example, music or architecture. More significantly, the right granted by a copyright gave @@ -5437,7 +5437,7 @@ famous 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 @@ -5450,14 +5450,14 @@ being claimed. The requirement that works be deposited was to assure that after the copyright expired, there would be a copy of the work somewhere so that it could be copied by others without locating the original author. -

+

All of these “formalities” were abolished in the American system when we decided to follow European copyright law. There is no requirement that you register a work to get a copyright; the copyright now is automatic; the copyright exists whether or not you mark your work with a ©; and the copyright exists whether or not you actually make a copy available for others to copy. -

+

Consider a practical example to understand the scope of these differences.

@@ -5466,7 +5466,7 @@ 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] +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. @@ -5479,7 +5479,7 @@ 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 @@ -5504,7 +5504,7 @@ 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 @@ -5524,7 +5524,7 @@ 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] +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. @@ -5532,9 +5532,9 @@ 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] +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 @@ -5546,12 +5546,12 @@ 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. -

10.5. Law and Architecture: Reach

+

10.5. Law and Architecture: Reach

Whereas originally the law regulated only publishers, the change in copyright's scope means that the law today regulates publishers, users, and authors. It regulates them because all three are capable of making -copies, and the core of the regulation of copyright law is copies.[133] -

+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 @@ -5564,15 +5564,15 @@ 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] +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.

Figure 10.7. 


@@ -5595,10 +5595,10 @@ 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 diagram in figure 10.9). -

Figure 10.9. 


+

Figure 10.9. 


Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these “fair uses.” -

+

These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain unregulated. You are free to quote from this book, even in a review @@ -5612,9 +5612,9 @@ for public policy (and possibly First Amendment) reasons. In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed “fair” regardless of the copyright owner's views. -

+

Enter the Internet—a distributed, digital network where every use -of a copyrighted work produces a copy.[135] +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 @@ -5625,7 +5625,7 @@ 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 @@ -5683,7 +5683,7 @@ 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 @@ -5692,13 +5692,13 @@ 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” @@ -5706,7 +5706,7 @@ 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 @@ -5720,7 +5720,7 @@ 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 @@ -5737,7 +5737,7 @@ 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 @@ -5750,7 +5750,7 @@ 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 @@ -5777,25 +5777,25 @@ The disappearance of unregulated uses would be change enough, but a second important change brought about by the Internet magnifies its significance. This second change does not affect the reach of copyright regulation; it affects how such regulation is enforced. -

+

In the world before digital technology, it was generally the law that controlled whether and how someone was regulated by copyright law. The law, meaning a court, meaning a judge: In the end, it was a human, trained in the tradition of the law and cognizant of the balances that tradition embraced, who said whether and how the law would restrict your freedom. -

+

There's a famous story about a battle between the Marx Brothers and Warner Brothers. The Marxes intended to make a parody of Casablanca. Warner Brothers objected. They wrote a nasty letter to the Marxes, warning them that there would be serious legal consequences if they went forward with their -plan.[136] +plan.[136]

This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers “were brothers long before -you were.”[137] +you were.”[137] The Marx Brothers therefore owned the word brothers, and if Warner Brothers insisted on trying to control Casablanca, then the Marx @@ -5814,7 +5814,7 @@ copyrighted content. It is code, rather than law, that rules. And the problem with code regulations is that, unlike law, code has no shame. Code would not get the humor of the Marx Brothers. The consequence of that is not at all funny. -

+

Consider the life of my Adobe eBook Reader.

An e-book is a book delivered in electronic form. An Adobe eBook is @@ -5849,14 +5849,14 @@ 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.

Figure 10.14. 


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. -

Figure 10.15. 


+

Figure 10.15. 


Finally (and most embarrassingly), here are the permissions for the original e-book version of my last book, The Future of Ideas: @@ -5868,7 +5868,7 @@ Now, the Adobe eBook Reader calls these controls 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] +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 @@ -5890,7 +5890,7 @@ 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 @@ -5943,14 +5943,14 @@ 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.

@@ -5972,7 +5972,7 @@ 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 @@ -5997,7 +5997,7 @@ 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 @@ -6012,7 +6012,7 @@ 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 @@ -6023,7 +6023,7 @@ 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] +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 @@ -6071,7 +6071,7 @@ 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: @@ -6109,7 +6109,7 @@ 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 @@ -6127,7 +6127,7 @@ 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 @@ -6136,7 +6136,7 @@ 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 @@ -6151,7 +6151,7 @@ broadcasting has always been “You 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] +important.[140]

Even though there were uses that were legal, because there were @@ -6161,7 +6161,7 @@ the VCR responsible. This led Conrad to draw the cartoon in figure 10.18, which we can adopt to the DMCA. - +

No argument I have can top this picture, but let me try to get close.

Figure 10.18. — On which item have the courts ruled that manufacturers and @@ -6180,14 +6180,14 @@ would agree such a use is bad. Or a handgun can be used for target practice or to protect against an intruder. At least some would say that such a use would be good. It, too, is a technology that has both good and bad uses. -

+

The obvious point of Conrad's cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do. -

+

The Aibo and RIAA examples demonstrate how copyright owners are changing the balance that copyright law grants. Using code, copyright owners restrict fair use; using the DMCA, they punish those who would @@ -6222,14 +6222,14 @@ For example, imagine you were part of a Star Trek fan 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] +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 @@ -6281,15 +6281,15 @@ of the media.

These changes are of two sorts: the scope of concentration, and its nature. -

+

Changes in scope are the easier ones to describe. As Senator John McCain summarized the data produced in the FCC's review of media -ownership, “five companies control 85 percent of our media sources.”[142] +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] +U.S. music market.[143] The “five largest cable companies pipe -programming to 74 percent of the cable subscribers nationwide.”[144] +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 @@ -6300,7 +6300,7 @@ 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 @@ -6310,7 +6310,7 @@ 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, @@ -6324,8 +6324,8 @@ 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 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 @@ -6343,7 +6343,7 @@ 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 @@ -6353,7 +6353,7 @@ 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] +control.[146]

@@ -6373,19 +6373,19 @@ 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] +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] -

+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, @@ -6397,8 +6397,8 @@ 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] -

+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 @@ -6409,18 +6409,18 @@ 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] +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 @@ -6433,7 +6433,7 @@ 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 @@ -6456,7 +6456,7 @@ 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 @@ -6481,7 +6481,7 @@ 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 @@ -6490,8 +6490,8 @@ 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] -

+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 @@ -6501,7 +6501,7 @@ 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. -

10.8. Together

+

10.8. Together

There is something innocent and obvious about the claim of the copyright warriors that the government should “protect my property.” In the abstract, it is obviously true and, ordinarily, totally @@ -6570,7 +6570,7 @@ 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] +known.[152]

This has been a long chapter. Its point can now be briefly stated. @@ -6635,7 +6635,7 @@ 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]) +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 @@ -6644,7 +6644,7 @@ did not control at all the freedom of oth 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 @@ -6674,7 +6674,7 @@ 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. -



[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 @@ -6682,7 +6682,7 @@ 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 @@ -6691,7 +6691,7 @@ 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 @@ -6701,8 +6701,8 @@ other three is more timidly expressed. See 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 @@ -6733,12 +6733,12 @@ places easier; 42 United States Code, section 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] + + + + + +

[122] See Geoffrey Smith, “Film vs. Digital: Can Kodak Build a Bridge?” BusinessWeek online, 2 August 1999, available at @@ -6747,14 +6747,14 @@ 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] See, for example, 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 @@ -6763,8 +6763,8 @@ implication of ‘the supreme Law of 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 @@ -6779,7 +6779,7 @@ 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] +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 @@ -6789,28 +6789,28 @@ rates, see Barbara A. Ringer, “Stu 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] +accompanying figures.

[128] -See Ringer, ch. 9, n. 2.

[129] +See Ringer, ch. 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, July/August 2003, available at link #26. - -

[132] Professor Rubenfeld has presented a powerful constitutional argument about the difference that copyright law should draw (from the @@ -6819,8 +6819,8 @@ derivative works. See Jed Rubenfeld, “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 @@ -6830,30 +6830,30 @@ per se doesn't make a copy; 17 United States Code, se 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] See David Lange, “Recognizing the Public Domain,” Law and Contemporary Problems 44 (1981): 172–73. -

[137] - + Ibid. See also 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 @@ -6862,8 +6862,8 @@ 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 @@ -6875,38 +6875,38 @@ May 2001; Janelle Brown, “Is the R 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] +(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, @@ -6914,7 +6914,7 @@ 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 @@ -6924,15 +6924,15 @@ and the Consumer Federation of America), available at 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 @@ -6943,15 +6943,15 @@ Concepts in Technological Evolution,” 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] - - - - - - - - +(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 @@ -6979,14 +6979,14 @@ 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 captures a similar point in his “four surrenders” of copyright law in the digital age. See 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 @@ -6997,7 +6997,7 @@ Press, 1980). 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] +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 @@ -7058,7 +7058,7 @@ 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 @@ -7093,7 +7093,7 @@ with it,” that's true, at least in part. If, after Lyle Love (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. - +

@@ -7119,9 +7119,9 @@ 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] +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 @@ -7174,24 +7174,24 @@ 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] +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. -


[154] +


[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, @@ -7222,9 +7222,9 @@ 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] + + +

[156] WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital Entertainment on the Internet and Other Media: Hearing Before the @@ -7249,12 +7249,12 @@ 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 @@ -7275,7 +7275,7 @@ 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 @@ -7304,7 +7304,7 @@ 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 @@ -7315,15 +7315,15 @@ $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] +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] +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 @@ -7340,11 +7340,11 @@ 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] +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 @@ -7355,7 +7355,7 @@ 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, @@ -7444,7 +7444,7 @@ 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 @@ -7455,18 +7455,18 @@ 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 @@ -7491,7 +7491,7 @@ 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, @@ -7502,7 +7502,7 @@ 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 @@ -7522,7 +7522,7 @@ should have been obvious that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded. -

+

The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in the press) was to send an unequivocal message to lawyers advising @@ -7532,12 +7532,12 @@ space: It is not just your clients who might suffer if the content industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly. -

+

This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of its development, its cofounder (John Hummer), and general partner -(Hank Barry).[160] +(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 @@ -7557,15 +7557,15 @@ 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] -

+United States with bona fide MP3 players. … [161] +

This is the world of the mafia—filled with “your money or your life” offers, governed in the end not by courts but by the threats that the law empowers copyright holders to exercise. It is a system that will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly hard if that company is constantly threatened by litigation. -

+

The point is not that businesses should have a right to start illegal @@ -7609,7 +7609,7 @@ 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 @@ -7624,18 +7624,18 @@ 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] +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] +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 @@ -7645,10 +7645,10 @@ 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] +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. @@ -7661,11 +7661,11 @@ 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] +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 @@ -7679,13 +7679,13 @@ 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] +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] +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 @@ -7706,7 +7706,7 @@ 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 @@ -7726,7 +7726,7 @@ 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 @@ -7749,12 +7749,12 @@ 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] +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] +legislation”[169] to retard the growth of this competing technology.

Now the very same claim could be made about Internet radio. For @@ -7763,7 +7763,7 @@ 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 @@ -7782,10 +7782,10 @@ 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] +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 @@ -7840,7 +7840,7 @@ 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 @@ -7851,7 +7851,7 @@ 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, @@ -7869,13 +7869,13 @@ 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 @@ -7883,7 +7883,7 @@ 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. -

    12.3. Corrupting Citizens

    +

    12.3. Corrupting Citizens

    Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity @@ -7896,7 +7896,7 @@ 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] +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 @@ -7922,7 +7922,7 @@ led Jordan to choose to pay all the money he had in the world 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] +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 @@ -7930,7 +7930,7 @@ 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 @@ -7939,20 +7939,20 @@ 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] +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] +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] +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 @@ -8030,7 +8030,7 @@ or “rip,” musi 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 @@ -8062,7 +8062,7 @@ 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 @@ -8101,7 +8101,7 @@ 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 @@ -8109,7 +8109,7 @@ Foundation attorney Fred von Lohmann describes, this is the “collateral damage” that “arises whenever you turn a very large percentage of the population into criminals.” This is the collateral damage to civil liberties generally. -

    +

    “If you can treat someone as a putative lawbreaker,” von Lohmann explains,

    @@ -8142,12 +8142,12 @@ 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] +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] +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.” @@ -8162,10 +8162,10 @@ network is “cooperatingR 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] +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 @@ -8178,7 +8178,7 @@ 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 @@ -8203,15 +8203,15 @@ 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? -



    [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 @@ -8222,16 +8222,16 @@ and “Senate Turns Back Malpractice available at link #39. President Bush has continued to urge tort reform in recent months. - - -

    [159] + + +

    [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 @@ -8240,34 +8240,34 @@ Revolution Will Not Be Digitized,” Salon.com, 1 June 2001, a 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 June 2003, available at link #43. I am grateful to Dr. Mohammad Al-Ubaydli for this example. - -

    [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] + + +

    [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 @@ -8281,12 +8281,12 @@ drive). At the district court level, the only exception is found in 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 @@ -8301,13 +8301,13 @@ technology in all digital media devices. See GartnerG2, R 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 @@ -8326,33 +8326,33 @@ 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] + + +

    [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,” @@ -8364,12 +8364,12 @@ Graham, “Recording Industry Sues P 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 @@ -8443,7 +8443,7 @@ 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 @@ -8453,7 +8453,7 @@ 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 @@ -8464,7 +8464,7 @@ 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 @@ -8474,8 +8474,8 @@ call the “noncommercial publishing 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] -

    +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 @@ -8487,14 +8487,14 @@ 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] -

    +“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 @@ -8502,7 +8502,7 @@ 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 @@ -8515,7 +8515,7 @@ 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 @@ -8524,7 +8524,7 @@ states” or “de 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, @@ -8534,7 +8534,7 @@ 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 @@ -8630,13 +8630,13 @@ Term Extension Act, this “theory[181] + 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] +than $200,000 in campaign contributions.[182] Disney is estimated to have contributed more than $800,000 to reelection campaigns in the -cycle.[183] +cycle.[183]

    Constitutional law is not oblivious @@ -8649,7 +8649,7 @@ 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 @@ -8676,7 +8676,7 @@ 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 @@ -8690,14 +8690,14 @@ 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] +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] -

    +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] +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 @@ -8707,7 +8707,7 @@ 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' @@ -8719,7 +8719,7 @@ 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 @@ -8736,12 +8736,12 @@ 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] +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 @@ -8757,7 +8757,7 @@ 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 @@ -8774,9 +8774,9 @@ If you look at the work created in the first twenty years (1923 to 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] +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 @@ -8787,7 +8787,7 @@ 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 @@ -8853,7 +8853,7 @@ 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 @@ -8863,7 +8863,7 @@ 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] +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 @@ -8885,7 +8885,7 @@ 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 -8 mm film.[190] +8 mm film.[190]

    Restoration technology is not the only cost, nor the most @@ -8920,7 +8920,7 @@ these costs. But for the vast majority of them, there is no way the 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 @@ -9022,7 +9022,7 @@ You may well ask, “But if digital 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 @@ -9032,7 +9032,7 @@ 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 @@ -9043,7 +9043,7 @@ freedom to fill the gaps. As one researcher calculated for American culture, 94 percent of the films, books, and music produced between 1923 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] +to provide that value.[191]

    In January 1999, we filed a lawsuit @@ -9074,7 +9074,7 @@ 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 @@ -9109,7 +9109,7 @@ But my client and these friends were wrong. This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can never escape believing that my own mistake lost it. -

    +

    The mistake was made early, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, @@ -9119,7 +9119,7 @@ Pogue. Jones Day took a great deal of heat from its copyright-protectionist clients for supporting us. They ignored this pressure (something that few law firms today would ever do), and throughout the case, they gave it everything they could. -

    +

    There were three key lawyers on the case from Jones Day. Geoff Stewart was the first, but then Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer in particular had a common view @@ -9128,7 +9128,7 @@ told me, if we could make the issue seem ““the most powerful media companies in the world.” -

    +

    I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. Of course I still think it is. But the idea that the Supreme Court decides the law based @@ -9173,7 +9173,7 @@ views. To show that this claim against the CTEA was grounded in 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 @@ -9193,7 +9193,7 @@ 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 @@ -9205,18 +9205,18 @@ 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 @@ -9226,7 +9226,7 @@ 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 @@ -9239,7 +9239,7 @@ 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 @@ -9264,17 +9264,17 @@ 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] +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] +Americans in the cast.[193] That's their view of how this part of American culture should be controlled, @@ -9300,7 +9300,7 @@ 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, @@ -9309,7 +9309,7 @@ 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 @@ -9330,14 +9330,14 @@ 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 @@ -9353,7 +9353,7 @@ 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 @@ -9373,7 +9373,7 @@ 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 1831 and in 1909. And of course, in 1962, Congress began extending @@ -9411,7 +9411,7 @@ terms would be effectively unlimited; going with us would give 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 @@ -9422,7 +9422,7 @@ 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 @@ -9459,7 +9459,7 @@ 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.

    @@ -9497,13 +9497,13 @@ 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. @@ -9522,7 +9522,7 @@ should be in the public domain and would be in the public 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, @@ -9588,7 +9588,7 @@ 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. @@ -9609,7 +9609,7 @@ 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 @@ -9619,7 +9619,7 @@ 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 @@ -9629,7 +9629,7 @@ 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 @@ -9651,7 +9651,7 @@ Sentelle. It was Hamlet without the Prince. 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 @@ -9663,7 +9663,7 @@ 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 @@ -9682,7 +9682,7 @@ 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 @@ -9710,7 +9710,7 @@ 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? @@ -9725,7 +9725,7 @@ 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 @@ -9766,8 +9766,8 @@ my view of the case, was Ruben Bolling's, reproduced in figure 13.1. The “powerful and wealthy” line is a bit unfair. But the punch in the face felt exactly like that. - -

    Figure 13.1. 


    + +

    Figure 13.1. 


    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, @@ -9775,9 +9775,9 @@ I shrunk the Constitution.” But I can rarely make light of i 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. -


    [179] +


    [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 @@ -9792,11 +9792,11 @@ 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] +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 @@ -9804,26 +9804,26 @@ 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 October 1998, 22. -

    [182] See Nick Brown, “Fair Use No More?: Copyright in the Information Age,” available at link #49. -

    [183] Alan K. Ota, “Disney in Washington: The Mouse That Roars,” Congressional Quarterly This Week, 8 August 1990, available at 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 @@ -9834,24 +9834,24 @@ 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 @@ -9859,16 +9859,16 @@ 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, available at 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. @@ -9882,7 +9882,7 @@ 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 @@ -9910,7 +9910,7 @@ 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, @@ -9931,11 +9931,11 @@ 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] +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 @@ -9948,7 +9948,7 @@ 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 @@ -10018,7 +10018,7 @@ 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 @@ -10069,13 +10069,13 @@ one-click registration fifty years after a work was published. Based upon historical data, that system would move up to 98 percent of commercial work, commercial work that no longer had a commercial life, into the public domain within fifty years. What do you think? -

    +

    When Steve Forbes endorsed the idea, some in Washington began to pay attention. Many people contacted me pointing to representatives who might be willing to introduce the Eldred Act. And I had a few who directly suggested that they might be willing to take the first step. -

    +

    One representative, Zoe Lofgren of California, went so far as to get the bill drafted. The draft solved any problem with international law. It imposed the simplest requirement upon copyright owners @@ -10083,7 +10083,7 @@ possible. In May 2003, it looked as if the bill would be introduced. On May 16, I posted on the Eldred Act blog, “we are close.” There was a general reaction in the blog community that something good might happen here. -

    +

    But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA general counsel came to the congresswoman's office to give the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti @@ -10144,7 +10144,7 @@ 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 @@ -10181,7 +10181,7 @@ 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 @@ -10195,9 +10195,9 @@ the Internet. The consequence will be an increasing “< 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. -


    [194] +


    [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 @@ -10235,7 +10235,7 @@ year. Today, some cost $25,000 per year. At these prices, of course, no African nation can afford the drugs for the vast majority of its population: $15,000 is thirty times the per capita gross national product of -Zimbabwe. At these prices, the drugs are totally unavailable.[195] +Zimbabwe. At these prices, the drugs are totally unavailable.[195]

    These prices are not high because the ingredients of the drugs are @@ -10267,13 +10267,13 @@ another nation's market with the consent of the patent owner. For example, if the drug was sold in India, it could be imported into Africa from India. This is called “parallel importation,” and it is generally permitted under international trade law and is specifically -permitted within the European Union.[196] -

    +permitted within the European Union.[196] +

    However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association characterized it, “The U.S. government pressured South Africa … not to permit compulsory licensing or parallel -imports.”[197] +imports.”[197] Through the Office of the United States Trade Representative, the government asked South Africa to change the law—and to add pressure to that request, in 1998, the USTR listed South Africa for @@ -10288,8 +10288,8 @@ international law by discriminating against a particular kind of patent— pharmaceutical patents. The demand of these governments, with the United States in the lead, was that South Africa respect these patents as it respects any other patent, regardless of any -effect on the treatment of AIDS within South Africa.[198] -

    +effect on the treatment of AIDS within South Africa.[198] +

    We should place the intervention by the United States in context. No doubt patents are not the most important reason that Africans don't have access to drugs. Poverty and the total absence of an effective @@ -10318,12 +10318,12 @@ Instead, the argument in favor of restricting this flow of information, which was needed to save the lives of millions, was an argument -about the sanctity of property.[199] +about the sanctity of property.[199] It was because “intellectual property” would be violated that these drugs should not flow into Africa. It was a principle about the importance of “intellectual property” that led these government actors to intervene against the South African response to AIDS. -

    +

    Now just step back for a moment. There will be a time thirty years from now when our children look back at us and ask, how could we have let this happen? How could we allow a policy to be pursued whose @@ -10360,7 +10360,7 @@ sacred. They adopt a rational strategy in an irrational context, with the unintended consequence that perhaps millions die. And that rational strategy thus becomes framed in terms of this ideal—the sanctity of an idea called “intellectual property.” -

    +

    So when the common sense of your child confronts you, what will you say? When the common sense of a generation finally revolts against what we have done, how will we justify what we have done? @@ -10376,14 +10376,14 @@ spread of drugs to a country not rich enough to afford market prices in any case. A sensible policy, in other words, could be a balanced policy. For most of our history, both copyright and patent policies were balanced in just this sense. -

    +

    But we as a culture have lost this sense of balance. We have lost the critical eye that helps us see the difference between truth and extremism. A certain property fundamentalism, having no connection to our tradition, now reigns in this culture—bizarrely, and with consequences more grave to the spread of ideas and culture than almost any other single policy decision that we as a democracy will make. -

    +

    A simple idea blinds us, and under the cover of darkness, much happens that most of us would reject if any of us looked. So uncritically do we accept the idea of property in @@ -10409,10 +10409,10 @@ content war was itself a beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies, complex issues, and MTV attention spans produce the “perfect storm” for free culture. -

    +

    In August 2003, a fight broke out in the United States about a decision by the World Intellectual -Property Organization to cancel a meeting.[200] +Property Organization to cancel a meeting.[200] At the request of a wide range of interests, WIPO had decided to hold a meeting to discuss “open and collaborative projects to create public goods.” These are projects that have been successful in producing @@ -10433,14 +10433,14 @@ Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the Global Positioning System, which Ronald Reagan set free in the early 1980s. And it included “open source and free software.” -

    +

    The aim of the meeting was to consider this wide range of projects from one common perspective: that none of these projects relied upon intellectual property extremism. Instead, in all of them, intellectual property was balanced by agreements to keep access open or to impose limitations on the way in which proprietary claims might be used.

    -From the perspective of this book, then, the conference was ideal.[201] +From the perspective of this book, then, the conference was ideal.[201] The projects within its scope included both commercial and noncommercial work. They primarily involved science, but from many perspectives. And WIPO was an ideal venue for this discussion, since @@ -10474,7 +10474,7 @@ So whether or not WSIS can discuss balance in intellectual property, I had thought it was taken for granted that WIPO could and should. And thus the meeting about “open and collaborative projects to create public goods” seemed perfectly appropriate within the WIPO agenda. -

    +

    But there is one project within that list that is highly controversial, at least among lobbyists. That project is “open source and free software.” Microsoft in particular is wary of discussion of @@ -10484,7 +10484,7 @@ operating system. Both open source and free software compete with Microsoft's software. And internationally, many governments have begun to explore requirements that they use open source or free software, rather than “proprietary software,” for their own internal uses. -

    +

    I don't mean to enter that debate here. It is important only to make clear that the distinction is not between commercial and noncommercial software. There are many important companies that depend @@ -10494,8 +10494,8 @@ operating system, the most famous bit of ““open source and free software” is not to oppose commercial entities. It is, instead, to support a mode of software development that is different from -Microsoft's.[202] -

    +Microsoft's.[202] +

    More important for our purposes, to support “open source and free software” is not to oppose copyright. “Open source and free software” is not software in the public domain. Instead, like Microsoft's @@ -10512,14 +10512,14 @@ software. But that requirement is effective only if copyright governs software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does. -

    +

    It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and understandable that it would use its lobbyists to get the United States government to oppose it, as well. And indeed, that is just what was reported to have happened. According to Jonathan Krim of the Washington Post, Microsoft's lobbyists succeeded in getting the United -States government to veto the meeting.[203] +States government to veto the meeting.[203] And without U.S. backing, the meeting was canceled.

    I don't blame Microsoft for doing what it can to advance its own @@ -10528,7 +10528,7 @@ plainly consistent with the law. There was nothing surprising about its lobbying here, and nothing terribly surprising about the most powerful software producer in the United States having succeeded in its lobbying efforts. -

    +

    What was surprising was the United States government's reason for opposing the meeting. Again, as reported by Krim, Lois Boland, acting director of international relations for the U.S. Patent and Trademark @@ -10537,9 +10537,9 @@ mission of WIPO, which is to promote intellectual-property rights.” She is quoted as saying, “To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.” -

    +

    These statements are astonishing on a number of levels. -

    +

    First, they are just flat wrong. As I described, most open source and free software relies fundamentally upon the intellectual property right called “copyright”. Without it, restrictions imposed by those @@ -10548,7 +10548,7 @@ of promoting intellectual property rights reveals an extraordinary gap in understanding—the sort of mistake that is excusable in a first-year law student, but an embarrassment from a high government official dealing with intellectual property issues. -

    +

    Second, who ever said that WIPO's exclusive aim was to “promote” intellectual property maximally? As I had been scolded at the preparatory conference of WSIS, WIPO is to consider not only how best @@ -10560,7 +10560,7 @@ uncontested. One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose patent has expired) contrary to the WIPO mission? Does the public domain weaken intellectual property? Would it have been better if the protocols of the Internet had been patented? -

    +

    Third, even if one believed that the purpose of WIPO was to maximize intellectual property rights, in our tradition, intellectual property rights are held by individuals and corporations. They get to decide @@ -10594,19 +10594,19 @@ not weaken feudalism by liberating people or property within their control to the free market. Feudalism depended upon maximum control and concentration. It fought any freedom that might interfere with that control. -

    +

    As Peter Drahos and John Braithwaite relate, this is precisely the -choice we are now making about intellectual property.[204] +choice we are now making about intellectual property.[204] We will have an information society. That much is certain. Our only choice now is whether that information society will be free or feudal. The trend is toward the feudal. -

    +

    When this battle broke, I blogged it. A spirited debate within the comment section ensued. Ms. Boland had a number of supporters who tried to show why her comments made sense. But there was one comment that was particularly depressing for me. An anonymous poster wrote, -

    +

    George, you misunderstand Lessig: He's only talking about the world as it should be (“the goal of WIPO, and the goal of any government, should be to promote the right balance of intellectual property rights, @@ -10625,7 +10625,7 @@ criticism was that her comments betrayed a first-year law student's mistake. I have no illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about whether our government should speak the truth or not.) -

    +

    Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the “goal” of a government should be “to promote the right balance” of @@ -10654,9 +10654,9 @@ something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history—free culture. -

    +

    If this is crazy, then let there be more crazies. Soon. -

    +

    There are moments of hope in this struggle. And moments that surprise. When the FCC was considering relaxing ownership rules, which would thereby further increase the @@ -10703,14 +10703,14 @@ called “property”

    If we were Achilles, this would be our heel. This would be the place of our tragedy. -

    +

    As I write these final words, the news is filled with stories about the RIAA lawsuits against almost -three hundred individuals.[205] +three hundred individuals.[205] Eminem has just been sued for “sampling” someone else's -music.[206] +music.[206] The story about Bob Dylan “stealing” from a Japanese author has just -finished making the rounds.[207] +finished making the rounds.[207] An insider from Hollywood—who insists he must remain anonymous—reports “an amazing conversation with these studio guys. They've got extraordinary [old] content that they'd love to use @@ -10720,14 +10720,14 @@ would take scores of lawyers to clean it first.” Congressmen talking about deputizing computer viruses to bring down computers thought to violate the law. Universities are threatening expulsion for kids who use a computer to share content. -

    +

    Yet on the other side of the Atlantic, the BBC has just announced that it will build a “Creative Archive,” from which British citizens can -download BBC content, and rip, mix, and burn it.[208] +download BBC content, and rip, mix, and burn it.[208] And in Brazil, the culture minister, Gilberto Gil, himself a folk hero of Brazilian music, has joined with Creative Commons to release content and free licenses in that Latin American -country.[209] +country.[209] I've told a dark story. The truth is more mixed. A technology has given us a new freedom. Slowly, some begin to understand that this @@ -10742,7 +10742,7 @@ potential is ever to be realized. -


    [195] +


    [195] Commission on Intellectual Property Rights, “Final Report: Integrating Intellectual Property Rights and Development Policy” (London, 2002), available at @@ -10750,13 +10750,13 @@ available at release issued 9 July 2002, only 230,000 of the 6 million who need drugs in the developing world receive them—and half of them are in Brazil. -

    [196] See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: The New Press, 2003), 37. - - -

    [197] + + +

    [197] International Intellectual Property Institute (IIPI), Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan @@ -10768,12 +10768,12 @@ 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, a Report Prepared for the World Intellectual Property -Organization (Washington, D.C., 2000), 15.

    [199] +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 @@ -10789,7 +10789,7 @@ 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, available at link #59; William New, “Global Group's @@ -10799,10 +10799,10 @@ Daily, 19 August 2003, available at Opposes ‘Open Source’ Talks at WIPO,” National Journal's Technology Daily, 19 August 2003, available at link #61. -

    [201] I should disclose that I was one of the people who asked WIPO for the meeting. -

    [202] Microsoft's position about free and open source software is more sophisticated. As it has repeatedly asserted, it has no problem with @@ -10819,14 +10819,14 @@ Craig Mundie, Microsoft senior vice president, The Commerc Model, discussion at New York University Stern School of Business (3 May 2001), available at link #63. -

    [203] Krim, “The Quiet War over Open-Source,” available at link #64. -

    [204] See Drahos with Braithwaite, Information Feudalism, 210–20. - -

    [205] John Borland, “RIAA Sues 261 File Swappers,” CNET News.com, September 2003, available at @@ -10842,22 +10842,22 @@ Defendants,” Washington Post, 10 “Schoolgirl Settles with RIAA,” Wired News, 10 September 2003, available at link #67. -

    [206] Jon Wiederhorn, “Eminem Gets Sued … by a Little Old Lady,” mtv.com, 17 September 2003, available at link #68. -

    [207] Kenji Hall, Associated Press, “Japanese Book May Be Inspiration for Dylan Songs,” Kansascity.com, 9 July 2003, available at link #69. -

    [208] “BBC Plans to Open Up Its Archive to the Public,” BBC press release, 24 August 2003, available at link #70. -

    [209] “Creative Commons and Brazil,” Creative Commons Weblog, 6 August 2003, available at @@ -10879,7 +10879,7 @@ 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 @@ -10924,7 +10924,7 @@ 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 @@ -10957,7 +10957,7 @@ 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 @@ -10966,7 +10966,7 @@ at. You know this because at the side of the page, there's a list of 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 @@ -10975,11 +10975,11 @@ 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] +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 @@ -10987,7 +10987,7 @@ 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 @@ -11028,13 +11028,13 @@ 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 @@ -11052,11 +11052,11 @@ 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 @@ -11071,7 +11071,7 @@ 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. @@ -11079,7 +11079,7 @@ 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? @@ -11101,7 +11101,7 @@ 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 @@ -11113,7 +11113,7 @@ 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 @@ -11121,10 +11121,10 @@ 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. -

    1.2. Rebuilding Free Culture: One Idea

    +

    1.2. Rebuilding Free Culture: One Idea

    The same strategy could be applied to culture, as a response to the increasing control effected through law and technology. -

    +

    Enter the Creative Commons. The Creative Commons is a nonprofit corporation established in Massachusetts, but with its home at Stanford University. Its aim is to build a layer of @@ -11171,7 +11171,7 @@ 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 @@ -11182,7 +11182,7 @@ 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 @@ -11215,7 +11215,7 @@ 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, @@ -11225,7 +11225,7 @@ 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 @@ -11239,7 +11239,7 @@ art—they, too, sample from others. Because the 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]), +high[211]), these artists release into the creative environment content that others can build upon, so that their form of creativity might grow.

    @@ -11277,7 +11277,7 @@ 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. -

    2. Them, soon

    +

    2. Them, soon

    We will not reclaim a free culture by individual action alone. It will also take important reforms of laws. We have a long way to go before the politicians will listen to @@ -11324,7 +11324,7 @@ 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 +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. @@ -11356,7 +11356,7 @@ 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 @@ -11406,7 +11406,7 @@ 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] +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 @@ -11420,7 +11420,7 @@ 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 @@ -11459,7 +11459,7 @@ 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] +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 @@ -11486,7 +11486,7 @@ into copyright when the term itself is kept short. A clear and active “lawyer-free zone” makes the complexities of “fair use” and “idea/expression” less necessary to navigate. -

  • +

  • Keep it alive: Copyright should have to be renewed. Especially if the maximum term is long, the copyright owner @@ -11494,7 +11494,7 @@ 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] +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. @@ -11523,7 +11523,7 @@ No doubt the extremists will call these ideas ““extremists.”) But again, the term I recommended was longer than the term under Richard Nixon. How “radical” can it be to ask for a more generous copyright law than Richard Nixon presided over? -

    • 2.3. 3. Free Use Vs. Fair Use

    +

    2.3. 3. Free Use Vs. Fair Use

    As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the ground to the heavens. The airplane came along. The scope of property @@ -11538,10 +11538,10 @@ 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] +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. @@ -11549,7 +11549,7 @@ 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] +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 @@ -11567,7 +11567,7 @@ 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 @@ -11580,7 +11580,7 @@ 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 @@ -11591,7 +11591,7 @@ 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] +Paul Goldstein.[218] His view is that the law should be written so that expanded protections follow expanded uses.

    @@ -11652,7 +11652,7 @@ would have been too cumbersome to buy off the Net. There are many who are using file-sharing networks to get access to content that is not copyrighted or to get access that the copyright owner plainly endorses. -

    +

    Any reform of the law needs to keep these different uses in focus. It must avoid burdening type D even if it aims to eliminate type A. The eagerness with which the law aims to eliminate type A, moreover, @@ -11694,7 +11694,7 @@ 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, @@ -11711,7 +11711,7 @@ 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] +form of MP3s across the Web.[219]

    This point about the future is meant to suggest a perspective on the @@ -11746,7 +11746,7 @@ 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 @@ -11812,7 +11812,7 @@ content providers on the Internet, we should find a relatively simple way to compensate those who are harmed.

    The idea would be a modification of a proposal that has been -floated by Harvard law professor William Fisher.[220] +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 @@ -11836,7 +11836,7 @@ 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” @@ -11848,7 +11848,7 @@ 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 @@ -11862,7 +11862,7 @@ 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 @@ -11944,7 +11944,7 @@ is my view that our profession has become too attuned to the client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law. -

    +

    The evidence of this bending is compelling. I'm attacked as a “radical” by many within the profession, yet the positions that I am advocating are precisely the positions of some of the most moderate @@ -11952,7 +11952,7 @@ and significant figures in the history of this branch of the law. Many, for example, thought crazy the challenge that we brought to the Copyright Term Extension Act. Yet just thirty years ago, the dominant scholar and practitioner in the field of copyright, Melville -Nimmer, thought it obvious.[221] +Nimmer, thought it obvious.[221]

    However, my criticism of the role that lawyers have played in this @@ -11962,7 +11962,7 @@ about our failure to actually reckon the costs of the law. Economists are supposed to be good at reckoning costs and benefits. But more often than not, economists, with no clue about how the legal system actually functions, simply assume that the transaction costs of -the legal system are slight.[222] +the legal system are slight.[222] They see a system that has been around for hundreds of years, and they assume it works the way their elementary school civics class taught them it works. @@ -11995,7 +11995,7 @@ But until that reform is complete, we as a society should keep the law away from areas that we know it will only harm. And that is precisely what the law will too often do if too much of our culture is left to its review. -

    +

    Think about the amazing things your kid could do or make with digital technology—the film, the music, the Web page, the blog. Or think about the amazing things your community could facilitate with digital @@ -12015,7 +12015,7 @@ the expanding reach of the law, the lawyer answers, “< We should ask, “Why?” Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away. -



    [210] See, for example, Marc Rotenberg, “Fair Information Practices and the @@ -12026,50 +12026,50 @@ Law Review 1 (2001): par. 6–18, available at (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] +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] +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 January 2003): 15, available at link #74. -

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

    [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] See, for example, “Music Media Watch,” The J@pan Inc. Newsletter, 3 April 2002, available at link #76. -

    [220] William Fisher, Digital Music: Problems and Possibilities (last @@ -12105,15 +12105,15 @@ 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] + + + + +

    [221] Lawrence Lessig, “Copyright's First Amendment” (Melville B. Nimmer Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70. -

    [222] A good example is the work of Professor Stan Liebowitz. Liebowitz is to be commended for his careful review of data about infringement, @@ -12131,7 +12131,7 @@ Liebowitz's careful analysis is extremely valuable in estimating the effect of file-sharing technology. In my view, however, he underestimates the costs of the legal system. See, for example, Rethinking, 174–76. - +

    Chapter . Notes

    Throughout this text, there are references to links on the World Wide Web. As anyone who has tried to use the Web knows, these links can be @@ -12143,12 +12143,12 @@ and locate the original source by clicking on the number after the # sign. If the original link remains alive, you will be redirected to that link. If the original link has disappeared, you will be redirected to an appropriate reference for the material. -

    Index

    Symbols

    60 Minutes, Chapter Nine: Collectors

    A

    ABC, Chapter Two: “Mere Copyists”, Market: Concentration
    academic journals, Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Adobe eBook Reader, Architecture and Law: Force-Architecture and Law: Force
    advertising, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Law and Architecture: Reach-Law and Architecture: Reach, Market: Concentration-Market: Concentration
    Africa, medications for HIV patients in, Conclusion-Conclusion
    Agee, Michael, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    agricultural patents, Piracy I
    Aibo robotic dog, Architecture and Law: Force-Architecture and Law: Force
    AIDS medications, Conclusion-Conclusion
    air traffic, land ownership vs., Introduction-Introduction
    Akerlof, George, Chapter Thirteen: Eldred
    Alben, Alex, Chapter Eight: Transformers-Chapter Eight: Transformers, Constraining Innovators-Constraining Innovators, 3. Free Use Vs. Fair Use
    alcohol prohibition, Corrupting Citizens
    Alice's Adventures in Wonderland (Carroll), Architecture and Law: Force-Architecture and Law: Force
    All in the Family, Market: Concentration
    Allen, Paul, Chapter Eight: Transformers
    Amazon, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    American Association of Law Libraries, Chapter Thirteen: Eldred
    American Graphophone Company, Recorded Music
    Americans with Disabilities Act (1990), Chapter Ten: “Property”
    Andromeda, Corrupting Citizens
    Anello, Douglas, Cable TV
    animated cartoons, Chapter One: Creators-Chapter One: Creators
    antiretroviral drugs, Conclusion-Conclusion
    Apple Corporation, Conclusion, 4. Liberate the Music—Again
    architecture, constraint effected through, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right
    archive.org, Chapter Nine: Collectors
    (see also Internet Archive)
    archives, digital, Chapter Nine: Collectors-Chapter Nine: Collectors, Together, Chapter Thirteen: Eldred
    Aristotle, Architecture and Law: Force
    Armstrong, Edwin Howard, Introduction-Introduction, Chapter Twelve: Harms, Constraining Innovators
    Arrow, Kenneth, Chapter Thirteen: Eldred
    art, underground, Constraining Creators
    artists
    publicity rights on images of, Chapter Eight: Transformers
    recording industry payments to, Chapter Three: Catalogs, Radio-Radio, Piracy II, Constraining Innovators, 4. Liberate the Music—Again-4. Liberate the Music—Again
    retrospective compilations on, Chapter Eight: Transformers-Chapter Eight: Transformers
    ASCAP, “Piracy”
    Asia, commercial piracy in, Piracy I, 4. Liberate the Music—Again
    AT&T, Introduction
    Ayer, Don, Chapter Thirteen: Eldred, Chapter Fourteen: Eldred II

    B

    Bacon, Francis, Chapter Six: Founders
    Barish, Stephanie, Chapter Two: “Mere Copyists”
    Barlow, Joel, Introduction
    Barnes & Noble, Law and Architecture: Reach
    Barry, Hank, Constraining Innovators
    BBC, Conclusion
    Beatles, Recorded Music
    Beckett, Thomas, Chapter Six: Founders
    Bell, Alexander Graham, Introduction
    Berlin Act (1908), Chapter Fourteen: Eldred II
    Berman, Howard L., Chapter Eleven: Chimera, Constraining Innovators
    Berne Convention (1908), Chapter Fourteen: Eldred II
    Bernstein, Leonard, Piracy II
    Betamax, Piracy II-Piracy II
    biomedical research, Conclusion
    Black, Jane, Piracy II
    blogs (Web-logs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    BMG, Market: Concentration
    BMW, Constraining Innovators-Constraining Innovators
    Boies, David, Chapter Eight: Transformers
    Boland, Lois, Conclusion
    Bolling, Ruben, Chapter Thirteen: Eldred
    Bono, Mary, Chapter Thirteen: Eldred
    Bono, Sonny, Chapter Thirteen: Eldred
    books
    English copyright law developed for, Chapter Six: Founders-Chapter Six: Founders
    free on-line releases of, Piracy II-Piracy II, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    on Internet, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    out of print, Piracy II, Chapter Nine: Collectors, Law: Duration, 4. Liberate the Music—Again
    resales of, Piracy II, Law: Duration, 4. Liberate the Music—Again
    three types of uses of, Law and Architecture: Reach-Law and Architecture: Reach
    total number of, Chapter Nine: Collectors
    booksellers, English, Chapter Six: Founders-Chapter Six: Founders
    Boswell, James, Chapter Six: Founders
    bots, Chapter Nine: Collectors, Architecture and Law: Force
    Boyle, James, Why Hollywood Is Right
    Braithwaite, John, Conclusion
    Branagh, Kenneth, Chapter Six: Founders
    Brandeis, Louis D., Introduction, Chapter Two: “Mere Copyists”
    Brazil, free culture in, Conclusion
    Breyer, Stephen, Chapter Thirteen: Eldred
    Brezhnev, Leonid, Why Hollywood Is Right, 5. Fire Lots of Lawyers
    British Parliament, Chapter Six: Founders
    broadcast flag, Film, Piracy II, Constraining Innovators
    Bromberg, Dan, Chapter Thirteen: Eldred
    Brown, John Seely, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    browsing, Law and Architecture: Reach, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Buchanan, James, Chapter Thirteen: Eldred
    Bunyan, John, Chapter Six: Founders
    Burdick, Quentin, Cable TV
    Bush, George W., Constraining Creators

    C

    cable television, Cable TV-Cable TV, Piracy II-Piracy II, Market: Concentration, 4. Liberate the Music—Again
    camera technology, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Camp Chaos, Chapter Eight: Transformers
    CARP (Copyright Arbitration Royalty Panel), Constraining Innovators
    cars, MP3 sound systems in, Constraining Innovators-Constraining Innovators
    Carson, Rachel, Why Hollywood Is Right
    cartoon films, Chapter One: Creators-Chapter One: Creators
    Casablanca, Architecture and Law: Force
    cassette recording, Piracy II
    VCRs, Piracy II-Piracy II, Architecture and Law: Force-Architecture and Law: Force, Constraining Innovators, 4. Liberate the Music—Again
    Causby, Thomas Lee, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    Causby, Tinie, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    CBS, Chapter Two: “Mere Copyists”
    CD-ROMs, film clips used in, Chapter Eight: Transformers-Chapter Eight: Transformers
    CDs
    copyright marking of, Marking
    foreign piracy of, Piracy I-Piracy I
    mix technology and, Corrupting Citizens-Corrupting Citizens
    preference data on, Constraining Innovators-Constraining Innovators
    prices of, 4. Liberate the Music—Again
    sales levels of, Piracy II-Piracy II
    cell phones, music streamed over, 4. Liberate the Music—Again
    chimeras, Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Christensen, Clayton M., Piracy II, Market: Concentration
    Clark, Kim B., Market: Concentration
    CNN, Chapter Two: “Mere Copyists”
    Coase, Ronald, Chapter Thirteen: Eldred
    Code (Lessig), Preface, Chapter Ten: “Property”
    CodePink Women in Peace, Preface, Conclusion
    Coe, Brian, Chapter Two: “Mere Copyists”
    Comcast, Market: Concentration
    comics, Japanese, Chapter One: Creators-Chapter One: Creators
    commerce, interstate, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Commerce, U.S. Department of, Why Hollywood Is Right
    commercials, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    common law, Chapter Six: Founders
    Commons, John R., Chapter Ten: “Property”
    composer's rights vs. producers' rights in, Piracy II
    composers, copyright protections of, Piracy II
    compulsory license, Recorded Music-Recorded Music
    computer games, Chapter Two: “Mere Copyists”
    Conger, Chapter Six: Founders
    Congress, U.S.
    constitutional powers of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    copyright terms extended by, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in constitutional Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred
    on copyright laws, Recorded Music-Recorded Music, Piracy II-Piracy II, Law: Duration-Law: Duration, Constraining Innovators
    on radio, Constraining Innovators
    on recording industry, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    on VCR technology, Piracy II
    Supreme Court restraint on, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Conrad, Paul, Architecture and Law: Force
    Constitution, U.S.
    Commerce Clause of, Chapter Thirteen: Eldred
    copyright purpose established in, Beginnings-Beginnings, Chapter Thirteen: Eldred
    First Amendment to, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    on creative property, Beginnings
    Progress Clause of, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    structural checks and balances of, Beginnings
    contracts, Architecture and Law: Force
    Conyers, John, Jr., Chapter Eleven: Chimera
    cookies, Internet, Rebuilding Freedoms Previously Presumed: Examples
    copyleft licenses, Conclusion
    copyright, Chapter One: Creators
    (see also copyright law)
    as narrow monopoly right, Chapter Six: Founders-Chapter Six: Founders
    constitutional purpose of, Beginnings, Chapter Thirteen: Eldred
    duration of, Chapter One: Creators-Chapter One: Creators, Chapter Six: Founders-Chapter Six: Founders, Beginnings, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    four regulatory modalities on, Why Hollywood Is Right-Why Hollywood Is Right, Beginnings
    in perpetuity, Chapter Six: Founders-Chapter Six: Founders, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    marking of, Law: Scope-Law: Scope
    of natural authors vs. corporations, Law: Duration
    renewability of, Chapter Six: Founders, Law: Duration-Law: Duration
    scope of, Law: Scope-Law: Scope
    usage restrictions attached to, Chapter Six: Founders, Law and Architecture: Reach-Law and Architecture: Reach
    voluntary reform efforts on, Afterword-Afterword, Us, now-Rebuilding Free Culture: One Idea
    Copyright Act (1790), Law: Duration-Law: Duration, Law: Scope-Law: Scope
    copyright infringement lawsuits
    against student file sharing, Chapter Three: Catalogs-Chapter Three: Catalogs
    commercial creativity as primary purpose of, Introduction-Introduction
    distribution technology targeted in, Constraining Innovators
    exaggerated claims of, Chapter Three: Catalogs, Constraining Creators, Constraining Innovators
    in recording industry, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Creators, Constraining Innovators-Constraining Innovators
    individual defendants intimidated by, Chapter Three: Catalogs-Chapter Three: Catalogs
    statutory damages of, Chapter Three: Catalogs
    willful infringement findings in, Law and Architecture: Reach-Law and Architecture: Reach
    zero tolerance in, Piracy II-Piracy II
    copyright law
    as ex post regulation modality, Chapter Ten: “Property”-Chapter Ten: “Property”
    as protection of creators, Introduction, Beginnings-Beginnings
    copies as core issue of, Law and Architecture: Reach-Law and Architecture: Reach
    creativity impeded by, “Piracy”
    development of, Chapter Six: Founders-Chapter Six: Founders
    English, “Piracy”, Chapter Six: Founders-Chapter Six: Founders
    European, Law: Scope
    fair use and, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    felony punishment for infringement of, Chapter Thirteen: Eldred
    history of American, Beginnings-Law: Duration
    innovation hampered by, Constraining Innovators-Constraining Innovators
    innovative freedom balanced with fair compensation in, Why Hollywood Is Right-Why Hollywood Is Right
    Japanese, Chapter One: Creators-Chapter One: Creators
    on music recordings, Recorded Music-Recorded Music, Piracy II-Piracy II
    on republishing vs. transformation of original work, “Piracy”-“Piracy”, Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    registration requirement of, Law: Scope-Law: Scope
    scope of, Law and Architecture: Reach-Law and Architecture: Reach
    statutory licenses in, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    technology as automatic enforcer of, Architecture and Law: Force
    term extensions in, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    two central goals of, Piracy II
    corporations
    copyright terms for, Law: Duration
    in pharmaceutical industry, Conclusion-Conclusion
    Country of the Blind, The (Wells), Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Court of Appeals
    Ninth Circuit, Chapter Eight: Transformers
    cover songs, Recorded Music
    Creative Commons, Conclusion, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    creative property, “Piracy”
    (see also intellectual property rights)
    common law protections of, Law: Duration
    constitutional tradition on, Beginnings-Beginnings
    if value, then right theory of, “Piracy”-“Piracy”
    other property rights vs., Law and Architecture: Reach-Law and Architecture: Reach
    creativity, “Piracy”
    (see also innovation)
    by transforming previous works, Chapter One: Creators-Chapter One: Creators
    legal restrictions on, “Piracy”-“Piracy”
    Crichton, Michael, Chapter Two: “Mere Copyists”
    criminal justice system, Market: Concentration
    Crosskey, William W., Law: Duration
    CTEA, Law: Duration
    (see also Sonny Bono Copyright Term Extension Act (CTEA) (1998))
    culture, Introduction
    (see also free culture)
    commercial vs. noncommercial, Introduction-Introduction
    Cyber Rights (Godwin), Chapter Two: “Mere Copyists”

    D

    Daguerre, Louis, Chapter Two: “Mere Copyists”
    Daley, Elizabeth, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    DAT (digital audio tape), Piracy II
    Data General, Rebuilding Freedoms Previously Presumed: Examples
    Day After Trinity, The, Chapter Seven: Recorders
    DDT, Why Hollywood Is Right-Why Hollywood Is Right
    Dean, Howard, Chapter Two: “Mere Copyists”
    democracy
    digital sharing within, Constraining Creators
    in technologies of expression, Chapter Two: “Mere Copyists”
    media concentration and, Market: Concentration
    public discourse in, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    semiotic, 4. Liberate the Music—Again
    Democratic Party, Chapter Fourteen: Eldred II
    derivative works
    fair use vs., Law and Architecture: Reach-Law and Architecture: Reach
    historical shift in copyright coverage of, Law: Scope-Law: Scope
    piracy vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    technological developments and, Law and Architecture: Reach-Law and Architecture: Reach
    developing countries, foreign patent costs in, Conclusion-Conclusion
    digital cameras, Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Digital Copyright (Litman), Constraining Innovators
    Diller, Barry, Market: Concentration
    Disney, Inc., Chapter One: Creators-Chapter One: Creators, Chapter Ten: “Property”, Law and Architecture: Reach-Law and Architecture: Reach
    Disney, Walt, Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Piracy II, Chapter Nine: Collectors, Law: Scope, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Doctorow, Cory, Piracy II
    doctors malpractice claims against, Constraining Creators
    documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    domain names, Registration and renewal
    Donaldson v. Beckett, Chapter Six: Founders-Chapter Six: Founders
    Donaldson, Alexander, Chapter Six: Founders-Chapter Six: Founders
    Douglas, William O., Introduction-Introduction
    doujinshi comics, Chapter One: Creators-Chapter One: Creators
    Down and Out in the Magic Kingdom (Doctorow), Piracy II
    Drahos, Peter, Piracy I, Conclusion
    Dreyfuss, Rochelle, “Piracy”
    driving speed, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Drucker, Peter, Chapter Eight: Transformers
    drugs
    pharmaceutical, Conclusion-Conclusion
    Dryden, John, Chapter Six: Founders
    Duck and Cover film, Chapter Nine: Collectors
    Dylan, Bob, Conclusion

    E

    e-books, Law and Architecture: Reach-Law and Architecture: Reach
    e-mail, Chapter Two: “Mere Copyists”
    Eagle Forum, Chapter Thirteen: Eldred
    Eastman, George, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Edison, Thomas, Introduction
    education
    in media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    tinkering as means of, Chapter Three: Catalogs
    Eldred, Eric, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    elections, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    electoral college, Beginnings
    Electronic Frontier Foundation, Architecture and Law: Force, Corrupting Citizens
    Else, Jon, Chapter Seven: Recorders-Chapter Seven: Recorders
    EMI, Market: Concentration, Constraining Innovators
    England, copyright laws developed in, Chapter Six: Founders-Chapter Six: Founders
    Enlightenment, Chapter Six: Founders
    environmentalism, Why Hollywood Is Right-Why Hollywood Is Right
    ephemeral films, Chapter Nine: Collectors
    Errors and Omissions insurance, Chapter Seven: Recorders
    Erskine, Andrew, Chapter Six: Founders
    expression, technologies of
    democratic, Chapter Two: “Mere Copyists”
    media literacy and, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    F

    fair use, Law and Architecture: Reach-Law and Architecture: Reach
    in documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    Internet burdens on, Law and Architecture: Reach
    legal intimidation tactics against, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    Fallows, James, Market: Concentration
    Fanning, Shawn, Piracy II
    Faraday, Michael, Introduction
    farming, Why Hollywood Is Right
    FCC
    on FM radio, Introduction-Introduction
    feudal system, Conclusion-Conclusion
    film industry
    luxury theatres vs. video piracy in, 4. Liberate the Music—Again
    trailer advertisements of, Law and Architecture: Reach-Law and Architecture: Reach
    films
    animated, Chapter One: Creators-Chapter One: Creators
    archive of, Chapter Nine: Collectors
    fair use of copyrighted material in, Chapter Seven: Recorders-Chapter Seven: Recorders
    multiple copyrights associated with, Chapter Seven: Recorders
    total number of, Chapter Nine: Collectors
    First Amendment, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    first-sale doctrine, Law and Architecture: Reach
    Fisher, William, 4. Liberate the Music—Again
    Florida, Richard, “Piracy”
    FM radio, Introduction-Introduction, Why Hollywood Is Right
    Forbes, Steve, Chapter Fourteen: Eldred II
    formalities, Law: Scope-Law: Scope
    Fourneaux, Henri, Recorded Music-Recorded Music
    Fox (film company), Chapter Seven: Recorders-Chapter Seven: Recorders
    Fox, William, Film
    free culture
    derivative works based on, Chapter One: Creators-Chapter One: Creators
    English legal establishment of, Chapter Six: Founders
    four modalities of constraint on, Chapter Ten: “Property”-Why Hollywood Is Right
    permission culture vs., Introduction
    restoration efforts on previous aspects of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Free for All (Wayner), Rebuilding Free Culture: One Idea
    free market, technological changes in, Why Hollywood Is Right-Why Hollywood Is Right
    free software/open-source software (FS/OSS), Piracy I, Conclusion-Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Fried, Charles, Chapter Thirteen: Eldred
    Friedman, Milton, Chapter Thirteen: Eldred
    Frost, Robert, Chapter Thirteen: Eldred
    Future of Ideas, The (Lessig), Architecture and Law: Force, Constraining Innovators

    G

    Garlick, Mia, Rebuilding Free Culture: One Idea
    Gates, Bill, Why Hollywood Is Right, Conclusion
    General Film Company, Film
    General Public License (GPL), Conclusion
    generic drugs, Conclusion
    German copyright law, Chapter Fourteen: Eldred II
    Gershwin, George, Chapter Thirteen: Eldred
    Gil, Gilberto, Conclusion
    Ginsburg, Ruth Bader, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Girl Scouts, “Piracy”
    Global Positioning System, Conclusion
    GNU/Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Godwin, Mike, Chapter Two: “Mere Copyists”
    Goldstein, Paul, 3. Free Use Vs. Fair Use
    Google, Chapter Three: Catalogs-Chapter Three: Catalogs
    GPL (General Public License), Conclusion
    Gracie Films, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grimm fairy tales, Chapter One: Creators-Chapter One: Creators, Chapter Thirteen: Eldred
    Grisham, John, Recorded Music-Recorded Music, 3. Free Use Vs. Fair Use
    Groening, Matt, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grokster, Ltd., Constraining Innovators

    H

    hacks, Architecture and Law: Force
    Hal Roach Studios, Chapter Thirteen: Eldred
    Hand, Learned, Radio
    handguns, Architecture and Law: Force-Architecture and Law: Force
    Hawthorne, Nathaniel, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Henry V, Chapter Six: Founders
    Henry VIII, King of England, Chapter Six: Founders
    Herrera, Rebecca, Chapter Seven: Recorders-Chapter Seven: Recorders
    Heston, Charlton, Cable TV
    history, records of, Chapter Nine: Collectors
    HIV/AIDS therapies, Conclusion-Conclusion
    Hollings, Fritz, Constraining Innovators
    Hollywood film industry, Film
    (see also film industry)
    House of Lords, Chapter Six: Founders-Chapter Six: Founders
    Hummer Winblad, Constraining Innovators
    Hummer, John, Constraining Innovators
    Hyde, Rosel H., Cable TV

    I

    IBM, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    if value, then right theory, “Piracy”-“Piracy”, Chapter Four: “Pirates”
    images, ownership of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Constraining Creators
    innovation, Piracy II
    (see also creativity)
    industry establishment opposed to, Constraining Innovators-Constraining Innovators
    insecticide, environmental consequences of, Why Hollywood Is Right-Why Hollywood Is Right
    Intel, Constraining Innovators, Chapter Thirteen: Eldred
    intellectual property rights, Introduction-Introduction
    international organization on issues of, Conclusion-Conclusion
    of drug patents, Conclusion-Conclusion
    international law, Conclusion-Conclusion
    Internet
    blogs on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    books on, Piracy II-Piracy II, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    copyright applicability altered by technology of, Law and Architecture: Reach-Law and Architecture: Reach
    copyright regulatory balance lost with, Why Hollywood Is Right-Why Hollywood Is Right
    development of, Introduction-Introduction, Conclusion, Us, now-Us, now
    domain name registration on, Registration and renewal
    efficient content distribution on, “Piracy”
    initial free character of, Us, now-Us, now
    news events on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    peer-generated rankings on, Chapter Two: “Mere Copyists”
    privacy protection on, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    public discourse conducted on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    radio on, Constraining Innovators-Constraining Innovators
    search engines used on, Chapter Three: Catalogs-Chapter Three: Catalogs
    Internet Archive, Chapter Nine: Collectors
    Internet Explorer, Piracy I
    interstate commerce, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Iraq war, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    ISPs (Internet service providers), user identities revealed by, Chapter Eleven: Chimera, Constraining Creators, Corrupting Citizens-Corrupting Citizens
    Iwerks, Ub, Chapter One: Creators

    J

    Japanese comics, Chapter One: Creators-Chapter One: Creators
    Jaszi, Peter, Chapter Thirteen: Eldred
    Jefferson, Thomas, “Property”, Chapter Ten: “Property”-Chapter Ten: “Property”, Rebuilding Free Culture: One Idea
    Johnson, Lyndon, Chapter Ten: “Property”
    Johnson, Samuel, Chapter Six: Founders
    Jones, Day, Reavis and Pogue (Jones Day), Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Jonson, Ben, Chapter Six: Founders
    Jordan, Jesse, Chapter Three: Catalogs, Constraining Creators
    journalism, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    jury system, Chapter Two: “Mere Copyists”
    Just Think!, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    K

    Kahle, Brewster, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors, Chapter Thirteen: Eldred
    Kaplan, Benjamin, 3. Free Use Vs. Fair Use
    Kazaa, Piracy II
    Keaton, Buster, Chapter One: Creators-Chapter One: Creators
    Kelly, Kevin, Chapter Fourteen: Eldred II
    Kennedy, Anthony, Chapter Thirteen: Eldred
    Kennedy, John F., Chapter Ten: “Property”, Constraining Innovators
    Kittredge, Alfred, Recorded Music-Recorded Music
    knowledge, freedom of, Chapter Six: Founders
    Kodak cameras, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Constraining Creators
    Kodak Primer, The (Eastman), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Kozinski, Alex, Piracy II
    Krim, Jonathan, Conclusion-Conclusion

    L

    land ownership, air traffic and, Introduction-Introduction, 3. Free Use Vs. Fair Use
    Laurel and Hardy Films, Chapter Thirteen: Eldred
    law
    as constraint modality, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right
    common vs. positive, Chapter Six: Founders-Chapter Six: Founders
    databases of case reports in, Piracy I, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    federal vs. state, Law: Duration-Law: Duration
    law schools, Corrupting Citizens
    Leaphart, Walter, Rebuilding Free Culture: One Idea
    Lear, Norman, Market: Concentration
    legal realist movement, Together
    legal system, attorney costs in, Chapter Three: Catalogs
    Lessig, Lawrence, Chapter Ten: “Property”, Architecture and Law: Force, Constraining Innovators
    Eldred case involvement of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in international debate on intellectual property, Conclusion-Conclusion
    Lessing, Lawrence, Introduction-Introduction
    Lexis and Westlaw, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    libraries
    archival function of, Chapter Nine: Collectors
    journals in, Rebuilding Freedoms Previously Presumed: Examples
    of public-domain literature, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    privacy rights in use of, Rebuilding Freedoms Previously Presumed: Examples
    Library of Congress, Chapter Nine: Collectors, Constraining Innovators
    Licensing Act (1662), Chapter Six: Founders
    Liebowitz, Stan, Piracy I, Piracy II, 5. Fire Lots of Lawyers
    Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Litman, Jessica, Introduction, Constraining Innovators
    Lofgren, Zoe, Chapter Fourteen: Eldred II
    Lott, Trent, Chapter Two: “Mere Copyists”
    Lovett, Lyle, Radio, Chapter Eleven: Chimera, Constraining Innovators, Chapter Fourteen: Eldred II
    Lucas, George, Chapter Seven: Recorders
    Lucky Dog, The, Chapter Thirteen: Eldred

    M

    Madonna, Radio-Radio, Piracy II, Chapter Ten: “Property”
    manga, Chapter One: Creators-Chapter One: Creators
    Mansfield, William Murray, Lord, “Piracy”-“Piracy”, Chapter Six: Founders-Chapter Six: Founders
    Marijuana Policy Project, Market: Concentration
    market competition, Why Hollywood Is Right, Law and Architecture: Reach
    market constraints, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    Marx Brothers, Architecture and Law: Force-Architecture and Law: Force
    McCain, John, Market: Concentration
    media
    blog pressure on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    commercial imperatives of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    ownership concentration in, Introduction-Introduction, Chapter Two: “Mere Copyists”
    media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Mehra, Salil, Chapter One: Creators-Chapter One: Creators
    MGM, Chapter Ten: “Property”
    Michigan Technical University, Chapter Three: Catalogs
    Mickey Mouse, Chapter One: Creators-Chapter One: Creators, Law: Scope
    Microsoft, Chapter Eight: Transformers
    competitive strategies of, Piracy I
    government case against, Architecture and Law: Force
    international software piracy of, Piracy I
    network file system of, Chapter Three: Catalogs-Chapter Three: Catalogs
    on free software, Conclusion-Conclusion
    Windows operating system of, Piracy I
    WIPO meeting opposed by, Conclusion
    Millar v. Taylor, Chapter Six: Founders-Chapter Six: Founders
    Milton, John, Chapter Six: Founders
    monopoly, copyright as, Chapter Six: Founders-Chapter Six: Founders
    Monroe, Marilyn, Constraining Innovators
    Morrison, Alan, Chapter Thirteen: Eldred
    Movie Archive, Chapter Nine: Collectors
    Moyers, Bill, Market: Concentration
    MP3 players, Constraining Innovators
    MP3.com, Constraining Innovators-Constraining Innovators
    MP3s, Why Hollywood Is Right
    MTV, Piracy II
    Müller, Paul Hermann, Why Hollywood Is Right-Why Hollywood Is Right
    music publishing, “Piracy”, Recorded Music-Recorded Music
    music recordings (see peer-to-peer (p2p) file sharing) (see recording industry)
    total number of, Chapter Nine: Collectors
    MusicStore, 4. Liberate the Music—Again
    my.mp3.com, Constraining Innovators-Constraining Innovators

    N

    Napster, Chapter Two: “Mere Copyists”, Piracy II-Piracy II, Chapter Eight: Transformers
    infringing material blocked by, Piracy II-Piracy II
    number of registrations on, Piracy II
    range of content on, Piracy II
    recording industry tracking users of, Corrupting Citizens-Corrupting Citizens
    replacement of, Piracy II
    venture capital for, Constraining Innovators
    Nashville Songwriters Association, Chapter Thirteen: Eldred
    National Writers Union, Chapter Thirteen: Eldred
    NBC, Market: Concentration
    Needleman, Rafe, Constraining Innovators-Constraining Innovators
    NET (No Electronic Theft) Act (1998), Chapter Thirteen: Eldred
    Netanel, Neil Weinstock, Introduction, 4. Liberate the Music—Again
    Netscape, Piracy I
    New Hampshire (Frost), Chapter Thirteen: Eldred
    news coverage, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors-Chapter Nine: Collectors
    newspapers
    archives of, Chapter Nine: Collectors
    ownership consolidation of, Market: Concentration-Market: Concentration
    Nick and Norm anti-drug campaign, Market: Concentration
    Nimmer, David, Chapter Eight: Transformers
    Nimmer, Melville, 5. Fire Lots of Lawyers
    Ninth Circuit Court of Appeals, Chapter Eight: Transformers
    No Electronic Theft (NET) Act (1998), Chapter Thirteen: Eldred
    norms, regulatory influence of, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right

    O

    O'Connor, Sandra Day, Chapter Thirteen: Eldred
    Olafson, Steve, Chapter Two: “Mere Copyists”
    Olson, Theodore B., Chapter Thirteen: Eldred
    open-source software (see free software/open-source software (FS/OSS))
    Oppenheimer, Matt, Chapter Three: Catalogs
    originalism, Chapter Thirteen: Eldred
    Orwell, George, Chapter Nine: Collectors-Chapter Nine: Collectors

    P

    parallel importation, Conclusion-Conclusion
    Paramount Pictures, Chapter Ten: “Property”
    Patent and Trademark Office, U.S., Conclusion-Conclusion
    patents
    future patents vs. future copyrights in, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in public domain, Law: Duration, Chapter Thirteen: Eldred
    on film technology, Film-Film
    on pharmaceuticals, Conclusion-Conclusion
    Patterson, Raymond, Chapter Six: Founders
    peer-to-peer (p2p) file sharing
    efficiency of, “Piracy”-“Piracy”
    felony punishments for, Chapter Thirteen: Eldred
    four types of, Piracy II-Piracy II
    infringement protections in, Piracy II-Piracy II
    regulatory balance lost in, Why Hollywood Is Right
    permission culture
    free culture vs., Introduction
    transaction cost of, Constraining Innovators-Constraining Innovators
    permissions
    photography exempted from, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    pharmaceutical patents, Conclusion-Conclusion
    photography, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Picker, Randal C., Film, Radio, Piracy II, Constraining Innovators
    piracy
    derivative work vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    in Asia, Piracy I, 4. Liberate the Music—Again
    in development of content industry, Chapter Four: “Pirates”-Cable TV
    player pianos, Recorded Music
    PLoS (Public Library of Science), Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Pogue, David, Preface-Preface
    political discourse, Chapter Two: “Mere Copyists”
    Politics, (Aristotle), Architecture and Law: Force
    Porgy and Bess, Chapter Thirteen: Eldred
    pornography, Chapter Thirteen: Eldred
    positive law, Chapter Six: Founders
    power, concentration of, Preface-Preface, Introduction
    Prelinger, Rick, Chapter Nine: Collectors
    Princeton University, Chapter Three: Catalogs
    privacy rights, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Promises to Keep (Fisher), 4. Liberate the Music—Again-4. Liberate the Music—Again
    property rights
    air traffic vs., Introduction-Introduction, 3. Free Use Vs. Fair Use
    feudal system of, Conclusion-Conclusion
    intangibility of, “Property”
    proprietary code, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    protection of artists vs. business interests, Introduction
    Public Citizen, Chapter Thirteen: Eldred
    public domain
    access fees for material in, Rebuilding Freedoms Previously Presumed: Examples
    balance of U.S. content in, Law: Duration-Law: Duration
    defined, Chapter One: Creators-Chapter One: Creators
    e-book restrictions on, Architecture and Law: Force-Architecture and Law: Force
    English legal establishment of, Chapter Six: Founders-Chapter Six: Founders
    future patents vs. future copyrights in, Law: Duration-Law: Duration
    library of works derived from, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    license system for rebuilding of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Free Culture: One Idea
    public projects in, Conclusion
    traditional term for conversion to, Chapter One: Creators-Chapter One: Creators
    Public Enemy, Rebuilding Free Culture: One Idea
    Public Library of Science (PLoS), Conclusion, Rebuilding Freedoms Previously Presumed: Examples

    Q

    Quayle, Dan, Chapter Nine: Collectors

    R

    radio
    FM spectrum of, Introduction-Introduction, Why Hollywood Is Right
    music recordings played on, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    on Internet, Constraining Innovators-Constraining Innovators
    ownership consolidation in, Market: Concentration-Market: Concentration
    railroad industry, Why Hollywood Is Right
    rap music, Rebuilding Free Culture: One Idea
    RCA, Introduction-Introduction, Why Hollywood Is Right, Afterword
    Reagan, Ronald, Chapter Thirteen: Eldred, Conclusion
    Real Networks, Constraining Innovators, 4. Liberate the Music—Again
    recording industry
    artist remuneration in, Chapter Three: Catalogs, Piracy II, Constraining Innovators-Constraining Innovators
    copyright infringement lawsuits of, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    copyright protections in, Piracy II
    Internet radio hampered by, Constraining Innovators-Constraining Innovators
    radio broadcast and, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    statutory license system in, Recorded Music-Recorded Music
    Recording Industry Association of America (RIAA)
    copyright infringement lawsuits filed by, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    intimidation tactics of, Chapter Three: Catalogs-Chapter Three: Catalogs
    lobbying power of, Chapter Three: Catalogs, Constraining Innovators-Constraining Innovators
    on Internet radio fees, Constraining Innovators-Constraining Innovators
    regulation
    as establishment protectionism, Why Hollywood Is Right-Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    four modalities of, Chapter Ten: “Property”-Why Hollywood Is Right
    outsize penalties of, Constraining Innovators
    Rehnquist, William H., Chapter Thirteen: Eldred
    remote channel changers, Why Hollywood Is Right
    Rensselaer Polytechnic Institute (RPI), Chapter Three: Catalogs-Chapter Three: Catalogs
    computer network search engine of, Chapter Three: Catalogs-Chapter Three: Catalogs
    Republican Party, Chapter Fourteen: Eldred II
    Rise of the Creative Class, The (Florida), “Piracy”
    Roberts, Michael, Constraining Innovators
    robotic dog, Architecture and Law: Force-Architecture and Law: Force
    Rogers, Fred, Architecture and Law: Force
    Romeo and Juliet (Shakespeare), Chapter Six: Founders-Chapter Six: Founders
    Rose, Mark, Chapter Six: Founders, Acknowledgments
    RPI (see Rensselaer Polytechnic Institute (RPI))
    Rubenfeld, Jeb, Law: Scope
    Russel, Phil, Recorded Music

    S

    Safire, William, Preface, Conclusion
    San Francisco Opera, Chapter Seven: Recorders
    Sarnoff, David, Introduction
    Scalia, Antonin, Chapter Thirteen: Eldred
    Scarlet Letter, The (Hawthorne), Chapter Thirteen: Eldred
    Schlafly, Phyllis, Chapter Thirteen: Eldred
    scientific journals, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Scottish publishers, Chapter Six: Founders
    search engines, Chapter Three: Catalogs-Chapter Three: Catalogs
    Seasons, The (Thomson), Chapter Six: Founders
    semiotic democracy, 4. Liberate the Music—Again
    Senate, U.S., Beginnings
    September 11, 2001, terrorist attacks of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    Shakespeare, William, Chapter One: Creators, Chapter Six: Founders
    sheet music, “Piracy”, Recorded Music
    Silent Spring (Carson), Why Hollywood Is Right
    Simpsons, The, Chapter Seven: Recorders-Chapter Seven: Recorders
    single nucleotied polymorphisms (SNPs), Conclusion
    Sonny Bono Copyright Term Extension Act (CTEA) (1998), Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Supreme Court challenge of, 5. Fire Lots of Lawyers
    Sony
    Aibo robotic dog produced by, Architecture and Law: Force-Architecture and Law: Force
    Betamax technology developed by, Piracy II-Piracy II
    Sony Pictures Entertainment, Chapter Ten: “Property”
    Sousa, John Philip, Recorded Music
    South Africa, Republic of, pharmaceutical imports by, Conclusion-Conclusion
    speech, freedom of
    constitutional guarantee of, Why Hollywood Is Right
    speeding, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Stallman, Richard, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Stanford University, Rebuilding Free Culture: One Idea
    Star Wars, Chapter Seven: Recorders
    Statute of Anne (1710), Chapter Six: Founders, Law: Duration
    Statute of Monopolies (1656), Chapter Six: Founders
    statutory damages, Chapter Three: Catalogs
    statutory licenses, Recorded Music-Recorded Music, Piracy II, Constraining Innovators
    Steamboat Bill, Jr., Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”
    Steamboat Willie, Chapter One: Creators-Chapter One: Creators
    steel industry, Why Hollywood Is Right
    Stevens, Ted, Preface
    Steward, Geoffrey, Chapter Thirteen: Eldred
    Superman comics, Chapter One: Creators
    Supreme Court, U.S.
    access to opinions of, Rebuilding Freedoms Previously Presumed: Examples
    congressional actions restrained by, Chapter Thirteen: Eldred
    factions of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    House of Lords vs., Chapter Six: Founders-Chapter Six: Founders
    on airspace vs. land rights, Introduction-Introduction
    on balance of interests in copyright law, Piracy II
    on television advertising bans, Market: Concentration
    Sutherland, Donald, Chapter Eight: Transformers

    T

    Talbot, William, Chapter Two: “Mere Copyists”
    Tatel, David, Chapter Thirteen: Eldred
    Tauzin, Billy, Constraining Innovators
    Taylor, Robert, Chapter Six: Founders
    technology
    copyright enforcement controlled by, Architecture and Law: Force
    copyright intent altered by, Law and Architecture: Reach-Law and Architecture: Reach
    established industries threatened by changes in, Why Hollywood Is Right
    legal murkiness on, Constraining Innovators
    television
    advertising on, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    cable vs. broadcast, 4. Liberate the Music—Again
    controversy avoided by, Market: Concentration
    Television Archive, Chapter Nine: Collectors
    Thomas, Clarence, Chapter Thirteen: Eldred
    Thomson, James, Chapter Six: Founders-Chapter Six: Founders
    Thurmond, Strom, Chapter Two: “Mere Copyists”
    Tocqueville, Alexis de, Chapter Two: “Mere Copyists”
    Tonson, Jacob, Chapter Six: Founders-Chapter Six: Founders
    tort reform, Constraining Creators
    Torvalds, Linus, Rebuilding Freedoms Previously Presumed: Examples
    Turner, Ted, Conclusion
    Twentieth Century Fox, Chapter Ten: “Property”

    U

    United Kingdom
    history of copyright law in, Chapter Six: Founders-Chapter Six: Founders
    public creative archive in, Conclusion
    United States Trade Representative (USTR), Conclusion
    United States v. Lopez, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    United States v. Morrison, Chapter Thirteen: Eldred
    Universal Music Group, Market: Concentration, Constraining Innovators
    Universal Pictures, Chapter Ten: “Property”
    university computer networks, p2p sharing on, Chapter Three: Catalogs-Chapter Three: Catalogs
    used record sales, Piracy II

    V

    Vaidhyanathan, Siva, Chapter One: Creators, Film, Chapter Six: Founders, Architecture and Law: Force, Together
    Valenti, Jack
    background of, Chapter Ten: “Property”-Chapter Ten: “Property”
    Eldred Act opposed by, Chapter Fourteen: Eldred II
    on creative property rights, Introduction, Law and Architecture: Reach
    on VCR technology, Piracy II-Piracy II
    perpetual copyright term proposed by, Chapter Thirteen: Eldred
    Vanderbilt University, Chapter Nine: Collectors
    VCRs, Constraining Innovators, 4. Liberate the Music—Again
    venture capitalists, Constraining Innovators
    veterans' pensions, 2. Shorter Terms
    Video Pipeline, Law and Architecture: Reach-Law and Architecture: Reach
    Vivendi Universal, Chapter Eleven: Chimera, Constraining Innovators-Constraining Innovators
    von Lohmann, Fred, Corrupting Citizens

    W

    Wagner, Richard, Chapter Seven: Recorders-Chapter Seven: Recorders
    Warner Brothers, Chapter Ten: “Property”, Architecture and Law: Force-Architecture and Law: Force
    Warner Music Group, Market: Concentration
    Warren, Samuel D., Chapter Two: “Mere Copyists”
    Way Back Machine, Chapter Nine: Collectors
    Wayner, Peter, Rebuilding Free Culture: One Idea
    Web sites, domain name registration of, Registration and renewal
    Web-logs (blogs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Webster, Noah, Introduction
    Wellcome Trust, Conclusion
    Wells, H. G., Chapter Eleven: Chimera-Chapter Eleven: Chimera
    White House press releases, Chapter Nine: Collectors
    willful infringement, Law and Architecture: Reach
    Windows, Piracy I
    Winer, Dave, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Winick, Judd, Chapter One: Creators-Chapter One: Creators
    WJOA, Market: Concentration
    World Intellectual Property Organization (WIPO), Conclusion-Conclusion
    World Summit on the Information Society (WSIS), Conclusion-Conclusion
    World Trade Center, Chapter Two: “Mere Copyists”
    World Wide Web, Conclusion
    WorldCom, Constraining Creators
    WRC, Market: Concentration
    Wright brothers, Introduction-Introduction

    Y

    Yanofsky, Dave, Chapter Two: “Mere Copyists”

    Z

    Zimmerman, Edwin, Cable TV
    Zittrain, Jonathan, “Piracy”, Law: Scope

    Chapter . Acknowledgments

    +

    Index

    Symbols

    60 Minutes, Chapter Nine: Collectors

    A

    ABC, Chapter Two: “Mere Copyists”, Market: Concentration
    academic journals, Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Adobe eBook Reader, Architecture and Law: Force-Architecture and Law: Force
    advertising, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Law and Architecture: Reach-Law and Architecture: Reach, Market: Concentration-Market: Concentration
    Africa, medications for HIV patients in, Conclusion-Conclusion
    Agee, Michael, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    agricultural patents, Piracy I
    Aibo robotic dog, Architecture and Law: Force-Architecture and Law: Force
    AIDS medications, Conclusion-Conclusion
    air traffic, land ownership vs., Introduction-Introduction
    Akerlof, George, Chapter Thirteen: Eldred
    Alben, Alex, Chapter Eight: Transformers-Chapter Eight: Transformers, Constraining Innovators-Constraining Innovators, 3. Free Use Vs. Fair Use
    alcohol prohibition, Corrupting Citizens
    Alice's Adventures in Wonderland (Carroll), Architecture and Law: Force-Architecture and Law: Force
    All in the Family, Market: Concentration
    Allen, Paul, Chapter Eight: Transformers
    Amazon, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    American Association of Law Libraries, Chapter Thirteen: Eldred
    American Graphophone Company, Recorded Music
    Americans with Disabilities Act (1990), Chapter Ten: “Property”
    Andromeda, Corrupting Citizens
    Anello, Douglas, Cable TV
    animated cartoons, Chapter One: Creators-Chapter One: Creators
    antiretroviral drugs, Conclusion-Conclusion
    Apple Corporation, Conclusion, 4. Liberate the Music—Again
    architecture, constraint effected through, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right
    archive.org, Chapter Nine: Collectors
    (see also Internet Archive)
    archives, digital, Chapter Nine: Collectors-Chapter Nine: Collectors, Together, Chapter Thirteen: Eldred
    Aristotle, Architecture and Law: Force
    Armstrong, Edwin Howard, Introduction-Introduction, Chapter Twelve: Harms, Constraining Innovators
    Arrow, Kenneth, Chapter Thirteen: Eldred
    art, underground, Constraining Creators
    artists
    publicity rights on images of, Chapter Eight: Transformers
    recording industry payments to, Chapter Three: Catalogs, Radio-Radio, Piracy II, Constraining Innovators, 4. Liberate the Music—Again-4. Liberate the Music—Again
    retrospective compilations on, Chapter Eight: Transformers-Chapter Eight: Transformers
    ASCAP, “Piracy”
    Asia, commercial piracy in, Piracy I, 4. Liberate the Music—Again
    AT&T, Introduction
    Ayer, Don, Chapter Thirteen: Eldred, Chapter Fourteen: Eldred II

    B

    Bacon, Francis, Chapter Six: Founders
    Barish, Stephanie, Chapter Two: “Mere Copyists”
    Barlow, Joel, Introduction
    Barnes & Noble, Law and Architecture: Reach
    Barry, Hank, Constraining Innovators
    BBC, Conclusion
    Beatles, Recorded Music
    Beckett, Thomas, Chapter Six: Founders
    Bell, Alexander Graham, Introduction
    Berlin Act (1908), Chapter Fourteen: Eldred II
    Berman, Howard L., Chapter Eleven: Chimera, Constraining Innovators
    Berne Convention (1908), Chapter Fourteen: Eldred II
    Bernstein, Leonard, Piracy II
    Betamax, Piracy II-Piracy II
    biomedical research, Conclusion
    Black, Jane, Piracy II
    blogs (Web-logs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    BMG, Market: Concentration
    BMW, Constraining Innovators-Constraining Innovators
    Boies, David, Chapter Eight: Transformers
    Boland, Lois, Conclusion
    Bolling, Ruben, Chapter Thirteen: Eldred
    Bono, Mary, Chapter Thirteen: Eldred
    Bono, Sonny, Chapter Thirteen: Eldred
    books
    English copyright law developed for, Chapter Six: Founders-Chapter Six: Founders
    free on-line releases of, Piracy II-Piracy II, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    on Internet, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    out of print, Piracy II, Chapter Nine: Collectors, Law: Duration, 4. Liberate the Music—Again
    resales of, Piracy II, Law: Duration, 4. Liberate the Music—Again
    three types of uses of, Law and Architecture: Reach-Law and Architecture: Reach
    total number of, Chapter Nine: Collectors
    booksellers, English, Chapter Six: Founders-Chapter Six: Founders
    Boswell, James, Chapter Six: Founders
    bots, Chapter Nine: Collectors, Architecture and Law: Force
    Boyle, James, Why Hollywood Is Right
    Braithwaite, John, Conclusion
    Branagh, Kenneth, Chapter Six: Founders
    Brandeis, Louis D., Introduction, Chapter Two: “Mere Copyists”
    Brazil, free culture in, Conclusion
    Breyer, Stephen, Chapter Thirteen: Eldred
    Brezhnev, Leonid, Why Hollywood Is Right, 5. Fire Lots of Lawyers
    British Parliament, Chapter Six: Founders
    broadcast flag, Film, Piracy II, Constraining Innovators
    Bromberg, Dan, Chapter Thirteen: Eldred
    Brown, John Seely, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    browsing, Law and Architecture: Reach, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Buchanan, James, Chapter Thirteen: Eldred
    Bunyan, John, Chapter Six: Founders
    Burdick, Quentin, Cable TV
    Bush, George W., Constraining Creators

    C

    cable television, Cable TV-Cable TV, Piracy II-Piracy II, Market: Concentration, 4. Liberate the Music—Again
    camera technology, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Camp Chaos, Chapter Eight: Transformers
    CARP (Copyright Arbitration Royalty Panel), Constraining Innovators
    cars, MP3 sound systems in, Constraining Innovators-Constraining Innovators
    Carson, Rachel, Why Hollywood Is Right
    cartoon films, Chapter One: Creators-Chapter One: Creators
    Casablanca, Architecture and Law: Force
    cassette recording, Piracy II
    VCRs, Piracy II-Piracy II, Architecture and Law: Force-Architecture and Law: Force, Constraining Innovators, 4. Liberate the Music—Again
    Causby, Thomas Lee, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    Causby, Tinie, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    CBS, Chapter Two: “Mere Copyists”
    CD-ROMs, film clips used in, Chapter Eight: Transformers-Chapter Eight: Transformers
    CDs
    copyright marking of, Marking
    foreign piracy of, Piracy I-Piracy I
    mix technology and, Corrupting Citizens-Corrupting Citizens
    preference data on, Constraining Innovators-Constraining Innovators
    prices of, 4. Liberate the Music—Again
    sales levels of, Piracy II-Piracy II
    cell phones, music streamed over, 4. Liberate the Music—Again
    chimeras, Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Christensen, Clayton M., Piracy II, Market: Concentration
    Clark, Kim B., Market: Concentration
    CNN, Chapter Two: “Mere Copyists”
    Coase, Ronald, Chapter Thirteen: Eldred
    Code (Lessig), Preface, Chapter Ten: “Property”
    CodePink Women in Peace, Preface, Conclusion
    Coe, Brian, Chapter Two: “Mere Copyists”
    Comcast, Market: Concentration
    comics, Japanese, Chapter One: Creators-Chapter One: Creators
    commerce, interstate, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Commerce, U.S. Department of, Why Hollywood Is Right
    commercials, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    common law, Chapter Six: Founders
    Commons, John R., Chapter Ten: “Property”
    composer's rights vs. producers' rights in, Piracy II
    composers, copyright protections of, Piracy II
    compulsory license, Recorded Music-Recorded Music
    computer games, Chapter Two: “Mere Copyists”
    Conger, Chapter Six: Founders
    Congress, U.S.
    constitutional powers of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    copyright terms extended by, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in constitutional Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred
    on copyright laws, Recorded Music-Recorded Music, Piracy II-Piracy II, Law: Duration-Law: Duration, Constraining Innovators
    on radio, Constraining Innovators
    on recording industry, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    on VCR technology, Piracy II
    Supreme Court restraint on, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Conrad, Paul, Architecture and Law: Force
    Constitution, U.S.
    Commerce Clause of, Chapter Thirteen: Eldred
    copyright purpose established in, Beginnings-Beginnings, Chapter Thirteen: Eldred
    First Amendment to, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    on creative property, Beginnings
    Progress Clause of, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    structural checks and balances of, Beginnings
    contracts, Architecture and Law: Force
    Conyers, John, Jr., Chapter Eleven: Chimera
    cookies, Internet, Rebuilding Freedoms Previously Presumed: Examples
    copyleft licenses, Conclusion
    copyright, Chapter One: Creators
    (see also copyright law)
    as narrow monopoly right, Chapter Six: Founders-Chapter Six: Founders
    constitutional purpose of, Beginnings, Chapter Thirteen: Eldred
    duration of, Chapter One: Creators-Chapter One: Creators, Chapter Six: Founders-Chapter Six: Founders, Beginnings, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    four regulatory modalities on, Why Hollywood Is Right-Why Hollywood Is Right, Beginnings
    in perpetuity, Chapter Six: Founders-Chapter Six: Founders, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    marking of, Law: Scope-Law: Scope
    of natural authors vs. corporations, Law: Duration
    renewability of, Chapter Six: Founders, Law: Duration-Law: Duration
    scope of, Law: Scope-Law: Scope
    usage restrictions attached to, Chapter Six: Founders, Law and Architecture: Reach-Law and Architecture: Reach
    voluntary reform efforts on, Afterword-Afterword, Us, now-Rebuilding Free Culture: One Idea
    Copyright Act (1790), Law: Duration-Law: Duration, Law: Scope-Law: Scope
    copyright infringement lawsuits
    against student file sharing, Chapter Three: Catalogs-Chapter Three: Catalogs
    commercial creativity as primary purpose of, Introduction-Introduction
    distribution technology targeted in, Constraining Innovators
    exaggerated claims of, Chapter Three: Catalogs, Constraining Creators, Constraining Innovators
    in recording industry, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Creators, Constraining Innovators-Constraining Innovators
    individual defendants intimidated by, Chapter Three: Catalogs-Chapter Three: Catalogs
    statutory damages of, Chapter Three: Catalogs
    willful infringement findings in, Law and Architecture: Reach-Law and Architecture: Reach
    zero tolerance in, Piracy II-Piracy II
    copyright law
    as ex post regulation modality, Chapter Ten: “Property”-Chapter Ten: “Property”
    as protection of creators, Introduction, Beginnings-Beginnings
    copies as core issue of, Law and Architecture: Reach-Law and Architecture: Reach
    creativity impeded by, “Piracy”
    development of, Chapter Six: Founders-Chapter Six: Founders
    English, “Piracy”, Chapter Six: Founders-Chapter Six: Founders
    European, Law: Scope
    fair use and, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    felony punishment for infringement of, Chapter Thirteen: Eldred
    history of American, Beginnings-Law: Duration
    innovation hampered by, Constraining Innovators-Constraining Innovators
    innovative freedom balanced with fair compensation in, Why Hollywood Is Right-Why Hollywood Is Right
    Japanese, Chapter One: Creators-Chapter One: Creators
    on music recordings, Recorded Music-Recorded Music, Piracy II-Piracy II
    on republishing vs. transformation of original work, “Piracy”-“Piracy”, Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    registration requirement of, Law: Scope-Law: Scope
    scope of, Law and Architecture: Reach-Law and Architecture: Reach
    statutory licenses in, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    technology as automatic enforcer of, Architecture and Law: Force
    term extensions in, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    two central goals of, Piracy II
    corporations
    copyright terms for, Law: Duration
    in pharmaceutical industry, Conclusion-Conclusion
    Country of the Blind, The (Wells), Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Court of Appeals
    Ninth Circuit, Chapter Eight: Transformers
    cover songs, Recorded Music
    Creative Commons, Conclusion, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    creative property, “Piracy”
    (see also intellectual property rights)
    common law protections of, Law: Duration
    constitutional tradition on, Beginnings-Beginnings
    if value, then right theory of, “Piracy”-“Piracy”
    other property rights vs., Law and Architecture: Reach-Law and Architecture: Reach
    creativity, “Piracy”
    (see also innovation)
    by transforming previous works, Chapter One: Creators-Chapter One: Creators
    legal restrictions on, “Piracy”-“Piracy”
    Crichton, Michael, Chapter Two: “Mere Copyists”
    criminal justice system, Market: Concentration
    Crosskey, William W., Law: Duration
    CTEA, Law: Duration
    (see also Sonny Bono Copyright Term Extension Act (CTEA) (1998))
    culture, Introduction
    (see also free culture)
    commercial vs. noncommercial, Introduction-Introduction
    Cyber Rights (Godwin), Chapter Two: “Mere Copyists”

    D

    Daguerre, Louis, Chapter Two: “Mere Copyists”
    Daley, Elizabeth, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    DAT (digital audio tape), Piracy II
    Data General, Rebuilding Freedoms Previously Presumed: Examples
    Day After Trinity, The, Chapter Seven: Recorders
    DDT, Why Hollywood Is Right-Why Hollywood Is Right
    Dean, Howard, Chapter Two: “Mere Copyists”
    democracy
    digital sharing within, Constraining Creators
    in technologies of expression, Chapter Two: “Mere Copyists”
    media concentration and, Market: Concentration
    public discourse in, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    semiotic, 4. Liberate the Music—Again
    Democratic Party, Chapter Fourteen: Eldred II
    derivative works
    fair use vs., Law and Architecture: Reach-Law and Architecture: Reach
    historical shift in copyright coverage of, Law: Scope-Law: Scope
    piracy vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    technological developments and, Law and Architecture: Reach-Law and Architecture: Reach
    developing countries, foreign patent costs in, Conclusion-Conclusion
    digital cameras, Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Digital Copyright (Litman), Constraining Innovators
    Diller, Barry, Market: Concentration
    Disney, Inc., Chapter One: Creators-Chapter One: Creators, Chapter Ten: “Property”, Law and Architecture: Reach-Law and Architecture: Reach
    Disney, Walt, Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Piracy II, Chapter Nine: Collectors, Law: Scope, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Doctorow, Cory, Piracy II
    doctors malpractice claims against, Constraining Creators
    documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    domain names, Registration and renewal
    Donaldson v. Beckett, Chapter Six: Founders-Chapter Six: Founders
    Donaldson, Alexander, Chapter Six: Founders-Chapter Six: Founders
    Douglas, William O., Introduction-Introduction
    doujinshi comics, Chapter One: Creators-Chapter One: Creators
    Down and Out in the Magic Kingdom (Doctorow), Piracy II
    Drahos, Peter, Piracy I, Conclusion
    Dreyfuss, Rochelle, “Piracy”
    driving speed, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Drucker, Peter, Chapter Eight: Transformers
    drugs
    pharmaceutical, Conclusion-Conclusion
    Dryden, John, Chapter Six: Founders
    Duck and Cover film, Chapter Nine: Collectors
    Dylan, Bob, Conclusion

    E

    e-books, Law and Architecture: Reach-Law and Architecture: Reach
    e-mail, Chapter Two: “Mere Copyists”
    Eagle Forum, Chapter Thirteen: Eldred
    Eastman, George, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Edison, Thomas, Introduction
    education
    in media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    tinkering as means of, Chapter Three: Catalogs
    Eldred, Eric, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    elections, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    electoral college, Beginnings
    Electronic Frontier Foundation, Architecture and Law: Force, Corrupting Citizens
    Else, Jon, Chapter Seven: Recorders-Chapter Seven: Recorders
    EMI, Market: Concentration, Constraining Innovators
    England, copyright laws developed in, Chapter Six: Founders-Chapter Six: Founders
    Enlightenment, Chapter Six: Founders
    environmentalism, Why Hollywood Is Right-Why Hollywood Is Right
    ephemeral films, Chapter Nine: Collectors
    Errors and Omissions insurance, Chapter Seven: Recorders
    Erskine, Andrew, Chapter Six: Founders
    expression, technologies of
    democratic, Chapter Two: “Mere Copyists”
    media literacy and, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    F

    fair use, Law and Architecture: Reach-Law and Architecture: Reach
    in documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    Internet burdens on, Law and Architecture: Reach
    legal intimidation tactics against, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    Fallows, James, Market: Concentration
    Fanning, Shawn, Piracy II
    Faraday, Michael, Introduction
    farming, Why Hollywood Is Right
    FCC
    on FM radio, Introduction-Introduction
    feudal system, Conclusion-Conclusion
    film industry
    luxury theatres vs. video piracy in, 4. Liberate the Music—Again
    trailer advertisements of, Law and Architecture: Reach-Law and Architecture: Reach
    films
    animated, Chapter One: Creators-Chapter One: Creators
    archive of, Chapter Nine: Collectors
    fair use of copyrighted material in, Chapter Seven: Recorders-Chapter Seven: Recorders
    multiple copyrights associated with, Chapter Seven: Recorders
    total number of, Chapter Nine: Collectors
    First Amendment, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    first-sale doctrine, Law and Architecture: Reach
    Fisher, William, 4. Liberate the Music—Again
    Florida, Richard, “Piracy”
    FM radio, Introduction-Introduction, Why Hollywood Is Right
    Forbes, Steve, Chapter Fourteen: Eldred II
    formalities, Law: Scope-Law: Scope
    Fourneaux, Henri, Recorded Music-Recorded Music
    Fox (film company), Chapter Seven: Recorders-Chapter Seven: Recorders
    Fox, William, Film
    free culture
    derivative works based on, Chapter One: Creators-Chapter One: Creators
    English legal establishment of, Chapter Six: Founders
    four modalities of constraint on, Chapter Ten: “Property”-Why Hollywood Is Right
    permission culture vs., Introduction
    restoration efforts on previous aspects of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Free for All (Wayner), Rebuilding Free Culture: One Idea
    free market, technological changes in, Why Hollywood Is Right-Why Hollywood Is Right
    free software/open-source software (FS/OSS), Piracy I, Conclusion-Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Fried, Charles, Chapter Thirteen: Eldred
    Friedman, Milton, Chapter Thirteen: Eldred
    Frost, Robert, Chapter Thirteen: Eldred
    Future of Ideas, The (Lessig), Architecture and Law: Force, Constraining Innovators

    G

    Garlick, Mia, Rebuilding Free Culture: One Idea
    Gates, Bill, Why Hollywood Is Right, Conclusion
    General Film Company, Film
    General Public License (GPL), Conclusion
    generic drugs, Conclusion
    German copyright law, Chapter Fourteen: Eldred II
    Gershwin, George, Chapter Thirteen: Eldred
    Gil, Gilberto, Conclusion
    Ginsburg, Ruth Bader, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Girl Scouts, “Piracy”
    Global Positioning System, Conclusion
    GNU/Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Godwin, Mike, Chapter Two: “Mere Copyists”
    Goldstein, Paul, 3. Free Use Vs. Fair Use
    Google, Chapter Three: Catalogs-Chapter Three: Catalogs
    GPL (General Public License), Conclusion
    Gracie Films, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grimm fairy tales, Chapter One: Creators-Chapter One: Creators, Chapter Thirteen: Eldred
    Grisham, John, Recorded Music-Recorded Music, 3. Free Use Vs. Fair Use
    Groening, Matt, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grokster, Ltd., Constraining Innovators

    H

    hacks, Architecture and Law: Force
    Hal Roach Studios, Chapter Thirteen: Eldred
    Hand, Learned, Radio
    handguns, Architecture and Law: Force-Architecture and Law: Force
    Hawthorne, Nathaniel, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Henry V, Chapter Six: Founders
    Henry VIII, King of England, Chapter Six: Founders
    Herrera, Rebecca, Chapter Seven: Recorders-Chapter Seven: Recorders
    Heston, Charlton, Cable TV
    history, records of, Chapter Nine: Collectors
    HIV/AIDS therapies, Conclusion-Conclusion
    Hollings, Fritz, Constraining Innovators
    Hollywood film industry, Film
    (see also film industry)
    House of Lords, Chapter Six: Founders-Chapter Six: Founders
    Hummer Winblad, Constraining Innovators
    Hummer, John, Constraining Innovators
    Hyde, Rosel H., Cable TV

    I

    IBM, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    if value, then right theory, “Piracy”-“Piracy”, Chapter Four: “Pirates”
    images, ownership of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Constraining Creators
    innovation, Piracy II
    (see also creativity)
    industry establishment opposed to, Constraining Innovators-Constraining Innovators
    insecticide, environmental consequences of, Why Hollywood Is Right-Why Hollywood Is Right
    Intel, Constraining Innovators, Chapter Thirteen: Eldred
    intellectual property rights, Introduction-Introduction
    international organization on issues of, Conclusion-Conclusion
    of drug patents, Conclusion-Conclusion
    international law, Conclusion-Conclusion
    Internet
    blogs on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    books on, Piracy II-Piracy II, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    copyright applicability altered by technology of, Law and Architecture: Reach-Law and Architecture: Reach
    copyright regulatory balance lost with, Why Hollywood Is Right-Why Hollywood Is Right
    development of, Introduction-Introduction, Conclusion, Us, now-Us, now
    domain name registration on, Registration and renewal
    efficient content distribution on, “Piracy”
    initial free character of, Us, now-Us, now
    news events on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    peer-generated rankings on, Chapter Two: “Mere Copyists”
    privacy protection on, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    public discourse conducted on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    radio on, Constraining Innovators-Constraining Innovators
    search engines used on, Chapter Three: Catalogs-Chapter Three: Catalogs
    Internet Archive, Chapter Nine: Collectors
    Internet Explorer, Piracy I
    interstate commerce, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Iraq war, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    ISPs (Internet service providers), user identities revealed by, Chapter Eleven: Chimera, Constraining Creators, Corrupting Citizens-Corrupting Citizens
    Iwerks, Ub, Chapter One: Creators

    J

    Japanese comics, Chapter One: Creators-Chapter One: Creators
    Jaszi, Peter, Chapter Thirteen: Eldred
    Jefferson, Thomas, “Property”, Chapter Ten: “Property”-Chapter Ten: “Property”, Rebuilding Free Culture: One Idea
    Johnson, Lyndon, Chapter Ten: “Property”
    Johnson, Samuel, Chapter Six: Founders
    Jones, Day, Reavis and Pogue (Jones Day), Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Jonson, Ben, Chapter Six: Founders
    Jordan, Jesse, Chapter Three: Catalogs, Constraining Creators
    journalism, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    jury system, Chapter Two: “Mere Copyists”
    Just Think!, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    K

    Kahle, Brewster, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors, Chapter Thirteen: Eldred
    Kaplan, Benjamin, 3. Free Use Vs. Fair Use
    Kazaa, Piracy II
    Keaton, Buster, Chapter One: Creators-Chapter One: Creators
    Kelly, Kevin, Chapter Fourteen: Eldred II
    Kennedy, Anthony, Chapter Thirteen: Eldred
    Kennedy, John F., Chapter Ten: “Property”, Constraining Innovators
    Kittredge, Alfred, Recorded Music-Recorded Music
    knowledge, freedom of, Chapter Six: Founders
    Kodak cameras, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Constraining Creators
    Kodak Primer, The (Eastman), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Kozinski, Alex, Piracy II
    Krim, Jonathan, Conclusion-Conclusion

    L

    land ownership, air traffic and, Introduction-Introduction, 3. Free Use Vs. Fair Use
    Laurel and Hardy Films, Chapter Thirteen: Eldred
    law
    as constraint modality, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right
    common vs. positive, Chapter Six: Founders-Chapter Six: Founders
    databases of case reports in, Piracy I, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    federal vs. state, Law: Duration-Law: Duration
    law schools, Corrupting Citizens
    Leaphart, Walter, Rebuilding Free Culture: One Idea
    Lear, Norman, Market: Concentration
    legal realist movement, Together
    legal system, attorney costs in, Chapter Three: Catalogs
    Lessig, Lawrence, Chapter Ten: “Property”, Architecture and Law: Force, Constraining Innovators
    Eldred case involvement of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in international debate on intellectual property, Conclusion-Conclusion
    Lessing, Lawrence, Introduction-Introduction
    Lexis and Westlaw, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    libraries
    archival function of, Chapter Nine: Collectors
    journals in, Rebuilding Freedoms Previously Presumed: Examples
    of public-domain literature, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    privacy rights in use of, Rebuilding Freedoms Previously Presumed: Examples
    Library of Congress, Chapter Nine: Collectors, Constraining Innovators
    Licensing Act (1662), Chapter Six: Founders
    Liebowitz, Stan, Piracy I, Piracy II, 5. Fire Lots of Lawyers
    Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Litman, Jessica, Introduction, Constraining Innovators
    Lofgren, Zoe, Chapter Fourteen: Eldred II
    Lott, Trent, Chapter Two: “Mere Copyists”
    Lovett, Lyle, Radio, Chapter Eleven: Chimera, Constraining Innovators, Chapter Fourteen: Eldred II
    Lucas, George, Chapter Seven: Recorders
    Lucky Dog, The, Chapter Thirteen: Eldred

    M

    Madonna, Radio-Radio, Piracy II, Chapter Ten: “Property”
    manga, Chapter One: Creators-Chapter One: Creators
    Mansfield, William Murray, Lord, “Piracy”-“Piracy”, Chapter Six: Founders-Chapter Six: Founders
    Marijuana Policy Project, Market: Concentration
    market competition, Why Hollywood Is Right, Law and Architecture: Reach
    market constraints, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    Marx Brothers, Architecture and Law: Force-Architecture and Law: Force
    McCain, John, Market: Concentration
    media
    blog pressure on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    commercial imperatives of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    ownership concentration in, Introduction-Introduction, Chapter Two: “Mere Copyists”
    media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Mehra, Salil, Chapter One: Creators-Chapter One: Creators
    MGM, Chapter Ten: “Property”
    Michigan Technical University, Chapter Three: Catalogs
    Mickey Mouse, Chapter One: Creators-Chapter One: Creators, Law: Scope
    Microsoft, Chapter Eight: Transformers
    competitive strategies of, Piracy I
    government case against, Architecture and Law: Force
    international software piracy of, Piracy I
    network file system of, Chapter Three: Catalogs-Chapter Three: Catalogs
    on free software, Conclusion-Conclusion
    Windows operating system of, Piracy I
    WIPO meeting opposed by, Conclusion
    Millar v. Taylor, Chapter Six: Founders-Chapter Six: Founders
    Milton, John, Chapter Six: Founders
    monopoly, copyright as, Chapter Six: Founders-Chapter Six: Founders
    Monroe, Marilyn, Constraining Innovators
    Morrison, Alan, Chapter Thirteen: Eldred
    Movie Archive, Chapter Nine: Collectors
    Moyers, Bill, Market: Concentration
    MP3 players, Constraining Innovators
    MP3.com, Constraining Innovators-Constraining Innovators
    MP3s, Why Hollywood Is Right
    MTV, Piracy II
    Müller, Paul Hermann, Why Hollywood Is Right-Why Hollywood Is Right
    music publishing, “Piracy”, Recorded Music-Recorded Music
    music recordings (see peer-to-peer (p2p) file sharing) (see recording industry)
    total number of, Chapter Nine: Collectors
    MusicStore, 4. Liberate the Music—Again
    my.mp3.com, Constraining Innovators-Constraining Innovators

    N

    Napster, Chapter Two: “Mere Copyists”, Piracy II-Piracy II, Chapter Eight: Transformers
    infringing material blocked by, Piracy II-Piracy II
    number of registrations on, Piracy II
    range of content on, Piracy II
    recording industry tracking users of, Corrupting Citizens-Corrupting Citizens
    replacement of, Piracy II
    venture capital for, Constraining Innovators
    Nashville Songwriters Association, Chapter Thirteen: Eldred
    National Writers Union, Chapter Thirteen: Eldred
    NBC, Market: Concentration
    Needleman, Rafe, Constraining Innovators-Constraining Innovators
    NET (No Electronic Theft) Act (1998), Chapter Thirteen: Eldred
    Netanel, Neil Weinstock, Introduction, 4. Liberate the Music—Again
    Netscape, Piracy I
    New Hampshire (Frost), Chapter Thirteen: Eldred
    news coverage, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors-Chapter Nine: Collectors
    newspapers
    archives of, Chapter Nine: Collectors
    ownership consolidation of, Market: Concentration-Market: Concentration
    Nick and Norm anti-drug campaign, Market: Concentration
    Nimmer, David, Chapter Eight: Transformers
    Nimmer, Melville, 5. Fire Lots of Lawyers
    Ninth Circuit Court of Appeals, Chapter Eight: Transformers
    No Electronic Theft (NET) Act (1998), Chapter Thirteen: Eldred
    norms, regulatory influence of, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right

    O

    O'Connor, Sandra Day, Chapter Thirteen: Eldred
    Olafson, Steve, Chapter Two: “Mere Copyists”
    Olson, Theodore B., Chapter Thirteen: Eldred
    open-source software (see free software/open-source software (FS/OSS))
    Oppenheimer, Matt, Chapter Three: Catalogs
    originalism, Chapter Thirteen: Eldred
    Orwell, George, Chapter Nine: Collectors-Chapter Nine: Collectors

    P

    parallel importation, Conclusion-Conclusion
    Paramount Pictures, Chapter Ten: “Property”
    Patent and Trademark Office, U.S., Conclusion-Conclusion
    patents
    future patents vs. future copyrights in, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in public domain, Law: Duration, Chapter Thirteen: Eldred
    on film technology, Film-Film
    on pharmaceuticals, Conclusion-Conclusion
    Patterson, Raymond, Chapter Six: Founders
    peer-to-peer (p2p) file sharing
    efficiency of, “Piracy”-“Piracy”
    felony punishments for, Chapter Thirteen: Eldred
    four types of, Piracy II-Piracy II
    infringement protections in, Piracy II-Piracy II
    regulatory balance lost in, Why Hollywood Is Right
    permission culture
    free culture vs., Introduction
    transaction cost of, Constraining Innovators-Constraining Innovators
    permissions
    photography exempted from, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    pharmaceutical patents, Conclusion-Conclusion
    photography, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Picker, Randal C., Film, Radio, Piracy II, Constraining Innovators
    piracy
    derivative work vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    in Asia, Piracy I, 4. Liberate the Music—Again
    in development of content industry, Chapter Four: “Pirates”-Cable TV
    player pianos, Recorded Music
    PLoS (Public Library of Science), Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Pogue, David, Preface-Preface
    political discourse, Chapter Two: “Mere Copyists”
    Politics, (Aristotle), Architecture and Law: Force
    Porgy and Bess, Chapter Thirteen: Eldred
    pornography, Chapter Thirteen: Eldred
    positive law, Chapter Six: Founders
    power, concentration of, Preface-Preface, Introduction
    Prelinger, Rick, Chapter Nine: Collectors
    Princeton University, Chapter Three: Catalogs
    privacy rights, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Promises to Keep (Fisher), 4. Liberate the Music—Again-4. Liberate the Music—Again
    property rights
    air traffic vs., Introduction-Introduction, 3. Free Use Vs. Fair Use
    feudal system of, Conclusion-Conclusion
    intangibility of, “Property”
    proprietary code, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    protection of artists vs. business interests, Introduction
    Public Citizen, Chapter Thirteen: Eldred
    public domain
    access fees for material in, Rebuilding Freedoms Previously Presumed: Examples
    balance of U.S. content in, Law: Duration-Law: Duration
    defined, Chapter One: Creators-Chapter One: Creators
    e-book restrictions on, Architecture and Law: Force-Architecture and Law: Force
    English legal establishment of, Chapter Six: Founders-Chapter Six: Founders
    future patents vs. future copyrights in, Law: Duration-Law: Duration
    library of works derived from, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    license system for rebuilding of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Free Culture: One Idea
    public projects in, Conclusion
    traditional term for conversion to, Chapter One: Creators-Chapter One: Creators
    Public Enemy, Rebuilding Free Culture: One Idea
    Public Library of Science (PLoS), Conclusion, Rebuilding Freedoms Previously Presumed: Examples

    Q

    Quayle, Dan, Chapter Nine: Collectors

    R

    radio
    FM spectrum of, Introduction-Introduction, Why Hollywood Is Right
    music recordings played on, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    on Internet, Constraining Innovators-Constraining Innovators
    ownership consolidation in, Market: Concentration-Market: Concentration
    railroad industry, Why Hollywood Is Right
    rap music, Rebuilding Free Culture: One Idea
    RCA, Introduction-Introduction, Why Hollywood Is Right, Afterword
    Reagan, Ronald, Chapter Thirteen: Eldred, Conclusion
    Real Networks, Constraining Innovators, 4. Liberate the Music—Again
    recording industry
    artist remuneration in, Chapter Three: Catalogs, Piracy II, Constraining Innovators-Constraining Innovators
    copyright infringement lawsuits of, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    copyright protections in, Piracy II
    Internet radio hampered by, Constraining Innovators-Constraining Innovators
    radio broadcast and, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    statutory license system in, Recorded Music-Recorded Music
    Recording Industry Association of America (RIAA)
    copyright infringement lawsuits filed by, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    intimidation tactics of, Chapter Three: Catalogs-Chapter Three: Catalogs
    lobbying power of, Chapter Three: Catalogs, Constraining Innovators-Constraining Innovators
    on Internet radio fees, Constraining Innovators-Constraining Innovators
    regulation
    as establishment protectionism, Why Hollywood Is Right-Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    four modalities of, Chapter Ten: “Property”-Why Hollywood Is Right
    outsize penalties of, Constraining Innovators
    Rehnquist, William H., Chapter Thirteen: Eldred
    remote channel changers, Why Hollywood Is Right
    Rensselaer Polytechnic Institute (RPI), Chapter Three: Catalogs-Chapter Three: Catalogs
    computer network search engine of, Chapter Three: Catalogs-Chapter Three: Catalogs
    Republican Party, Chapter Fourteen: Eldred II
    Rise of the Creative Class, The (Florida), “Piracy”
    Roberts, Michael, Constraining Innovators
    robotic dog, Architecture and Law: Force-Architecture and Law: Force
    Rogers, Fred, Architecture and Law: Force
    Romeo and Juliet (Shakespeare), Chapter Six: Founders-Chapter Six: Founders
    Rose, Mark, Chapter Six: Founders, Acknowledgments
    RPI (see Rensselaer Polytechnic Institute (RPI))
    Rubenfeld, Jeb, Law: Scope
    Russel, Phil, Recorded Music

    S

    Safire, William, Preface, Conclusion
    San Francisco Opera, Chapter Seven: Recorders
    Sarnoff, David, Introduction
    Scalia, Antonin, Chapter Thirteen: Eldred
    Scarlet Letter, The (Hawthorne), Chapter Thirteen: Eldred
    Schlafly, Phyllis, Chapter Thirteen: Eldred
    scientific journals, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Scottish publishers, Chapter Six: Founders
    search engines, Chapter Three: Catalogs-Chapter Three: Catalogs
    Seasons, The (Thomson), Chapter Six: Founders
    semiotic democracy, 4. Liberate the Music—Again
    Senate, U.S., Beginnings
    September 11, 2001, terrorist attacks of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    Shakespeare, William, Chapter One: Creators, Chapter Six: Founders
    sheet music, “Piracy”, Recorded Music
    Silent Spring (Carson), Why Hollywood Is Right
    Simpsons, The, Chapter Seven: Recorders-Chapter Seven: Recorders
    single nucleotied polymorphisms (SNPs), Conclusion
    Sonny Bono Copyright Term Extension Act (CTEA) (1998), Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Supreme Court challenge of, 5. Fire Lots of Lawyers
    Sony
    Aibo robotic dog produced by, Architecture and Law: Force-Architecture and Law: Force
    Betamax technology developed by, Piracy II-Piracy II
    Sony Pictures Entertainment, Chapter Ten: “Property”
    Sousa, John Philip, Recorded Music
    South Africa, Republic of, pharmaceutical imports by, Conclusion-Conclusion
    speech, freedom of
    constitutional guarantee of, Why Hollywood Is Right
    speeding, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Stallman, Richard, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Stanford University, Rebuilding Free Culture: One Idea
    Star Wars, Chapter Seven: Recorders
    Statute of Anne (1710), Chapter Six: Founders, Law: Duration
    Statute of Monopolies (1656), Chapter Six: Founders
    statutory damages, Chapter Three: Catalogs
    statutory licenses, Recorded Music-Recorded Music, Piracy II, Constraining Innovators
    Steamboat Bill, Jr., Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”
    Steamboat Willie, Chapter One: Creators-Chapter One: Creators
    steel industry, Why Hollywood Is Right
    Stevens, Ted, Preface
    Steward, Geoffrey, Chapter Thirteen: Eldred
    Superman comics, Chapter One: Creators
    Supreme Court, U.S.
    access to opinions of, Rebuilding Freedoms Previously Presumed: Examples
    congressional actions restrained by, Chapter Thirteen: Eldred
    factions of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    House of Lords vs., Chapter Six: Founders-Chapter Six: Founders
    on airspace vs. land rights, Introduction-Introduction
    on balance of interests in copyright law, Piracy II
    on television advertising bans, Market: Concentration
    Sutherland, Donald, Chapter Eight: Transformers

    T

    Talbot, William, Chapter Two: “Mere Copyists”
    Tatel, David, Chapter Thirteen: Eldred
    Tauzin, Billy, Constraining Innovators
    Taylor, Robert, Chapter Six: Founders
    technology
    copyright enforcement controlled by, Architecture and Law: Force
    copyright intent altered by, Law and Architecture: Reach-Law and Architecture: Reach
    established industries threatened by changes in, Why Hollywood Is Right
    legal murkiness on, Constraining Innovators
    television
    advertising on, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    cable vs. broadcast, 4. Liberate the Music—Again
    controversy avoided by, Market: Concentration
    Television Archive, Chapter Nine: Collectors
    Thomas, Clarence, Chapter Thirteen: Eldred
    Thomson, James, Chapter Six: Founders-Chapter Six: Founders
    Thurmond, Strom, Chapter Two: “Mere Copyists”
    Tocqueville, Alexis de, Chapter Two: “Mere Copyists”
    Tonson, Jacob, Chapter Six: Founders-Chapter Six: Founders
    tort reform, Constraining Creators
    Torvalds, Linus, Rebuilding Freedoms Previously Presumed: Examples
    Turner, Ted, Conclusion
    Twentieth Century Fox, Chapter Ten: “Property”

    U

    United Kingdom
    history of copyright law in, Chapter Six: Founders-Chapter Six: Founders
    public creative archive in, Conclusion
    United States Trade Representative (USTR), Conclusion
    United States v. Lopez, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    United States v. Morrison, Chapter Thirteen: Eldred
    Universal Music Group, Market: Concentration, Constraining Innovators
    Universal Pictures, Chapter Ten: “Property”
    university computer networks, p2p sharing on, Chapter Three: Catalogs-Chapter Three: Catalogs
    used record sales, Piracy II

    V

    Vaidhyanathan, Siva, Chapter One: Creators, Film, Chapter Six: Founders, Architecture and Law: Force, Together
    Valenti, Jack
    background of, Chapter Ten: “Property”-Chapter Ten: “Property”
    Eldred Act opposed by, Chapter Fourteen: Eldred II
    on creative property rights, Introduction, Law and Architecture: Reach
    on VCR technology, Piracy II-Piracy II
    perpetual copyright term proposed by, Chapter Thirteen: Eldred
    Vanderbilt University, Chapter Nine: Collectors
    VCRs, Constraining Innovators, 4. Liberate the Music—Again
    venture capitalists, Constraining Innovators
    veterans' pensions, 2. Shorter Terms
    Video Pipeline, Law and Architecture: Reach-Law and Architecture: Reach
    Vivendi Universal, Chapter Eleven: Chimera, Constraining Innovators-Constraining Innovators
    von Lohmann, Fred, Corrupting Citizens

    W

    Wagner, Richard, Chapter Seven: Recorders-Chapter Seven: Recorders
    Warner Brothers, Chapter Ten: “Property”, Architecture and Law: Force-Architecture and Law: Force
    Warner Music Group, Market: Concentration
    Warren, Samuel D., Chapter Two: “Mere Copyists”
    Way Back Machine, Chapter Nine: Collectors
    Wayner, Peter, Rebuilding Free Culture: One Idea
    Web sites, domain name registration of, Registration and renewal
    Web-logs (blogs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Webster, Noah, Introduction
    Wellcome Trust, Conclusion
    Wells, H. G., Chapter Eleven: Chimera-Chapter Eleven: Chimera
    White House press releases, Chapter Nine: Collectors
    willful infringement, Law and Architecture: Reach
    Windows, Piracy I
    Winer, Dave, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Winick, Judd, Chapter One: Creators-Chapter One: Creators
    WJOA, Market: Concentration
    World Intellectual Property Organization (WIPO), Conclusion-Conclusion
    World Summit on the Information Society (WSIS), Conclusion-Conclusion
    World Trade Center, Chapter Two: “Mere Copyists”
    World Wide Web, Conclusion
    WorldCom, Constraining Creators
    WRC, Market: Concentration
    Wright brothers, Introduction-Introduction

    Y

    Yanofsky, Dave, Chapter Two: “Mere Copyists”

    Z

    Zimmerman, Edwin, Cable TV
    Zittrain, Jonathan, “Piracy”, Law: Scope

    Chapter . Acknowledgments

    This book is the product of a long and as yet unsuccessful struggle that began when I read of Eric Eldred's war to keep books free. Eldred's work helped launch a movement, the free culture movement, and it is to him that this book is dedicated. -

    +

    I received guidance in various places from friends and academics, including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and Kathleen Sullivan. And I received correction and @@ -12229,9 +12229,10 @@ me track down a good replacement font without usage restrictions instead of the one in the original edition. The typesetting is done using dblatex, which was selected over the alternatives thanks to the invaluable and quick help from Benoît Guillon and Andreas Hoenen. -Thomas Gramstad donated ISBN numbers needed for distribution to book -stores. Marc Jeanmougin from the inkscape community helped me -replicate the original front cover. +Thomas Gramstad helped me understand the ISBN system, so I could get +the ISBN numbers needed make book store distribution possible. Marc +Jeanmougin from the inkscape community helped me replicate the +original front cover.

    The support from Lawrence Lessig has been valuable, and I am very glad for his prompt and positive response. I am impressed he still had the @@ -12242,7 +12243,7 @@ I am very grateful to Mari and the rest of my family for their patience with me in this project.

    – Petter Reinholdtsen, Oslo 2015-10-15 -

    Index

    Symbols

    60 Minutes, Chapter Nine: Collectors

    A

    ABC, Chapter Two: “Mere Copyists”, Market: Concentration
    academic journals, Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Adobe eBook Reader, Architecture and Law: Force-Architecture and Law: Force
    advertising, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Law and Architecture: Reach-Law and Architecture: Reach, Market: Concentration-Market: Concentration
    Africa, medications for HIV patients in, Conclusion-Conclusion
    Agee, Michael, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    agricultural patents, Piracy I
    Aibo robotic dog, Architecture and Law: Force-Architecture and Law: Force
    AIDS medications, Conclusion-Conclusion
    air traffic, land ownership vs., Introduction-Introduction
    Akerlof, George, Chapter Thirteen: Eldred
    Alben, Alex, Chapter Eight: Transformers-Chapter Eight: Transformers, Constraining Innovators-Constraining Innovators, 3. Free Use Vs. Fair Use
    alcohol prohibition, Corrupting Citizens
    Alice's Adventures in Wonderland (Carroll), Architecture and Law: Force-Architecture and Law: Force
    All in the Family, Market: Concentration
    Allen, Paul, Chapter Eight: Transformers
    Amazon, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    American Association of Law Libraries, Chapter Thirteen: Eldred
    American Graphophone Company, Recorded Music
    Americans with Disabilities Act (1990), Chapter Ten: “Property”
    Andromeda, Corrupting Citizens
    Anello, Douglas, Cable TV
    animated cartoons, Chapter One: Creators-Chapter One: Creators
    antiretroviral drugs, Conclusion-Conclusion
    Apple Corporation, Conclusion, 4. Liberate the Music—Again
    architecture, constraint effected through, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right
    archive.org, Chapter Nine: Collectors
    (see also Internet Archive)
    archives, digital, Chapter Nine: Collectors-Chapter Nine: Collectors, Together, Chapter Thirteen: Eldred
    Aristotle, Architecture and Law: Force
    Armstrong, Edwin Howard, Introduction-Introduction, Chapter Twelve: Harms, Constraining Innovators
    Arrow, Kenneth, Chapter Thirteen: Eldred
    art, underground, Constraining Creators
    artists
    publicity rights on images of, Chapter Eight: Transformers
    recording industry payments to, Chapter Three: Catalogs, Radio-Radio, Piracy II, Constraining Innovators, 4. Liberate the Music—Again-4. Liberate the Music—Again
    retrospective compilations on, Chapter Eight: Transformers-Chapter Eight: Transformers
    ASCAP, “Piracy”
    Asia, commercial piracy in, Piracy I, 4. Liberate the Music—Again
    AT&T, Introduction
    Ayer, Don, Chapter Thirteen: Eldred, Chapter Fourteen: Eldred II

    B

    Bacon, Francis, Chapter Six: Founders
    Barish, Stephanie, Chapter Two: “Mere Copyists”
    Barlow, Joel, Introduction
    Barnes & Noble, Law and Architecture: Reach
    Barry, Hank, Constraining Innovators
    BBC, Conclusion
    Beatles, Recorded Music
    Beckett, Thomas, Chapter Six: Founders
    Bell, Alexander Graham, Introduction
    Berlin Act (1908), Chapter Fourteen: Eldred II
    Berman, Howard L., Chapter Eleven: Chimera, Constraining Innovators
    Berne Convention (1908), Chapter Fourteen: Eldred II
    Bernstein, Leonard, Piracy II
    Betamax, Piracy II-Piracy II
    biomedical research, Conclusion
    Black, Jane, Piracy II
    blogs (Web-logs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    BMG, Market: Concentration
    BMW, Constraining Innovators-Constraining Innovators
    Boies, David, Chapter Eight: Transformers
    Boland, Lois, Conclusion
    Bolling, Ruben, Chapter Thirteen: Eldred
    Bono, Mary, Chapter Thirteen: Eldred
    Bono, Sonny, Chapter Thirteen: Eldred
    books
    English copyright law developed for, Chapter Six: Founders-Chapter Six: Founders
    free on-line releases of, Piracy II-Piracy II, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    on Internet, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    out of print, Piracy II, Chapter Nine: Collectors, Law: Duration, 4. Liberate the Music—Again
    resales of, Piracy II, Law: Duration, 4. Liberate the Music—Again
    three types of uses of, Law and Architecture: Reach-Law and Architecture: Reach
    total number of, Chapter Nine: Collectors
    booksellers, English, Chapter Six: Founders-Chapter Six: Founders
    Boswell, James, Chapter Six: Founders
    bots, Chapter Nine: Collectors, Architecture and Law: Force
    Boyle, James, Why Hollywood Is Right
    Braithwaite, John, Conclusion
    Branagh, Kenneth, Chapter Six: Founders
    Brandeis, Louis D., Introduction, Chapter Two: “Mere Copyists”
    Brazil, free culture in, Conclusion
    Breyer, Stephen, Chapter Thirteen: Eldred
    Brezhnev, Leonid, Why Hollywood Is Right, 5. Fire Lots of Lawyers
    British Parliament, Chapter Six: Founders
    broadcast flag, Film, Piracy II, Constraining Innovators
    Bromberg, Dan, Chapter Thirteen: Eldred
    Brown, John Seely, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    browsing, Law and Architecture: Reach, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Buchanan, James, Chapter Thirteen: Eldred
    Bunyan, John, Chapter Six: Founders
    Burdick, Quentin, Cable TV
    Bush, George W., Constraining Creators

    C

    cable television, Cable TV-Cable TV, Piracy II-Piracy II, Market: Concentration, 4. Liberate the Music—Again
    camera technology, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Camp Chaos, Chapter Eight: Transformers
    CARP (Copyright Arbitration Royalty Panel), Constraining Innovators
    cars, MP3 sound systems in, Constraining Innovators-Constraining Innovators
    Carson, Rachel, Why Hollywood Is Right
    cartoon films, Chapter One: Creators-Chapter One: Creators
    Casablanca, Architecture and Law: Force
    cassette recording, Piracy II
    VCRs, Piracy II-Piracy II, Architecture and Law: Force-Architecture and Law: Force, Constraining Innovators, 4. Liberate the Music—Again
    Causby, Thomas Lee, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    Causby, Tinie, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    CBS, Chapter Two: “Mere Copyists”
    CD-ROMs, film clips used in, Chapter Eight: Transformers-Chapter Eight: Transformers
    CDs
    copyright marking of, Marking
    foreign piracy of, Piracy I-Piracy I
    mix technology and, Corrupting Citizens-Corrupting Citizens
    preference data on, Constraining Innovators-Constraining Innovators
    prices of, 4. Liberate the Music—Again
    sales levels of, Piracy II-Piracy II
    cell phones, music streamed over, 4. Liberate the Music—Again
    chimeras, Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Christensen, Clayton M., Piracy II, Market: Concentration
    Clark, Kim B., Market: Concentration
    CNN, Chapter Two: “Mere Copyists”
    Coase, Ronald, Chapter Thirteen: Eldred
    Code (Lessig), Preface, Chapter Ten: “Property”
    CodePink Women in Peace, Preface, Conclusion
    Coe, Brian, Chapter Two: “Mere Copyists”
    Comcast, Market: Concentration
    comics, Japanese, Chapter One: Creators-Chapter One: Creators
    commerce, interstate, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Commerce, U.S. Department of, Why Hollywood Is Right
    commercials, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    common law, Chapter Six: Founders
    Commons, John R., Chapter Ten: “Property”
    composer's rights vs. producers' rights in, Piracy II
    composers, copyright protections of, Piracy II
    compulsory license, Recorded Music-Recorded Music
    computer games, Chapter Two: “Mere Copyists”
    Conger, Chapter Six: Founders
    Congress, U.S.
    constitutional powers of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    copyright terms extended by, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in constitutional Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred
    on copyright laws, Recorded Music-Recorded Music, Piracy II-Piracy II, Law: Duration-Law: Duration, Constraining Innovators
    on radio, Constraining Innovators
    on recording industry, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    on VCR technology, Piracy II
    Supreme Court restraint on, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Conrad, Paul, Architecture and Law: Force
    Constitution, U.S.
    Commerce Clause of, Chapter Thirteen: Eldred
    copyright purpose established in, Beginnings-Beginnings, Chapter Thirteen: Eldred
    First Amendment to, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    on creative property, Beginnings
    Progress Clause of, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    structural checks and balances of, Beginnings
    contracts, Architecture and Law: Force
    Conyers, John, Jr., Chapter Eleven: Chimera
    cookies, Internet, Rebuilding Freedoms Previously Presumed: Examples
    copyleft licenses, Conclusion
    copyright, Chapter One: Creators
    (see also copyright law)
    as narrow monopoly right, Chapter Six: Founders-Chapter Six: Founders
    constitutional purpose of, Beginnings, Chapter Thirteen: Eldred
    duration of, Chapter One: Creators-Chapter One: Creators, Chapter Six: Founders-Chapter Six: Founders, Beginnings, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    four regulatory modalities on, Why Hollywood Is Right-Why Hollywood Is Right, Beginnings
    in perpetuity, Chapter Six: Founders-Chapter Six: Founders, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    marking of, Law: Scope-Law: Scope
    of natural authors vs. corporations, Law: Duration
    renewability of, Chapter Six: Founders, Law: Duration-Law: Duration
    scope of, Law: Scope-Law: Scope
    usage restrictions attached to, Chapter Six: Founders, Law and Architecture: Reach-Law and Architecture: Reach
    voluntary reform efforts on, Afterword-Afterword, Us, now-Rebuilding Free Culture: One Idea
    Copyright Act (1790), Law: Duration-Law: Duration, Law: Scope-Law: Scope
    copyright infringement lawsuits
    against student file sharing, Chapter Three: Catalogs-Chapter Three: Catalogs
    commercial creativity as primary purpose of, Introduction-Introduction
    distribution technology targeted in, Constraining Innovators
    exaggerated claims of, Chapter Three: Catalogs, Constraining Creators, Constraining Innovators
    in recording industry, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Creators, Constraining Innovators-Constraining Innovators
    individual defendants intimidated by, Chapter Three: Catalogs-Chapter Three: Catalogs
    statutory damages of, Chapter Three: Catalogs
    willful infringement findings in, Law and Architecture: Reach-Law and Architecture: Reach
    zero tolerance in, Piracy II-Piracy II
    copyright law
    as ex post regulation modality, Chapter Ten: “Property”-Chapter Ten: “Property”
    as protection of creators, Introduction, Beginnings-Beginnings
    copies as core issue of, Law and Architecture: Reach-Law and Architecture: Reach
    creativity impeded by, “Piracy”
    development of, Chapter Six: Founders-Chapter Six: Founders
    English, “Piracy”, Chapter Six: Founders-Chapter Six: Founders
    European, Law: Scope
    fair use and, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    felony punishment for infringement of, Chapter Thirteen: Eldred
    history of American, Beginnings-Law: Duration
    innovation hampered by, Constraining Innovators-Constraining Innovators
    innovative freedom balanced with fair compensation in, Why Hollywood Is Right-Why Hollywood Is Right
    Japanese, Chapter One: Creators-Chapter One: Creators
    on music recordings, Recorded Music-Recorded Music, Piracy II-Piracy II
    on republishing vs. transformation of original work, “Piracy”-“Piracy”, Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    registration requirement of, Law: Scope-Law: Scope
    scope of, Law and Architecture: Reach-Law and Architecture: Reach
    statutory licenses in, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    technology as automatic enforcer of, Architecture and Law: Force
    term extensions in, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    two central goals of, Piracy II
    corporations
    copyright terms for, Law: Duration
    in pharmaceutical industry, Conclusion-Conclusion
    Country of the Blind, The (Wells), Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Court of Appeals
    Ninth Circuit, Chapter Eight: Transformers
    cover songs, Recorded Music
    Creative Commons, Conclusion, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    creative property, “Piracy”
    (see also intellectual property rights)
    common law protections of, Law: Duration
    constitutional tradition on, Beginnings-Beginnings
    if value, then right theory of, “Piracy”-“Piracy”
    other property rights vs., Law and Architecture: Reach-Law and Architecture: Reach
    creativity, “Piracy”
    (see also innovation)
    by transforming previous works, Chapter One: Creators-Chapter One: Creators
    legal restrictions on, “Piracy”-“Piracy”
    Crichton, Michael, Chapter Two: “Mere Copyists”
    criminal justice system, Market: Concentration
    Crosskey, William W., Law: Duration
    CTEA, Law: Duration
    (see also Sonny Bono Copyright Term Extension Act (CTEA) (1998))
    culture, Introduction
    (see also free culture)
    commercial vs. noncommercial, Introduction-Introduction
    Cyber Rights (Godwin), Chapter Two: “Mere Copyists”

    D

    Daguerre, Louis, Chapter Two: “Mere Copyists”
    Daley, Elizabeth, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    DAT (digital audio tape), Piracy II
    Data General, Rebuilding Freedoms Previously Presumed: Examples
    Day After Trinity, The, Chapter Seven: Recorders
    DDT, Why Hollywood Is Right-Why Hollywood Is Right
    Dean, Howard, Chapter Two: “Mere Copyists”
    democracy
    digital sharing within, Constraining Creators
    in technologies of expression, Chapter Two: “Mere Copyists”
    media concentration and, Market: Concentration
    public discourse in, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    semiotic, 4. Liberate the Music—Again
    Democratic Party, Chapter Fourteen: Eldred II
    derivative works
    fair use vs., Law and Architecture: Reach-Law and Architecture: Reach
    historical shift in copyright coverage of, Law: Scope-Law: Scope
    piracy vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    technological developments and, Law and Architecture: Reach-Law and Architecture: Reach
    developing countries, foreign patent costs in, Conclusion-Conclusion
    digital cameras, Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Digital Copyright (Litman), Constraining Innovators
    Diller, Barry, Market: Concentration
    Disney, Inc., Chapter One: Creators-Chapter One: Creators, Chapter Ten: “Property”, Law and Architecture: Reach-Law and Architecture: Reach
    Disney, Walt, Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Piracy II, Chapter Nine: Collectors, Law: Scope, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Doctorow, Cory, Piracy II
    doctors malpractice claims against, Constraining Creators
    documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    domain names, Registration and renewal
    Donaldson v. Beckett, Chapter Six: Founders-Chapter Six: Founders
    Donaldson, Alexander, Chapter Six: Founders-Chapter Six: Founders
    Douglas, William O., Introduction-Introduction
    doujinshi comics, Chapter One: Creators-Chapter One: Creators
    Down and Out in the Magic Kingdom (Doctorow), Piracy II
    Drahos, Peter, Piracy I, Conclusion
    Dreyfuss, Rochelle, “Piracy”
    driving speed, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Drucker, Peter, Chapter Eight: Transformers
    drugs
    pharmaceutical, Conclusion-Conclusion
    Dryden, John, Chapter Six: Founders
    Duck and Cover film, Chapter Nine: Collectors
    Dylan, Bob, Conclusion

    E

    e-books, Law and Architecture: Reach-Law and Architecture: Reach
    e-mail, Chapter Two: “Mere Copyists”
    Eagle Forum, Chapter Thirteen: Eldred
    Eastman, George, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Edison, Thomas, Introduction
    education
    in media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    tinkering as means of, Chapter Three: Catalogs
    Eldred, Eric, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    elections, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    electoral college, Beginnings
    Electronic Frontier Foundation, Architecture and Law: Force, Corrupting Citizens
    Else, Jon, Chapter Seven: Recorders-Chapter Seven: Recorders
    EMI, Market: Concentration, Constraining Innovators
    England, copyright laws developed in, Chapter Six: Founders-Chapter Six: Founders
    Enlightenment, Chapter Six: Founders
    environmentalism, Why Hollywood Is Right-Why Hollywood Is Right
    ephemeral films, Chapter Nine: Collectors
    Errors and Omissions insurance, Chapter Seven: Recorders
    Erskine, Andrew, Chapter Six: Founders
    expression, technologies of
    democratic, Chapter Two: “Mere Copyists”
    media literacy and, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    F

    fair use, Law and Architecture: Reach-Law and Architecture: Reach
    in documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    Internet burdens on, Law and Architecture: Reach
    legal intimidation tactics against, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    Fallows, James, Market: Concentration
    Fanning, Shawn, Piracy II
    Faraday, Michael, Introduction
    farming, Why Hollywood Is Right
    FCC
    on FM radio, Introduction-Introduction
    feudal system, Conclusion-Conclusion
    film industry
    luxury theatres vs. video piracy in, 4. Liberate the Music—Again
    trailer advertisements of, Law and Architecture: Reach-Law and Architecture: Reach
    films
    animated, Chapter One: Creators-Chapter One: Creators
    archive of, Chapter Nine: Collectors
    fair use of copyrighted material in, Chapter Seven: Recorders-Chapter Seven: Recorders
    multiple copyrights associated with, Chapter Seven: Recorders
    total number of, Chapter Nine: Collectors
    First Amendment, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    first-sale doctrine, Law and Architecture: Reach
    Fisher, William, 4. Liberate the Music—Again
    Florida, Richard, “Piracy”
    FM radio, Introduction-Introduction, Why Hollywood Is Right
    Forbes, Steve, Chapter Fourteen: Eldred II
    formalities, Law: Scope-Law: Scope
    Fourneaux, Henri, Recorded Music-Recorded Music
    Fox (film company), Chapter Seven: Recorders-Chapter Seven: Recorders
    Fox, William, Film
    free culture
    derivative works based on, Chapter One: Creators-Chapter One: Creators
    English legal establishment of, Chapter Six: Founders
    four modalities of constraint on, Chapter Ten: “Property”-Why Hollywood Is Right
    permission culture vs., Introduction
    restoration efforts on previous aspects of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Free for All (Wayner), Rebuilding Free Culture: One Idea
    free market, technological changes in, Why Hollywood Is Right-Why Hollywood Is Right
    free software/open-source software (FS/OSS), Piracy I, Conclusion-Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Fried, Charles, Chapter Thirteen: Eldred
    Friedman, Milton, Chapter Thirteen: Eldred
    Frost, Robert, Chapter Thirteen: Eldred
    Future of Ideas, The (Lessig), Architecture and Law: Force, Constraining Innovators

    G

    Garlick, Mia, Rebuilding Free Culture: One Idea
    Gates, Bill, Why Hollywood Is Right, Conclusion
    General Film Company, Film
    General Public License (GPL), Conclusion
    generic drugs, Conclusion
    German copyright law, Chapter Fourteen: Eldred II
    Gershwin, George, Chapter Thirteen: Eldred
    Gil, Gilberto, Conclusion
    Ginsburg, Ruth Bader, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Girl Scouts, “Piracy”
    Global Positioning System, Conclusion
    GNU/Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Godwin, Mike, Chapter Two: “Mere Copyists”
    Goldstein, Paul, 3. Free Use Vs. Fair Use
    Google, Chapter Three: Catalogs-Chapter Three: Catalogs
    GPL (General Public License), Conclusion
    Gracie Films, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grimm fairy tales, Chapter One: Creators-Chapter One: Creators, Chapter Thirteen: Eldred
    Grisham, John, Recorded Music-Recorded Music, 3. Free Use Vs. Fair Use
    Groening, Matt, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grokster, Ltd., Constraining Innovators

    H

    hacks, Architecture and Law: Force
    Hal Roach Studios, Chapter Thirteen: Eldred
    Hand, Learned, Radio
    handguns, Architecture and Law: Force-Architecture and Law: Force
    Hawthorne, Nathaniel, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Henry V, Chapter Six: Founders
    Henry VIII, King of England, Chapter Six: Founders
    Herrera, Rebecca, Chapter Seven: Recorders-Chapter Seven: Recorders
    Heston, Charlton, Cable TV
    history, records of, Chapter Nine: Collectors
    HIV/AIDS therapies, Conclusion-Conclusion
    Hollings, Fritz, Constraining Innovators
    Hollywood film industry, Film
    (see also film industry)
    House of Lords, Chapter Six: Founders-Chapter Six: Founders
    Hummer Winblad, Constraining Innovators
    Hummer, John, Constraining Innovators
    Hyde, Rosel H., Cable TV

    I

    IBM, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    if value, then right theory, “Piracy”-“Piracy”, Chapter Four: “Pirates”
    images, ownership of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Constraining Creators
    innovation, Piracy II
    (see also creativity)
    industry establishment opposed to, Constraining Innovators-Constraining Innovators
    insecticide, environmental consequences of, Why Hollywood Is Right-Why Hollywood Is Right
    Intel, Constraining Innovators, Chapter Thirteen: Eldred
    intellectual property rights, Introduction-Introduction
    international organization on issues of, Conclusion-Conclusion
    of drug patents, Conclusion-Conclusion
    international law, Conclusion-Conclusion
    Internet
    blogs on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    books on, Piracy II-Piracy II, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    copyright applicability altered by technology of, Law and Architecture: Reach-Law and Architecture: Reach
    copyright regulatory balance lost with, Why Hollywood Is Right-Why Hollywood Is Right
    development of, Introduction-Introduction, Conclusion, Us, now-Us, now
    domain name registration on, Registration and renewal
    efficient content distribution on, “Piracy”
    initial free character of, Us, now-Us, now
    news events on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    peer-generated rankings on, Chapter Two: “Mere Copyists”
    privacy protection on, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    public discourse conducted on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    radio on, Constraining Innovators-Constraining Innovators
    search engines used on, Chapter Three: Catalogs-Chapter Three: Catalogs
    Internet Archive, Chapter Nine: Collectors
    Internet Explorer, Piracy I
    interstate commerce, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Iraq war, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    ISPs (Internet service providers), user identities revealed by, Chapter Eleven: Chimera, Constraining Creators, Corrupting Citizens-Corrupting Citizens
    Iwerks, Ub, Chapter One: Creators

    J

    Japanese comics, Chapter One: Creators-Chapter One: Creators
    Jaszi, Peter, Chapter Thirteen: Eldred
    Jefferson, Thomas, “Property”, Chapter Ten: “Property”-Chapter Ten: “Property”, Rebuilding Free Culture: One Idea
    Johnson, Lyndon, Chapter Ten: “Property”
    Johnson, Samuel, Chapter Six: Founders
    Jones, Day, Reavis and Pogue (Jones Day), Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Jonson, Ben, Chapter Six: Founders
    Jordan, Jesse, Chapter Three: Catalogs, Constraining Creators
    journalism, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    jury system, Chapter Two: “Mere Copyists”
    Just Think!, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    K

    Kahle, Brewster, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors, Chapter Thirteen: Eldred
    Kaplan, Benjamin, 3. Free Use Vs. Fair Use
    Kazaa, Piracy II
    Keaton, Buster, Chapter One: Creators-Chapter One: Creators
    Kelly, Kevin, Chapter Fourteen: Eldred II
    Kennedy, Anthony, Chapter Thirteen: Eldred
    Kennedy, John F., Chapter Ten: “Property”, Constraining Innovators
    Kittredge, Alfred, Recorded Music-Recorded Music
    knowledge, freedom of, Chapter Six: Founders
    Kodak cameras, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Constraining Creators
    Kodak Primer, The (Eastman), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Kozinski, Alex, Piracy II
    Krim, Jonathan, Conclusion-Conclusion

    L

    land ownership, air traffic and, Introduction-Introduction, 3. Free Use Vs. Fair Use
    Laurel and Hardy Films, Chapter Thirteen: Eldred
    law
    as constraint modality, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right
    common vs. positive, Chapter Six: Founders-Chapter Six: Founders
    databases of case reports in, Piracy I, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    federal vs. state, Law: Duration-Law: Duration
    law schools, Corrupting Citizens
    Leaphart, Walter, Rebuilding Free Culture: One Idea
    Lear, Norman, Market: Concentration
    legal realist movement, Together
    legal system, attorney costs in, Chapter Three: Catalogs
    Lessig, Lawrence, Chapter Ten: “Property”, Architecture and Law: Force, Constraining Innovators
    Eldred case involvement of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in international debate on intellectual property, Conclusion-Conclusion
    Lessing, Lawrence, Introduction-Introduction
    Lexis and Westlaw, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    libraries
    archival function of, Chapter Nine: Collectors
    journals in, Rebuilding Freedoms Previously Presumed: Examples
    of public-domain literature, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    privacy rights in use of, Rebuilding Freedoms Previously Presumed: Examples
    Library of Congress, Chapter Nine: Collectors, Constraining Innovators
    Licensing Act (1662), Chapter Six: Founders
    Liebowitz, Stan, Piracy I, Piracy II, 5. Fire Lots of Lawyers
    Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Litman, Jessica, Introduction, Constraining Innovators
    Lofgren, Zoe, Chapter Fourteen: Eldred II
    Lott, Trent, Chapter Two: “Mere Copyists”
    Lovett, Lyle, Radio, Chapter Eleven: Chimera, Constraining Innovators, Chapter Fourteen: Eldred II
    Lucas, George, Chapter Seven: Recorders
    Lucky Dog, The, Chapter Thirteen: Eldred

    M

    Madonna, Radio-Radio, Piracy II, Chapter Ten: “Property”
    manga, Chapter One: Creators-Chapter One: Creators
    Mansfield, William Murray, Lord, “Piracy”-“Piracy”, Chapter Six: Founders-Chapter Six: Founders
    Marijuana Policy Project, Market: Concentration
    market competition, Why Hollywood Is Right, Law and Architecture: Reach
    market constraints, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    Marx Brothers, Architecture and Law: Force-Architecture and Law: Force
    McCain, John, Market: Concentration
    media
    blog pressure on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    commercial imperatives of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    ownership concentration in, Introduction-Introduction, Chapter Two: “Mere Copyists”
    media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Mehra, Salil, Chapter One: Creators-Chapter One: Creators
    MGM, Chapter Ten: “Property”
    Michigan Technical University, Chapter Three: Catalogs
    Mickey Mouse, Chapter One: Creators-Chapter One: Creators, Law: Scope
    Microsoft, Chapter Eight: Transformers
    competitive strategies of, Piracy I
    government case against, Architecture and Law: Force
    international software piracy of, Piracy I
    network file system of, Chapter Three: Catalogs-Chapter Three: Catalogs
    on free software, Conclusion-Conclusion
    Windows operating system of, Piracy I
    WIPO meeting opposed by, Conclusion
    Millar v. Taylor, Chapter Six: Founders-Chapter Six: Founders
    Milton, John, Chapter Six: Founders
    monopoly, copyright as, Chapter Six: Founders-Chapter Six: Founders
    Monroe, Marilyn, Constraining Innovators
    Morrison, Alan, Chapter Thirteen: Eldred
    Movie Archive, Chapter Nine: Collectors
    Moyers, Bill, Market: Concentration
    MP3 players, Constraining Innovators
    MP3.com, Constraining Innovators-Constraining Innovators
    MP3s, Why Hollywood Is Right
    MTV, Piracy II
    Müller, Paul Hermann, Why Hollywood Is Right-Why Hollywood Is Right
    music publishing, “Piracy”, Recorded Music-Recorded Music
    music recordings (see peer-to-peer (p2p) file sharing) (see recording industry)
    total number of, Chapter Nine: Collectors
    MusicStore, 4. Liberate the Music—Again
    my.mp3.com, Constraining Innovators-Constraining Innovators

    N

    Napster, Chapter Two: “Mere Copyists”, Piracy II-Piracy II, Chapter Eight: Transformers
    infringing material blocked by, Piracy II-Piracy II
    number of registrations on, Piracy II
    range of content on, Piracy II
    recording industry tracking users of, Corrupting Citizens-Corrupting Citizens
    replacement of, Piracy II
    venture capital for, Constraining Innovators
    Nashville Songwriters Association, Chapter Thirteen: Eldred
    National Writers Union, Chapter Thirteen: Eldred
    NBC, Market: Concentration
    Needleman, Rafe, Constraining Innovators-Constraining Innovators
    NET (No Electronic Theft) Act (1998), Chapter Thirteen: Eldred
    Netanel, Neil Weinstock, Introduction, 4. Liberate the Music—Again
    Netscape, Piracy I
    New Hampshire (Frost), Chapter Thirteen: Eldred
    news coverage, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors-Chapter Nine: Collectors
    newspapers
    archives of, Chapter Nine: Collectors
    ownership consolidation of, Market: Concentration-Market: Concentration
    Nick and Norm anti-drug campaign, Market: Concentration
    Nimmer, David, Chapter Eight: Transformers
    Nimmer, Melville, 5. Fire Lots of Lawyers
    Ninth Circuit Court of Appeals, Chapter Eight: Transformers
    No Electronic Theft (NET) Act (1998), Chapter Thirteen: Eldred
    norms, regulatory influence of, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right

    O

    O'Connor, Sandra Day, Chapter Thirteen: Eldred
    Olafson, Steve, Chapter Two: “Mere Copyists”
    Olson, Theodore B., Chapter Thirteen: Eldred
    open-source software (see free software/open-source software (FS/OSS))
    Oppenheimer, Matt, Chapter Three: Catalogs
    originalism, Chapter Thirteen: Eldred
    Orwell, George, Chapter Nine: Collectors-Chapter Nine: Collectors

    P

    parallel importation, Conclusion-Conclusion
    Paramount Pictures, Chapter Ten: “Property”
    Patent and Trademark Office, U.S., Conclusion-Conclusion
    patents
    future patents vs. future copyrights in, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in public domain, Law: Duration, Chapter Thirteen: Eldred
    on film technology, Film-Film
    on pharmaceuticals, Conclusion-Conclusion
    Patterson, Raymond, Chapter Six: Founders
    peer-to-peer (p2p) file sharing
    efficiency of, “Piracy”-“Piracy”
    felony punishments for, Chapter Thirteen: Eldred
    four types of, Piracy II-Piracy II
    infringement protections in, Piracy II-Piracy II
    regulatory balance lost in, Why Hollywood Is Right
    permission culture
    free culture vs., Introduction
    transaction cost of, Constraining Innovators-Constraining Innovators
    permissions
    photography exempted from, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    pharmaceutical patents, Conclusion-Conclusion
    photography, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Picker, Randal C., Film, Radio, Piracy II, Constraining Innovators
    piracy
    derivative work vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    in Asia, Piracy I, 4. Liberate the Music—Again
    in development of content industry, Chapter Four: “Pirates”-Cable TV
    player pianos, Recorded Music
    PLoS (Public Library of Science), Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Pogue, David, Preface-Preface
    political discourse, Chapter Two: “Mere Copyists”
    Politics, (Aristotle), Architecture and Law: Force
    Porgy and Bess, Chapter Thirteen: Eldred
    pornography, Chapter Thirteen: Eldred
    positive law, Chapter Six: Founders
    power, concentration of, Preface-Preface, Introduction
    Prelinger, Rick, Chapter Nine: Collectors
    Princeton University, Chapter Three: Catalogs
    privacy rights, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Promises to Keep (Fisher), 4. Liberate the Music—Again-4. Liberate the Music—Again
    property rights
    air traffic vs., Introduction-Introduction, 3. Free Use Vs. Fair Use
    feudal system of, Conclusion-Conclusion
    intangibility of, “Property”
    proprietary code, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    protection of artists vs. business interests, Introduction
    Public Citizen, Chapter Thirteen: Eldred
    public domain
    access fees for material in, Rebuilding Freedoms Previously Presumed: Examples
    balance of U.S. content in, Law: Duration-Law: Duration
    defined, Chapter One: Creators-Chapter One: Creators
    e-book restrictions on, Architecture and Law: Force-Architecture and Law: Force
    English legal establishment of, Chapter Six: Founders-Chapter Six: Founders
    future patents vs. future copyrights in, Law: Duration-Law: Duration
    library of works derived from, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    license system for rebuilding of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Free Culture: One Idea
    public projects in, Conclusion
    traditional term for conversion to, Chapter One: Creators-Chapter One: Creators
    Public Enemy, Rebuilding Free Culture: One Idea
    Public Library of Science (PLoS), Conclusion, Rebuilding Freedoms Previously Presumed: Examples

    Q

    Quayle, Dan, Chapter Nine: Collectors

    R

    radio
    FM spectrum of, Introduction-Introduction, Why Hollywood Is Right
    music recordings played on, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    on Internet, Constraining Innovators-Constraining Innovators
    ownership consolidation in, Market: Concentration-Market: Concentration
    railroad industry, Why Hollywood Is Right
    rap music, Rebuilding Free Culture: One Idea
    RCA, Introduction-Introduction, Why Hollywood Is Right, Afterword
    Reagan, Ronald, Chapter Thirteen: Eldred, Conclusion
    Real Networks, Constraining Innovators, 4. Liberate the Music—Again
    recording industry
    artist remuneration in, Chapter Three: Catalogs, Piracy II, Constraining Innovators-Constraining Innovators
    copyright infringement lawsuits of, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    copyright protections in, Piracy II
    Internet radio hampered by, Constraining Innovators-Constraining Innovators
    radio broadcast and, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    statutory license system in, Recorded Music-Recorded Music
    Recording Industry Association of America (RIAA)
    copyright infringement lawsuits filed by, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    intimidation tactics of, Chapter Three: Catalogs-Chapter Three: Catalogs
    lobbying power of, Chapter Three: Catalogs, Constraining Innovators-Constraining Innovators
    on Internet radio fees, Constraining Innovators-Constraining Innovators
    regulation
    as establishment protectionism, Why Hollywood Is Right-Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    four modalities of, Chapter Ten: “Property”-Why Hollywood Is Right
    outsize penalties of, Constraining Innovators
    Rehnquist, William H., Chapter Thirteen: Eldred
    remote channel changers, Why Hollywood Is Right
    Rensselaer Polytechnic Institute (RPI), Chapter Three: Catalogs-Chapter Three: Catalogs
    computer network search engine of, Chapter Three: Catalogs-Chapter Three: Catalogs
    Republican Party, Chapter Fourteen: Eldred II
    Rise of the Creative Class, The (Florida), “Piracy”
    Roberts, Michael, Constraining Innovators
    robotic dog, Architecture and Law: Force-Architecture and Law: Force
    Rogers, Fred, Architecture and Law: Force
    Romeo and Juliet (Shakespeare), Chapter Six: Founders-Chapter Six: Founders
    Rose, Mark, Chapter Six: Founders, Acknowledgments
    RPI (see Rensselaer Polytechnic Institute (RPI))
    Rubenfeld, Jeb, Law: Scope
    Russel, Phil, Recorded Music

    S

    Safire, William, Preface, Conclusion
    San Francisco Opera, Chapter Seven: Recorders
    Sarnoff, David, Introduction
    Scalia, Antonin, Chapter Thirteen: Eldred
    Scarlet Letter, The (Hawthorne), Chapter Thirteen: Eldred
    Schlafly, Phyllis, Chapter Thirteen: Eldred
    scientific journals, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Scottish publishers, Chapter Six: Founders
    search engines, Chapter Three: Catalogs-Chapter Three: Catalogs
    Seasons, The (Thomson), Chapter Six: Founders
    semiotic democracy, 4. Liberate the Music—Again
    Senate, U.S., Beginnings
    September 11, 2001, terrorist attacks of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    Shakespeare, William, Chapter One: Creators, Chapter Six: Founders
    sheet music, “Piracy”, Recorded Music
    Silent Spring (Carson), Why Hollywood Is Right
    Simpsons, The, Chapter Seven: Recorders-Chapter Seven: Recorders
    single nucleotied polymorphisms (SNPs), Conclusion
    Sonny Bono Copyright Term Extension Act (CTEA) (1998), Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Supreme Court challenge of, 5. Fire Lots of Lawyers
    Sony
    Aibo robotic dog produced by, Architecture and Law: Force-Architecture and Law: Force
    Betamax technology developed by, Piracy II-Piracy II
    Sony Pictures Entertainment, Chapter Ten: “Property”
    Sousa, John Philip, Recorded Music
    South Africa, Republic of, pharmaceutical imports by, Conclusion-Conclusion
    speech, freedom of
    constitutional guarantee of, Why Hollywood Is Right
    speeding, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Stallman, Richard, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Stanford University, Rebuilding Free Culture: One Idea
    Star Wars, Chapter Seven: Recorders
    Statute of Anne (1710), Chapter Six: Founders, Law: Duration
    Statute of Monopolies (1656), Chapter Six: Founders
    statutory damages, Chapter Three: Catalogs
    statutory licenses, Recorded Music-Recorded Music, Piracy II, Constraining Innovators
    Steamboat Bill, Jr., Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”
    Steamboat Willie, Chapter One: Creators-Chapter One: Creators
    steel industry, Why Hollywood Is Right
    Stevens, Ted, Preface
    Steward, Geoffrey, Chapter Thirteen: Eldred
    Superman comics, Chapter One: Creators
    Supreme Court, U.S.
    access to opinions of, Rebuilding Freedoms Previously Presumed: Examples
    congressional actions restrained by, Chapter Thirteen: Eldred
    factions of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    House of Lords vs., Chapter Six: Founders-Chapter Six: Founders
    on airspace vs. land rights, Introduction-Introduction
    on balance of interests in copyright law, Piracy II
    on television advertising bans, Market: Concentration
    Sutherland, Donald, Chapter Eight: Transformers

    T

    Talbot, William, Chapter Two: “Mere Copyists”
    Tatel, David, Chapter Thirteen: Eldred
    Tauzin, Billy, Constraining Innovators
    Taylor, Robert, Chapter Six: Founders
    technology
    copyright enforcement controlled by, Architecture and Law: Force
    copyright intent altered by, Law and Architecture: Reach-Law and Architecture: Reach
    established industries threatened by changes in, Why Hollywood Is Right
    legal murkiness on, Constraining Innovators
    television
    advertising on, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    cable vs. broadcast, 4. Liberate the Music—Again
    controversy avoided by, Market: Concentration
    Television Archive, Chapter Nine: Collectors
    Thomas, Clarence, Chapter Thirteen: Eldred
    Thomson, James, Chapter Six: Founders-Chapter Six: Founders
    Thurmond, Strom, Chapter Two: “Mere Copyists”
    Tocqueville, Alexis de, Chapter Two: “Mere Copyists”
    Tonson, Jacob, Chapter Six: Founders-Chapter Six: Founders
    tort reform, Constraining Creators
    Torvalds, Linus, Rebuilding Freedoms Previously Presumed: Examples
    Turner, Ted, Conclusion
    Twentieth Century Fox, Chapter Ten: “Property”

    U

    United Kingdom
    history of copyright law in, Chapter Six: Founders-Chapter Six: Founders
    public creative archive in, Conclusion
    United States Trade Representative (USTR), Conclusion
    United States v. Lopez, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    United States v. Morrison, Chapter Thirteen: Eldred
    Universal Music Group, Market: Concentration, Constraining Innovators
    Universal Pictures, Chapter Ten: “Property”
    university computer networks, p2p sharing on, Chapter Three: Catalogs-Chapter Three: Catalogs
    used record sales, Piracy II

    V

    Vaidhyanathan, Siva, Chapter One: Creators, Film, Chapter Six: Founders, Architecture and Law: Force, Together
    Valenti, Jack
    background of, Chapter Ten: “Property”-Chapter Ten: “Property”
    Eldred Act opposed by, Chapter Fourteen: Eldred II
    on creative property rights, Introduction, Law and Architecture: Reach
    on VCR technology, Piracy II-Piracy II
    perpetual copyright term proposed by, Chapter Thirteen: Eldred
    Vanderbilt University, Chapter Nine: Collectors
    VCRs, Constraining Innovators, 4. Liberate the Music—Again
    venture capitalists, Constraining Innovators
    veterans' pensions, 2. Shorter Terms
    Video Pipeline, Law and Architecture: Reach-Law and Architecture: Reach
    Vivendi Universal, Chapter Eleven: Chimera, Constraining Innovators-Constraining Innovators
    von Lohmann, Fred, Corrupting Citizens

    W

    Wagner, Richard, Chapter Seven: Recorders-Chapter Seven: Recorders
    Warner Brothers, Chapter Ten: “Property”, Architecture and Law: Force-Architecture and Law: Force
    Warner Music Group, Market: Concentration
    Warren, Samuel D., Chapter Two: “Mere Copyists”
    Way Back Machine, Chapter Nine: Collectors
    Wayner, Peter, Rebuilding Free Culture: One Idea
    Web sites, domain name registration of, Registration and renewal
    Web-logs (blogs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Webster, Noah, Introduction
    Wellcome Trust, Conclusion
    Wells, H. G., Chapter Eleven: Chimera-Chapter Eleven: Chimera
    White House press releases, Chapter Nine: Collectors
    willful infringement, Law and Architecture: Reach
    Windows, Piracy I
    Winer, Dave, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Winick, Judd, Chapter One: Creators-Chapter One: Creators
    WJOA, Market: Concentration
    World Intellectual Property Organization (WIPO), Conclusion-Conclusion
    World Summit on the Information Society (WSIS), Conclusion-Conclusion
    World Trade Center, Chapter Two: “Mere Copyists”
    World Wide Web, Conclusion
    WorldCom, Constraining Creators
    WRC, Market: Concentration
    Wright brothers, Introduction-Introduction

    Y

    Yanofsky, Dave, Chapter Two: “Mere Copyists”

    Z

    Zimmerman, Edwin, Cable TV
    Zittrain, Jonathan, “Piracy”, Law: Scope

    +

    Index

    Symbols

    60 Minutes, Chapter Nine: Collectors

    A

    ABC, Chapter Two: “Mere Copyists”, Market: Concentration
    academic journals, Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Adobe eBook Reader, Architecture and Law: Force-Architecture and Law: Force
    advertising, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Law and Architecture: Reach-Law and Architecture: Reach, Market: Concentration-Market: Concentration
    Africa, medications for HIV patients in, Conclusion-Conclusion
    Agee, Michael, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    agricultural patents, Piracy I
    Aibo robotic dog, Architecture and Law: Force-Architecture and Law: Force
    AIDS medications, Conclusion-Conclusion
    air traffic, land ownership vs., Introduction-Introduction
    Akerlof, George, Chapter Thirteen: Eldred
    Alben, Alex, Chapter Eight: Transformers-Chapter Eight: Transformers, Constraining Innovators-Constraining Innovators, 3. Free Use Vs. Fair Use
    alcohol prohibition, Corrupting Citizens
    Alice's Adventures in Wonderland (Carroll), Architecture and Law: Force-Architecture and Law: Force
    All in the Family, Market: Concentration
    Allen, Paul, Chapter Eight: Transformers
    Amazon, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    American Association of Law Libraries, Chapter Thirteen: Eldred
    American Graphophone Company, Recorded Music
    Americans with Disabilities Act (1990), Chapter Ten: “Property”
    Andromeda, Corrupting Citizens
    Anello, Douglas, Cable TV
    animated cartoons, Chapter One: Creators-Chapter One: Creators
    antiretroviral drugs, Conclusion-Conclusion
    Apple Corporation, Conclusion, 4. Liberate the Music—Again
    architecture, constraint effected through, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right
    archive.org, Chapter Nine: Collectors
    (see also Internet Archive)
    archives, digital, Chapter Nine: Collectors-Chapter Nine: Collectors, Together, Chapter Thirteen: Eldred
    Aristotle, Architecture and Law: Force
    Armstrong, Edwin Howard, Introduction-Introduction, Chapter Twelve: Harms, Constraining Innovators
    Arrow, Kenneth, Chapter Thirteen: Eldred
    art, underground, Constraining Creators
    artists
    publicity rights on images of, Chapter Eight: Transformers
    recording industry payments to, Chapter Three: Catalogs, Radio-Radio, Piracy II, Constraining Innovators, 4. Liberate the Music—Again-4. Liberate the Music—Again
    retrospective compilations on, Chapter Eight: Transformers-Chapter Eight: Transformers
    ASCAP, “Piracy”
    Asia, commercial piracy in, Piracy I, 4. Liberate the Music—Again
    AT&T, Introduction
    Ayer, Don, Chapter Thirteen: Eldred, Chapter Fourteen: Eldred II

    B

    Bacon, Francis, Chapter Six: Founders
    Barish, Stephanie, Chapter Two: “Mere Copyists”
    Barlow, Joel, Introduction
    Barnes & Noble, Law and Architecture: Reach
    Barry, Hank, Constraining Innovators
    BBC, Conclusion
    Beatles, Recorded Music
    Beckett, Thomas, Chapter Six: Founders
    Bell, Alexander Graham, Introduction
    Berlin Act (1908), Chapter Fourteen: Eldred II
    Berman, Howard L., Chapter Eleven: Chimera, Constraining Innovators
    Berne Convention (1908), Chapter Fourteen: Eldred II
    Bernstein, Leonard, Piracy II
    Betamax, Piracy II-Piracy II
    biomedical research, Conclusion
    Black, Jane, Piracy II
    blogs (Web-logs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    BMG, Market: Concentration
    BMW, Constraining Innovators-Constraining Innovators
    Boies, David, Chapter Eight: Transformers
    Boland, Lois, Conclusion
    Bolling, Ruben, Chapter Thirteen: Eldred
    Bono, Mary, Chapter Thirteen: Eldred
    Bono, Sonny, Chapter Thirteen: Eldred
    books
    English copyright law developed for, Chapter Six: Founders-Chapter Six: Founders
    free on-line releases of, Piracy II-Piracy II, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    on Internet, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    out of print, Piracy II, Chapter Nine: Collectors, Law: Duration, 4. Liberate the Music—Again
    resales of, Piracy II, Law: Duration, 4. Liberate the Music—Again
    three types of uses of, Law and Architecture: Reach-Law and Architecture: Reach
    total number of, Chapter Nine: Collectors
    booksellers, English, Chapter Six: Founders-Chapter Six: Founders
    Boswell, James, Chapter Six: Founders
    bots, Chapter Nine: Collectors, Architecture and Law: Force
    Boyle, James, Why Hollywood Is Right
    Braithwaite, John, Conclusion
    Branagh, Kenneth, Chapter Six: Founders
    Brandeis, Louis D., Introduction, Chapter Two: “Mere Copyists”
    Brazil, free culture in, Conclusion
    Breyer, Stephen, Chapter Thirteen: Eldred
    Brezhnev, Leonid, Why Hollywood Is Right, 5. Fire Lots of Lawyers
    British Parliament, Chapter Six: Founders
    broadcast flag, Film, Piracy II, Constraining Innovators
    Bromberg, Dan, Chapter Thirteen: Eldred
    Brown, John Seely, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    browsing, Law and Architecture: Reach, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Buchanan, James, Chapter Thirteen: Eldred
    Bunyan, John, Chapter Six: Founders
    Burdick, Quentin, Cable TV
    Bush, George W., Constraining Creators

    C

    cable television, Cable TV-Cable TV, Piracy II-Piracy II, Market: Concentration, 4. Liberate the Music—Again
    camera technology, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Camp Chaos, Chapter Eight: Transformers
    CARP (Copyright Arbitration Royalty Panel), Constraining Innovators
    cars, MP3 sound systems in, Constraining Innovators-Constraining Innovators
    Carson, Rachel, Why Hollywood Is Right
    cartoon films, Chapter One: Creators-Chapter One: Creators
    Casablanca, Architecture and Law: Force
    cassette recording, Piracy II
    VCRs, Piracy II-Piracy II, Architecture and Law: Force-Architecture and Law: Force, Constraining Innovators, 4. Liberate the Music—Again
    Causby, Thomas Lee, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    Causby, Tinie, Introduction, Chapter Twelve: Harms, Chapter Fourteen: Eldred II, Conclusion
    CBS, Chapter Two: “Mere Copyists”
    CD-ROMs, film clips used in, Chapter Eight: Transformers-Chapter Eight: Transformers
    CDs
    copyright marking of, Marking
    foreign piracy of, Piracy I-Piracy I
    mix technology and, Corrupting Citizens-Corrupting Citizens
    preference data on, Constraining Innovators-Constraining Innovators
    prices of, 4. Liberate the Music—Again
    sales levels of, Piracy II-Piracy II
    cell phones, music streamed over, 4. Liberate the Music—Again
    chimeras, Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Christensen, Clayton M., Piracy II, Market: Concentration
    Clark, Kim B., Market: Concentration
    CNN, Chapter Two: “Mere Copyists”
    Coase, Ronald, Chapter Thirteen: Eldred
    Code (Lessig), Preface, Chapter Ten: “Property”
    CodePink Women in Peace, Preface, Conclusion
    Coe, Brian, Chapter Two: “Mere Copyists”
    Comcast, Market: Concentration
    comics, Japanese, Chapter One: Creators-Chapter One: Creators
    commerce, interstate, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Commerce, U.S. Department of, Why Hollywood Is Right
    commercials, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    common law, Chapter Six: Founders
    Commons, John R., Chapter Ten: “Property”
    composer's rights vs. producers' rights in, Piracy II
    composers, copyright protections of, Piracy II
    compulsory license, Recorded Music-Recorded Music
    computer games, Chapter Two: “Mere Copyists”
    Conger, Chapter Six: Founders
    Congress, U.S.
    constitutional powers of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    copyright terms extended by, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in constitutional Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred
    on copyright laws, Recorded Music-Recorded Music, Piracy II-Piracy II, Law: Duration-Law: Duration, Constraining Innovators
    on radio, Constraining Innovators
    on recording industry, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    on VCR technology, Piracy II
    Supreme Court restraint on, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Conrad, Paul, Architecture and Law: Force
    Constitution, U.S.
    Commerce Clause of, Chapter Thirteen: Eldred
    copyright purpose established in, Beginnings-Beginnings, Chapter Thirteen: Eldred
    First Amendment to, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    on creative property, Beginnings
    Progress Clause of, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    structural checks and balances of, Beginnings
    contracts, Architecture and Law: Force
    Conyers, John, Jr., Chapter Eleven: Chimera
    cookies, Internet, Rebuilding Freedoms Previously Presumed: Examples
    copyleft licenses, Conclusion
    copyright, Chapter One: Creators
    (see also copyright law)
    as narrow monopoly right, Chapter Six: Founders-Chapter Six: Founders
    constitutional purpose of, Beginnings, Chapter Thirteen: Eldred
    duration of, Chapter One: Creators-Chapter One: Creators, Chapter Six: Founders-Chapter Six: Founders, Beginnings, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    four regulatory modalities on, Why Hollywood Is Right-Why Hollywood Is Right, Beginnings
    in perpetuity, Chapter Six: Founders-Chapter Six: Founders, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    marking of, Law: Scope-Law: Scope
    of natural authors vs. corporations, Law: Duration
    renewability of, Chapter Six: Founders, Law: Duration-Law: Duration
    scope of, Law: Scope-Law: Scope
    usage restrictions attached to, Chapter Six: Founders, Law and Architecture: Reach-Law and Architecture: Reach
    voluntary reform efforts on, Afterword-Afterword, Us, now-Rebuilding Free Culture: One Idea
    Copyright Act (1790), Law: Duration-Law: Duration, Law: Scope-Law: Scope
    copyright infringement lawsuits
    against student file sharing, Chapter Three: Catalogs-Chapter Three: Catalogs
    commercial creativity as primary purpose of, Introduction-Introduction
    distribution technology targeted in, Constraining Innovators
    exaggerated claims of, Chapter Three: Catalogs, Constraining Creators, Constraining Innovators
    in recording industry, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Creators, Constraining Innovators-Constraining Innovators
    individual defendants intimidated by, Chapter Three: Catalogs-Chapter Three: Catalogs
    statutory damages of, Chapter Three: Catalogs
    willful infringement findings in, Law and Architecture: Reach-Law and Architecture: Reach
    zero tolerance in, Piracy II-Piracy II
    copyright law
    as ex post regulation modality, Chapter Ten: “Property”-Chapter Ten: “Property”
    as protection of creators, Introduction, Beginnings-Beginnings
    copies as core issue of, Law and Architecture: Reach-Law and Architecture: Reach
    creativity impeded by, “Piracy”
    development of, Chapter Six: Founders-Chapter Six: Founders
    English, “Piracy”, Chapter Six: Founders-Chapter Six: Founders
    European, Law: Scope
    fair use and, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    felony punishment for infringement of, Chapter Thirteen: Eldred
    history of American, Beginnings-Law: Duration
    innovation hampered by, Constraining Innovators-Constraining Innovators
    innovative freedom balanced with fair compensation in, Why Hollywood Is Right-Why Hollywood Is Right
    Japanese, Chapter One: Creators-Chapter One: Creators
    on music recordings, Recorded Music-Recorded Music, Piracy II-Piracy II
    on republishing vs. transformation of original work, “Piracy”-“Piracy”, Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    registration requirement of, Law: Scope-Law: Scope
    scope of, Law and Architecture: Reach-Law and Architecture: Reach
    statutory licenses in, Recorded Music-Recorded Music, Piracy II-Piracy II, Constraining Innovators
    technology as automatic enforcer of, Architecture and Law: Force
    term extensions in, Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    two central goals of, Piracy II
    corporations
    copyright terms for, Law: Duration
    in pharmaceutical industry, Conclusion-Conclusion
    Country of the Blind, The (Wells), Chapter Eleven: Chimera-Chapter Eleven: Chimera
    Court of Appeals
    Ninth Circuit, Chapter Eight: Transformers
    cover songs, Recorded Music
    Creative Commons, Conclusion, Rebuilding Free Culture: One Idea-Rebuilding Free Culture: One Idea
    creative property, “Piracy”
    (see also intellectual property rights)
    common law protections of, Law: Duration
    constitutional tradition on, Beginnings-Beginnings
    if value, then right theory of, “Piracy”-“Piracy”
    other property rights vs., Law and Architecture: Reach-Law and Architecture: Reach
    creativity, “Piracy”
    (see also innovation)
    by transforming previous works, Chapter One: Creators-Chapter One: Creators
    legal restrictions on, “Piracy”-“Piracy”
    Crichton, Michael, Chapter Two: “Mere Copyists”
    criminal justice system, Market: Concentration
    Crosskey, William W., Law: Duration
    CTEA, Law: Duration
    (see also Sonny Bono Copyright Term Extension Act (CTEA) (1998))
    culture, Introduction
    (see also free culture)
    commercial vs. noncommercial, Introduction-Introduction
    Cyber Rights (Godwin), Chapter Two: “Mere Copyists”

    D

    Daguerre, Louis, Chapter Two: “Mere Copyists”
    Daley, Elizabeth, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    DAT (digital audio tape), Piracy II
    Data General, Rebuilding Freedoms Previously Presumed: Examples
    Day After Trinity, The, Chapter Seven: Recorders
    DDT, Why Hollywood Is Right-Why Hollywood Is Right
    Dean, Howard, Chapter Two: “Mere Copyists”
    democracy
    digital sharing within, Constraining Creators
    in technologies of expression, Chapter Two: “Mere Copyists”
    media concentration and, Market: Concentration
    public discourse in, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    semiotic, 4. Liberate the Music—Again
    Democratic Party, Chapter Fourteen: Eldred II
    derivative works
    fair use vs., Law and Architecture: Reach-Law and Architecture: Reach
    historical shift in copyright coverage of, Law: Scope-Law: Scope
    piracy vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    technological developments and, Law and Architecture: Reach-Law and Architecture: Reach
    developing countries, foreign patent costs in, Conclusion-Conclusion
    digital cameras, Chapter Two: “Mere Copyists”, Why Hollywood Is Right
    Digital Copyright (Litman), Constraining Innovators
    Diller, Barry, Market: Concentration
    Disney, Inc., Chapter One: Creators-Chapter One: Creators, Chapter Ten: “Property”, Law and Architecture: Reach-Law and Architecture: Reach
    Disney, Walt, Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Piracy II, Chapter Nine: Collectors, Law: Scope, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Doctorow, Cory, Piracy II
    doctors malpractice claims against, Constraining Creators
    documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    domain names, Registration and renewal
    Donaldson v. Beckett, Chapter Six: Founders-Chapter Six: Founders
    Donaldson, Alexander, Chapter Six: Founders-Chapter Six: Founders
    Douglas, William O., Introduction-Introduction
    doujinshi comics, Chapter One: Creators-Chapter One: Creators
    Down and Out in the Magic Kingdom (Doctorow), Piracy II
    Drahos, Peter, Piracy I, Conclusion
    Dreyfuss, Rochelle, “Piracy”
    driving speed, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Drucker, Peter, Chapter Eight: Transformers
    drugs
    pharmaceutical, Conclusion-Conclusion
    Dryden, John, Chapter Six: Founders
    Duck and Cover film, Chapter Nine: Collectors
    Dylan, Bob, Conclusion

    E

    e-books, Law and Architecture: Reach-Law and Architecture: Reach
    e-mail, Chapter Two: “Mere Copyists”
    Eagle Forum, Chapter Thirteen: Eldred
    Eastman, George, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Edison, Thomas, Introduction
    education
    in media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    tinkering as means of, Chapter Three: Catalogs
    Eldred, Eric, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    elections, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    electoral college, Beginnings
    Electronic Frontier Foundation, Architecture and Law: Force, Corrupting Citizens
    Else, Jon, Chapter Seven: Recorders-Chapter Seven: Recorders
    EMI, Market: Concentration, Constraining Innovators
    England, copyright laws developed in, Chapter Six: Founders-Chapter Six: Founders
    Enlightenment, Chapter Six: Founders
    environmentalism, Why Hollywood Is Right-Why Hollywood Is Right
    ephemeral films, Chapter Nine: Collectors
    Errors and Omissions insurance, Chapter Seven: Recorders
    Erskine, Andrew, Chapter Six: Founders
    expression, technologies of
    democratic, Chapter Two: “Mere Copyists”
    media literacy and, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    F

    fair use, Law and Architecture: Reach-Law and Architecture: Reach
    in documentary film, Chapter Seven: Recorders-Chapter Seven: Recorders
    Internet burdens on, Law and Architecture: Reach
    legal intimidation tactics against, Chapter Seven: Recorders-Chapter Seven: Recorders, Law and Architecture: Reach-Law and Architecture: Reach
    Fallows, James, Market: Concentration
    Fanning, Shawn, Piracy II
    Faraday, Michael, Introduction
    farming, Why Hollywood Is Right
    FCC
    on FM radio, Introduction-Introduction
    feudal system, Conclusion-Conclusion
    film industry
    luxury theatres vs. video piracy in, 4. Liberate the Music—Again
    trailer advertisements of, Law and Architecture: Reach-Law and Architecture: Reach
    films
    animated, Chapter One: Creators-Chapter One: Creators
    archive of, Chapter Nine: Collectors
    fair use of copyrighted material in, Chapter Seven: Recorders-Chapter Seven: Recorders
    multiple copyrights associated with, Chapter Seven: Recorders
    total number of, Chapter Nine: Collectors
    First Amendment, Introduction, Why Hollywood Is Right, Law and Architecture: Reach, Market: Concentration
    first-sale doctrine, Law and Architecture: Reach
    Fisher, William, 4. Liberate the Music—Again
    Florida, Richard, “Piracy”
    FM radio, Introduction-Introduction, Why Hollywood Is Right
    Forbes, Steve, Chapter Fourteen: Eldred II
    formalities, Law: Scope-Law: Scope
    Fourneaux, Henri, Recorded Music-Recorded Music
    Fox (film company), Chapter Seven: Recorders-Chapter Seven: Recorders
    Fox, William, Film
    free culture
    derivative works based on, Chapter One: Creators-Chapter One: Creators
    English legal establishment of, Chapter Six: Founders
    four modalities of constraint on, Chapter Ten: “Property”-Why Hollywood Is Right
    permission culture vs., Introduction
    restoration efforts on previous aspects of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Free for All (Wayner), Rebuilding Free Culture: One Idea
    free market, technological changes in, Why Hollywood Is Right-Why Hollywood Is Right
    free software/open-source software (FS/OSS), Piracy I, Conclusion-Conclusion, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Fried, Charles, Chapter Thirteen: Eldred
    Friedman, Milton, Chapter Thirteen: Eldred
    Frost, Robert, Chapter Thirteen: Eldred
    Future of Ideas, The (Lessig), Architecture and Law: Force, Constraining Innovators

    G

    Garlick, Mia, Rebuilding Free Culture: One Idea
    Gates, Bill, Why Hollywood Is Right, Conclusion
    General Film Company, Film
    General Public License (GPL), Conclusion
    generic drugs, Conclusion
    German copyright law, Chapter Fourteen: Eldred II
    Gershwin, George, Chapter Thirteen: Eldred
    Gil, Gilberto, Conclusion
    Ginsburg, Ruth Bader, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Girl Scouts, “Piracy”
    Global Positioning System, Conclusion
    GNU/Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Godwin, Mike, Chapter Two: “Mere Copyists”
    Goldstein, Paul, 3. Free Use Vs. Fair Use
    Google, Chapter Three: Catalogs-Chapter Three: Catalogs
    GPL (General Public License), Conclusion
    Gracie Films, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grimm fairy tales, Chapter One: Creators-Chapter One: Creators, Chapter Thirteen: Eldred
    Grisham, John, Recorded Music-Recorded Music, 3. Free Use Vs. Fair Use
    Groening, Matt, Chapter Seven: Recorders-Chapter Seven: Recorders
    Grokster, Ltd., Constraining Innovators

    H

    hacks, Architecture and Law: Force
    Hal Roach Studios, Chapter Thirteen: Eldred
    Hand, Learned, Radio
    handguns, Architecture and Law: Force-Architecture and Law: Force
    Hawthorne, Nathaniel, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Henry V, Chapter Six: Founders
    Henry VIII, King of England, Chapter Six: Founders
    Herrera, Rebecca, Chapter Seven: Recorders-Chapter Seven: Recorders
    Heston, Charlton, Cable TV
    history, records of, Chapter Nine: Collectors
    HIV/AIDS therapies, Conclusion-Conclusion
    Hollings, Fritz, Constraining Innovators
    Hollywood film industry, Film
    (see also film industry)
    House of Lords, Chapter Six: Founders-Chapter Six: Founders
    Hummer Winblad, Constraining Innovators
    Hummer, John, Constraining Innovators
    Hyde, Rosel H., Cable TV

    I

    IBM, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    if value, then right theory, “Piracy”-“Piracy”, Chapter Four: “Pirates”
    images, ownership of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Constraining Creators
    innovation, Piracy II
    (see also creativity)
    industry establishment opposed to, Constraining Innovators-Constraining Innovators
    insecticide, environmental consequences of, Why Hollywood Is Right-Why Hollywood Is Right
    Intel, Constraining Innovators, Chapter Thirteen: Eldred
    intellectual property rights, Introduction-Introduction
    international organization on issues of, Conclusion-Conclusion
    of drug patents, Conclusion-Conclusion
    international law, Conclusion-Conclusion
    Internet
    blogs on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    books on, Piracy II-Piracy II, Law and Architecture: Reach-Law and Architecture: Reach, Architecture and Law: Force-Architecture and Law: Force
    copyright applicability altered by technology of, Law and Architecture: Reach-Law and Architecture: Reach
    copyright regulatory balance lost with, Why Hollywood Is Right-Why Hollywood Is Right
    development of, Introduction-Introduction, Conclusion, Us, now-Us, now
    domain name registration on, Registration and renewal
    efficient content distribution on, “Piracy”
    initial free character of, Us, now-Us, now
    news events on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    peer-generated rankings on, Chapter Two: “Mere Copyists”
    privacy protection on, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    public discourse conducted on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    radio on, Constraining Innovators-Constraining Innovators
    search engines used on, Chapter Three: Catalogs-Chapter Three: Catalogs
    Internet Archive, Chapter Nine: Collectors
    Internet Explorer, Piracy I
    interstate commerce, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Iraq war, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    ISPs (Internet service providers), user identities revealed by, Chapter Eleven: Chimera, Constraining Creators, Corrupting Citizens-Corrupting Citizens
    Iwerks, Ub, Chapter One: Creators

    J

    Japanese comics, Chapter One: Creators-Chapter One: Creators
    Jaszi, Peter, Chapter Thirteen: Eldred
    Jefferson, Thomas, “Property”, Chapter Ten: “Property”-Chapter Ten: “Property”, Rebuilding Free Culture: One Idea
    Johnson, Lyndon, Chapter Ten: “Property”
    Johnson, Samuel, Chapter Six: Founders
    Jones, Day, Reavis and Pogue (Jones Day), Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Jonson, Ben, Chapter Six: Founders
    Jordan, Jesse, Chapter Three: Catalogs, Constraining Creators
    journalism, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    jury system, Chapter Two: “Mere Copyists”
    Just Think!, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”

    K

    Kahle, Brewster, Chapter Two: “Mere Copyists”, Chapter Nine: Collectors, Chapter Thirteen: Eldred
    Kaplan, Benjamin, 3. Free Use Vs. Fair Use
    Kazaa, Piracy II
    Keaton, Buster, Chapter One: Creators-Chapter One: Creators
    Kelly, Kevin, Chapter Fourteen: Eldred II
    Kennedy, Anthony, Chapter Thirteen: Eldred
    Kennedy, John F., Chapter Ten: “Property”, Constraining Innovators
    Kittredge, Alfred, Recorded Music-Recorded Music
    knowledge, freedom of, Chapter Six: Founders
    Kodak cameras, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Constraining Creators
    Kodak Primer, The (Eastman), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Kozinski, Alex, Piracy II
    Krim, Jonathan, Conclusion-Conclusion

    L

    land ownership, air traffic and, Introduction-Introduction, 3. Free Use Vs. Fair Use
    Laurel and Hardy Films, Chapter Thirteen: Eldred
    law
    as constraint modality, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right
    common vs. positive, Chapter Six: Founders-Chapter Six: Founders
    databases of case reports in, Piracy I, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    federal vs. state, Law: Duration-Law: Duration
    law schools, Corrupting Citizens
    Leaphart, Walter, Rebuilding Free Culture: One Idea
    Lear, Norman, Market: Concentration
    legal realist movement, Together
    legal system, attorney costs in, Chapter Three: Catalogs
    Lessig, Lawrence, Chapter Ten: “Property”, Architecture and Law: Force, Constraining Innovators
    Eldred case involvement of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in international debate on intellectual property, Conclusion-Conclusion
    Lessing, Lawrence, Introduction-Introduction
    Lexis and Westlaw, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    libraries
    archival function of, Chapter Nine: Collectors
    journals in, Rebuilding Freedoms Previously Presumed: Examples
    of public-domain literature, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    privacy rights in use of, Rebuilding Freedoms Previously Presumed: Examples
    Library of Congress, Chapter Nine: Collectors, Constraining Innovators
    Licensing Act (1662), Chapter Six: Founders
    Liebowitz, Stan, Piracy I, Piracy II, 5. Fire Lots of Lawyers
    Linux operating system, Piracy I, Chapter Thirteen: Eldred, Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Litman, Jessica, Introduction, Constraining Innovators
    Lofgren, Zoe, Chapter Fourteen: Eldred II
    Lott, Trent, Chapter Two: “Mere Copyists”
    Lovett, Lyle, Radio, Chapter Eleven: Chimera, Constraining Innovators, Chapter Fourteen: Eldred II
    Lucas, George, Chapter Seven: Recorders
    Lucky Dog, The, Chapter Thirteen: Eldred

    M

    Madonna, Radio-Radio, Piracy II, Chapter Ten: “Property”
    manga, Chapter One: Creators-Chapter One: Creators
    Mansfield, William Murray, Lord, “Piracy”-“Piracy”, Chapter Six: Founders-Chapter Six: Founders
    Marijuana Policy Project, Market: Concentration
    market competition, Why Hollywood Is Right, Law and Architecture: Reach
    market constraints, Chapter Ten: “Property”-Chapter Ten: “Property”, Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    Marx Brothers, Architecture and Law: Force-Architecture and Law: Force
    McCain, John, Market: Concentration
    media
    blog pressure on, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    commercial imperatives of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    ownership concentration in, Introduction-Introduction, Chapter Two: “Mere Copyists”
    media literacy, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Mehra, Salil, Chapter One: Creators-Chapter One: Creators
    MGM, Chapter Ten: “Property”
    Michigan Technical University, Chapter Three: Catalogs
    Mickey Mouse, Chapter One: Creators-Chapter One: Creators, Law: Scope
    Microsoft, Chapter Eight: Transformers
    competitive strategies of, Piracy I
    government case against, Architecture and Law: Force
    international software piracy of, Piracy I
    network file system of, Chapter Three: Catalogs-Chapter Three: Catalogs
    on free software, Conclusion-Conclusion
    Windows operating system of, Piracy I
    WIPO meeting opposed by, Conclusion
    Millar v. Taylor, Chapter Six: Founders-Chapter Six: Founders
    Milton, John, Chapter Six: Founders
    monopoly, copyright as, Chapter Six: Founders-Chapter Six: Founders
    Monroe, Marilyn, Constraining Innovators
    Morrison, Alan, Chapter Thirteen: Eldred
    Movie Archive, Chapter Nine: Collectors
    Moyers, Bill, Market: Concentration
    MP3 players, Constraining Innovators
    MP3.com, Constraining Innovators-Constraining Innovators
    MP3s, Why Hollywood Is Right
    MTV, Piracy II
    Müller, Paul Hermann, Why Hollywood Is Right-Why Hollywood Is Right
    music publishing, “Piracy”, Recorded Music-Recorded Music
    music recordings (see peer-to-peer (p2p) file sharing) (see recording industry)
    total number of, Chapter Nine: Collectors
    MusicStore, 4. Liberate the Music—Again
    my.mp3.com, Constraining Innovators-Constraining Innovators

    N

    Napster, Chapter Two: “Mere Copyists”, Piracy II-Piracy II, Chapter Eight: Transformers
    infringing material blocked by, Piracy II-Piracy II
    number of registrations on, Piracy II
    range of content on, Piracy II
    recording industry tracking users of, Corrupting Citizens-Corrupting Citizens
    replacement of, Piracy II
    venture capital for, Constraining Innovators
    Nashville Songwriters Association, Chapter Thirteen: Eldred
    National Writers Union, Chapter Thirteen: Eldred
    NBC, Market: Concentration
    Needleman, Rafe, Constraining Innovators-Constraining Innovators
    NET (No Electronic Theft) Act (1998), Chapter Thirteen: Eldred
    Netanel, Neil Weinstock, Introduction, 4. Liberate the Music—Again
    Netscape, Piracy I
    New Hampshire (Frost), Chapter Thirteen: Eldred
    news coverage, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors-Chapter Nine: Collectors
    newspapers
    archives of, Chapter Nine: Collectors
    ownership consolidation of, Market: Concentration-Market: Concentration
    Nick and Norm anti-drug campaign, Market: Concentration
    Nimmer, David, Chapter Eight: Transformers
    Nimmer, Melville, 5. Fire Lots of Lawyers
    Ninth Circuit Court of Appeals, Chapter Eight: Transformers
    No Electronic Theft (NET) Act (1998), Chapter Thirteen: Eldred
    norms, regulatory influence of, Chapter Ten: “Property”, Why Hollywood Is Right-Why Hollywood Is Right

    O

    O'Connor, Sandra Day, Chapter Thirteen: Eldred
    Olafson, Steve, Chapter Two: “Mere Copyists”
    Olson, Theodore B., Chapter Thirteen: Eldred
    open-source software (see free software/open-source software (FS/OSS))
    Oppenheimer, Matt, Chapter Three: Catalogs
    originalism, Chapter Thirteen: Eldred
    Orwell, George, Chapter Nine: Collectors-Chapter Nine: Collectors

    P

    parallel importation, Conclusion-Conclusion
    Paramount Pictures, Chapter Ten: “Property”
    Patent and Trademark Office, U.S., Conclusion-Conclusion
    patents
    future patents vs. future copyrights in, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    in public domain, Law: Duration, Chapter Thirteen: Eldred
    on film technology, Film-Film
    on pharmaceuticals, Conclusion-Conclusion
    Patterson, Raymond, Chapter Six: Founders
    peer-to-peer (p2p) file sharing
    efficiency of, “Piracy”-“Piracy”
    felony punishments for, Chapter Thirteen: Eldred
    four types of, Piracy II-Piracy II
    infringement protections in, Piracy II-Piracy II
    regulatory balance lost in, Why Hollywood Is Right
    permission culture
    free culture vs., Introduction
    transaction cost of, Constraining Innovators-Constraining Innovators
    permissions
    photography exempted from, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    pharmaceutical patents, Conclusion-Conclusion
    photography, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Picker, Randal C., Film, Radio, Piracy II, Constraining Innovators
    piracy
    derivative work vs., Chapter One: Creators-Chapter One: Creators, Law: Scope-Law: Scope, Law and Architecture: Reach-Law and Architecture: Reach
    in Asia, Piracy I, 4. Liberate the Music—Again
    in development of content industry, Chapter Four: “Pirates”-Cable TV
    player pianos, Recorded Music
    PLoS (Public Library of Science), Conclusion, Rebuilding Freedoms Previously Presumed: Examples
    Pogue, David, Preface-Preface
    political discourse, Chapter Two: “Mere Copyists”
    Politics, (Aristotle), Architecture and Law: Force
    Porgy and Bess, Chapter Thirteen: Eldred
    pornography, Chapter Thirteen: Eldred
    positive law, Chapter Six: Founders
    power, concentration of, Preface-Preface, Introduction
    Prelinger, Rick, Chapter Nine: Collectors
    Princeton University, Chapter Three: Catalogs
    privacy rights, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Progress Clause, Beginnings-Beginnings, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Promises to Keep (Fisher), 4. Liberate the Music—Again-4. Liberate the Music—Again
    property rights
    air traffic vs., Introduction-Introduction, 3. Free Use Vs. Fair Use
    feudal system of, Conclusion-Conclusion
    intangibility of, “Property”
    proprietary code, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    protection of artists vs. business interests, Introduction
    Public Citizen, Chapter Thirteen: Eldred
    public domain
    access fees for material in, Rebuilding Freedoms Previously Presumed: Examples
    balance of U.S. content in, Law: Duration-Law: Duration
    defined, Chapter One: Creators-Chapter One: Creators
    e-book restrictions on, Architecture and Law: Force-Architecture and Law: Force
    English legal establishment of, Chapter Six: Founders-Chapter Six: Founders
    future patents vs. future copyrights in, Law: Duration-Law: Duration
    library of works derived from, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    license system for rebuilding of, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Free Culture: One Idea
    public projects in, Conclusion
    traditional term for conversion to, Chapter One: Creators-Chapter One: Creators
    Public Enemy, Rebuilding Free Culture: One Idea
    Public Library of Science (PLoS), Conclusion, Rebuilding Freedoms Previously Presumed: Examples

    Q

    Quayle, Dan, Chapter Nine: Collectors

    R

    radio
    FM spectrum of, Introduction-Introduction, Why Hollywood Is Right
    music recordings played on, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    on Internet, Constraining Innovators-Constraining Innovators
    ownership consolidation in, Market: Concentration-Market: Concentration
    railroad industry, Why Hollywood Is Right
    rap music, Rebuilding Free Culture: One Idea
    RCA, Introduction-Introduction, Why Hollywood Is Right, Afterword
    Reagan, Ronald, Chapter Thirteen: Eldred, Conclusion
    Real Networks, Constraining Innovators, 4. Liberate the Music—Again
    recording industry
    artist remuneration in, Chapter Three: Catalogs, Piracy II, Constraining Innovators-Constraining Innovators
    copyright infringement lawsuits of, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    copyright protections in, Piracy II
    Internet radio hampered by, Constraining Innovators-Constraining Innovators
    radio broadcast and, Radio-Radio, Piracy II, Constraining Innovators-Constraining Innovators
    statutory license system in, Recorded Music-Recorded Music
    Recording Industry Association of America (RIAA)
    copyright infringement lawsuits filed by, Chapter Three: Catalogs-Chapter Three: Catalogs, Constraining Innovators
    intimidation tactics of, Chapter Three: Catalogs-Chapter Three: Catalogs
    lobbying power of, Chapter Three: Catalogs, Constraining Innovators-Constraining Innovators
    on Internet radio fees, Constraining Innovators-Constraining Innovators
    regulation
    as establishment protectionism, Why Hollywood Is Right-Why Hollywood Is Right, Constraining Innovators-Constraining Innovators
    four modalities of, Chapter Ten: “Property”-Why Hollywood Is Right
    outsize penalties of, Constraining Innovators
    Rehnquist, William H., Chapter Thirteen: Eldred
    remote channel changers, Why Hollywood Is Right
    Rensselaer Polytechnic Institute (RPI), Chapter Three: Catalogs-Chapter Three: Catalogs
    computer network search engine of, Chapter Three: Catalogs-Chapter Three: Catalogs
    Republican Party, Chapter Fourteen: Eldred II
    Rise of the Creative Class, The (Florida), “Piracy”
    Roberts, Michael, Constraining Innovators
    robotic dog, Architecture and Law: Force-Architecture and Law: Force
    Rogers, Fred, Architecture and Law: Force
    Romeo and Juliet (Shakespeare), Chapter Six: Founders-Chapter Six: Founders
    Rose, Mark, Chapter Six: Founders, Acknowledgments
    RPI (see Rensselaer Polytechnic Institute (RPI))
    Rubenfeld, Jeb, Law: Scope
    Russel, Phil, Recorded Music

    S

    Safire, William, Preface, Conclusion
    San Francisco Opera, Chapter Seven: Recorders
    Sarnoff, David, Introduction
    Scalia, Antonin, Chapter Thirteen: Eldred
    Scarlet Letter, The (Hawthorne), Chapter Thirteen: Eldred
    Schlafly, Phyllis, Chapter Thirteen: Eldred
    scientific journals, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Scottish publishers, Chapter Six: Founders
    search engines, Chapter Three: Catalogs-Chapter Three: Catalogs
    Seasons, The (Thomson), Chapter Six: Founders
    semiotic democracy, 4. Liberate the Music—Again
    Senate, U.S., Beginnings
    September 11, 2001, terrorist attacks of, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”, Chapter Nine: Collectors
    Shakespeare, William, Chapter One: Creators, Chapter Six: Founders
    sheet music, “Piracy”, Recorded Music
    Silent Spring (Carson), Why Hollywood Is Right
    Simpsons, The, Chapter Seven: Recorders-Chapter Seven: Recorders
    single nucleotied polymorphisms (SNPs), Conclusion
    Sonny Bono Copyright Term Extension Act (CTEA) (1998), Law: Duration-Law: Duration, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    Supreme Court challenge of, 5. Fire Lots of Lawyers
    Sony
    Aibo robotic dog produced by, Architecture and Law: Force-Architecture and Law: Force
    Betamax technology developed by, Piracy II-Piracy II
    Sony Pictures Entertainment, Chapter Ten: “Property”
    Sousa, John Philip, Recorded Music
    South Africa, Republic of, pharmaceutical imports by, Conclusion-Conclusion
    speech, freedom of
    constitutional guarantee of, Why Hollywood Is Right
    speeding, constraints on, Chapter Ten: “Property”-Chapter Ten: “Property”
    Stallman, Richard, Rebuilding Freedoms Previously Presumed: Examples-Rebuilding Freedoms Previously Presumed: Examples
    Stanford University, Rebuilding Free Culture: One Idea
    Star Wars, Chapter Seven: Recorders
    Statute of Anne (1710), Chapter Six: Founders, Law: Duration
    Statute of Monopolies (1656), Chapter Six: Founders
    statutory damages, Chapter Three: Catalogs
    statutory licenses, Recorded Music-Recorded Music, Piracy II, Constraining Innovators
    Steamboat Bill, Jr., Chapter One: Creators-Chapter One: Creators, Chapter Two: “Mere Copyists”
    Steamboat Willie, Chapter One: Creators-Chapter One: Creators
    steel industry, Why Hollywood Is Right
    Stevens, Ted, Preface
    Steward, Geoffrey, Chapter Thirteen: Eldred
    Superman comics, Chapter One: Creators
    Supreme Court, U.S.
    access to opinions of, Rebuilding Freedoms Previously Presumed: Examples
    congressional actions restrained by, Chapter Thirteen: Eldred
    factions of, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    House of Lords vs., Chapter Six: Founders-Chapter Six: Founders
    on airspace vs. land rights, Introduction-Introduction
    on balance of interests in copyright law, Piracy II
    on television advertising bans, Market: Concentration
    Sutherland, Donald, Chapter Eight: Transformers

    T

    Talbot, William, Chapter Two: “Mere Copyists”
    Tatel, David, Chapter Thirteen: Eldred
    Tauzin, Billy, Constraining Innovators
    Taylor, Robert, Chapter Six: Founders
    technology
    copyright enforcement controlled by, Architecture and Law: Force
    copyright intent altered by, Law and Architecture: Reach-Law and Architecture: Reach
    established industries threatened by changes in, Why Hollywood Is Right
    legal murkiness on, Constraining Innovators
    television
    advertising on, Chapter Two: “Mere Copyists”, Why Hollywood Is Right, Market: Concentration-Market: Concentration
    cable vs. broadcast, 4. Liberate the Music—Again
    controversy avoided by, Market: Concentration
    Television Archive, Chapter Nine: Collectors
    Thomas, Clarence, Chapter Thirteen: Eldred
    Thomson, James, Chapter Six: Founders-Chapter Six: Founders
    Thurmond, Strom, Chapter Two: “Mere Copyists”
    Tocqueville, Alexis de, Chapter Two: “Mere Copyists”
    Tonson, Jacob, Chapter Six: Founders-Chapter Six: Founders
    tort reform, Constraining Creators
    Torvalds, Linus, Rebuilding Freedoms Previously Presumed: Examples
    Turner, Ted, Conclusion
    Twentieth Century Fox, Chapter Ten: “Property”

    U

    United Kingdom
    history of copyright law in, Chapter Six: Founders-Chapter Six: Founders
    public creative archive in, Conclusion
    United States Trade Representative (USTR), Conclusion
    United States v. Lopez, Chapter Thirteen: Eldred-Chapter Thirteen: Eldred
    United States v. Morrison, Chapter Thirteen: Eldred
    Universal Music Group, Market: Concentration, Constraining Innovators
    Universal Pictures, Chapter Ten: “Property”
    university computer networks, p2p sharing on, Chapter Three: Catalogs-Chapter Three: Catalogs
    used record sales, Piracy II

    V

    Vaidhyanathan, Siva, Chapter One: Creators, Film, Chapter Six: Founders, Architecture and Law: Force, Together
    Valenti, Jack
    background of, Chapter Ten: “Property”-Chapter Ten: “Property”
    Eldred Act opposed by, Chapter Fourteen: Eldred II
    on creative property rights, Introduction, Law and Architecture: Reach
    on VCR technology, Piracy II-Piracy II
    perpetual copyright term proposed by, Chapter Thirteen: Eldred
    Vanderbilt University, Chapter Nine: Collectors
    VCRs, Constraining Innovators, 4. Liberate the Music—Again
    venture capitalists, Constraining Innovators
    veterans' pensions, 2. Shorter Terms
    Video Pipeline, Law and Architecture: Reach-Law and Architecture: Reach
    Vivendi Universal, Chapter Eleven: Chimera, Constraining Innovators-Constraining Innovators
    von Lohmann, Fred, Corrupting Citizens

    W

    Wagner, Richard, Chapter Seven: Recorders-Chapter Seven: Recorders
    Warner Brothers, Chapter Ten: “Property”, Architecture and Law: Force-Architecture and Law: Force
    Warner Music Group, Market: Concentration
    Warren, Samuel D., Chapter Two: “Mere Copyists”
    Way Back Machine, Chapter Nine: Collectors
    Wayner, Peter, Rebuilding Free Culture: One Idea
    Web sites, domain name registration of, Registration and renewal
    Web-logs (blogs), Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Webster, Noah, Introduction
    Wellcome Trust, Conclusion
    Wells, H. G., Chapter Eleven: Chimera-Chapter Eleven: Chimera
    White House press releases, Chapter Nine: Collectors
    willful infringement, Law and Architecture: Reach
    Windows, Piracy I
    Winer, Dave, Chapter Two: “Mere Copyists”-Chapter Two: “Mere Copyists”
    Winick, Judd, Chapter One: Creators-Chapter One: Creators
    WJOA, Market: Concentration
    World Intellectual Property Organization (WIPO), Conclusion-Conclusion
    World Summit on the Information Society (WSIS), Conclusion-Conclusion
    World Trade Center, Chapter Two: “Mere Copyists”
    World Wide Web, Conclusion
    WorldCom, Constraining Creators
    WRC, Market: Concentration
    Wright brothers, Introduction-Introduction

    Y

    Yanofsky, Dave, Chapter Two: “Mere Copyists”

    Z

    Zimmerman, Edwin, Cable TV
    Zittrain, Jonathan, “Piracy”, Law: Scope

    Free culture: How big media uses technology and the law to lock down culture and control creativity / Lawrence Lessig.

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