From: Petter Reinholdtsen Date: Wed, 11 Jul 2012 11:49:50 +0000 (+0200) Subject: Introduce –. X-Git-Tag: edition-2015-10-10~2552 X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/commitdiff_plain/9766356b24af6131474733d04651f9753e86d474?ds=sidebyside Introduce –. --- diff --git a/freeculture.xml b/freeculture.xml index b981a74..418dac9 100644 --- a/freeculture.xml +++ b/freeculture.xml @@ -10,8 +10,8 @@ - + + ]> @@ -446,7 +446,7 @@ Notes Toward a Cultural Geography of Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, -N.Y.: Foundation Press, 1984), 1112­13. +N.Y.: Foundation Press, 1984), 1112–13. @@ -723,7 +723,7 @@ publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, -198­200. +198–200. This is also, of course, an important part of creativity and culture, and it has become @@ -847,7 +847,7 @@ Yet the law's response to the Internet, when tied to changes in the technology of the Internet itself, has massively increased the effective regulation of creativity in America. To build upon or critique the culture -around us one must ask, Oliver Twist­like, for permission first. +around us one must ask, Oliver Twist–like, for permission first. Permission is, of course, often granted—but it is not often granted to the critical or the independent. We have built a kind of cultural nobility; @@ -1200,7 +1200,7 @@ wonderful! And it was something new! Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons -(New York: Penguin Books, 1987), 34­35. +(New York: Penguin Books, 1987), 34–35. @@ -1827,7 +1827,7 @@ do the capturing. See Melville B. Nimmer, "The Right of Publicity," Law and Contemporary Problems 19 (1954): 203; William L. Prosser, "Privacy," California Law Review -48 (1960) 398­407; White v. Samsung Electronics America, Inc., 971 F. +48 (1960) 398–407; White v. Samsung Electronics America, Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993). ) @@ -2254,7 +2254,7 @@ with people you disagree with. Political discourse becomes isolated, and isolated discourse becomes more extreme. Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), -65­80, 175, 182, 183, 192. +65–80, 175, 182, 183, 192. We say what our friends want to hear, and hear very little beyond what our friends say. @@ -2745,7 +2745,7 @@ Artists, on the other hand, are not well paid. The average recording artist makes $45,900. Occupational Employment Survey, U.S. Dept. of Labor (2001) -(27­2042—Musicians and Singers). See also National Endowment for +(27–2042—Musicians and Singers). See also National Endowment for the Arts, More Than One in a Blue Moon (2000). There are plenty of ways for the RIAA to affect @@ -2799,7 +2799,7 @@ The film industry of Hollywood was built by fleeing pirates. I am grateful to Peter DiMauro for pointing me to this extraordinary history. -See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87­93, +See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, which details Edison's "adventures" with copyright and patent. Creators @@ -2984,7 +2984,7 @@ of anything he had before their introduction." Rather, the machines increased the sales of sheet music. -To Amend and Consolidate the Acts Respecting Copyright, 283­84 +To Amend and Consolidate the Acts Respecting Copyright, 283–84 (statement of Albert Walker, representative of the Auto-Music Perforating Company of New York). @@ -3408,7 +3408,7 @@ these nations live gives them some opportunities to escape the burden of intellectual property law. See Peter Drahos with John Braithwaite, Information Feudalism: Who -Owns the Knowledge Economy? (New York: The New Press, 2003), 10­13, +Owns the Knowledge Economy? (New York: The New Press, 2003), 10–13, 209. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement obligates member nations to create administrative and enforcement mechanisms for intellectual property rights, a costly @@ -3435,7 +3435,7 @@ less money than they otherwise would have had. For an analysis of the economic impact of copying technology, see Stan Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), -144­90. "In some instances . . . the impact of piracy on the copyright holder's +144–90. "In some instances . . . the impact of piracy on the copyright holder's ability to appropriate the value of the work will be negligible. One obvious instance is the case where the individual engaging in pirating would not have @@ -3588,7 +3588,7 @@ up with the most creative, paradigm-shifting uses for their own products. This job usually falls to outside innovators, who reassemble existing technology in inventive ways. For a discussion of Christensen's ideas, see -Lawrence Lessig, Future, 89­92, 139. +Lawrence Lessig, Future, 89–92, 139. ), Shawn Fanning and crew had simply put together components that had been developed independently. @@ -3719,7 +3719,7 @@ Let's start with some simple but important points. From the of the law, only type D sharing is clearly legal. From the perspective of economics, only type A sharing is clearly harmful. -See Liebowitz, Rethinking the Network Economy,148­49. +See Liebowitz, Rethinking the Network Economy,148–49. Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, @@ -3761,7 +3761,7 @@ Assessment conducted a survey of consumer behavior. In 1988, 40 percent of consumers older than ten had taped music to a cassette format. U.S. Congress, Office of Technology Assessment, Copyright and Home Copying: Technology Challenges the Law, OTA-CIT-422 (Washington, D.C.: U.S. -Government Printing Office, October 1989), 145­56. +Government Printing Office, October 1989), 145–56. The labels claimed that every album taped was an album unsold, and when record sales fell by 11.4 percent in 1981, the @@ -4031,7 +4031,7 @@ MHP, available at link #21. For an account of the litigation and its toll on Napster, see Joseph Menn, All the Rave: The Rise and Fall of Shawn Fanning's -Napster (New York: Crown Business, 2003), 269­82. +Napster (New York: Crown Business, 2003), 269–82. @@ -4275,7 +4275,7 @@ controlling the technology of DAT. See Audio Home Recording Act of 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not eliminate the opportunity for free riding in the sense I've described. See Lessig, Future, 71. See also Picker, "From Edison to the Broadcast Flag," -University of Chicago Law Review 70 (2003): 293­96. +University of Chicago Law Review 70 (2003): 293–96. In each case, throughout our history, that change meant that someone got a "free ride" on someone else's @@ -4410,7 +4410,7 @@ lights his taper at mine, receives light without darkening me." Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert -Ellery Bergh, eds., 1903), 330, 333­34. +Ellery Bergh, eds., 1903), 330, 333–34. @@ -4480,14 +4480,14 @@ handsome "definitive editions" of classic works. In addition to Romeo and Juliet, he published an astonishing array of works that still remain at the heart of the English canon, including collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson, -Bookseller," American Scholar 61:3 (1992): 424­31. +Bookseller," American Scholar 61:3 (1992): 424–31. Tonson was the most prominent of a small group of publishers called the Conger Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt -University Press, 1968), 151­52. +University Press, 1968), 151–52. who controlled bookselling in England during the eighteenth century. The @@ -4755,7 +4755,7 @@ for cattle." Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," Vanderbilt Law Review 40 (1987): 28. For a wonderfully compelling account, see -Vaidhyanathan, 37­48. +Vaidhyanathan, 37–48. The bookseller didn't care squat for the rights of the author. @@ -4767,7 +4767,7 @@ The hero of this fight was a Scottish bookseller named Alexander Donaldson. For a compelling account, see David Saunders, Authorship and Copyright -(London: Routledge, 1992), 62­69. +(London: Routledge, 1992), 62–69. @@ -5722,7 +5722,7 @@ library. The copy exists—if it exists at all—in the library archive film company. Doug Herrick, "Toward a National Film Collection: Motion Pictures at the -Library of Congress," Film Library Quarterly 13 nos. 2­3 (1980): 5; +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. @@ -6030,7 +6030,7 @@ right to drive at 150 miles an hour. For the best effort to connect the ordinary meaning of "property" to "lawyer talk," see Bruce Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977), -26­27. +26–27. it has never been the case, nor should it be, that "creative property owners" have been "accorded @@ -6265,7 +6265,7 @@ only distinction is that it alone speaks as if it has a right self-consciously t change the other three. The right of the other three is more timidly expressed. See Lawrence Lessig, Code: And Other Laws of Cyberspace (New -York: Basic Books, 1999): 90­95; Lawrence Lessig, "The New Chicago +York: Basic Books, 1999): 90–95; Lawrence Lessig, "The New Chicago School," Journal of Legal Studies, June 1998. The law, in other words, sometimes @@ -6473,7 +6473,7 @@ never have any progress. As Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software patents, "established companies have an interest in excluding future competitors." -Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170­71. +Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71. And relative to a startup, established companies also have the means. (Think RCA and @@ -6696,7 +6696,7 @@ supplemented common law rights that already protected creative authorship. William W. Crosskey, Politics and the Constitution in the History of the -United States (London: Cambridge University Press, 1953), vol. 1, 485­86: +United States (London: Cambridge University Press, 1953), vol. 1, 485–86: "extinguish[ing], by plain implication of `the supreme Law of the Land,' the perpetual rights which authors had, or were supposed by some to have, under the Common Law" (emphasis added). @@ -6738,10 +6738,10 @@ likely within fourteen years. Although 13,000 titles were published in the United States from 1790 to 1799, only 556 copyright registrations were filed; John Tebbel, A History of Book Publishing in the United States, vol. 1, The Creation -of an Industry, 1630­1865 (New York: Bowker, 1972), 141. Of the 21,000 +of an Industry, 1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only twelve were copyrighted under the 1790 act; William J. Maher, Copyright Term, Retrospective Extension -and the Copyright Law of 1790 in Historical Context, 7­10 (2002), +and the Copyright Law of 1790 in Historical Context, 7–10 (2002), available at link #25. Thus, the overwhelming majority of works fell immediately into the public domain. Even those works that were @@ -6773,7 +6773,7 @@ rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright," Studies on Copyright, vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more recent and comprehensive analysis, see William M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright," -University of Chicago Law Review 70 (2003): 471, 498­501, and +University of Chicago Law Review 70 (2003): 471, 498–501, and accompanying figures. @@ -6951,7 +6951,7 @@ See Thomas Bender and David Sampliner, "Poets, Pirates, and the of American Literature," 29 New York University Journal of International Law and Politics 255 (1997), and James Gilraeth, ed., Federal -Copyright Records, 1790­1800 (U.S. G.P.O., 1987). +Copyright Records, 1790–1800 (U.S. G.P.O., 1987). The Copyright Act was thus a tiny regulation of a tiny proportion of a tiny part of the creative market in @@ -7040,7 +7040,7 @@ about the difference that copyright law should draw (from the perspective of the First Amendment) between mere "copies" and derivative works. See Jed Rubenfeld, "The Freedom of Imagination: Copyright's Constitutionality," -Yale Law Journal 112 (2002): 1­60 (see especially pp. 53­59). +Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59). These two different uses of my creative work are treated the same. @@ -7412,7 +7412,7 @@ if they went forward with their plan. See David Lange, "Recognizing the Public Domain," Law and Contemporary -Problems 44 (1981): 172­73. +Problems 44 (1981): 172–73. @@ -7420,7 +7420,7 @@ This led the Marx Brothers to respond in kind. They warned Warner Brothers that the Marx Brothers "were brothers long before you were." -Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1­3. +Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. The Marx Brothers therefore owned the word brothers, and if Warner Brothers insisted on trying to control Casablanca, then @@ -7887,7 +7887,7 @@ important. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the VCR. See James Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of -the VCR (New York: W. W. Norton, 1987), 270­71. +the VCR (New York: W. W. Norton, 1987), 270–71. @@ -8265,7 +8265,7 @@ Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business School Press, 1997). Christensen acknowledges that the idea was first suggested by Dean Kim Clark. See Kim B. Clark, "The Interaction of Design Hierarchies and Market Concepts in Technological Evolution," -Research Policy 14 (1985): 235­51. For a more recent study, see Richard +Research Policy 14 (1985): 235–51. For a more recent study, see Richard Foster and Sarah Kaplan, Creative Destruction: Why Companies That Are Built to Last Underperform the Market—and How to Successfully Transform Them (New York: Currency/Doubleday, 2001). @@ -8381,7 +8381,7 @@ courts are willing to do to even the playing field. For a general overview, see Rhonda Brown, "Ad Hoc Access: The Regulation of Editorial Advertising on Television and Radio," Yale Law and Policy Review 6 (1988): -449­79, and for a more recent summary of the stance of the FCC and the +449–79, and for a more recent summary of the stance of the FCC and the courts, see Radio-Television News Directors Association v. FCC, 184 F. 3d 872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as the networks. In a recent example from San Francisco, the San Francisco @@ -8497,7 +8497,7 @@ the most significant regulation of culture that our free society has known. Siva Vaidhyanathan captures a similar point in his "four surrenders" of -copyright law in the digital age. See Vaidhyanathan, 159­60. +copyright law in the digital age. See Vaidhyanathan, 159–60. @@ -9533,7 +9533,7 @@ would require computers to determine whether the content they access is protected or not, and to disable the spread of protected content. "Copyright and Digital Media in a Post-Napster World," GartnerG2 and the Berkman Center for Internet and Society at Harvard Law School -(2003), 33­35, available at +(2003), 33–35, available at link #44. @@ -9547,7 +9547,7 @@ Congress have proposed immunizing content providers from liability for technology they might deploy that would hunt down copyright violators and disable their machines. - GartnerG2, 26­27. + GartnerG2, 26–27. @@ -9638,7 +9638,7 @@ of that content. And in March of the same year, Senator Fritz Hollings introduced the Consumer Broadband and Digital Television Promotion Act, which mandated copyright protection technology in all digital media devices. See GartnerG2, "Copyright and Digital Media in a Post-Napster -World," 27 June 2003, 33­34, available at +World," 27 June 2003, 33–34, available at link #44. But there is one @@ -12262,7 +12262,7 @@ of Authors where the author's true name can be filed in the case of anonymous or pseudonymous works. Paul Goldstein, International Intellectual Property Law, Cases and Materials (New York: Foundation Press, 2001), -153­54. +153–54. The Europeans @@ -12652,7 +12652,7 @@ for the World Intellectual Property Organization (Washington, D.C., link #56. For a firsthand account of the struggle over South Africa, see Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House Committee on Government -Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150­57 +Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150–57 (statement of James Love). Through the @@ -13112,7 +13112,7 @@ control. As Peter Drahos and John Braithwaite relate, this is precisely the choice we are now making about intellectual property. - See Drahos with Braithwaite, Information Feudalism, 210­20. + See Drahos with Braithwaite, Information Feudalism, 210–20. We will have an information society. That much is certain. Our only choice now is @@ -13494,7 +13494,7 @@ did. See, for example, Marc Rotenberg, "Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get)," Stanford Technology Law -Review 1 (2001): par. 6­18, available at +Review 1 (2001): par. 6–18, available at link #72 (describing examples in which technology defines privacy policy). See also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: @@ -14328,7 +14328,7 @@ This is the reverse of the recommendation of my colleague Paul Goldstein. Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox -(Stanford: Stanford University Press, 2003), 187­216. +(Stanford: Stanford University Press, 2003), 187–216. His view is that the law should be written so that expanded protections follow expanded uses. @@ -14815,7 +14815,7 @@ Term Extension Act. Yet just thirty years ago, the dominant scholar and practitioner in the field of copyright, Melville Nimmer, thought it obvious. Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer -Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069­70. +Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70. @@ -14845,7 +14845,7 @@ June 2003, available at Liebowitz's careful analysis is extremely valuable in estimating the effect of file-sharing technology. In my view, however, he underestimates the -costs of the legal system. See, for example, Rethinking, 174­76. +costs of the legal system. See, for example, Rethinking, 174–76. They see a system that has been around for hundreds of years, and they assume it works the way their