From: Petter Reinholdtsen Date: Fri, 20 Jul 2012 16:46:36 +0000 (+0200) Subject: Keep POT file in git, to allow translation services to automatically fetch it. X-Git-Tag: edition-2015-10-10~2291 X-Git-Url: https://pere.pagekite.me/gitweb/text-free-culture-lessig.git/commitdiff_plain/bb097b556736b82bb6616871868b11a471738678?ds=sidebyside Keep POT file in git, to allow translation services to automatically fetch it. --- diff --git a/freeculture.pot b/freeculture.pot new file mode 100644 index 0000000..a1d86af --- /dev/null +++ b/freeculture.pot @@ -0,0 +1,18065 @@ +# SOME DESCRIPTIVE TITLE +# Copyright (C) YEAR Free Software Foundation, Inc. +# This file is distributed under the same license as the PACKAGE package. +# FIRST AUTHOR , YEAR. +# +#, fuzzy +msgid "" +msgstr "" +"Project-Id-Version: PACKAGE VERSION\n" +"POT-Creation-Date: 2012-07-19 21:43+0300\n" +"PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n" +"Last-Translator: FULL NAME \n" +"Language-Team: LANGUAGE \n" +"Language: \n" +"MIME-Version: 1.0\n" +"Content-Type: text/plain; charset=UTF-8\n" +"Content-Transfer-Encoding: 8bit\n" + +#. type: Content of the copy entity +#: freeculture.xml:13 +msgid "©" +msgstr "" + +#. type: Attribute 'lang' of: +#: freeculture.xml:19 +msgid "en" +msgstr "" + +#. type: Content of: +#: freeculture.xml:21 +msgid "Free Culture" +msgstr "" + +#. type: Content of: <book><bookinfo> +#: freeculture.xml:23 +msgid "<abbrev>\"freeculture\"</abbrev>" +msgstr "" + +#. type: Content of: <book><bookinfo><subtitle> +#: freeculture.xml:25 +msgid "Version 2004-02-10" +msgstr "" + +#. type: Content of: <book><bookinfo><authorgroup><author><firstname> +#: freeculture.xml:29 +msgid "Lawrence" +msgstr "" + +#. type: Content of: <book><bookinfo><authorgroup><author><surname> +#: freeculture.xml:30 +msgid "Lessig" +msgstr "" + +#. type: Content of: <book><bookinfo> +#: freeculture.xml:34 +msgid "" +"<copyright> <year>2004</year> <holder> Lawrence Lessig. This version of " +"Free Culture is licensed under a Creative Commons license. This license " +"permits non-commercial use of this work, so long as attribution is given. " +"For more information about the license, click the icon above, or visit " +"<ulink " +"url=\"http://creativecommons.org/licenses/by-nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink> " +"</holder> </copyright>" +msgstr "" + +#. type: Content of: <book><bookinfo><abstract><title> +#: freeculture.xml:49 +msgid "ABOUT THE AUTHOR" +msgstr "" + +#. type: Content of: <book><bookinfo><abstract><para> +#: freeculture.xml:51 +msgid "" +"LAWRENCE LESSIG (<ulink " +"url=\"http://www.lessig.org/\">http://www.lessig.org</ulink>), professor of " +"law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law " +"School, is founder of the Stanford Center for Internet and Society and is " +"chairman of the Creative Commons (<ulink " +"url=\"http://creativecommons.org/\">http://creativecommons.org</ulink>). " +"The author of The Future of Ideas (Random House, 2001) and Code: And Other " +"Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of " +"the Public Library of Science, the Electronic Frontier Foundation, and " +"Public Knowledge. He was the winner of the Free Software Foundation's Award " +"for the Advancement of Free Software, twice listed in BusinessWeek's \"e.biz " +"25,\" and named one of Scientific American's \"50 visionaries.\" A graduate " +"of the University of Pennsylvania, Cambridge University, and Yale Law " +"School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit " +"Court of Appeals." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:72 +msgid "Info" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:76 +msgid "You can buy a copy of this book by clicking on one of the links below:" +msgstr "" + +#. type: Content of: <book><chapter><itemizedlist><listitem><para> +#: freeculture.xml:79 +msgid "<ulink url=\"http://www.amazon.com/\">Amazon</ulink>" +msgstr "" + +#. type: Content of: <book><chapter><itemizedlist><listitem><para> +#: freeculture.xml:80 +msgid "<ulink url=\"http://www.barnesandnoble.com/\">B&N</ulink>" +msgstr "" + +#. type: Content of: <book><chapter><itemizedlist><listitem><para> +#: freeculture.xml:81 +msgid "<ulink url=\"http://www.penguin.com/\">Penguin</ulink>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:88 +msgid "ALSO BY LAWRENCE LESSIG" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:91 +msgid "The Future of Ideas: The Fate of the Commons in a Connected World" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:95 +msgid "Code: And Other Laws of Cyberspace" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:100 freeculture.xml:123 +msgid "THE PENGUIN PRESS" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:103 +msgid "NEW YORK" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:108 +msgid "FREE CULTURE" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:112 +msgid "" +"HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL " +"CREATIVITY" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:118 +msgid "LAWRENCE LESSIG" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:126 +msgid "a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New York" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:130 +msgid "Copyright © Lawrence Lessig," +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:133 +msgid "All rights reserved" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:136 +msgid "" +"Excerpt from an editorial titled \"The Coming of Copyright Perpetuity,\" The " +"New York Times, January 16, 2003. Copyright © 2003 by The New York " +"Times Co. Reprinted with permission." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:141 +msgid "Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:144 +msgid "All rights reserved. Reprinted with permission." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:147 +msgid "" +"Diagram on page 164 courtesy of the office of FCC Commissioner, Michael " +"J. Copps." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:150 +msgid "Library of Congress Cataloging-in-Publication Data" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:153 +msgid "" +"Lessig, Lawrence. Free culture : how big media uses technology and the law " +"to lock down culture and control creativity / Lawrence Lessig." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:158 +msgid "p. cm." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:161 +msgid "Includes index." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:164 +msgid "ISBN 1-59420-006-8 (hardcover)" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:167 +msgid "" +"1. Intellectual property—United States. 2. Mass media—United " +"States." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:170 +msgid "" +"3. Technological innovations—United States. 4. Art—United " +"States. I. Title." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:173 +msgid "KF2979.L47" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:176 +msgid "343.7309'9—dc22" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:179 +msgid "This book is printed on acid-free paper." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:182 +msgid "Printed in the United States of America" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:185 +msgid "1 3 5 7 9 10 8 6 4" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:188 +msgid "Designed by Marysarah Quinn" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:192 +msgid "&translationblock;" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:196 +msgid "" +"Without limiting the rights under copyright reserved above, no part of this " +"publication may be reproduced, stored in or introduced into a retrieval " +"system, or transmitted, in any form or by any means (electronic, mechanical, " +"photocopying, recording or otherwise), without the prior written permission " +"of both the copyright owner and the above publisher of this book. The " +"scanning, uploading, and distribution of this book via the Internet or via " +"any other means without the permission of the publisher is illegal and " +"punishable by law. Please purchase only authorized electronic editions and " +"do not participate in or encourage electronic piracy of copyrighted " +"materials. Your support of the author's rights is appreciated." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:211 +msgid "" +"To Eric Eldred—whose work first drew me to this cause, and for whom it " +"continues still." +msgstr "" + +#. type: Content of: <book><chapter><figure><title> +#: freeculture.xml:216 +msgid "Creative Commons, Some rights reserved" +msgstr "" + +#. type: Content of: <book><chapter><figure> +#: freeculture.xml:217 +msgid "<graphic fileref=\"images/cc.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><lot><title> +#: freeculture.xml:223 +msgid "List of figures" +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:286 +msgid "PREFACE" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:288 +msgid "" +"At the end of his review of my first book, Code: And Other Laws of " +"Cyberspace, David Pogue, a brilliant writer and author of countless " +"technical and computer-related texts, wrote this:" +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:298 +msgid "" +"David Pogue, \"Don't Just Chat, Do Something,\" New York Times, 30 January " +"2000." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:294 +msgid "" +"Unlike actual law, Internet software has no capacity to punish. It doesn't " +"affect people who aren't online (and only a tiny minority of the world " +"population is). And if you don't like the Internet's system, you can always " +"flip off the modem.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:303 +msgid "" +"Pogue was skeptical of the core argument of the book—that software, or " +"\"code,\" functioned as a kind of law—and his review suggested the " +"happy thought that if life in cyberspace got bad, we could always \"drizzle, " +"drazzle, druzzle, drome\"-like simply flip a switch and be back home. Turn " +"off the modem, unplug the computer, and any troubles that exist in that " +"space wouldn't \"affect\" us anymore." +msgstr "" + +#. PAGE BREAK 12 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:311 +msgid "" +"Pogue might have been right in 1999—I'm skeptical, but maybe. But " +"even if he was right then, the point is not right now: Free Culture is about " +"the troubles the Internet causes even after the modem is turned off. It is " +"an argument about how the battles that now rage regarding life on-line have " +"fundamentally affected \"people who aren't online.\" There is no switch that " +"will insulate us from the Internet's effect." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:320 +msgid "" +"But unlike Code, the argument here is not much about the Internet itself. It " +"is instead about the consequence of the Internet to a part of our tradition " +"that is much more fundamental, and, as hard as this is for a geek-wanna-be " +"to admit, much more important." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:331 +msgid "" +"Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, " +"ed. 2002)." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:326 +msgid "" +"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<placeholder type=\"footnote\" id=\"0\"/>), but \"free\" as " +"in \"free speech,\" \"free markets,\" \"free trade,\" \"free enterprise,\" " +"\"free will,\" and \"free elections.\" A free culture supports and protects " +"creators and innovators. It does this directly by granting intellectual " +"property rights. But it does so indirectly by limiting the reach of those " +"rights, to guarantee that follow-on creators and innovators remain as free " +"as possible from the control of the past. A free culture is not a culture " +"without property, just as a free market is not a market in which everything " +"is free. The opposite of a free culture is a \"permission culture\"—a " +"culture in which creators get to create only with the permission of the " +"powerful, or of creators from the past." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:345 +msgid "" +"If we understood this change, I believe we would resist it. Not \"we\" on " +"the Left or \"you\" on the Right, but we who have no stake in the particular " +"industries of culture that defined the twentieth century. Whether you are " +"on the Left or the Right, if you are in this sense disinterested, then the " +"story I tell here will trouble you. For the changes I describe affect values " +"that both sides of our political culture deem fundamental." +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:353 freeculture.xml:12745 +msgid "CodePink Women in Peace" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:355 +msgid "" +"We saw a glimpse of this bipartisan outrage in the early summer of 2003. As " +"the FCC considered changes in media ownership rules that would relax limits " +"on media concentration, an extraordinary coalition generated more than " +"700,000 letters to the FCC opposing the change. As William Safire described " +"marching \"uncomfortably alongside CodePink Women for Peace and the National " +"Rifle Association, between liberal Olympia Snowe and conservative Ted " +"Stevens,\" he formulated perhaps most simply just what was at stake: the " +"concentration of power. And as he asked," +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:371 +msgid "William Safire, \"The Great Media Gulp,\" New York Times, 22 May 2003." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:367 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:377 +msgid "" +"This idea is an element of the argument of Free Culture, though my focus is " +"not just on the concentration of power produced by concentrations in " +"ownership, but more importantly, if because less visibly, on the " +"concentration of power produced by a radical change in the effective scope " +"of the law. The law is changing; that change is altering the way our culture " +"gets made; that change should worry you—whether or not you care about " +"the Internet, and whether you're on Safire's left or on his right. The " +"inspiration for the title and for much of the argument of this book comes " +"from the work of Richard Stallman and the Free Software Foundation. Indeed, " +"as I reread Stallman's own work, especially the essays in Free Software, " +"Free Society, I realize that all of the theoretical insights I develop here " +"are insights Stallman described decades ago. One could thus well argue that " +"this work is \"merely\" derivative." +msgstr "" + +#. PAGE BREAK 14 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:393 +msgid "" +"I accept that criticism, if indeed it is a criticism. The work of a lawyer " +"is always derivative, and I mean to do nothing more in this book than to " +"remind a culture about a tradition that has always been its own. Like " +"Stallman, I defend that tradition on the basis of values. Like Stallman, I " +"believe those are the values of freedom. And like Stallman, I believe those " +"are values of our past that will need to be defended in our future. A free " +"culture has been our past, but it will only be our future if we change the " +"path we are on right now. Like Stallman's arguments for free software, an " +"argument for free culture stumbles on a confusion that is hard to avoid, and " +"even harder to understand. A free culture is not a culture without property; " +"it is not a culture in which artists don't get paid. A culture without " +"property, or in which creators can't get paid, is anarchy, not " +"freedom. Anarchy is not what I advance here." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:411 +msgid "" +"Instead, the free culture that I defend in this book is a balance between " +"anarchy and control. A free culture, like a free market, is filled with " +"property. It is filled with rules of property and contract that get enforced " +"by the state. But just as a free market is perverted if its property becomes " +"feudal, so too can a free culture be queered by extremism in the property " +"rights that define it. That is what I fear about our culture today. It is " +"against that extremism that this book is written." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:426 +msgid "INTRODUCTION" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:428 +msgid "" +"On December 17, 1903, on a windy North Carolina beach for just shy of one " +"hundred seconds, the Wright brothers demonstrated that a heavier-than-air, " +"self-propelled vehicle could fly. The moment was electric and its importance " +"widely understood. Almost immediately, there was an explosion of interest in " +"this newfound technology of manned flight, and a gaggle of innovators began " +"to build upon it." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:440 +msgid "" +"St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: " +"Rothman Reprints, 1969), 18." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:436 +msgid "" +"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.\"<placeholder type=\"footnote\" " +"id=\"0\"/> 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?" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:449 +msgid "" +"Then came airplanes, and for the first time, this principle of American " +"law—deep within the foundations of our tradition, and acknowledged by " +"the most important legal thinkers of our past—mattered. If my land " +"reaches to the heavens, what happens when United flies over my field? Do I " +"have the right to banish it from my property? Am I allowed to enter into an " +"exclusive license with Delta Airlines? Could we set up an auction to decide " +"how much these rights are worth?" +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:457 freeculture.xml:470 freeculture.xml:501 freeculture.xml:520 freeculture.xml:920 freeculture.xml:937 freeculture.xml:987 freeculture.xml:8769 freeculture.xml:12143 freeculture.xml:12847 +msgid "Causby, Thomas Lee" +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:458 freeculture.xml:471 freeculture.xml:502 freeculture.xml:521 freeculture.xml:921 freeculture.xml:938 freeculture.xml:988 freeculture.xml:8770 freeculture.xml:12144 freeculture.xml:12848 +msgid "Causby, Tinie" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:460 +msgid "" +"In 1945, these questions became a federal case. When North Carolina farmers " +"Thomas Lee and Tinie Causby started losing chickens because of low-flying " +"military aircraft (the terrified chickens apparently flew into the barn " +"walls and died), the Causbys filed a lawsuit saying that the government was " +"trespassing on their land. The airplanes, of course, never touched the " +"surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had " +"said, their land reached to \"an indefinite extent, upwards,\" then the " +"government was trespassing on their property, and the Causbys wanted it to " +"stop." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:473 +msgid "" +"The Supreme Court agreed to hear the Causbys' case. Congress had declared " +"the airways public, but if one's property really extended to the heavens, " +"then Congress's declaration could well have been an unconstitutional " +"\"taking\" of property without compensation. The Court acknowledged that " +"\"it is ancient doctrine that common law ownership of the land extended to " +"the periphery of the universe.\" But Justice Douglas had no patience for " +"ancient doctrine. In a single paragraph, hundreds of years of property law " +"were erased. As he wrote for the Court," +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:493 +msgid "" +"United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that " +"there could be a \"taking\" if the government's use of its land effectively " +"destroyed the value of the Causbys' land. This example was suggested to me " +"by Keith Aoki's wonderful piece, \"(Intellectual) Property and Sovereignty: " +"Notes Toward a Cultural Geography of Authorship,\" Stanford Law Review 48 " +"(1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: " +"Foundation Press, 1984), 1112–13. <placeholder type=\"indexterm\" " +"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:484 +msgid "" +"[The] doctrine has no place in the modern world. The air is a public " +"highway, as Congress has declared. Were that not true, every " +"transcontinental flight would subject the operator to countless trespass " +"suits. Common sense revolts at the idea. To recognize such private claims to " +"the airspace would clog these highways, seriously interfere with their " +"control and development in the public interest, and transfer into private " +"ownership that to which only the public has a just claim.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:507 +msgid "\"Common sense revolts at the idea.\"" +msgstr "" + +#. PAGE BREAK 18 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:510 +msgid "" +"This is how the law usually works. Not often this abruptly or impatiently, " +"but eventually, this is how it works. It was Douglas's style not to " +"dither. Other justices would have blathered on for pages to reach the " +"conclusion that Douglas holds in a single line: \"Common sense revolts at " +"the idea.\" But whether it takes pages or a few words, it is the special " +"genius of a common law system, as ours is, that the law adjusts to the " +"technologies of the time. And as it adjusts, it changes. Ideas that were as " +"solid as rock in one age crumble in another." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:523 +msgid "" +"Or at least, this is how things happen when there's no one powerful on the " +"other side of the change. The Causbys were just farmers. And though there " +"were no doubt many like them who were upset by the growing traffic in the " +"air (though one hopes not many chickens flew themselves into walls), the " +"Causbys of the world would find it very hard to unite and stop the idea, and " +"the technology, that the Wright brothers had birthed. The Wright brothers " +"spat airplanes into the technological meme pool; the idea then spread like a " +"virus in a chicken coop; farmers like the Causbys found themselves " +"surrounded by \"what seemed reasonable\" given the technology that the " +"Wrights had produced. They could stand on their farms, dead chickens in " +"hand, and shake their fists at these newfangled technologies all they " +"wanted. They could call their representatives or even file a lawsuit. But " +"in the end, the force of what seems \"obvious\" to everyone else—the " +"power of \"common sense\"—would prevail. Their \"private interest\" " +"would not be allowed to defeat an obvious public gain." +msgstr "" + +#. type: Content of: <book><chapter><para><indexterm><primary> +#: freeculture.xml:552 +msgid "Faraday, Michael" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:541 +msgid "" +"Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He " +"came to the great American inventor scene just after the titans Thomas " +"Edison and Alexander Graham Bell. But his work in the area of radio " +"technology was perhaps the most important of any single inventor in the " +"first fifty years of radio. He was better educated than Michael Faraday, who " +"as a bookbinder's apprentice had discovered electric induction in 1831. But " +"he had the same intuition about how the world of radio worked, and on at " +"least three occasions, Armstrong invented profoundly important technologies " +"that advanced our understanding of radio. <placeholder type=\"indexterm\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:555 +msgid "" +"On the day after Christmas, 1933, four patents were issued to Armstrong for " +"his most significant invention—FM radio. Until then, consumer radio " +"had been amplitude-modulated (AM) radio. The theorists of the day had said " +"that frequency-modulated (FM) radio could never work. They were right about " +"FM radio in a narrow band of spectrum. But Armstrong discovered that " +"frequency-modulated radio in a wide band of spectrum would deliver an " +"astonishing fidelity of sound, with much less transmitter power and static." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:565 +msgid "" +"On November 5, 1935, he demonstrated the technology at a meeting of the " +"Institute of Radio Engineers at the Empire State Building in New York " +"City. He tuned his radio dial across a range of AM stations, until the radio " +"locked on a broadcast that he had arranged from seventeen miles away. The " +"radio fell totally silent, as if dead, and then with a clarity no one else " +"in that room had ever heard from an electrical device, it produced the sound " +"of an announcer's voice: \"This is amateur station W2AG at Yonkers, New " +"York, operating on frequency modulation at two and a half meters.\"" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:576 +msgid "The audience was hearing something no one had thought possible:" +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:587 +msgid "" +"Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong " +"(Philadelphia: J. B. Lipincott Company, 1956), 209." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:580 +msgid "" +"A glass of water was poured before the microphone in Yonkers; it sounded " +"like a glass of water being poured. . . . A paper was crumpled and torn; it " +"sounded like paper and not like a crackling forest fire. . . . Sousa marches " +"were played from records and a piano solo and guitar number were " +"performed. . . . The music was projected with a live-ness rarely if ever " +"heard before from a radio \"music box.\"<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 20 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:593 +msgid "" +"As our own common sense tells us, Armstrong had discovered a vastly superior " +"radio technology. But at the time of his invention, Armstrong was working " +"for RCA. RCA was the dominant player in the then dominant AM radio " +"market. By 1935, there were a thousand radio stations across the United " +"States, but the stations in large cities were all owned by a handful of " +"networks." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:602 +msgid "" +"RCA's president, David Sarnoff, a friend of Armstrong's, was eager that " +"Armstrong discover a way to remove static from AM radio. So Sarnoff was " +"quite excited when Armstrong told him he had a device that removed static " +"from \"radio.\" But when Armstrong demonstrated his invention, Sarnoff was " +"not pleased." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:613 +msgid "" +"See \"Saints: The Heroes and Geniuses of the Electronic Era,\" First " +"Electronic Church of America, at www.webstationone.com/fecha, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #1</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:610 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:622 +msgid "" +"Armstrong's invention threatened RCA's AM empire, so the company launched a " +"campaign to smother FM radio. While FM may have been a superior technology, " +"Sarnoff was a superior tactician. As one author described," +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:634 +msgid "Lessing, 226." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:629 +msgid "" +"The forces for FM, largely engineering, could not overcome the weight of " +"strategy devised by the sales, patent, and legal offices to subdue this " +"threat to corporate position. For FM, if allowed to develop unrestrained, " +"posed . . . a complete reordering of radio power . . . and the eventual " +"overthrow of the carefully restricted AM system on which RCA had grown to " +"power.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:639 +msgid "" +"RCA at first kept the technology in house, insisting that further tests were " +"needed. When, after two years of testing, Armstrong grew impatient, RCA " +"began to use its power with the government to stall FM radio's deployment " +"generally. In 1936, RCA hired the former head of the FCC and assigned him " +"the task of assuring that the FCC assign spectrum in a way that would " +"castrate FM—principally by moving FM radio to a different band of " +"spectrum. At first, these efforts failed. But when Armstrong and the nation " +"were distracted by World War II, RCA's work began to be more " +"successful. Soon after the war ended, the FCC announced a set of policies " +"that would have one clear effect: FM radio would be crippled. As Lawrence " +"Lessing described it," +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:658 +msgid "Lessing, 256." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:654 +msgid "" +"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.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:662 +msgid "AT&T" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:664 +msgid "" +"To make room in the spectrum for RCA's latest gamble, television, FM radio " +"users were to be moved to a totally new spectrum band. The power of FM radio " +"stations was also cut, meaning FM could no longer be used to beam programs " +"from one part of the country to another. (This change was strongly " +"supported by AT&T, because the loss of FM relaying stations would mean " +"radio stations would have to buy wired links from AT&T.) The spread of " +"FM radio was thus choked, at least temporarily." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:674 +msgid "" +"Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's " +"patents. After incorporating FM technology into the emerging standard for " +"television, RCA declared the patents invalid—baselessly, and almost " +"fifteen years after they were issued. It thus refused to pay him " +"royalties. For six years, Armstrong fought an expensive war of litigation to " +"defend the patents. Finally, just as the patents expired, RCA offered a " +"settlement so low that it would not even cover Armstrong's lawyers' " +"fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note " +"to his wife and then stepped out of a thirteenth-story window to his death." +msgstr "" + +#. PAGE BREAK 22 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:686 +msgid "" +"This is how the law sometimes works. Not often this tragically, and rarely " +"with heroic drama, but sometimes, this is how it works. From the beginning, " +"government and government agencies have been subject to capture. They are " +"more likely captured when a powerful interest is threatened by either a " +"legal or technical change. That powerful interest too often exerts its " +"influence within the government to get the government to protect it. The " +"rhetoric of this protection is of course always public spirited; the reality " +"is something different. Ideas that were as solid as rock in one age, but " +"that, left to themselves, would crumble in another, are sustained through " +"this subtle corruption of our political process. RCA had what the Causbys " +"did not: the power to stifle the effect of technological change." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:708 +msgid "" +"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 <ulink " +"url=\"http://free-culture.cc/notes/\">link #2</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:702 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> " +"That number could well exceed two thirds of the nation by the end of 2004." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:717 +msgid "" +"As the Internet has been integrated into ordinary life, it has changed " +"things. Some of these changes are technical—the Internet has made " +"communication faster, it has lowered the cost of gathering data, and so " +"on. These technical changes are not the focus of this book. They are " +"important. They are not well understood. But they are the sort of thing that " +"would simply go away if we all just switched the Internet off. They don't " +"affect people who don't use the Internet, or at least they don't affect them " +"directly. They are the proper subject of a book about the Internet. But this " +"is not a book about the Internet." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:728 +msgid "" +"Instead, this book is about an effect of the Internet beyond the Internet " +"itself: an effect upon how culture is made. My claim is that the Internet " +"has induced an important and unrecognized change in that process. That " +"change will radically transform a tradition that is as old as the Republic " +"itself. Most, if they recognized this change, would reject it. Yet most " +"don't even see the change that the Internet has introduced." +msgstr "" + +#. PAGE BREAK 23 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:737 +msgid "" +"We can glimpse a sense of this change by distinguishing between commercial " +"and noncommercial culture, and by mapping the law's regulation of each. By " +"\"commercial culture\" I mean that part of our culture that is produced and " +"sold or produced to be sold. By \"noncommercial culture\" I mean all the " +"rest. When old men sat around parks or on street corners telling stories " +"that kids and others consumed, that was noncommercial culture. When Noah " +"Webster published his \"Reader,\" or Joel Barlow his poetry, that was " +"commercial culture." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:749 +msgid "" +"At the beginning of our history, and for just about the whole of our " +"tradition, noncommercial culture was essentially unregulated. Of course, if " +"your stories were lewd, or if your song disturbed the peace, then the law " +"might intervene. But the law was never directly concerned with the creation " +"or spread of this form of culture, and it left this culture \"free.\" The " +"ordinary ways in which ordinary individuals shared and transformed their " +"culture—telling stories, reenacting scenes from plays or TV, " +"participating in fan clubs, sharing music, making tapes—were left " +"alone by the law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> +#: freeculture.xml:774 freeculture.xml:1786 freeculture.xml:1797 +msgid "Brandeis, Louis D." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:766 +msgid "" +"This is not the only purpose of copyright, though it is the overwhelmingly " +"primary purpose of the copyright established in the federal constitution. " +"State copyright law historically protected not just the commercial interest " +"in publication, but also a privacy interest. By granting authors the " +"exclusive right to first publication, state copyright law gave authors the " +"power to control the spread of facts about them. See Samuel D. Warren and " +"Louis D. Brandeis, \"The Right to Privacy,\" Harvard Law Review 4 (1890): " +"193, 198–200. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:760 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:784 +msgid "" +"See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), " +"ch. 13." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:782 +msgid "" +"This rough divide between the free and the controlled has now been " +"erased.<placeholder type=\"footnote\" id=\"0\"/> The Internet has set the " +"stage for this erasure and, pushed by big media, the law has now affected " +"it. For the first time in our tradition, the ordinary ways in which " +"individuals create and share culture fall within the reach of the regulation " +"of the law, which has expanded to draw within its control a vast amount of " +"culture and creativity that it never reached before. The technology that " +"preserved the balance of our history—between uses of our culture that " +"were free and uses of our culture that were only upon permission—has " +"been undone. The consequence is that we are less and less a free culture, " +"more and more a permission culture." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:800 +msgid "" +"This change gets justified as necessary to protect commercial creativity. " +"And indeed, protectionism is precisely its motivation. But the protectionism " +"that justifies the changes that I will describe below is not the limited and " +"balanced sort that has defined the law in the past. This is not a " +"protectionism to protect artists. It is instead a protectionism to protect " +"certain forms of business. Corporations threatened by the potential of the " +"Internet to change the way both commercial and noncommercial culture are " +"made and shared have united to induce lawmakers to use the law to protect " +"them. It is the story of RCA and Armstrong; it is the dream of the Causbys." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:813 +msgid "" +"For the Internet has unleashed an extraordinary possibility for many to " +"participate in the process of building and cultivating a culture that " +"reaches far beyond local boundaries. That power has changed the marketplace " +"for making and cultivating culture generally, and that change in turn " +"threatens established content industries. The Internet is thus to the " +"industries that built and distributed content in the twentieth century what " +"FM radio was to AM radio, or what the truck was to the railroad industry of " +"the nineteenth century: the beginning of the end, or at least a substantial " +"transformation. Digital technologies, tied to the Internet, could produce a " +"vastly more competitive and vibrant market for building and cultivating " +"culture; that market could include a much wider and more diverse range of " +"creators; those creators could produce and distribute a much more vibrant " +"range of creativity; and depending upon a few important factors, those " +"creators could earn more on average from this system than creators do " +"today—all so long as the RCAs of our day don't use the law to protect " +"themselves against this competition." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:832 +msgid "" +"Yet, as I argue in the pages that follow, that is precisely what is " +"happening in our culture today. These modern-day equivalents of the early " +"twentieth-century radio or nineteenth-century railroads are using their " +"power to get the law to protect them against this new, more efficient, more " +"vibrant technology for building culture. They are succeeding in their plan " +"to remake the Internet before the Internet remakes them." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:849 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:841 +msgid "" +"It doesn't seem this way to many. The battles over copyright and the " +"Internet seem remote to most. To the few who follow them, they seem mainly " +"about a much simpler brace of questions—whether \"piracy\" will be " +"permitted, and whether \"property\" will be protected. The \"war\" that has " +"been waged against the technologies of the Internet—what Motion " +"Picture Association of America (MPAA) president Jack Valenti calls his \"own " +"terrorist war\"<placeholder type=\"footnote\" id=\"0\"/>—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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:858 +msgid "" +"If those really were the choices, then I would be with Jack Valenti and the " +"content industry. I, too, am a believer in property, and especially in the " +"importance of what Mr. Valenti nicely calls \"creative property.\" I believe " +"that \"piracy\" is wrong, and that the law, properly tuned, should punish " +"\"piracy,\" whether on or off the Internet." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:866 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:880 freeculture.xml:14083 +msgid "Netanel, Neil Weinstock" +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:878 +msgid "" +"Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" Yale Law " +"Journal 106 (1996): 283. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:872 +msgid "" +"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,<placeholder type=\"footnote\" id=\"0\"/> " +"copyright law, properly balanced, protected creators against private " +"control. Our tradition was thus neither Soviet nor the tradition of " +"patrons. It instead carved out a wide berth within which creators could " +"cultivate and extend our culture." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:888 +msgid "" +"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 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; " +"those within the noble class live easily; those outside it don't. But it is " +"nobility of any form that is alien to our tradition." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:900 +msgid "" +"The story that follows is about this war. Is it not about the \"centrality " +"of technology\" to ordinary life. I don't believe in gods, digital or " +"otherwise. Nor is it an effort to demonize any individual or group, for " +"neither do I believe in a devil, corporate or otherwise. It is not a " +"morality tale. Nor is it a call to jihad against an industry." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:909 +msgid "" +"It is instead an effort to understand a hopelessly destructive war inspired " +"by the technologies of the Internet but reaching far beyond its code. And by " +"understanding this battle, it is an effort to map peace. There is no good " +"reason for the current struggle around Internet technologies to " +"continue. There will be great harm to our tradition and culture if it is " +"allowed to continue unchecked. We must come to understand the source of this " +"war. We must resolve it soon." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:923 +msgid "" +"Like the Causbys' battle, this war is, in part, about \"property.\" The " +"property of this war is not as tangible as the Causbys', and no innocent " +"chicken has yet to lose its life. Yet the ideas surrounding this " +"\"property\" are as obvious to most as the Causbys' claim about the " +"sacredness of their farm was to them. We are the Causbys. Most of us take " +"for granted the extraordinarily powerful claims that the owners of " +"\"intellectual property\" now assert. Most of us, like the Causbys, treat " +"these claims as obvious. And hence we, like the Causbys, object when a new " +"technology interferes with this property. It is as plain to us as it was to " +"them that the new technologies of the Internet are \"trespassing\" upon " +"legitimate claims of \"property.\" It is as plain to us as it was to them " +"that the law should intervene to stop this trespass." +msgstr "" + +#. PAGE BREAK 27 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:940 +msgid "" +"And thus, when geeks and technologists defend their Armstrong or Wright " +"brothers technology, most of us are simply unsympathetic. Common sense does " +"not revolt. Unlike in the case of the unlucky Causbys, common sense is on " +"the side of the property owners in this war. Unlike the lucky Wright " +"brothers, the Internet has not inspired a revolution on its side." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:950 +msgid "" +"My hope is to push this common sense along. I have become increasingly " +"amazed by the power of this idea of intellectual property and, more " +"importantly, its power to disable critical thought by policy makers and " +"citizens. There has never been a time in our history when more of our " +"\"culture\" was as \"owned\" as it is now. And yet there has never been a " +"time when the concentration of power to control the uses of culture has been " +"as unquestioningly accepted as it is now." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:960 +msgid "" +"The puzzle is, Why? Is it because we have come to understand a truth about " +"the value and importance of absolute property over ideas and culture? Is it " +"because we have discovered that our tradition of rejecting such an absolute " +"claim was wrong?" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:969 +msgid "" +"Or is it because the idea of absolute property over ideas and culture " +"benefits the RCAs of our time and fits our own unreflective intuitions?" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:973 +msgid "" +"Is the radical shift away from our tradition of free culture an instance of " +"America correcting a mistake from its past, as we did after a bloody war " +"with slavery, and as we are slowly doing with inequality? Or is the radical " +"shift away from our tradition of free culture yet another example of a " +"political system captured by a few powerful special interests?" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:980 +msgid "" +"Does common sense lead to the extremes on this question because common sense " +"actually believes in these extremes? Or does common sense stand silent in " +"the face of these extremes because, as with Armstrong versus RCA, the more " +"powerful side has ensured that it has the more powerful view?" +msgstr "" + +#. PAGE BREAK 28 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:990 +msgid "" +"I don't mean to be mysterious. My own views are resolved. I believe it was " +"right for common sense to revolt against the extremism of the Causbys. I " +"believe it would be right for common sense to revolt against the extreme " +"claims made today on behalf of \"intellectual property.\" What the law " +"demands today is increasingly as silly as a sheriff arresting an airplane " +"for trespass. But the consequences of this silliness will be much more " +"profound." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1000 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1005 +msgid "" +"My method is not the usual method of an academic. I don't want to plunge you " +"into a complex argument, buttressed with references to obscure French " +"theorists—however natural that is for the weird sort we academics have " +"become. Instead I begin in each part with a collection of stories that set a " +"context within which these apparently simple ideas can be more fully " +"understood." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1014 +msgid "" +"The two sections set up the core claim of this book: that while the Internet " +"has indeed produced something fantastic and new, our government, pushed by " +"big media to respond to this \"something new,\" is destroying something very " +"old. Rather than understanding the changes the Internet might permit, and " +"rather than taking time to let \"common sense\" resolve how best to respond, " +"we are allowing those most threatened by the changes to use their power to " +"change the law—and more importantly, to use their power to change " +"something fundamental about who we have always been." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1027 +msgid "" +"We allow this, I believe, not because it is right, and not because most of " +"us really believe in these changes. We allow it because the interests most " +"threatened are among the most powerful players in our depressingly " +"compromised process of making law. This book is the story of one more " +"consequence of this form of corruption—a consequence to which most of " +"us remain oblivious." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:1037 +msgid "\"PIRACY\"" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1041 +msgid "" +"Since the inception of the law regulating creative property, there has been " +"a war against \"piracy.\" The precise contours of this concept, \"piracy,\" " +"are hard to sketch, but the animating injustice is easy to capture. As Lord " +"Mansfield wrote in a case that extended the reach of English copyright law " +"to include sheet music," +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><blockquote><para><footnote><para> +#: freeculture.xml:1054 +msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield)." +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:1050 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 31 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1059 +msgid "" +"Today we are in the middle of another \"war\" against \"piracy.\" The " +"Internet has provoked this war. The Internet makes possible the efficient " +"spread of content. Peer-to-peer (p2p) file sharing is among the most " +"efficient of the efficient technologies the Internet enables. Using " +"distributed intelligence, p2p systems facilitate the easy spread of content " +"in a way unimagined a generation ago." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1070 +msgid "" +"This efficiency does not respect the traditional lines of copyright. The " +"network doesn't discriminate between the sharing of copyrighted and " +"uncopyrighted content. Thus has there been a vast amount of sharing of " +"copyrighted content. That sharing in turn has excited the war, as copyright " +"owners fear the sharing will \"rob the author of the profit.\"" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1078 +msgid "" +"The warriors have turned to the courts, to the legislatures, and " +"increasingly to technology to defend their \"property\" against this " +"\"piracy.\" A generation of Americans, the warriors warn, is being raised to " +"believe that \"property\" should be \"free.\" Forget tattoos, never mind " +"body piercing—our kids are becoming thieves!" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1087 +msgid "" +"There's no doubt that \"piracy\" is wrong, and that pirates should be " +"punished. But before we summon the executioners, we should put this notion " +"of \"piracy\" in some context. For as the concept is increasingly used, at " +"its core is an extraordinary idea that is almost certainly wrong." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1093 +msgid "The idea goes something like this:" +msgstr "" + +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:1097 +msgid "" +"Creative work has value; whenever I use, or take, or build upon the creative " +"work of others, I am taking from them something of value. Whenever I take " +"something of value from someone else, I should have their permission. The " +"taking of something of value from someone else without permission is " +"wrong. It is a form of piracy." +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:1105 +msgid "Dreyfuss, Rochelle" +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:1111 +msgid "" +"See Rochelle Dreyfuss, \"Expressive Genericity: Trademarks as Language in " +"the Pepsi Generation,\" Notre Dame Law Review 65 (1990): 397." +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:1119 +msgid "" +"Lisa Bannon, \"The Birds May Sing, but Campers Can't Unless They Pay Up,\" " +"Wall Street Journal, 21 August 1996, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #3</ulink>; Jonathan Zittrain, " +"\"Calling Off the Copyright War: In Battle of Property vs. Free Speech, No " +"One Wins,\" Boston Globe, 24 November 2002." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1107 +msgid "" +"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<placeholder type=\"footnote\" id=\"0\"/> —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.<placeholder type=\"footnote\" id=\"1\"/> There was " +"\"value\" (the songs) so there must have been a \"right\"—even against " +"the Girl Scouts." +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:1128 +msgid "ASCAP" +msgstr "" + +#. PAGE BREAK 32 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1130 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1139 +msgid "" +"Instead, in our tradition, intellectual property is an instrument. It sets " +"the groundwork for a richly creative society but remains subservient to the " +"value of creativity. The current debate has this turned around. We have " +"become so concerned with protecting the instrument that we are losing sight " +"of the value." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1146 +msgid "" +"The source of this confusion is a distinction that the law no longer takes " +"care to draw—the distinction between republishing someone's work on " +"the one hand and building upon or transforming that work on the " +"other. Copyright law at its birth had only publishing as its concern; " +"copyright law today regulates both." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1153 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary> +#: freeculture.xml:1160 freeculture.xml:1188 +msgid "Florida, Richard" +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:1181 +msgid "" +"In The Rise of the Creative Class (New York: Basic Books, 2002), Richard " +"Florida documents a shift in the nature of labor toward a labor of " +"creativity. His work, however, doesn't directly address the legal " +"conditions under which that creativity is enabled or stifled. I certainly " +"agree with him about the importance and significance of this change, but I " +"also believe the conditions under which it will be enabled are much more " +"tenuous. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1162 +msgid "" +"But with the birth of the Internet, this natural limit to the reach of the " +"law has disappeared. The law controls not just the creativity of commercial " +"creators but effectively that of anyone. Although that expansion would not " +"matter much if copyright law regulated only \"copying,\" when the law " +"regulates as broadly and obscurely as it does, the extension matters a " +"lot. The burden of this law now vastly outweighs any original " +"benefit—certainly as it affects noncommercial creativity, and " +"increasingly as it affects commercial creativity as well. Thus, as we'll see " +"more clearly in the chapters below, the law's role is less and less to " +"support creativity, and more and more to protect certain industries against " +"competition. Just at the time digital technology could unleash an " +"extraordinary range of commercial and noncommercial creativity, the law " +"burdens this creativity with insanely complex and vague rules and with the " +"threat of obscenely severe penalties. We may be seeing, as Richard Florida " +"writes, the \"Rise of the Creative Class.\"<placeholder type=\"footnote\" " +"id=\"0\"/> Unfortunately, we are also seeing an extraordinary rise of " +"regulation of this creative class." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:1194 +msgid "" +"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.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:1201 +msgid "CHAPTER ONE: Creators" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1203 +msgid "" +"In 1928, a cartoon character was born. An early Mickey Mouse made his debut " +"in May of that year, in a silent flop called Plane Crazy. In November, in " +"New York City's Colony Theater, in the first widely distributed cartoon " +"synchronized with sound, Steamboat Willie brought to life the character that " +"would become Mickey Mouse." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1210 +msgid "" +"Synchronized sound had been introduced to film a year earlier in the movie " +"The Jazz Singer. That success led Walt Disney to copy the technique and mix " +"sound with cartoons. No one knew whether it would work or, if it did work, " +"whether it would win an audience. But when Disney ran a test in the summer " +"of 1928, the results were unambiguous. As Disney describes that first " +"experiment," +msgstr "" + +#. PAGE BREAK 35 +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:1219 +msgid "" +"A couple of my boys could read music, and one of them could play a mouth " +"organ. We put them in a room where they could not see the screen and " +"arranged to pipe their sound into the room where our wives and friends were " +"going to see the picture." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:1226 +msgid "" +"The boys worked from a music and sound-effects score. After several false " +"starts, sound and action got off with the gun. The mouth organist played the " +"tune, the rest of us in the sound department bammed tin pans and blew slide " +"whistles on the beat. The synchronization was pretty close." +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> +#: freeculture.xml:1240 +msgid "" +"Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons " +"(New York: Penguin Books, 1987), 34–35." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:1233 +msgid "" +"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!<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:1250 +msgid "Iwerks, Ub" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1247 +msgid "" +"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.\" <placeholder type=\"indexterm\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1253 +msgid "" +"Disney had created something very new, based upon something relatively " +"new. Synchronized sound brought life to a form of creativity that had " +"rarely—except in Disney's hands—been anything more than filler " +"for other films. Throughout animation's early history, it was Disney's " +"invention that set the standard that others struggled to match. And quite " +"often, Disney's great genius, his spark of creativity, was built upon the " +"work of others." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1262 +msgid "" +"This much is familiar. What you might not know is that 1928 also marks " +"another important transition. In that year, a comic (as opposed to cartoon) " +"genius created his last independently produced silent film. That genius was " +"Buster Keaton. The film was Steamboat Bill, Jr." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1268 +msgid "" +"Keaton was born into a vaudeville family in 1895. In the era of silent film, " +"he had mastered using broad physical comedy as a way to spark uncontrollable " +"laughter from his audience. Steamboat Bill, Jr. was a classic of this form, " +"famous among film buffs for its incredible stunts. The film was classic " +"Keaton—wildly popular and among the best of its genre." +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1281 +msgid "" +"I am grateful to David Gerstein and his careful history, described at <ulink " +"url=\"http://free-culture.cc/notes/\">link #4</ulink>. According to Dave " +"Smith of the Disney Archives, Disney paid royalties to use the music for " +"five songs in Steamboat Willie: \"Steamboat Bill,\" \"The Simpleton\" " +"(Delille), \"Mischief Makers\" (Carbonara), \"Joyful Hurry No. 1\" (Baron), " +"and \"Gawky Rube\" (Lakay). A sixth song, \"The Turkey in the Straw,\" was " +"already in the public domain. Letter from David Smith to Harry Surden, 10 " +"July 2003, on file with author." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1276 +msgid "" +"Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The " +"coincidence of titles is not coincidental. Steamboat Willie is a direct " +"cartoon parody of Steamboat Bill,<placeholder type=\"footnote\" id=\"0\"/> " +"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." +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1302 +msgid "" +"He was also a fan of the public domain. See Chris Sprigman, \"The Mouse that " +"Ate the Public Domain,\" Findlaw, 5 March 2002, at <ulink " +"url=\"http://free-culture.cc/notes/\">link #5</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1298 +msgid "" +"This \"borrowing\" was nothing unique, either for Disney or for the " +"industry. Disney was always parroting the feature-length mainstream films of " +"his day.<placeholder type=\"footnote\" id=\"0\"/> So did many others. Early " +"cartoons are filled with knockoffs—slight variations on winning " +"themes; retellings of ancient stories. The key to success was the brilliance " +"of the differences. With Disney, it was sound that gave his animation its " +"spark. Later, it was the quality of his work relative to the production-line " +"cartoons with which he competed. Yet these additions were built upon a base " +"that was borrowed. Disney added to the work of others before him, creating " +"something new out of something just barely old." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1317 +msgid "" +"Sometimes this borrowing was slight. Sometimes it was significant. Think " +"about the fairy tales of the Brothers Grimm. If you're as oblivious as I " +"was, you're likely to think that these tales are happy, sweet stories, " +"appropriate for any child at bedtime. In fact, the Grimm fairy tales are, " +"well, for us, grim. It is a rare and perhaps overly ambitious parent who " +"would dare to read these bloody, moralistic stories to his or her child, at " +"bedtime or anytime." +msgstr "" + +#. PAGE BREAK 37 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1326 +msgid "" +"Disney took these stories and retold them in a way that carried them into a " +"new age. He animated the stories, with both characters and light. Without " +"removing the elements of fear and danger altogether, he made funny what was " +"dark and injected a genuine emotion of compassion where before there was " +"fear. And not just with the work of the Brothers Grimm. Indeed, the catalog " +"of Disney work drawing upon the work of others is astonishing when set " +"together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo " +"(1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in " +"Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp " +"(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The " +"Sword in the Stone (1963), and The Jungle Book (1967)—not to mention a " +"recent example that we should perhaps quickly forget, Treasure Planet " +"(2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity " +"from the culture around him, mixed that creativity with his own " +"extraordinary talent, and then burned that mix into the soul of his " +"culture. Rip, mix, and burn." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1346 +msgid "" +"This is a kind of creativity. It is a creativity that we should remember and " +"celebrate. There are some who would say that there is no creativity except " +"this kind. We don't need to go that far to recognize its importance. We " +"could call this \"Disney creativity,\" though that would be a bit " +"misleading. It is, more precisely, \"Walt Disney creativity\"—a form " +"of expression and genius that builds upon the culture around us and makes it " +"something different." +msgstr "" + +#. f4 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1360 +msgid "" +"Until 1976, copyright law granted an author the possibility of two terms: an " +"initial term and a renewal term. I have calculated the \"average\" term by " +"determining the weighted average of total registrations for any particular " +"year, and the proportion renewing. Thus, if 100 copyrights are registered in " +"year 1, and only 15 are renewed, and the renewal term is 28 years, then the " +"average term is 32.2 years. For the renewal data and other relevant data, " +"see the Web site associated with this book, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #6</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1354 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> That means that for " +"thirty years, on average, the authors or copyright holders of a creative " +"work had an \"exclusive right\" to control certain uses of the work. To use " +"this copyrighted work in limited ways required the permission of the " +"copyright owner." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1377 +msgid "" +"At the end of a copyright term, a work passes into the public domain. No " +"permission is then needed to draw upon or use that work. No permission and, " +"hence, no lawyers. The public domain is a \"lawyer-free zone.\" Thus, most " +"of the content from the nineteenth century was free for Disney to use and " +"build upon in 1928. It was free for anyone— whether connected or not, " +"whether rich or not, whether approved or not—to use and build upon." +msgstr "" + +#. PAGE BREAK 38 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1386 +msgid "" +"This is the ways things always were—until quite recently. For most of " +"our history, the public domain was just over the horizon. From until 1978, " +"the average copyright term was never more than thirty-two years, meaning " +"that most culture just a generation and a half old was free for anyone to " +"build upon without the permission of anyone else. Today's equivalent would " +"be for creative work from the 1960s and 1970s to now be free for the next " +"Walt Disney to build upon without permission. Yet today, the public domain " +"is presumptive only for content from before the Great Depression." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1399 +msgid "" +"Of course, Walt Disney had no monopoly on \"Walt Disney creativity.\" Nor " +"does America. The norm of free culture has, until recently, and except " +"within totalitarian nations, been broadly exploited and quite universal." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1405 +msgid "" +"Consider, for example, a form of creativity that seems strange to many " +"Americans but that is inescapable within Japanese culture: manga, or " +"comics. The Japanese are fanatics about comics. Some 40 percent of " +"publications are comics, and 30 percent of publication revenue derives from " +"comics. They are everywhere in Japanese society, at every magazine stand, " +"carried by a large proportion of commuters on Japan's extraordinary system " +"of public transportation." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1414 +msgid "" +"Americans tend to look down upon this form of culture. That's an " +"unattractive characteristic of ours. We're likely to misunderstand much " +"about manga, because few of us have ever read anything close to the stories " +"that these \"graphic novels\" tell. For the Japanese, manga cover every " +"aspect of social life. For us, comics are \"men in tights.\" And anyway, " +"it's not as if the New York subways are filled with readers of Joyce or even " +"Hemingway. People of different cultures distract themselves in different " +"ways, the Japanese in this interestingly different way." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1425 +msgid "" +"But my purpose here is not to understand manga. It is to describe a variant " +"on manga that from a lawyer's perspective is quite odd, but from a Disney " +"perspective is quite familiar." +msgstr "" + +#. PAGE BREAK 39 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1430 +msgid "" +"This is the phenomenon of doujinshi. Doujinshi are also comics, but they are " +"a kind of copycat comic. A rich ethic governs the creation of doujinshi. It " +"is not doujinshi if it is just a copy; the artist must make a contribution " +"to the art he copies, by transforming it either subtly or significantly. A " +"doujinshi comic can thus take a mainstream comic and develop it " +"differently—with a different story line. Or the comic can keep the " +"character in character but change its look slightly. There is no formula for " +"what makes the doujinshi sufficiently \"different.\" But they must be " +"different if they are to be considered true doujinshi. Indeed, there are " +"committees that review doujinshi for inclusion within shows and reject any " +"copycat comic that is merely a copy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1444 +msgid "" +"These copycat comics are not a tiny part of the manga market. They are " +"huge. More than 33,000 \"circles\" of creators from across Japan produce " +"these bits of Walt Disney creativity. More than 450,000 Japanese come " +"together twice a year, in the largest public gathering in the country, to " +"exchange and sell them. This market exists in parallel to the mainstream " +"commercial manga market. In some ways, it obviously competes with that " +"market, but there is no sustained effort by those who control the commercial " +"manga market to shut the doujinshi market down. It flourishes, despite the " +"competition and despite the law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1455 +msgid "" +"The most puzzling feature of the doujinshi market, for those trained in the " +"law, at least, is that it is allowed to exist at all. Under Japanese " +"copyright law, which in this respect (on paper) mirrors American copyright " +"law, the doujinshi market is an illegal one. Doujinshi are plainly " +"\"derivative works.\" There is no general practice by doujinshi artists of " +"securing the permission of the manga creators. Instead, the practice is " +"simply to take and modify the creations of others, as Walt Disney did with " +"Steamboat Bill, Jr. Under both Japanese and American law, that \"taking\" " +"without the permission of the original copyright owner is illegal. It is an " +"infringement of the original copyright to make a copy or a derivative work " +"without the original copyright owner's permission." +msgstr "" + +#. f5 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1480 +msgid "" +"For an excellent history, see Scott McCloud, Reinventing Comics (New York: " +"Perennial, 2000)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1469 +msgid "" +"Yet this illegal market exists and indeed flourishes in Japan, and in the " +"view of many, it is precisely because it exists that Japanese manga " +"flourish. As American graphic novelist Judd Winick said to me, \"The early " +"days of comics in America are very much like what's going on in Japan " +"now. . . . American comics were born out of copying each other. . . . That's " +"how [the artists] learn to draw—by going into comic books and not " +"tracing them, but looking at them and copying them\" and building from " +"them.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1485 +msgid "" +"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.\"" +msgstr "" + +#. f6 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1501 +msgid "" +"See Salil K. Mehra, \"Copyright and Comics in Japan: Does Law Explain Why " +"All the Comics My Kid Watches Are Japanese Imports?\" Rutgers Law Review 55 " +"(2002): 155, 182. \"[T]here might be a collective economic rationality that " +"would lead manga and anime artists to forgo bringing legal actions for " +"infringement. One hypothesis is that all manga artists may be better off " +"collectively if they set aside their individual self-interest and decide not " +"to press their legal rights. This is essentially a prisoner's dilemma " +"solved.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1493 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1512 +msgid "" +"The problem with this story, however, as Mehra plainly acknowledges, is that " +"the mechanism producing this laissez faire response is not clear. It may " +"well be that the market as a whole is better off if doujinshi are permitted " +"rather than banned, but that doesn't explain why individual copyright owners " +"don't sue nonetheless. If the law has no general exception for doujinshi, " +"and indeed in some cases individual manga artists have sued doujinshi " +"artists, why is there not a more general pattern of blocking this \"free " +"taking\" by the doujinshi culture?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1523 +msgid "" +"I spent four wonderful months in Japan, and I asked this question as often " +"as I could. Perhaps the best account in the end was offered by a friend from " +"a major Japanese law firm. \"We don't have enough lawyers,\" he told me one " +"afternoon. There \"just aren't enough resources to prosecute cases like " +"this.\"" +msgstr "" + +#. PAGE BREAK 41 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1530 +msgid "" +"This is a theme to which we will return: that regulation by law is a " +"function of both the words on the books and the costs of making those words " +"have effect. For now, focus on the obvious question that is begged: Would " +"Japan be better off with more lawyers? Would manga be richer if doujinshi " +"artists were regularly prosecuted? Would the Japanese gain something " +"important if they could end this practice of uncompensated sharing? Does " +"piracy here hurt the victims of the piracy, or does it help them? Would " +"lawyers fighting this piracy help their clients or hurt them? Let's pause " +"for a moment." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1543 +msgid "" +"If you're like I was a decade ago, or like most people are when they first " +"start thinking about these issues, then just about now you should be puzzled " +"about something you hadn't thought through before." +msgstr "" + +#. f7 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1553 +msgid "" +"The term intellectual property is of relatively recent origin. See Siva " +"Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University " +"Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: " +"Random House, 2001), 293 n. 26. The term accurately describes a set of " +"\"property\" rights—copyright, patents, trademark, and " +"trade-secret—but the nature of those rights is very different." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1548 +msgid "" +"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.\"<placeholder type=\"footnote\" id=\"0\"/> A large, " +"diverse society cannot survive without property; a large, diverse, and " +"modern society cannot flourish without intellectual property." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1568 +msgid "" +"But it takes just a second's reflection to realize that there is plenty of " +"value out there that \"property\" doesn't capture. I don't mean \"money " +"can't buy you love,\" but rather, value that is plainly part of a process of " +"production, including commercial as well as noncommercial production. If " +"Disney animators had stolen a set of pencils to draw Steamboat Willie, we'd " +"have no hesitation in condemning that taking as wrong— even though " +"trivial, even if unnoticed. Yet there was nothing wrong, at least under the " +"law of the day, with Disney's taking from Buster Keaton or from the Brothers " +"Grimm. There was nothing wrong with the taking from Keaton because Disney's " +"use would have been considered \"fair.\" There was nothing wrong with the " +"taking from the Grimms because the Grimms' work was in the public domain." +msgstr "" + +#. PAGE BREAK 42 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1583 +msgid "" +"Thus, even though the things that Disney took—or more generally, the " +"things taken by anyone exercising Walt Disney creativity—are valuable, " +"our tradition does not treat those takings as wrong. Some things remain free " +"for the taking within a free culture, and that freedom is good." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1592 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1600 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1606 +msgid "" +"It's the same with a thousand examples that appear everywhere once you begin " +"to look. Scientists build upon the work of other scientists without asking " +"or paying for the privilege. (\"Excuse me, Professor Einstein, but may I " +"have permission to use your theory of relativity to show that you were wrong " +"about quantum physics?\") Acting companies perform adaptations of the works " +"of Shakespeare without securing permission from anyone. (Does anyone believe " +"Shakespeare would be better spread within our culture if there were a " +"central Shakespeare rights clearinghouse that all productions of Shakespeare " +"must appeal to first?) And Hollywood goes through cycles with a certain kind " +"of movie: five asteroid films in the late 1990s; two volcano disaster films " +"in 1997." +msgstr "" + +#. PAGE BREAK 43 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1620 +msgid "" +"Creators here and everywhere are always and at all times building upon the " +"creativity that went before and that surrounds them now. That building is " +"always and everywhere at least partially done without permission and without " +"compensating the original creator. No society, free or controlled, has ever " +"demanded that every use be paid for or that permission for Walt Disney " +"creativity must always be sought. Instead, every society has left a certain " +"bit of its culture free for the taking—free societies more fully than " +"unfree, perhaps, but all societies to some degree." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1631 +msgid "" +"The hard question is therefore not whether a culture is free. All cultures " +"are free to some degree. The hard question instead is \"How free is this " +"culture?\" How much, and how broadly, is the culture free for others to take " +"and build upon? Is that freedom limited to party members? To members of the " +"royal family? To the top ten corporations on the New York Stock Exchange? Or " +"is that freedom spread broadly? To artists generally, whether affiliated " +"with the Met or not? To musicians generally, whether white or not? To " +"filmmakers generally, whether affiliated with a studio or not?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1642 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:1650 +msgid "CHAPTER TWO: \"Mere Copyists\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1651 +msgid "Daguerre, Louis" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1653 +msgid "" +"In 1839, Louis Daguerre invented the first practical technology for " +"producing what we would call \"photographs.\" Appropriately enough, they " +"were called \"daguerreotypes.\" The process was complicated and expensive, " +"and the field was thus limited to professionals and a few zealous and " +"wealthy amateurs. (There was even an American Daguerre Association that " +"helped regulate the industry, as do all such associations, by keeping " +"competition down so as to keep prices up.)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1662 +msgid "" +"Yet despite high prices, the demand for daguerreotypes was strong. This " +"pushed inventors to find simpler and cheaper ways to make \"automatic " +"pictures.\" William Talbot soon discovered a process for making " +"\"negatives.\" But because the negatives were glass, and had to be kept wet, " +"the process still remained expensive and cumbersome. In the 1870s, dry " +"plates were developed, making it easier to separate the taking of a picture " +"from its developing. These were still plates of glass, and thus it was still " +"not a process within reach of most amateurs." +msgstr "" + +#. PAGE BREAK 45 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1673 +msgid "" +"The technological change that made mass photography possible didn't happen " +"until 1888, and was the creation of a single man. George Eastman, himself an " +"amateur photographer, was frustrated by the technology of photographs made " +"with plates. In a flash of insight (so to speak), Eastman saw that if the " +"film could be made to be flexible, it could be held on a single " +"spindle. That roll could then be sent to a developer, driving the costs of " +"photography down substantially. By lowering the costs, Eastman expected he " +"could dramatically broaden the population of photographers." +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1690 +msgid "" +"Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University " +"Press, 1975), 112." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1685 +msgid "" +"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.\"<placeholder " +"type=\"footnote\" id=\"0\"/> As he described in The Kodak Primer:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1708 freeculture.xml:1731 +msgid "Coe, Brian" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> +#: freeculture.xml:1706 +msgid "" +"Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), " +"53. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:1695 +msgid "" +"The principle of the Kodak system is the separation of the work that any " +"person whomsoever can do in making a photograph, from the work that only an " +"expert can do. . . . We furnish anybody, man, woman or child, who has " +"sufficient intelligence to point a box straight and press a button, with an " +"instrument which altogether removes from the practice of photography the " +"necessity for exceptional facilities or, in fact, any special knowledge of " +"the art. It can be employed without preliminary study, without a darkroom " +"and without chemicals.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1724 +msgid "Jenkins, 177." +msgstr "" + +#. f4 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1728 +msgid "Based on a chart in Jenkins, p. 178." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1713 +msgid "" +"For $25, anyone could make pictures. The camera came preloaded with film, " +"and when it had been used, the camera was returned to an Eastman factory, " +"where the film was developed. Over time, of course, the cost of the camera " +"and the ease with which it could be used both improved. Roll film thus " +"became the basis for the explosive growth of popular photography. Eastman's " +"camera first went on sale in 1888; one year later, Kodak was printing more " +"than six thousand negatives a day. From 1888 through 1909, while industrial " +"production was rising by 4.7 percent, photographic equipment and material " +"sales increased by percent.<placeholder type=\"footnote\" id=\"0\"/> Eastman " +"Kodak's sales during the same period experienced an average annual increase " +"of over 17 percent.<placeholder type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. f5 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1746 +msgid "Coe, 58." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1735 +msgid "" +"The real significance of Eastman's invention, however, was not economic. It " +"was social. Professional photography gave individuals a glimpse of places " +"they would never otherwise see. Amateur photography gave them the ability to " +"record their own lives in a way they had never been able to do before. As " +"author Brian Coe notes, \"For the first time the snapshot album provided the " +"man on the street with a permanent record of his family and its " +"activities. . . . For the first time in history there exists an authentic " +"visual record of the appearance and activities of the common man made " +"without [literary] interpretation or bias.\"<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1750 +msgid "" +"In this way, the Kodak camera and film were technologies of expression. The " +"pencil or paintbrush was also a technology of expression, of course. But it " +"took years of training before they could be deployed by amateurs in any " +"useful or effective way. With the Kodak, expression was possible much sooner " +"and more simply. The barrier to expression was lowered. Snobs would sneer at " +"its \"quality\"; professionals would discount it as irrelevant. But watch a " +"child study how best to frame a picture and you get a sense of the " +"experience of creativity that the Kodak enabled. Democratic tools gave " +"ordinary people a way to express themselves more easily than any tools could " +"have before." +msgstr "" + +#. f6 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1772 +msgid "" +"For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 " +"S.E." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1763 +msgid "" +"What was required for this technology to flourish? Obviously, Eastman's " +"genius was an important part. But also important was the legal environment " +"within which Eastman's invention grew. For early in the history of " +"photography, there was a series of judicial decisions that could well have " +"changed the course of photography substantially. Courts were asked whether " +"the photographer, amateur or professional, required permission before he " +"could capture and print whatever image he wanted. Their answer was " +"no.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 47 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1776 +msgid "" +"The arguments in favor of requiring permission will sound surprisingly " +"familiar. The photographer was \"taking\" something from the person or " +"building whose photograph he shot—pirating something of value. Some " +"even thought he was taking the target's soul. Just as Disney was not free to " +"take the pencils that his animators used to draw Mickey, so, too, should " +"these photographers not be free to take images that they thought valuable." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> +#: freeculture.xml:1798 +msgid "Warren, Samuel D." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1795 +msgid "" +"Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" Harvard " +"Law Review 4 (1890): 193. <placeholder type=\"indexterm\" id=\"0\"/> " +"<placeholder type=\"indexterm\" id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1788 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/>) 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." +msgstr "" + +#. f8 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1815 +msgid "" +"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)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1805 +msgid "" +"Fortunately for Mr. Eastman, and for photography in general, these early " +"decisions went in favor of the pirates. In general, no permission would be " +"required before an image could be captured and shared with others. Instead, " +"permission was presumed. Freedom was the default. (The law would eventually " +"craft an exception for famous people: commercial photographers who snap " +"pictures of famous people for commercial purposes have more restrictions " +"than the rest of us. But in the ordinary case, the image can be captured " +"without clearing the rights to do the capturing.<placeholder " +"type=\"footnote\" id=\"0\"/>)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1823 +msgid "" +"We can only speculate about how photography would have developed had the law " +"gone the other way. If the presumption had been against the photographer, " +"then the photographer would have had to demonstrate permission. Perhaps " +"Eastman Kodak would have had to demonstrate permission, too, before it " +"developed the film upon which images were captured. After all, if permission " +"were not granted, then Eastman Kodak would be benefiting from the \"theft\" " +"committed by the photographer. Just as Napster benefited from the copyright " +"infringements committed by Napster users, Kodak would be benefiting from the " +"\"image-right\" infringement of its photographers. We could imagine the law " +"then requiring that some form of permission be demonstrated before a company " +"developed pictures. We could imagine a system developing to demonstrate that " +"permission." +msgstr "" + +#. PAGE BREAK 48 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1840 +msgid "" +"But though we could imagine this system of permission, it would be very hard " +"to see how photography could have flourished as it did if the requirement " +"for permission had been built into the rules that govern it. Photography " +"would have existed. It would have grown in importance over " +"time. Professionals would have continued to use the technology as they " +"did—since professionals could have more easily borne the burdens of " +"the permission system. But the spread of photography to ordinary people " +"would not have occurred. Nothing like that growth would have been " +"realized. And certainly, nothing like that growth in a democratic technology " +"of expression would have been realized. If you drive through San " +"Francisco's Presidio, you might see two gaudy yellow school buses painted " +"over with colorful and striking images, and the logo \"Just Think!\" in " +"place of the name of a school. But there's little that's \"just\" cerebral " +"in the projects that these busses enable. These buses are filled with " +"technologies that teach kids to tinker with film. Not the film of " +"Eastman. Not even the film of your VCR. Rather the \"film\" of digital " +"cameras. Just Think! is a project that enables kids to make films, as a way " +"to understand and critique the filmed culture that they find all around " +"them. Each year, these busses travel to more than thirty schools and enable " +"three hundred to five hundred children to learn something about media by " +"doing something with media. By doing, they think. By tinkering, they learn." +msgstr "" + +#. f9 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1871 +msgid "" +"H. Edward Goldberg, \"Essential Presentation Tools: Hardware and Software " +"You Need to Create Digital Multimedia Presentations,\" cadalyst, February " +"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#7</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1865 +msgid "" +"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.\"<placeholder type=\"footnote\" id=\"0\"/> 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.\"" +msgstr "" + +#. PAGE BREAK 49 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1885 +msgid "" +"\"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.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1892 +msgid "" +"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." +msgstr "" + +#. f10 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1902 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1898 +msgid "" +"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,<placeholder type=\"footnote\" id=\"0\"/> it is increasingly " +"important to understand the \"grammar\" of media. For just as there is a " +"grammar for the written word, so, too, is there one for media. And just as " +"kids learn how to write by writing lots of terrible prose, kids learn how to " +"write media by constructing lots of (at least at first) terrible media." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1914 +msgid "" +"A growing field of academics and activists sees this form of literacy as " +"crucial to the next generation of culture. For though anyone who has written " +"understands how difficult writing is—how difficult it is to sequence " +"the story, to keep a reader's attention, to craft language to be " +"understandable—few of us have any real sense of how difficult media " +"is. Or more fundamentally, few of us have a sense of how media works, how it " +"holds an audience or leads it through a story, how it triggers emotion or " +"builds suspense." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1925 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1932 +msgid "Crichton, Michael" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1946 freeculture.xml:2006 freeculture.xml:2013 freeculture.xml:2459 +msgid "Barish, Stephanie" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> +#: freeculture.xml:1947 +msgid "Daley, Elizabeth" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1944 +msgid "" +"Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. " +"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " +"id=\"1\"/>" +msgstr "" + +#. f12 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:1958 +msgid "" +"See Scott Steinberg, \"Crichton Gets Medieval on PCs,\" E!online, 4 November " +"2000, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#8</ulink>; \"Timeline,\" 22 November 2000, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #9</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1934 +msgid "" +"This grammar has changed as media has changed. When it was just film, as " +"Elizabeth Daley, executive director of the University of Southern " +"California's Annenberg Center for Communication and dean of the USC School " +"of Cinema-Television, explained to me, the grammar was about \"the placement " +"of objects, color, . . . rhythm, pacing, and texture.\"<placeholder " +"type=\"footnote\" id=\"0\"/> But as computers open up an interactive space " +"where a story is \"played\" as well as experienced, that grammar " +"changes. The simple control of narrative is lost, and so other techniques " +"are necessary. Author Michael Crichton had mastered the narrative of science " +"fiction. But when he tried to design a computer game based on one of his " +"works, it was a new craft he had to learn. How to lead people through a game " +"without their feeling they have been led was not obvious, even to a wildly " +"successful author.<placeholder type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:1965 +msgid "computer games" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1967 +msgid "" +"This skill is precisely the craft a filmmaker learns. As Daley describes, " +"\"people are very surprised about how they are led through a film. [I]t is " +"perfectly constructed to keep you from seeing it, so you have no idea. If a " +"filmmaker succeeds you do not know how you were led.\" If you know you were " +"led through a film, the film has failed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1974 +msgid "" +"Yet the push for an expanded literacy—one that goes beyond text to " +"include audio and visual elements—is not about making better film " +"directors. The aim is not to improve the profession of filmmaking at all. " +"Instead, as Daley explained," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:1981 +msgid "" +"From my perspective, probably the most important digital divide is not " +"access to a box. It's the ability to be empowered with the language that " +"that box works in. Otherwise only a very few people can write with this " +"language, and all the rest of us are reduced to being read-only." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1989 +msgid "" +"\"Read-only.\" Passive recipients of culture produced elsewhere. Couch " +"potatoes. Consumers. This is the world of media from the twentieth century." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2005 +msgid "Interview with Daley and Barish. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. f31 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2010 freeculture.xml:3760 freeculture.xml:4834 freeculture.xml:7964 +msgid "Ibid." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:1994 +msgid "" +"The twenty-first century could be different. This is the crucial point: It " +"could be both read and write. Or at least reading and better understanding " +"the craft of writing. Or best, reading and understanding the tools that " +"enable the writing to lead or mislead. The aim of any literacy, and this " +"literacy in particular, is to \"empower people to choose the appropriate " +"language for what they need to create or express.\"<placeholder " +"type=\"footnote\" id=\"0\"/> It is to enable students \"to communicate in " +"the language of the twenty-first century.\"<placeholder type=\"footnote\" " +"id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2015 +msgid "" +"As with any language, this language comes more easily to some than to " +"others. It doesn't necessarily come more easily to those who excel in " +"written language. Daley and Stephanie Barish, director of the Institute for " +"Multimedia Literacy at the Annenberg Center, describe one particularly " +"poignant example of a project they ran in a high school. The high school " +"was a very poor inner-city Los Angeles school. In all the traditional " +"measures of success, this school was a failure. But Daley and Barish ran a " +"program that gave kids an opportunity to use film to express meaning about " +"something the students know something about—gun violence." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2027 +msgid "" +"The class was held on Friday afternoons, and it created a relatively new " +"problem for the school. While the challenge in most classes was getting the " +"kids to come, the challenge in this class was keeping them away. The \"kids " +"were showing up at 6 A.M. and leaving at 5 at night,\" said Barish. They " +"were working harder than in any other class to do what education should be " +"about—learning how to express themselves." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2035 +msgid "" +"Using whatever \"free web stuff they could find,\" and relatively simple " +"tools to enable the kids to mix \"image, sound, and text,\" Barish said this " +"class produced a series of projects that showed something about gun violence " +"that few would otherwise understand. This was an issue close to the lives of " +"these students. The project \"gave them a tool and empowered them to be able " +"to both understand it and talk about it,\" Barish explained. That tool " +"succeeded in creating expression—far more successfully and powerfully " +"than could have been created using only text. \"If you had said to these " +"students, `you have to do it in text,' they would've just thrown their hands " +"up and gone and done something else,\" Barish described, in part, no doubt, " +"because expressing themselves in text is not something these students can do " +"well. Yet neither is text a form in which these ideas can be expressed " +"well. The power of this message depended upon its connection to this form of " +"expression." +msgstr "" + +#. PAGE BREAK 52 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2054 +msgid "" +"\"But isn't education about teaching kids to write?\" I asked. In part, of " +"course, it is. But why are we teaching kids to write? Education, Daley " +"explained, is about giving students a way of \"constructing meaning.\" To " +"say that that means just writing is like saying teaching writing is only " +"about teaching kids how to spell. Text is one part—and increasingly, " +"not the most powerful part—of constructing meaning. As Daley explained " +"in the most moving part of our interview," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:2067 +msgid "" +"What you want is to give these students ways of constructing meaning. If all " +"you give them is text, they're not going to do it. Because they can't. You " +"know, you've got Johnny who can look at a video, he can play a video game, " +"he can do graffiti all over your walls, he can take your car apart, and he " +"can do all sorts of other things. He just can't read your text. So Johnny " +"comes to school and you say, \"Johnny, you're illiterate. Nothing you can do " +"matters.\" Well, Johnny then has two choices: He can dismiss you or he [can] " +"dismiss himself. If his ego is healthy at all, he's going to dismiss " +"you. [But i]nstead, if you say, \"Well, with all these things that you can " +"do, let's talk about this issue. Play for me music that you think reflects " +"that, or show me images that you think reflect that, or draw for me " +"something that reflects that.\" Not by giving a kid a video camera and " +". . . saying, \"Let's go have fun with the video camera and make a little " +"movie.\" But instead, really help you take these elements that you " +"understand, that are your language, and construct meaning about the " +"topic. . . ." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:2086 +msgid "" +"That empowers enormously. And then what happens, of course, is eventually, " +"as it has happened in all these classes, they bump up against the fact, \"I " +"need to explain this and I really need to write something.\" And as one of " +"the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 " +"times, till they got it right." +msgstr "" + +#. PAGE BREAK 53 +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:2093 +msgid "" +"Because they needed to. There was a reason for doing it. They needed to say " +"something, as opposed to just jumping through your hoops. They actually " +"needed to use a language that they didn't speak very well. But they had come " +"to understand that they had a lot of power with this language.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2102 +msgid "" +"When two planes crashed into the World Trade Center, another into the " +"Pentagon, and a fourth into a Pennsylvania field, all media around the world " +"shifted to this news. Every moment of just about every day for that week, " +"and for weeks after, television in particular, and media generally, retold " +"the story of the events we had just witnessed. The telling was a retelling, " +"because we had seen the events that were described. The genius of this awful " +"act of terrorism was that the delayed second attack was perfectly timed to " +"assure that the whole world would be watching." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2113 +msgid "" +"These retellings had an increasingly familiar feel. There was music scored " +"for the intermissions, and fancy graphics that flashed across the " +"screen. There was a formula to interviews. There was \"balance,\" and " +"seriousness. This was news choreographed in the way we have increasingly " +"come to expect it, \"news as entertainment,\" even if the entertainment is " +"tragedy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:2120 freeculture.xml:7902 +msgid "ABC" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:2121 +msgid "CBS" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2123 +msgid "" +"But in addition to this produced news about the \"tragedy of September 11,\" " +"those of us tied to the Internet came to see a very different production as " +"well. The Internet was filled with accounts of the same events. Yet these " +"Internet accounts had a very different flavor. Some people constructed photo " +"pages that captured images from around the world and presented them as slide " +"shows with text. Some offered open letters. There were sound " +"recordings. There was anger and frustration. There were attempts to provide " +"context. There was, in short, an extraordinary worldwide barn raising, in " +"the sense Mike Godwin uses the term in his book Cyber Rights, around a news " +"event that had captured the attention of the world. There was ABC and CBS, " +"but there was also the Internet." +msgstr "" + +#. PAGE BREAK 54 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2137 +msgid "" +"I don't mean simply to praise the Internet—though I do think the " +"people who supported this form of speech should be praised. I mean instead " +"to point to a significance in this form of speech. For like a Kodak, the " +"Internet enables people to capture images. And like in a movie by a student " +"on the \"Just Think!\" bus, the visual images could be mixed with sound or " +"text." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2147 +msgid "" +"But unlike any technology for simply capturing images, the Internet allows " +"these creations to be shared with an extraordinary number of people, " +"practically instantaneously. This is something new in our " +"tradition—not just that culture can be captured mechanically, and " +"obviously not just that events are commented upon critically, but that this " +"mix of captured images, sound, and commentary can be widely spread " +"practically instantaneously." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2156 +msgid "" +"September 11 was not an aberration. It was a beginning. Around the same " +"time, a form of communication that has grown dramatically was just beginning " +"to come into public consciousness: the Web-log, or blog. The blog is a kind " +"of public diary, and within some cultures, such as in Japan, it functions " +"very much like a diary. In those cultures, it records private facts in a " +"public way—it's a kind of electronic Jerry Springer, available " +"anywhere in the world." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2165 +msgid "" +"But in the United States, blogs have taken on a very different character. " +"There are some who use the space simply to talk about their private " +"life. But there are many who use the space to engage in public " +"discourse. Discussing matters of public import, criticizing others who are " +"mistaken in their views, criticizing politicians about the decisions they " +"make, offering solutions to problems we all see: blogs create the sense of a " +"virtual public meeting, but one in which we don't all hope to be there at " +"the same time and in which conversations are not necessarily linked. The " +"best of the blog entries are relatively short; they point directly to words " +"used by others, criticizing with or adding to them. They are arguably the " +"most important form of unchoreographed public discourse that we have." +msgstr "" + +#. PAGE BREAK 55 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2179 +msgid "" +"That's a strong statement. Yet it says as much about our democracy as it " +"does about blogs. This is the part of America that is most difficult for " +"those of us who love America to accept: Our democracy has atrophied. Of " +"course we have elections, and most of the time the courts allow those " +"elections to count. A relatively small number of people vote in those " +"elections. The cycle of these elections has become totally professionalized " +"and routinized. Most of us think this is democracy." +msgstr "" + +#. f15 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2205 +msgid "" +"See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, " +"trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2190 +msgid "" +"But democracy has never just been about elections. Democracy means rule by " +"the people, but rule means something more than mere elections. In our " +"tradition, it also means control through reasoned discourse. This was the " +"idea that captured the imagination of Alexis de Tocqueville, the " +"nineteenth-century French lawyer who wrote the most important account of " +"early \"Democracy in America.\" It wasn't popular elections that fascinated " +"him—it was the jury, an institution that gave ordinary people the " +"right to choose life or death for other citizens. And most fascinating for " +"him was that the jury didn't just vote about the outcome they would " +"impose. They deliberated. Members argued about the \"right\" result; they " +"tried to persuade each other of the \"right\" result, and in criminal cases " +"at least, they had to agree upon a unanimous result for the process to come " +"to an end.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f16 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2214 +msgid "" +"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" Journal of Political " +"Philosophy 10 (2) (2002): 129." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2210 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/> 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." +msgstr "" + +#. f17 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2234 +msgid "" +"Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), " +"65–80, 175, 182, 183, 192." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2225 +msgid "" +"More bizarrely, there is generally not even permission for it to occur. We, " +"the most powerful democracy in the world, have developed a strong norm " +"against talking about politics. It's fine to talk about politics with people " +"you agree with. But it is rude to argue about politics with people you " +"disagree with. Political discourse becomes isolated, and isolated discourse " +"becomes more extreme.<placeholder type=\"footnote\" id=\"0\"/> We say what " +"our friends want to hear, and hear very little beyond what our friends say." +msgstr "" + +#. PAGE BREAK 56 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2240 +msgid "" +"Enter the blog. The blog's very architecture solves one part of this " +"problem. People post when they want to post, and people read when they want " +"to read. The most difficult time is synchronous time. Technologies that " +"enable asynchronous communication, such as e-mail, increase the opportunity " +"for communication. Blogs allow for public discourse without the public ever " +"needing to gather in a single public place." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2252 +msgid "" +"But beyond architecture, blogs also have solved the problem of " +"norms. There's no norm (yet) in blog space not to talk about politics. " +"Indeed, the space is filled with political speech, on both the right and the " +"left. Some of the most popular sites are conservative or libertarian, but " +"there are many of all political stripes. And even blogs that are not " +"political cover political issues when the occasion merits." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2260 +msgid "" +"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." +msgstr "" + +#. f18 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2280 +msgid "" +"Noah Shachtman, \"With Incessant Postings, a Pundit Stirs the Pot,\" New " +"York Times, 16 January 2003, G5." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2267 +msgid "" +"One direct effect is on stories that had a different life cycle in the " +"mainstream media. The Trent Lott affair is an example. When Lott " +"\"misspoke\" at a party for Senator Strom Thurmond, essentially praising " +"Thurmond's segregationist policies, he calculated correctly that this story " +"would disappear from the mainstream press within forty-eight hours. It " +"did. But he didn't calculate its life cycle in blog space. The bloggers kept " +"researching the story. Over time, more and more instances of the same " +"\"misspeaking\" emerged. Finally, the story broke back into the mainstream " +"press. In the end, Lott was forced to resign as senate majority " +"leader.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2285 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2292 +msgid "" +"But bloggers don't have a similar constraint. They can obsess, they can " +"focus, they can get serious. If a particular blogger writes a particularly " +"interesting story, more and more people link to that story. And as the " +"number of links to a particular story increases, it rises in the ranks of " +"stories. People read what is popular; what is popular has been selected by a " +"very democratic process of peer-generated rankings." +msgstr "" + +#. PAGE BREAK 57 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2301 +msgid "" +"There's a second way, as well, in which blogs have a different cycle from " +"the mainstream press. As Dave Winer, one of the fathers of this movement and " +"a software author for many decades, told me, another difference is the " +"absence of a financial \"conflict of interest.\" \"I think you have to take " +"the conflict of interest\" out of journalism, Winer told me. \"An amateur " +"journalist simply doesn't have a conflict of interest, or the conflict of " +"interest is so easily disclosed that you know you can sort of get it out of " +"the way.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> +#: freeculture.xml:2311 freeculture.xml:2364 +msgid "CNN" +msgstr "" + +#. f19 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2319 +msgid "Telephone interview with David Winer, 16 April 2003." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2313 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> It also needs to sustain " +"a more coherent account. (In the middle of the Iraq war, I read a post on " +"the Internet from someone who was at that time listening to a satellite " +"uplink with a reporter in Iraq. The New York headquarters was telling the " +"reporter over and over that her account of the war was too bleak: She needed " +"to offer a more optimistic story. When she told New York that wasn't " +"warranted, they told her that they were writing \"the story.\")" +msgstr "" + +#. f20 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2337 +msgid "" +"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 <ulink " +"url=\"http://free-culture.cc/notes/\">link #10</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2329 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> And it " +"drives readers to read across the range of accounts and \"triangulate,\" as " +"Winer puts it, the truth. Blogs, Winer says, are \"communicating directly " +"with our constituency, and the middle man is out of it\"—with all the " +"benefits, and costs, that might entail." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2356 +msgid "" +"See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" New York " +"Times, 29 September 2003, C4. (\"Not all news organizations have been as " +"accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq " +"who started a blog about his reporting of the war on March 9, stopped " +"posting 12 days later at his bosses' request. Last year Steve Olafson, a " +"Houston Chronicle reporter, was fired for keeping a personal Web log, " +"published under a pseudonym, that dealt with some of the issues and people " +"he was covering.\") <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 58 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2349 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> But " +"it is clear that we are still in transition. \"A lot of what we are doing " +"now is warm-up exercises,\" Winer told me. There is a lot that must mature " +"before this space has its mature effect. And as the inclusion of content in " +"this space is the least infringing use of the Internet (meaning infringing " +"on copyright), Winer said, \"we will be the last thing that gets shut " +"down.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2376 +msgid "" +"This speech affects democracy. Winer thinks that happens because \"you don't " +"have to work for somebody who controls, [for] a gatekeeper.\" That is " +"true. But it affects democracy in another way as well. As more and more " +"citizens express what they think, and defend it in writing, that will change " +"the way people understand public issues. It is easy to be wrong and " +"misguided in your head. It is harder when the product of your mind can be " +"criticized by others. Of course, it is a rare human who admits that he has " +"been persuaded that he is wrong. But it is even rarer for a human to ignore " +"when he has been proven wrong. The writing of ideas, arguments, and " +"criticism improves democracy. Today there are probably a couple of million " +"blogs where such writing happens. When there are ten million, there will be " +"something extraordinary to report." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2393 +msgid "" +"John Seely Brown is the chief scientist of the Xerox Corporation. His work, " +"as his Web site describes it, is \"human learning and . . . the creation of " +"knowledge ecologies for creating . . . innovation.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2398 +msgid "" +"Brown thus looks at these technologies of digital creativity a bit " +"differently from the perspectives I've sketched so far. I'm sure he would be " +"excited about any technology that might improve democracy. But his real " +"excitement comes from how these technologies affect learning." +msgstr "" + +#. PAGE BREAK 59 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2405 +msgid "" +"As Brown believes, we learn by tinkering. When \"a lot of us grew up,\" he " +"explains, that tinkering was done \"on motorcycle engines, lawnmower " +"engines, automobiles, radios, and so on.\" But digital technologies enable a " +"different kind of tinkering—with abstract ideas though in concrete " +"form. The kids at Just Think! not only think about how a commercial portrays " +"a politician; using digital technology, they can take the commercial apart " +"and manipulate it, tinker with it to see how it does what it does. Digital " +"technologies launch a kind of bricolage, or \"free collage,\" as Brown calls " +"it. Many get to add to or transform the tinkering of many others." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2420 +msgid "" +"The best large-scale example of this kind of tinkering so far is free " +"software or open-source software (FS/OSS). FS/OSS is software whose source " +"code is shared. Anyone can download the technology that makes a FS/OSS " +"program run. And anyone eager to learn how a particular bit of FS/OSS " +"technology works can tinker with the code." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2427 +msgid "" +"This opportunity creates a \"completely new kind of learning platform,\" as " +"Brown describes. \"As soon as you start doing that, you . . . unleash a " +"free collage on the community, so that other people can start looking at " +"your code, tinkering with it, trying it out, seeing if they can improve " +"it.\" Each effort is a kind of apprenticeship. \"Open source becomes a major " +"apprenticeship platform.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2437 +msgid "" +"In this process, \"the concrete things you tinker with are abstract. They " +"are code.\" Kids are \"shifting to the ability to tinker in the abstract, " +"and this tinkering is no longer an isolated activity that you're doing in " +"your garage. You are tinkering with a community platform. . . . You are " +"tinkering with other people's stuff. The more you tinker the more you " +"improve.\" The more you improve, the more you learn." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2447 +msgid "" +"This same thing happens with content, too. And it happens in the same " +"collaborative way when that content is part of the Web. As Brown puts it, " +"\"the Web [is] the first medium that truly honors multiple forms of " +"intelligence.\" Earlier technologies, such as the typewriter or word " +"processors, helped amplify text. But the Web amplifies much more than " +"text. \"The Web . . . says if you are musical, if you are artistic, if you " +"are visual, if you are interested in film . . . [then] there is a lot you " +"can start to do on this medium. [It] can now amplify and honor these " +"multiple forms of intelligence.\"" +msgstr "" + +#. PAGE BREAK 60 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2461 +msgid "" +"Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just " +"Think! teach: that this tinkering with culture teaches as well as " +"creates. It develops talents differently, and it builds a different kind of " +"recognition." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2469 +msgid "" +"Yet the freedom to tinker with these objects is not guaranteed. Indeed, as " +"we'll see through the course of this book, that freedom is increasingly " +"highly contested. While there's no doubt that your father had the right to " +"tinker with the car engine, there's great doubt that your child will have " +"the right to tinker with the images she finds all around. The law and, " +"increasingly, technology interfere with a freedom that technology, and " +"curiosity, would otherwise ensure." +msgstr "" + +#. f22 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2484 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2478 +msgid "" +"These restrictions have become the focus of researchers and scholars. " +"Professor Ed Felten of Princeton (whom we'll see more of in chapter 10) has " +"developed a powerful argument in favor of the \"right to tinker\" as it " +"applies to computer science and to knowledge in general.<placeholder " +"type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2492 +msgid "" +"\"This is where education in the twenty-first century is going,\" Brown " +"explains. We need to \"understand how kids who grow up digital think and " +"want to learn.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2497 +msgid "" +"\"Yet,\" as Brown continued, and as the balance of this book will evince, " +"\"we are building a legal system that completely suppresses the natural " +"tendencies of today's digital kids. . . . We're building an architecture " +"that unleashes 60 percent of the brain [and] a legal system that closes down " +"that part of the brain.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2504 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2510 +msgid "" +"\"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:2516 +msgid "CHAPTER THREE: Catalogs" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2518 +msgid "" +"In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a " +"freshman at Rensselaer Polytechnic Institute, in Troy, New York. His major " +"at RPI was information technology. Though he is not a programmer, in October " +"Jesse decided to begin to tinker with search engine technology that was " +"available on the RPI network." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2525 +msgid "" +"RPI is one of America's foremost technological research institutions. It " +"offers degrees in fields ranging from architecture and engineering to " +"information sciences. More than 65 percent of its five thousand " +"undergraduates finished in the top 10 percent of their high school " +"class. The school is thus a perfect mix of talent and experience to imagine " +"and then build, a generation for the network age." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2533 +msgid "" +"RPI's computer network links students, faculty, and administration to one " +"another. It also links RPI to the Internet. Not everything available on the " +"RPI network is available on the Internet. But the network is designed to " +"enable students to get access to the Internet, as well as more intimate " +"access to other members of the RPI community." +msgstr "" + +#. PAGE BREAK 62 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2540 +msgid "" +"Search engines are a measure of a network's intimacy. Google brought the " +"Internet much closer to all of us by fantastically improving the quality of " +"search on the network. Specialty search engines can do this even better. The " +"idea of \"intranet\" search engines, search engines that search within the " +"network of a particular institution, is to provide users of that institution " +"with better access to material from that institution. Businesses do this " +"all the time, enabling employees to have access to material that people " +"outside the business can't get. Universities do it as well." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2552 +msgid "" +"These engines are enabled by the network technology itself. Microsoft, for " +"example, has a network file system that makes it very easy for search " +"engines tuned to that network to query the system for information about the " +"publicly (within that network) available content. Jesse's search engine was " +"built to take advantage of this technology. It used Microsoft's network file " +"system to build an index of all the files available within the RPI network." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2561 +msgid "" +"Jesse's wasn't the first search engine built for the RPI network. Indeed, " +"his engine was a simple modification of engines that others had built. His " +"single most important improvement over those engines was to fix a bug within " +"the Microsoft file-sharing system that could cause a user's computer to " +"crash. With the engines that existed before, if you tried to access a file " +"through a Windows browser that was on a computer that was off-line, your " +"computer could crash. Jesse modified the system a bit to fix that problem, " +"by adding a button that a user could click to see if the machine holding the " +"file was still on-line." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2573 +msgid "" +"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." +msgstr "" + +#. PAGE BREAK 63 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2580 +msgid "" +"Thus the index his search engine produced included pictures, which students " +"could use to put on their own Web sites; copies of notes or research; copies " +"of information pamphlets; movie clips that students might have created; " +"university brochures—basically anything that users of the RPI network " +"made available in a public folder of their computer." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2590 +msgid "" +"But the index also included music files. In fact, one quarter of the files " +"that Jesse's search engine listed were music files. But that means, of " +"course, that three quarters were not, and—so that this point is " +"absolutely clear—Jesse did nothing to induce people to put music files " +"in their public folders. He did nothing to target the search engine to these " +"files. He was a kid tinkering with a Google-like technology at a university " +"where he was studying information science, and hence, tinkering was the " +"aim. Unlike Google, or Microsoft, for that matter, he made no money from " +"this tinkering; he was not connected to any business that would make any " +"money from this experiment. He was a kid tinkering with technology in an " +"environment where tinkering with technology was precisely what he was " +"supposed to do." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2605 +msgid "" +"On April 3, 2003, Jesse was contacted by the dean of students at RPI. The " +"dean informed Jesse that the Recording Industry Association of America, the " +"RIAA, would be filing a lawsuit against him and three other students whom he " +"didn't even know, two of them at other universities. A few hours later, " +"Jesse was served with papers from the suit. As he read these papers and " +"watched the news reports about them, he was increasingly astonished." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2614 +msgid "" +"\"It was absurd,\" he told me. \"I don't think I did anything wrong. . . . " +"I don't think there's anything wrong with the search engine that I ran or " +". . . what I had done to it. I mean, I hadn't modified it in any way that " +"promoted or enhanced the work of pirates. I just modified the search engine " +"in a way that would make it easier to use\"—again, a search engine, " +"which Jesse had not himself built, using the Windows filesharing system, " +"which Jesse had not himself built, to enable members of the RPI community to " +"get access to content, which Jesse had not himself created or posted, and " +"the vast majority of which had nothing to do with music." +msgstr "" + +#. PAGE BREAK 64 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2626 +msgid "" +"But the RIAA branded Jesse a pirate. They claimed he operated a network and " +"had therefore \"willfully\" violated copyright laws. They demanded that he " +"pay them the damages for his wrong. For cases of \"willful infringement,\" " +"the Copyright Act specifies something lawyers call \"statutory damages.\" " +"These damages permit a copyright owner to claim $150,000 per " +"infringement. As the RIAA alleged more than one hundred specific copyright " +"infringements, they therefore demanded that Jesse pay them at least " +"$15,000,000." +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2647 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2638 +msgid "" +"Similar lawsuits were brought against three other students: one other " +"student at RPI, one at Michigan Technical University, and one at " +"Princeton. Their situations were similar to Jesse's. Though each case was " +"different in detail, the bottom line in each was exactly the same: huge " +"demands for \"damages\" that the RIAA claimed it was entitled to. If you " +"added up the claims, these four lawsuits were asking courts in the United " +"States to award the plaintiffs close to $100 billion—six times the " +"total profit of the film industry in 2001.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2653 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2660 +msgid "" +"The RIAA wanted Jesse to admit to doing something wrong. He refused. They " +"wanted him to agree to an injunction that would essentially make it " +"impossible for him to work in many fields of technology for the rest of his " +"life. He refused. They made him understand that this process of being sued " +"was not going to be pleasant. (As Jesse's father recounted to me, the chief " +"lawyer on the case, Matt Oppenheimer, told Jesse, \"You don't want to pay " +"another visit to a dentist like me.\") And throughout, the RIAA insisted it " +"would not settle the case until it took every penny Jesse had saved." +msgstr "" + +#. PAGE BREAK 65 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2671 +msgid "" +"Jesse's family was outraged at these claims. They wanted to fight. But " +"Jesse's uncle worked to educate the family about the nature of the American " +"legal system. Jesse could fight the RIAA. He might even win. But the cost of " +"fighting a lawsuit like this, Jesse was told, would be at least $250,000. If " +"he won, he would not recover that money. If he won, he would have a piece of " +"paper saying he had won, and a piece of paper saying he and his family were " +"bankrupt." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2681 +msgid "" +"So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or " +"$12,000 and a settlement." +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2693 +msgid "" +"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)." +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:2701 +msgid "" +"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" Wall " +"Street Journal, 10 September 2003, A24." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2685 +msgid "" +"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.<placeholder " +"type=\"footnote\" id=\"0\"/> 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?<placeholder type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2706 +msgid "" +"On June 23, Jesse wired his savings to the lawyer working for the RIAA. The " +"case against him was then dismissed. And with this, this kid who had " +"tinkered a computer into a $15 million lawsuit became an activist:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:2713 +msgid "" +"I was definitely not an activist [before]. I never really meant to be an " +"activist. . . . [But] I've been pushed into this. In no way did I ever " +"foresee anything like this, but I think it's just completely absurd what the " +"RIAA has done." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2720 +msgid "" +"Jesse's parents betray a certain pride in their reluctant activist. As his " +"father told me, Jesse \"considers himself very conservative, and so do " +"I. . . . He's not a tree hugger. . . . I think it's bizarre that they would " +"pick on him. But he wants to let people know that they're sending the wrong " +"message. And he wants to correct the record.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:2729 +msgid "CHAPTER FOUR: \"Pirates\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:2731 +msgid "" +"If \"piracy\" means using the creative property of others without their " +"permission—if \"if value, then right\" is true—then the history " +"of the content industry is a history of piracy. Every important sector of " +"\"big media\" today—film, records, radio, and cable TV—was born " +"of a kind of piracy so defined. The consistent story is how last " +"generation's pirates join this generation's country club—until now." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:2739 +msgid "Film" +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2743 +msgid "" +"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." +msgstr "" + +#. PAGE BREAK 67 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2741 +msgid "" +"The film industry of Hollywood was built by fleeing pirates.<placeholder " +"type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East " +"Coast to California in the early twentieth century in part to escape " +"controls that patents granted the inventor of filmmaking, Thomas " +"Edison. These controls were exercised through a monopoly \"trust,\" the " +"Motion Pictures Patents Company, and were based on Thomas Edison's creative " +"property—patents. Edison formed the MPPC to exercise the rights this " +"creative property gave him, and the MPPC was serious about the control it " +"demanded." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2758 +msgid "As one commentator tells one part of the story," +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:2762 +msgid "" +"A January 1909 deadline was set for all companies to comply with the " +"license. By February, unlicensed outlaws, who referred to themselves as " +"independents protested the trust and carried on business without submitting " +"to the Edison monopoly. In the summer of 1909 the independent movement was " +"in full-swing, with producers and theater owners using illegal equipment and " +"imported film stock to create their own underground market." +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:2782 +msgid "" +"J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion " +"Picture Producers (Cobblestone Entertainment, 2000) and expanded texts " +"posted at \"The Edison Movie Monopoly: The Motion Picture Patents Company " +"vs. the Independent Outlaws,\" available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #11</ulink>. For a discussion of " +"the economic motive behind both these limits and the limits imposed by " +"Victor on phonographs, see Randal C. Picker, \"From Edison to the Broadcast " +"Flag: Mechanisms of Consent and Refusal and the Propertization of " +"Copyright\" (September 2002), University of Chicago Law School, James " +"M. Olin Program in Law and Economics, Working Paper No. 159." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:2771 +msgid "" +"With the country experiencing a tremendous expansion in the number of " +"nickelodeons, the Patents Company reacted to the independent movement by " +"forming a strong-arm subsidiary known as the General Film Company to block " +"the entry of non-licensed independents. With coercive tactics that have " +"become legendary, General Film confiscated unlicensed equipment, " +"discontinued product supply to theaters which showed unlicensed films, and " +"effectively monopolized distribution with the acquisition of all U.S. film " +"exchanges, except for the one owned by the independent William Fox who " +"defied the Trust even after his license was revoked.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2802 +msgid "" +"Marc Wanamaker, \"The First Studios,\" The Silents Majority, archived at " +"<ulink url=\"http://free-culture.cc/notes/\">link #12</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2796 +msgid "" +"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.\"<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. PAGE BREAK 68 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2812 +msgid "" +"Of course, California grew quickly, and the effective enforcement of federal " +"law eventually spread west. But because patents grant the patent holder a " +"truly \"limited\" monopoly (just seventeen years at that time), by the time " +"enough federal marshals appeared, the patents had expired. A new industry " +"had been born, in part from the piracy of Edison's creative property." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:2823 +msgid "Recorded Music" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2825 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2829 +msgid "" +"At the time that Edison and Henri Fourneaux invented machines for " +"reproducing music (Edison the phonograph, Fourneaux the player piano), the " +"law gave composers the exclusive right to control copies of their music and " +"the exclusive right to control public performances of their music. In other " +"words, in 1900, if I wanted a copy of Phil Russel's 1899 hit \"Happy Mose,\" " +"the law said I would have to pay for the right to get a copy of the musical " +"score, and I would also have to pay for the right to perform it publicly." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:2838 freeculture.xml:2963 +msgid "Beatles" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2840 +msgid "" +"But what if I wanted to record \"Happy Mose,\" using Edison's phonograph or " +"Fourneaux's player piano? Here the law stumbled. It was clear enough that I " +"would have to buy any copy of the musical score that I performed in making " +"this recording. And it was clear enough that I would have to pay for any " +"public performance of the work I was recording. But it wasn't totally clear " +"that I would have to pay for a \"public performance\" if I recorded the song " +"in my own house (even today, you don't owe the Beatles anything if you sing " +"their songs in the shower), or if I recorded the song from memory (copies in " +"your brain are not—yet— regulated by copyright law). So if I " +"simply sang the song into a recording device in the privacy of my own home, " +"it wasn't clear that I owed the composer anything. And more importantly, it " +"wasn't clear whether I owed the composer anything if I then made copies of " +"those recordings. Because of this gap in the law, then, I could effectively " +"pirate someone else's song without paying its composer anything." +msgstr "" + +#. PAGE BREAK 69 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2858 +msgid "" +"The composers (and publishers) were none too happy about this capacity to " +"pirate. As South Dakota senator Alfred Kittredge put it," +msgstr "" + +#. f4 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:2872 +msgid "" +"To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 " +"and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st " +"sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, " +"chairman), reprinted in Legislative History of the Copyright Act, E. Fulton " +"Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, " +"1976)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:2865 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. f5 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2886 +msgid "" +"To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of " +"Nathan Burkan, attorney for the Music Publishers Association)." +msgstr "" + +#. f6 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2892 +msgid "" +"To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of " +"Nathan Burkan, attorney for the Music Publishers Association)." +msgstr "" + +#. f7 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2899 +msgid "" +"To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of " +"John Philip Sousa, composer)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2882 +msgid "" +"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,\"<placeholder type=\"footnote\" id=\"0\"/> and the \"music " +"publishing industry\" was thereby \"at the complete mercy of this one " +"pirate.\"<placeholder type=\"footnote\" id=\"1\"/> 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.\"<placeholder type=\"footnote\" id=\"2\"/>" +msgstr "" + +#. f8 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2911 +msgid "" +"To Amend and Consolidate the Acts Respecting Copyright, 283–84 " +"(statement of Albert Walker, representative of the Auto-Music Perforating " +"Company of New York)." +msgstr "" + +#. f9 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2922 +msgid "" +"To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared " +"memorandum of Philip Mauro, general patent counsel of the American " +"Graphophone Company Association)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2904 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> 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.\"<placeholder type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. PAGE BREAK 70 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2930 +msgid "" +"The law soon resolved this battle in favor of the composer and the recording " +"artist. Congress amended the law to make sure that composers would be paid " +"for the \"mechanical reproductions\" of their music. But rather than simply " +"granting the composer complete control over the right to make mechanical " +"reproductions, Congress gave recording artists a right to record the music, " +"at a price set by Congress, once the composer allowed it to be recorded " +"once. This is the part of copyright law that makes cover songs " +"possible. Once a composer authorizes a recording of his song, others are " +"free to record the same song, so long as they pay the original composer a " +"fee set by the law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2946 +msgid "" +"American law ordinarily calls this a \"compulsory license,\" but I will " +"refer to it as a \"statutory license.\" A statutory license is a license " +"whose key terms are set by law. After Congress's amendment of the Copyright " +"Act in 1909, record companies were free to distribute copies of recordings " +"so long as they paid the composer (or copyright holder) the fee set by the " +"statute." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2955 +msgid "" +"This is an exception within the law of copyright. When John Grisham writes a " +"novel, a publisher is free to publish that novel only if Grisham gives the " +"publisher permission. Grisham, in turn, is free to charge whatever he wants " +"for that permission. The price to publish Grisham is thus set by Grisham, " +"and copyright law ordinarily says you have no permission to use Grisham's " +"work except with permission of Grisham." +msgstr "" + +#. f10 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:2978 +msgid "" +"Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and " +"H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., " +"217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in " +"Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe " +"Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2965 +msgid "" +"But the law governing recordings gives recording artists less. And thus, in " +"effect, the law subsidizes the recording industry through a kind of " +"piracy—by giving recording artists a weaker right than it otherwise " +"gives creative authors. The Beatles have less control over their creative " +"work than Grisham does. And the beneficiaries of this less control are the " +"recording industry and the public. The recording industry gets something of " +"value for less than it otherwise would pay; the public gets access to a much " +"wider range of musical creativity. Indeed, Congress was quite explicit about " +"its reasons for granting this right. Its fear was the monopoly power of " +"rights holders, and that that power would stifle follow-on " +"creativity.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:2986 +msgid "" +"While the recording industry has been quite coy about this recently, " +"historically it has been quite a supporter of the statutory license for " +"records. As a 1967 report from the House Committee on the Judiciary relates," +msgstr "" + +#. f11 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:3012 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:2993 +msgid "" +"the record producers argued vigorously that the compulsory license system " +"must be retained. They asserted that the record industry is a " +"half-billion-dollar business of great economic importance in the United " +"States and throughout the world; records today are the principal means of " +"disseminating music, and this creates special problems, since performers " +"need unhampered access to musical material on nondiscriminatory " +"terms. Historically, the record producers pointed out, there were no " +"recording rights before 1909 and the 1909 statute adopted the compulsory " +"license as a deliberate anti-monopoly condition on the grant of these " +"rights. They argue that the result has been an outpouring of recorded music, " +"with the public being given lower prices, improved quality, and a greater " +"choice.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3019 +msgid "" +"By limiting the rights musicians have, by partially pirating their creative " +"work, the record producers, and the public, benefit." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:3025 freeculture.xml:4145 +msgid "Radio" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3027 +msgid "Radio was also born of piracy." +msgstr "" + +#. f12 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3033 +msgid "" +"See 17 United States Code, sections 106 and 110. At the beginning, record " +"companies printed \"Not Licensed for Radio Broadcast\" and other messages " +"purporting to restrict the ability to play a record on a radio station. " +"Judge Learned Hand rejected the argument that a warning attached to a record " +"might restrict the rights of the radio station. See RCA Manufacturing " +"Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, " +"\"From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and " +"the Propertization of Copyright,\" University of Chicago Law Review 70 " +"(2003): 281." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3030 +msgid "" +"When a radio station plays a record on the air, that constitutes a \"public " +"performance\" of the composer's work.<placeholder type=\"footnote\" " +"id=\"0\"/> 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." +msgstr "" + +#. PAGE BREAK 72 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3052 +msgid "" +"But when the radio station plays a record, it is not only performing a copy " +"of the composer's work. The radio station is also performing a copy of the " +"recording artist's work. It's one thing to have \"Happy Birthday\" sung on " +"the radio by the local children's choir; it's quite another to have it sung " +"by the Rolling Stones or Lyle Lovett. The recording artist is adding to the " +"value of the composition performed on the radio station. And if the law " +"were perfectly consistent, the radio station would have to pay the recording " +"artist for his work, just as it pays the composer of the music for his work." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3068 +msgid "" +"But it doesn't. Under the law governing radio performances, the radio " +"station does not have to pay the recording artist. The radio station need " +"only pay the composer. The radio station thus gets a bit of something for " +"nothing. It gets to perform the recording artist's work for free, even if it " +"must pay the composer something for the privilege of playing the song." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3078 +msgid "" +"This difference can be huge. Imagine you compose a piece of music. Imagine " +"it is your first. You own the exclusive right to authorize public " +"performances of that music. So if Madonna wants to sing your song in public, " +"she has to get your permission." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3085 +msgid "" +"Imagine she does sing your song, and imagine she likes it a lot. She then " +"decides to make a recording of your song, and it becomes a top hit. Under " +"our law, every time a radio station plays your song, you get some money. But " +"Madonna gets nothing, save the indirect effect on the sale of her CDs. The " +"public performance of her recording is not a \"protected\" right. The radio " +"station thus gets to pirate the value of Madonna's work without paying her " +"anything." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3094 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:3104 freeculture.xml:4151 +msgid "Cable TV" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3107 +msgid "Cable TV was also born of a kind of piracy." +msgstr "" + +#. PAGE BREAK 73 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3110 +msgid "" +"When cable entrepreneurs first started wiring communities with cable " +"television in 1948, most refused to pay broadcasters for the content that " +"they echoed to their customers. Even when the cable companies started " +"selling access to television broadcasts, they refused to pay for what they " +"sold. Cable companies were thus Napsterizing broadcasters' content, but more " +"egregiously than anything Napster ever did— Napster never charged for " +"the content it enabled others to give away." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:3120 +msgid "Anello, Douglas" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:3121 +msgid "Burdick, Quentin" +msgstr "" + +#. f13 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3127 +msgid "" +"Copyright Law Revision—CATV: Hearing on S. 1006 Before the " +"Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee " +"on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel " +"H. Hyde, chairman of the Federal Communications Commission)." +msgstr "" + +#. f14 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3138 +msgid "" +"Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, " +"general counsel of the National Association of Broadcasters)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3123 +msgid "" +"Broadcasters and copyright owners were quick to attack this theft. Rosel " +"Hyde, chairman of the FCC, viewed the practice as a kind of \"unfair and " +"potentially destructive competition.\"<placeholder type=\"footnote\" " +"id=\"0\"/> 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?\"<placeholder type=\"footnote\" id=\"1\"/> As another broadcaster " +"put it," +msgstr "" + +#. f15 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:3149 +msgid "" +"Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes, " +"general counsel of the Association of Maximum Service Telecasters, Inc.)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:3145 +msgid "" +"The extraordinary thing about the CATV business is that it is the only " +"business I know of where the product that is being sold is not paid " +"for.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3155 +msgid "Again, the demand of the copyright holders seemed reasonable enough:" +msgstr "" + +#. f16 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:3164 +msgid "" +"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.)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:3159 +msgid "" +"All we are asking for is a very simple thing, that people who now take our " +"property for nothing pay for it. We are trying to stop piracy and I don't " +"think there is any lesser word to describe it. I think there are harsher " +"words which would fit it.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f17 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3175 +msgid "" +"Copyright Law Revision—CATV, 209 (statement of Charlton Heston, " +"president of the Screen Actors Guild)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3171 +msgid "" +"These were \"free-ride[rs],\" Screen Actor's Guild president Charlton Heston " +"said, who were \"depriving actors of compensation.\"<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3180 +msgid "" +"But again, there was another side to the debate. As Assistant Attorney " +"General Edwin Zimmerman put it," +msgstr "" + +#. f18 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:3194 +msgid "" +"Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, " +"acting assistant attorney general)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:3185 +msgid "" +"Our point here is that unlike the problem of whether you have any copyright " +"protection at all, the problem here is whether copyright holders who are " +"already compensated, who already have a monopoly, should be permitted to " +"extend that monopoly. . . . The question here is how much compensation they " +"should have and how far back they should carry their right to " +"compensation.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3200 +msgid "" +"Copyright owners took the cable companies to court. Twice the Supreme Court " +"held that the cable companies owed the copyright owners nothing." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3204 +msgid "" +"It took Congress almost thirty years before it resolved the question of " +"whether cable companies had to pay for the content they \"pirated.\" In the " +"end, Congress resolved this question in the same way that it resolved the " +"question about record players and player pianos. Yes, cable companies would " +"have to pay for the content that they broadcast; but the price they would " +"have to pay was not set by the copyright owner. The price was set by law, " +"so that the broadcasters couldn't exercise veto power over the emerging " +"technologies of cable. Cable companies thus built their empire in part upon " +"a \"piracy\" of the value created by broadcasters' content." +msgstr "" + +#. f19 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3221 +msgid "" +"See, for example, National Music Publisher's Association, The Engine of Free " +"Expression: Copyright on the Internet—The Myth of Free Information, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#13</ulink>. \"The threat of piracy—the use of someone else's creative " +"work without permission or compensation—has grown with the Internet.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3216 +msgid "" +"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<placeholder " +"type=\"footnote\" id=\"0\"/> — 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:3238 +msgid "CHAPTER FIVE: \"Piracy\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:3240 +msgid "" +"There is piracy of copyrighted material. Lots of it. This piracy comes in " +"many forms. The most significant is commercial piracy, the unauthorized " +"taking of other people's content within a commercial context. Despite the " +"many justifications that are offered in its defense, this taking is " +"wrong. No one should condone it, and the law should stop it." +msgstr "" + +#. PAGE BREAK 76 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:3248 +msgid "" +"But as well as copy-shop piracy, there is another kind of \"taking\" that is " +"more directly related to the Internet. That taking, too, seems wrong to " +"many, and it is wrong much of the time. Before we paint this taking " +"\"piracy,\" however, we should understand its nature a bit more. For the " +"harm of this taking is significantly more ambiguous than outright copying, " +"and the law should account for that ambiguity, as it has so often done in " +"the past." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:3258 +msgid "Piracy I" +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3266 +msgid "" +"See IFPI (International Federation of the Phonographic Industry), The " +"Recording Industry Commercial Piracy Report 2003, July 2003, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #14</ulink>. See also Ben " +"Hunt, \"Companies Warned on Music Piracy Risk,\" Financial Times, 14 " +"February 2003, 11." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3260 +msgid "" +"All across the world, but especially in Asia and Eastern Europe, there are " +"businesses that do nothing but take others people's copyrighted content, " +"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<placeholder type=\"footnote\" id=\"0\"/> (that " +"works out to one in three CDs sold worldwide). The MPAA estimates that it " +"loses $3 billion annually worldwide to piracy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3277 +msgid "" +"This is piracy plain and simple. Nothing in the argument of this book, nor " +"in the argument that most people make when talking about the subject of this " +"book, should draw into doubt this simple point: This piracy is wrong." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3283 +msgid "" +"Which is not to say that excuses and justifications couldn't be made for " +"it. We could, for example, remind ourselves that for the first one hundred " +"years of the American Republic, America did not honor foreign copyrights. We " +"were born, in this sense, a pirate nation. It might therefore seem " +"hypocritical for us to insist so strongly that other developing nations " +"treat as wrong what we, for the first hundred years of our existence, " +"treated as right." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3294 +msgid "" +"That excuse isn't terribly strong. Technically, our law did not ban the " +"taking of foreign works. It explicitly limited itself to American " +"works. Thus the American publishers who published foreign works without the " +"permission of foreign authors were not violating any rule. The copy shops " +"in Asia, by contrast, are violating Asian law. Asian law does protect " +"foreign copyrights, and the actions of the copy shops violate that law. So " +"the wrong of piracy that they engage in is not just a moral wrong, but a " +"legal wrong, and not just an internationally legal wrong, but a locally " +"legal wrong as well." +msgstr "" + +#. PAGE BREAK 77 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3306 +msgid "" +"True, these local rules have, in effect, been imposed upon these " +"countries. No country can be part of the world economy and choose not to " +"protect copyright internationally. We may have been born a pirate nation, " +"but we will not allow any other nation to have a similar childhood." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary> +#: freeculture.xml:3334 freeculture.xml:12238 freeculture.xml:12670 freeculture.xml:12677 +msgid "Drahos, Peter" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3320 +msgid "" +"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the " +"Knowledge Economy? (New York: The New Press, 2003), 10–13, 209. The " +"Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement " +"obligates member nations to create administrative and enforcement mechanisms " +"for intellectual property rights, a costly proposition for developing " +"countries. Additionally, patent rights may lead to higher prices for staple " +"industries such as agriculture. Critics of TRIPS question the disparity " +"between burdens imposed upon developing countries and benefits conferred to " +"industrialized nations. TRIPS does permit governments to use patents for " +"public, noncommercial uses without first obtaining the patent holder's " +"permission. Developing nations may be able to use this to gain the benefits " +"of foreign patents at lower prices. This is a promising strategy for " +"developing nations within the TRIPS framework. <placeholder " +"type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3315 +msgid "" +"If a country is to be treated as a sovereign, however, then its laws are its " +"laws regardless of their source. The international law under which these " +"nations live gives them some opportunities to escape the burden of " +"intellectual property law.<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3347 +msgid "" +"For an analysis of the economic impact of copying technology, see Stan " +"Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), " +"144–90. \"In some instances . . . the impact of piracy on the " +"copyright holder's ability to appropriate the value of the work will be " +"negligible. One obvious instance is the case where the individual engaging " +"in pirating would not have purchased an original even if pirating were not " +"an option.\" Ibid., 149." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3341 +msgid "" +"Alternatively, we could try to excuse this piracy by noting that in any " +"case, it does no harm to the industry. The Chinese who get access to " +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3357 +msgid "" +"This is often true (though I have friends who have purchased many thousands " +"of pirated DVDs who certainly have enough money to pay for the content they " +"have taken), and it does mitigate to some degree the harm caused by such " +"taking. Extremists in this debate love to say, \"You wouldn't go into Barnes " +"& Noble and take a book off of the shelf without paying; why should it " +"be any different with on-line music?\" The difference is, of course, that " +"when you take a book from Barnes & Noble, it has one less book to " +"sell. By contrast, when you take an MP3 from a computer network, there is " +"not one less CD that can be sold. The physics of piracy of the intangible " +"are different from the physics of piracy of the tangible." +msgstr "" + +#. PAGE BREAK 78 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3370 +msgid "" +"This argument is still very weak. However, although copyright is a property " +"right of a very special sort, it is a property right. Like all property " +"rights, the copyright gives the owner the right to decide the terms under " +"which content is shared. If the copyright owner doesn't want to sell, she " +"doesn't have to. There are exceptions: important statutory licenses that " +"apply to copyrighted content regardless of the wish of the copyright " +"owner. Those licenses give people the right to \"take\" copyrighted content " +"whether or not the copyright owner wants to sell. But where the law does not " +"give people the right to take content, it is wrong to take that content even " +"if the wrong does no harm. If we have a property system, and that system is " +"properly balanced to the technology of a time, then it is wrong to take " +"property without the permission of a property owner. That is exactly what " +"\"property\" means." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3391 +msgid "" +"Finally, we could try to excuse this piracy with the argument that the " +"piracy actually helps the copyright owner. When the Chinese \"steal\" " +"Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the " +"value of the software that was taken. But it gains users who are used to " +"life in the Microsoft world. Over time, as the nation grows more wealthy, " +"more and more people will buy software rather than steal it. And hence over " +"time, because that buying will benefit Microsoft, Microsoft benefits from " +"the piracy. If instead of pirating Microsoft Windows, the Chinese used the " +"free GNU/Linux operating system, then these Chinese users would not " +"eventually be buying Microsoft. Without piracy, then, Microsoft would lose." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3407 +msgid "" +"This argument, too, is somewhat true. The addiction strategy is a good " +"one. Many businesses practice it. Some thrive because of it. Law students, " +"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)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3416 +msgid "" +"Still, the argument is not terribly persuasive. We don't give the alcoholic " +"a defense when he steals his first beer, merely because that will make it " +"more likely that he will buy the next three. Instead, we ordinarily allow " +"businesses to decide for themselves when it is best to give their product " +"away. If Microsoft fears the competition of GNU/Linux, then Microsoft can " +"give its product away, as it did, for example, with Internet Explorer to " +"fight Netscape. A property right means giving the property owner the right " +"to say who gets access to what—at least ordinarily. And if the law " +"properly balances the rights of the copyright owner with the rights of " +"access, then violating the law is still wrong." +msgstr "" + +#. PAGE BREAK 79 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3434 +msgid "" +"Thus, while I understand the pull of these justifications for piracy, and I " +"certainly see the motivation, in my view, in the end, these efforts at " +"justifying commercial piracy simply don't cut it. This kind of piracy is " +"rampant and just plain wrong. It doesn't transform the content it steals; it " +"doesn't transform the market it competes in. It merely gives someone access " +"to something that the law says he should not have. Nothing has changed to " +"draw that law into doubt. This form of piracy is flat out wrong." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3444 +msgid "" +"But as the examples from the four chapters that introduced this part " +"suggest, even if some piracy is plainly wrong, not all \"piracy\" is. Or at " +"least, not all \"piracy\" is wrong if that term is understood in the way it " +"is increasingly used today. Many kinds of \"piracy\" are useful and " +"productive, to produce either new content or new ways of doing business. " +"Neither our tradition nor any tradition has ever banned all \"piracy\" in " +"that sense of the term." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3453 +msgid "" +"This doesn't mean that there are no questions raised by the latest piracy " +"concern, peer-to-peer file sharing. But it does mean that we need to " +"understand the harm in peer-to-peer sharing a bit more before we condemn it " +"to the gallows with the charge of piracy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3459 +msgid "" +"For (1) like the original Hollywood, p2p sharing escapes an overly " +"controlling industry; and (2) like the original recording industry, it " +"simply exploits a new way to distribute content; but (3) unlike cable TV, no " +"one is selling the content that is shared on p2p services." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3465 +msgid "" +"These differences distinguish p2p sharing from true piracy. They should push " +"us to find a way to protect artists while enabling this sharing to survive." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:3472 +msgid "Piracy II" +msgstr "" + +#. f4 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3477 +msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777)." +msgstr "" + +#. PAGE BREAK 80 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3474 +msgid "" +"The key to the \"piracy\" that the law aims to quash is a use that \"rob[s] " +"the author of [his] profit.\"<placeholder type=\"footnote\" id=\"0\"/> This " +"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." +msgstr "" + +#. f5 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3493 +msgid "" +"See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary " +"National Bestseller That Changed the Way We Do Business (New York: " +"HarperBusiness, 2000). Professor Christensen examines why companies that " +"give rise to and dominate a product area are frequently unable to come up " +"with the most creative, paradigm-shifting uses for their own products. This " +"job usually falls to outside innovators, who reassemble existing technology " +"in inventive ways. For a discussion of Christensen's ideas, see Lawrence " +"Lessig, Future, 89–92, 139." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:3504 +msgid "Fanning, Shawn" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3486 +msgid "" +"Peer-to-peer sharing was made famous by Napster. But the inventors of the " +"Napster technology had not made any major technological innovations. Like " +"every great advance in innovation on the Internet (and, arguably, off the " +"Internet as well<placeholder type=\"footnote\" id=\"0\"/>), Shawn Fanning " +"and crew had simply put together components that had been developed " +"independently. <placeholder type=\"indexterm\" id=\"1\"/>" +msgstr "" + +#. f6 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3512 +msgid "" +"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" San " +"Francisco Chronicle, 24 September 2002, A1; \"Rock 'n' Roll Suicide,\" New " +"Scientist, 6 July 2002, 42; Benny Evangelista, \"Napster Names CEO, Secures " +"New Financing,\" San Francisco Chronicle, 23 May 2003, C1; \"Napster's " +"Wake-Up Call,\" Economist, 24 June 2000, 23; John Naughton, \"Hollywood at " +"War with the Internet\" (London) Times, 26 July 2002, 18." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3507 +msgid "" +"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.<placeholder " +"type=\"footnote\" id=\"0\"/> Courts quickly shut Napster down, but other " +"services emerged to take its place. (Kazaa is currently the most popular p2p " +"service. It boasts over 100 million members.) These services' systems are " +"different architecturally, though not very different in function: Each " +"enables users to make content available to any number of other users. With a " +"p2p system, you can share your favorite songs with your best friend— " +"or your 20,000 best friends." +msgstr "" + +#. f7 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3536 +msgid "" +"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." +msgstr "" + +#. f8 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3545 +msgid "" +"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" New York " +"Times, 6 June 2003, A1." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3530 +msgid "" +"According to a number of estimates, a huge proportion of Americans have " +"tasted file-sharing technology. A study by Ipsos-Insight in September 2002 " +"estimated that 60 million Americans had downloaded music—28 percent of " +"Americans older than 12.<placeholder type=\"footnote\" id=\"0\"/> 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.<placeholder type=\"footnote\" id=\"1\"/> The vast majority of these " +"are not kids. Whatever the actual figure, a massive quantity of content is " +"being \"taken\" on these networks. The ease and inexpensiveness of " +"file-sharing networks have inspired millions to enjoy music in a way that " +"they hadn't before." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3556 +msgid "" +"Some of this enjoying involves copyright infringement. Some of it does " +"not. And even among the part that is technically copyright infringement, " +"calculating the actual harm to copyright owners is more complicated than one " +"might think. So consider—a bit more carefully than the polarized " +"voices around this debate usually do—the kinds of sharing that file " +"sharing enables, and the kinds of harm it entails." +msgstr "" + +#. PAGE BREAK 81 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3566 +msgid "" +"File sharers share different kinds of content. We can divide these different " +"kinds into four types." +msgstr "" + +#. A. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:3572 +msgid "" +"There are some who use sharing networks as substitutes for purchasing " +"content. Thus, when a new Madonna CD is released, rather than buying the CD, " +"these users simply take it. We might quibble about whether everyone who " +"takes it would actually have bought it if sharing didn't make it available " +"for free. Most probably wouldn't have, but clearly there are some who " +"would. The latter are the target of category A: users who download instead " +"of purchasing." +msgstr "" + +#. B. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:3585 +msgid "" +"There are some who use sharing networks to sample music before purchasing " +"it. Thus, a friend sends another friend an MP3 of an artist he's not heard " +"of. The other friend then buys CDs by that artist. This is a kind of " +"targeted advertising, quite likely to succeed. If the friend recommending " +"the album gains nothing from a bad recommendation, then one could expect " +"that the recommendations will actually be quite good. The net effect of this " +"sharing could increase the quantity of music purchased." +msgstr "" + +#. C. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:3598 +msgid "" +"There are many who use sharing networks to get access to copyrighted content " +"that is no longer sold or that they would not have purchased because the " +"transaction costs off the Net are too high. This use of sharing networks is " +"among the most rewarding for many. Songs that were part of your childhood " +"but have long vanished from the marketplace magically appear again on the " +"network. (One friend told me that when she discovered Napster, she spent a " +"solid weekend \"recalling\" old songs. She was astonished at the range and " +"mix of content that was available.) For content not sold, this is still " +"technically a violation of copyright, though because the copyright owner is " +"not selling the content anymore, the economic harm is zero—the same " +"harm that occurs when I sell my collection of 1960s 45-rpm records to a " +"local collector." +msgstr "" + +#. PAGE BREAK 82 +#. D. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:3619 +msgid "" +"Finally, there are many who use sharing networks to get access to content " +"that is not copyrighted or that the copyright owner wants to give away." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3625 +msgid "How do these different types of sharing balance out?" +msgstr "" + +#. f9 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3633 +msgid "See Liebowitz, Rethinking the Network Economy,148–49." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3628 +msgid "" +"Let's start with some simple but important points. From the perspective of " +"the law, only type D sharing is clearly legal. From the perspective of " +"economics, only type A sharing is clearly harmful.<placeholder " +"type=\"footnote\" id=\"0\"/> Type B sharing is illegal but plainly " +"beneficial. Type C sharing is illegal, yet good for society (since more " +"exposure to music is good) and harmless to the artist (since the work is not " +"otherwise available). So how sharing matters on balance is a hard question " +"to answer—and certainly much more difficult than the current rhetoric " +"around the issue suggests." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3645 +msgid "" +"Whether on balance sharing is harmful depends importantly on how harmful " +"type A sharing is. Just as Edison complained about Hollywood, composers " +"complained about piano rolls, recording artists complained about radio, and " +"broadcasters complained about cable TV, the music industry complains that " +"type A sharing is a kind of \"theft\" that is \"devastating\" the industry." +msgstr "" + +#. f10 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3663 +msgid "" +"See Cap Gemini Ernst & Young, Technology Evolution and the Music " +"Industry's Business Model Crisis (2003), 3. This report describes the music " +"industry's effort to stigmatize the budding practice of cassette taping in " +"the 1970s, including an advertising campaign featuring a cassette-shape " +"skull and the caption \"Home taping is killing music.\" At the time digital " +"audio tape became a threat, the Office of Technical Assessment conducted a " +"survey of consumer behavior. In 1988, 40 percent of consumers older than ten " +"had taped music to a cassette format. U.S. Congress, Office of Technology " +"Assessment, Copyright and Home Copying: Technology Challenges the Law, " +"OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October " +"1989), 145–56." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3654 +msgid "" +"While the numbers do suggest that sharing is harmful, how harmful is harder " +"to reckon. It has long been the recording industry's practice to blame " +"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.\"<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. f11 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3692 +msgid "U.S. Congress, Copyright and Home Copying, 4." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3684 +msgid "" +"Yet soon thereafter, and before Congress was given an opportunity to enact " +"regulation, MTV was launched, and the industry had a record turnaround. \"In " +"the end,\" Cap Gemini concludes, \"the `crisis' . . . was not the fault of " +"the tapers—who did not [stop after MTV came into being]—but had " +"to a large extent resulted from stagnation in musical innovation at the " +"major labels.\"<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3696 +msgid "" +"But just because the industry was wrong before does not mean it is wrong " +"today. To evaluate the real threat that p2p sharing presents to the industry " +"in particular, and society in general—or at least the society that " +"inherits the tradition that gave us the film industry, the record industry, " +"the radio industry, cable TV, and the VCR—the question is not simply " +"whether type A sharing is harmful. The question is also how harmful type A " +"sharing is, and how beneficial the other types of sharing are." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3706 +msgid "" +"We start to answer this question by focusing on the net harm, from the " +"standpoint of the industry as a whole, that sharing networks cause. The " +"\"net harm\" to the industry as a whole is the amount by which type A " +"sharing exceeds type B. If the record companies sold more records through " +"sampling than they lost through substitution, then sharing networks would " +"actually benefit music companies on balance. They would therefore have " +"little static reason to resist them." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3715 +msgid "" +"Could that be true? Could the industry as a whole be gaining because of file " +"sharing? Odd as that might sound, the data about CD sales actually suggest " +"it might be close." +msgstr "" + +#. f12 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3725 +msgid "" +"See Recording Industry Association of America, 2002 Yearend Statistics, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#15</ulink>. A later report indicates even greater losses. See Recording " +"Industry Association of America, Some Facts About Music Piracy, 25 June " +"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#16</ulink>: \"In the past four years, unit shipments of recorded music have " +"fallen by 26 percent from 1.16 billion units in to 860 million units in 2002 " +"in the United States (based on units shipped). In terms of sales, revenues " +"are down 14 percent, from $14.6 billion in to $12.6 billion last year (based " +"on U.S. dollar value of shipments). The music industry worldwide has gone " +"from a $39 billion industry in 2000 down to a $32 billion industry in 2002 " +"(based on U.S. dollar value of shipments).\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:3752 +msgid "Black, Jane" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3749 +msgid "" +"Jane Black, \"Big Music's Broken Record,\" BusinessWeek online, 13 February " +"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#17</ulink>. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3721 +msgid "" +"In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 " +"million to 803 million units; revenues fell 6.7 percent.<placeholder " +"type=\"footnote\" id=\"0\"/> 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.\"<placeholder " +"type=\"footnote\" id=\"1\"/> 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.\"<placeholder " +"type=\"footnote\" id=\"2\"/>" +msgstr "" + +#. PAGE BREAK 84 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3766 +msgid "" +"But let's assume the RIAA is right, and all of the decline in CD sales is " +"because of Internet sharing. Here's the rub: In the same period that the " +"RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 " +"billion CDs were downloaded for free. Thus, although 2.6 times the total " +"number of CDs sold were downloaded for free, sales revenue fell by just 6.7 " +"percent." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3775 +msgid "" +"There are too many different things happening at the same time to explain " +"these numbers definitively, but one conclusion is unavoidable: The recording " +"industry constantly asks, \"What's the difference between downloading a song " +"and stealing a CD?\"—but their own numbers reveal the difference. If I " +"steal a CD, then there is one less CD to sell. Every taking is a lost " +"sale. But on the basis of the numbers the RIAA provides, it is absolutely " +"clear that the same is not true of downloads. If every download were a lost " +"sale—if every use of Kazaa \"rob[bed] the author of [his] " +"profit\"—then the industry would have suffered a 100 percent drop in " +"sales last year, not a 7 percent drop. If 2.6 times the number of CDs sold " +"were downloaded for free, and yet sales revenue dropped by just 6.7 percent, " +"then there is a huge difference between \"downloading a song and stealing a " +"CD.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3793 +msgid "" +"These are the harms—alleged and perhaps exaggerated but, let's assume, " +"real. What of the benefits? File sharing may impose costs on the recording " +"industry. What value does it produce in addition to these costs?" +msgstr "" + +#. f15 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3806 +msgid "" +"By one estimate, 75 percent of the music released by the major labels is no " +"longer in print. See Online Entertainment and Copyright Law—Coming " +"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 <ulink " +"url=\"http://free-culture.cc/notes/\">link #18</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3800 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/> 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." +msgstr "" + +#. f16 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3831 +msgid "" +"While there are not good estimates of the number of used record stores in " +"existence, in 2002, there were 7,198 used book dealers in the United States, " +"an increase of 20 percent since 1993. See Book Hunter Press, The Quiet " +"Revolution: The Expansion of the Used Book Market (2002), available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #19</ulink>. Used records " +"accounted for $260 million in sales in 2002. See National Association of " +"Recording Merchandisers, \"2002 Annual Survey Results,\" available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #20</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3825 +msgid "" +"In real space—long before the Internet—the market had a simple " +"response to this problem: used book and record stores. There are thousands " +"of used book and used record stores in America today.<placeholder " +"type=\"footnote\" id=\"0\"/> These stores buy content from owners, then sell " +"the content they buy. And under American copyright law, when they buy and " +"sell this content, even if the content is still under copyright, the " +"copyright owner doesn't get a dime. Used book and record stores are " +"commercial entities; their owners make money from the content they sell; but " +"as with cable companies before statutory licensing, they don't have to pay " +"the copyright owner for the content they sell." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:3852 +msgid "Bernstein, Leonard" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3854 +msgid "" +"Type C sharing, then, is very much like used book stores or used record " +"stores. It is different, of course, because the person making the content " +"available isn't making money from making the content available. It is also " +"different, of course, because in real space, when I sell a record, I don't " +"have it anymore, while in cyberspace, when someone shares my 1949 recording " +"of Bernstein's \"Two Love Songs,\" I still have it. That difference would " +"matter economically if the owner of the copyright were selling the record in " +"competition to my sharing. But we're talking about the class of content that " +"is not currently commercially available. The Internet is making it " +"available, through cooperative sharing, without competing with the market." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3867 +msgid "" +"It may well be, all things considered, that it would be better if the " +"copyright owner got something from this trade. But just because it may well " +"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?" +msgstr "" + +#. PAGE BREAK 86 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3875 +msgid "" +"Finally, and perhaps most importantly, file-sharing networks enable type D " +"sharing to occur—the sharing of content that copyright owners want to " +"have shared or for which there is no continuing copyright. This sharing " +"clearly benefits authors and society. Science fiction author Cory Doctorow, " +"for example, released his first novel, Down and Out in the Magic Kingdom, " +"both free on-line and in bookstores on the same day. His (and his " +"publisher's) thinking was that the on-line distribution would be a great " +"advertisement for the \"real\" book. People would read part on-line, and " +"then decide whether they liked the book or not. If they liked it, they would " +"be more likely to buy it. Doctorow's content is type D content. If sharing " +"networks enable his work to be spread, then both he and society are better " +"off. (Actually, much better off: It is a great book!)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3892 +msgid "" +"Likewise for work in the public domain: This sharing benefits society with " +"no legal harm to authors at all. If efforts to solve the problem of type A " +"sharing destroy the opportunity for type D sharing, then we lose something " +"important in order to protect type A content." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3898 +msgid "" +"The point throughout is this: While the recording industry understandably " +"says, \"This is how much we've lost,\" we must also ask, \"How much has " +"society gained from p2p sharing? What are the efficiencies? What is the " +"content that otherwise would be unavailable?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3905 +msgid "" +"For unlike the piracy I described in the first section of this chapter, much " +"of the \"piracy\" that file sharing enables is plainly legal and good. And " +"like the piracy I described in chapter 4, much of this piracy is motivated " +"by a new way of spreading content caused by changes in the technology of " +"distribution. Thus, consistent with the tradition that gave us Hollywood, " +"radio, the recording industry, and cable TV, the question we should be " +"asking about file sharing is how best to preserve its benefits while " +"minimizing (to the extent possible) the wrongful harm it causes artists. The " +"question is one of balance. The law should seek that balance, and that " +"balance will be found only with time." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3918 +msgid "" +"\"But isn't the war just a war against illegal sharing? Isn't the target " +"just what you call type A sharing?\"" +msgstr "" + +#. f17 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:3935 +msgid "" +"See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 " +"(N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #21</ulink>. For an " +"account of the litigation and its toll on Napster, see Joseph Menn, All the " +"Rave: The Rise and Fall of Shawn Fanning's Napster (New York: Crown " +"Business, 2003), 269–82." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3922 +msgid "" +"You would think. And we should hope. But so far, it is not. The effect of " +"the war purportedly on type A sharing alone has been felt far beyond that " +"one class of sharing. That much is obvious from the Napster case " +"itself. When Napster told the district court that it had developed a " +"technology to block the transfer of 99.4 percent of identified infringing " +"material, the district court told counsel for Napster 99.4 percent was not " +"good enough. Napster had to push the infringements \"down to " +"zero.\"<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3945 +msgid "" +"If 99.4 percent is not good enough, then this is a war on file-sharing " +"technologies, not a war on copyright infringement. There is no way to assure " +"that a p2p system is used 100 percent of the time in compliance with the " +"law, any more than there is a way to assure that 100 percent of VCRs or 100 " +"percent of Xerox machines or 100 percent of handguns are used in compliance " +"with the law. Zero tolerance means zero p2p. The court's ruling means that " +"we as a society must lose the benefits of p2p, even for the totally legal " +"and beneficial uses they serve, simply to assure that there are zero " +"copyright infringements caused by p2p." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3956 +msgid "" +"Zero tolerance has not been our history. It has not produced the content " +"industry that we know today. The history of American law has been a process " +"of balance. As new technologies changed the way content was distributed, the " +"law adjusted, after some time, to the new technology. In this adjustment, " +"the law sought to ensure the legitimate rights of creators while protecting " +"innovation. Sometimes this has meant more rights for creators. Sometimes " +"less." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3967 +msgid "" +"So, as we've seen, when \"mechanical reproduction\" threatened the interests " +"of composers, Congress balanced the rights of composers against the " +"interests of the recording industry. It granted rights to composers, but " +"also to the recording artists: Composers were to be paid, but at a price set " +"by Congress. But when radio started broadcasting the recordings made by " +"these recording artists, and they complained to Congress that their " +"\"creative property\" was not being respected (since the radio station did " +"not have to pay them for the creativity it broadcast), Congress rejected " +"their claim. An indirect benefit was enough." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3980 +msgid "" +"Cable TV followed the pattern of record albums. When the courts rejected the " +"claim that cable broadcasters had to pay for the content they rebroadcast, " +"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." +msgstr "" + +#. PAGE BREAK 88 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:3990 +msgid "" +"This compromise, like the compromise affecting records and player pianos, " +"served two important goals—indeed, the two central goals of any " +"copyright legislation. First, the law assured that new innovators would have " +"the freedom to develop new ways to deliver content. Second, the law assured " +"that copyright holders would be paid for the content that was " +"distributed. One fear was that if Congress simply required cable TV to pay " +"copyright holders whatever they demanded for their content, then copyright " +"holders associated with broadcasters would use their power to stifle this " +"new technology, cable. But if Congress had permitted cable to use " +"broadcasters' content for free, then it would have unfairly subsidized " +"cable. Thus Congress chose a path that would assure compensation without " +"giving the past (broadcasters) control over the future (cable)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:4008 +msgid "Betamax" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4010 +msgid "" +"In the same year that Congress struck this balance, two major producers and " +"distributors of film content filed a lawsuit against another technology, the " +"video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had " +"produced, the Betamax. Disney's and Universal's claim against Sony was " +"relatively simple: Sony produced a device, Disney and Universal claimed, " +"that enabled consumers to engage in copyright infringement. Because the " +"device that Sony built had a \"record\" button, the device could be used to " +"record copyrighted movies and shows. Sony was therefore benefiting from the " +"copyright infringement of its customers. It should therefore, Disney and " +"Universal claimed, be partially liable for that infringement." +msgstr "" + +#. PAGE BREAK 89 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4023 +msgid "" +"There was something to Disney's and Universal's claim. Sony did decide to " +"design its machine to make it very simple to record television shows. It " +"could have built the machine to block or inhibit any direct copying from a " +"television broadcast. Or possibly, it could have built the machine to copy " +"only if there were a special \"copy me\" signal on the line. It was clear " +"that there were many television shows that did not grant anyone permission " +"to copy. Indeed, if anyone had asked, no doubt the majority of shows would " +"not have authorized copying. And in the face of this obvious preference, " +"Sony could have designed its system to minimize the opportunity for " +"copyright infringement. It did not, and for that, Disney and Universal " +"wanted to hold it responsible for the architecture it chose." +msgstr "" + +#. f18 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4045 +msgid "" +"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.)." +msgstr "" + +#. f19 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4057 +msgid "Copyright Infringements (Audio and Video Recorders), 475." +msgstr "" + +#. f20 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4062 +msgid "" +"Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, " +"(C.D. Cal., 1979)." +msgstr "" + +#. f21 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4073 +msgid "" +"Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack " +"Valenti)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4038 +msgid "" +"MPAA president Jack Valenti became the studios' most vocal champion. Valenti " +"called VCRs \"tapeworms.\" He warned, \"When there are 20, 30, 40 million of " +"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.\"<placeholder type=\"footnote\" " +"id=\"0\"/> \"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.\"<placeholder type=\"footnote\" id=\"1\"/> Indeed, as surveys would " +"later show, percent of VCR owners had movie libraries of ten videos or " +"more<placeholder type=\"footnote\" id=\"2\"/> — a use the Court would " +"later hold was not \"fair.\" By \"allowing VCR owners to copy freely by the " +"means of an exemption from copyright infringementwithout creating a " +"mechanism to compensate copyrightowners,\" Valenti testified, Congress would " +"\"take from the owners the very essence of their property: the exclusive " +"right to control who may use their work, that is, who may copy it and " +"thereby profit from its reproduction.\"<placeholder type=\"footnote\" " +"id=\"3\"/>" +msgstr "" + +#. f22 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4089 +msgid "" +"Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th " +"Cir. 1981)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4078 +msgid "" +"It took eight years for this case to be resolved by the Supreme Court. In " +"the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in " +"its jurisdiction—leading Judge Alex Kozinski, who sits on that court, " +"refers to it as the \"Hollywood Circuit\"—held that Sony would be " +"liable for the copyright infringement made possible by its machines. Under " +"the Ninth Circuit's rule, this totally familiar technology—which Jack " +"Valenti had called \"the Boston Strangler of the American film industry\" " +"(worse yet, it was a Japanese Boston Strangler of the American film " +"industry)—was an illegal technology.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 90 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4094 +msgid "" +"But the Supreme Court reversed the decision of the Ninth Circuit. And in " +"its reversal, the Court clearly articulated its understanding of when and " +"whether courts should intervene in such disputes. As the Court wrote," +msgstr "" + +#. f23 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:4113 +msgid "" +"Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 " +"(1984)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:4103 +msgid "" +"Sound policy, as well as history, supports our consistent deference to " +"Congress when major technological innovations alter the market for " +"copyrighted materials. Congress has the constitutional authority and the " +"institutional ability to accommodate fully the varied permutations of " +"competing interests that are inevitably implicated by such new " +"technology.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4118 +msgid "" +"Congress was asked to respond to the Supreme Court's decision. But as with " +"the plea of recording artists about radio broadcasts, Congress ignored the " +"request. Congress was convinced that American film got enough, this " +"\"taking\" notwithstanding. If we put these cases together, a pattern is " +"clear:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><title> +#: freeculture.xml:4127 +msgid "Table" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> +#: freeculture.xml:4131 +msgid "CASE" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> +#: freeculture.xml:4132 +msgid "WHOSE VALUE WAS \"PIRATED\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> +#: freeculture.xml:4133 +msgid "RESPONSE OF THE COURTS" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> +#: freeculture.xml:4134 +msgid "RESPONSE OF CONGRESS" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4139 +msgid "Recordings" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4140 +msgid "Composers" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4141 freeculture.xml:4153 freeculture.xml:4159 +msgid "No protection" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4142 freeculture.xml:4154 +msgid "Statutory license" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4146 +msgid "Recording artists" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4147 +msgid "N/A" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4148 freeculture.xml:4160 +msgid "Nothing" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4152 +msgid "Broadcasters" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4157 +msgid "VCR" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:4158 +msgid "Film creators" +msgstr "" + +#. f24 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4170 +msgid "" +"These are the most important instances in our history, but there are other " +"cases as well. The technology of digital audio tape (DAT), for example, was " +"regulated by Congress to minimize the risk of piracy. The remedy Congress " +"imposed did burden DAT producers, by taxing tape sales and controlling the " +"technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the " +"United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 " +"U.S.C. §1001. Again, however, this regulation did not eliminate the " +"opportunity for free riding in the sense I've described. See Lessig, Future, " +"71. See also Picker, \"From Edison to the Broadcast Flag,\" University of " +"Chicago Law Review 70 (2003): 293–96." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4167 +msgid "" +"In each case throughout our history, a new technology changed the way " +"content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each " +"case, throughout our history, that change meant that someone got a \"free " +"ride\" on someone else's work." +msgstr "" + +#. PAGE BREAK 91 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4186 +msgid "" +"In none of these cases did either the courts or Congress eliminate all free " +"riding. In none of these cases did the courts or Congress insist that the " +"law should assure that the copyright holder get all the value that his " +"copyright created. In every case, the copyright owners complained of " +"\"piracy.\" In every case, Congress acted to recognize some of the " +"legitimacy in the behavior of the \"pirates.\" In each case, Congress " +"allowed some new technology to benefit from content made before. It balanced " +"the interests at stake." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4198 +msgid "" +"When you think across these examples, and the other examples that make up " +"the first four chapters of this section, this balance makes sense. Was Walt " +"Disney a pirate? Would doujinshi be better if creators had to ask " +"permission? Should tools that enable others to capture and spread images as " +"a way to cultivate or criticize our culture be better regulated? Is it " +"really right that building a search engine should expose you to $15 million " +"in damages? Would it have been better if Edison had controlled film? Should " +"every cover band have to hire a lawyer to get permission to record a song?" +msgstr "" + +#. f25 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4215 +msgid "Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4210 +msgid "" +"We could answer yes to each of these questions, but our tradition has " +"answered no. In our tradition, as the Supreme Court has stated, copyright " +"\"has never accorded the copyright owner complete control over all possible " +"uses of his work.\"<placeholder type=\"footnote\" id=\"0\"/> Instead, the " +"particular uses that the law regulates have been defined by balancing the " +"good that comes from granting an exclusive right against the burdens such an " +"exclusive right creates. And this balancing has historically been done after " +"a technology has matured, or settled into the mix of technologies that " +"facilitate the distribution of content." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4227 +msgid "" +"We should be doing the same thing today. The technology of the Internet is " +"changing quickly. The way people connect to the Internet (wires " +"vs. wireless) is changing very quickly. No doubt the network should not " +"become a tool for \"stealing\" from artists. But neither should the law " +"become a tool to entrench one particular way in which artists (or more " +"accurately, distributors) get paid. As I describe in some detail in the last " +"chapter of this book, we should be securing income to artists while we allow " +"the market to secure the most efficient way to promote and distribute " +"content. This will require changes in the law, at least in the " +"interim. These changes should be designed to balance the protection of the " +"law against the strong public interest that innovation continue." +msgstr "" + +#. f26 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:4254 +msgid "" +"John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes " +"Past Efforts,\" New York Times, 22 September 2003, C3." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4244 +msgid "" +"This is especially true when a new technology enables a vastly superior mode " +"of distribution. And this p2p has done. P2p technologies can be ideally " +"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.\"<placeholder type=\"footnote\" " +"id=\"0\"/> Yet when anyone begins to talk about \"balance,\" the copyright " +"warriors raise a different argument. \"All this hand waving about balance " +"and incentives,\" they say, \"misses a fundamental point. Our content,\" the " +"warriors insist, \"is our property. Why should we wait for Congress to " +"`rebalance' our property rights? Do you have to wait before calling the " +"police when your car has been stolen? And why should Congress deliberate at " +"all about the merits of this theft? Do we ask whether the car thief had a " +"good use for the car before we arrest him?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:4268 +msgid "" +"\"It is our property,\" the warriors insist. \"And it should be protected " +"just as any other property is protected.\"" +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:4276 +msgid "\"PROPERTY\"" +msgstr "" + +#. PAGE BREAK 94 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:4280 +msgid "" +"The copyright warriors are right: A copyright is a kind of property. It can " +"be owned and sold, and the law protects against its theft. Ordinarily, the " +"copyright owner gets to hold out for any price he wants. Markets reckon the " +"supply and demand that partially determine the price she can get." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:4287 +msgid "" +"But in ordinary language, to call a copyright a \"property\" right is a bit " +"misleading, for the property of copyright is an odd kind of property. " +"Indeed, the very idea of property in any idea or any expression is very " +"odd. I understand what I am taking when I take the picnic table you put in " +"your backyard. I am taking a thing, the picnic table, and after I take it, " +"you don't have it. But what am I taking when I take the good idea you had to " +"put a picnic table in the backyard—by, for example, going to Sears, " +"buying a table, and putting it in my backyard? What is the thing I am taking " +"then?" +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:4312 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:4299 +msgid "" +"The point is not just about the thingness of picnic tables versus ideas, " +"though that's an important difference. The point instead is that in the " +"ordinary case—indeed, in practically every case except for a narrow " +"range of exceptions—ideas released to the world are free. I don't take " +"anything from you when I copy the way you dress—though I might seem " +"weird if I did it every day, and especially weird if you are a " +"woman. Instead, as Thomas Jefferson said (and as is especially true when I " +"copy the way someone else dresses), \"He who receives an idea from me, " +"receives instruction himself without lessening mine; as he who lights his " +"taper at mine, receives light without darkening me.\"<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:4318 +msgid "" +"The exceptions to free use are ideas and expressions within the reach of the " +"law of patent and copyright, and a few other domains that I won't discuss " +"here. Here the law says you can't take my idea or expression without my " +"permission: The law turns the intangible into property." +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:4333 +msgid "" +"As the legal realists taught American law, all property rights are " +"intangible. A property right is simply a right that an individual has " +"against the world to do or not do certain things that may or may not attach " +"to a physical object. The right itself is intangible, even if the object to " +"which it is (metaphorically) attached is tangible. See Adam Mossoff, \"What " +"Is Property? Putting the Pieces Back Together,\" Arizona Law Review 45 " +"(2003): 373, 429 n. 241." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:4326 +msgid "" +"But how, and to what extent, and in what form—the details, in other " +"words—matter. To get a good sense of how this practice of turning the " +"intangible into property emerged, we need to place this \"property\" in its " +"proper context.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:4346 +msgid "" +"My strategy in doing this will be the same as my strategy in the preceding " +"part. I offer four stories to help put the idea of \"copyright material is " +"property\" in context. Where did the idea come from? What are its limits? " +"How does it function in practice? After these stories, the significance of " +"this true statement—\"copyright material is property\"— will be " +"a bit more clear, and its implications will be revealed as quite different " +"from the implications that the copyright warriors would have us draw." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:4360 +msgid "CHAPTER SIX: Founders" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4362 +msgid "" +"William Shakespeare wrote Romeo and Juliet in 1595. The play was first " +"published in 1597. It was the eleventh major play that Shakespeare had " +"written. He would continue to write plays through 1613, and the plays that " +"he wrote have continued to define Anglo-American culture ever since. So " +"deeply have the works of a sixteenth-century writer seeped into our culture " +"that we often don't even recognize their source. I once overheard someone " +"commenting on Kenneth Branagh's adaptation of Henry V: \"I liked it, but " +"Shakespeare is so full of clichés.\"" +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4378 +msgid "" +"Jacob Tonson is typically remembered for his associations with prominent " +"eighteenth-century literary figures, especially John Dryden, and for his " +"handsome \"definitive editions\" of classic works. In addition to Romeo and " +"Juliet, he published an astonishing array of works that still remain at the " +"heart of the English canon, including collected works of Shakespeare, Ben " +"Jonson, John Milton, and John Dryden. See Keith Walker, \"Jacob Tonson, " +"Bookseller,\" American Scholar 61:3 (1992): 424–31." +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4389 +msgid "" +"Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: " +"Vanderbilt University Press, 1968), 151–52." +msgstr "" + +#. PAGE BREAK 97 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4374 +msgid "" +"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.<placeholder " +"type=\"footnote\" id=\"0\"/> Tonson was the most prominent of a small group " +"of publishers called the Conger<placeholder type=\"footnote\" id=\"1\"/> who " +"controlled bookselling in England during the eighteenth century. The Conger " +"claimed a perpetual right to control the \"copy\" of books that they had " +"acquired from authors. That perpetual right meant that no one else could " +"publish copies of a book to which they held the copyright. Prices of the " +"classics were thus kept high; competition to produce better or cheaper " +"editions was eliminated." +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4415 +msgid "" +"As Siva Vaidhyanathan nicely argues, it is erroneous to call this a " +"\"copyright law.\" See Vaidhyanathan, Copyrights and Copywrongs, 40." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4405 +msgid "" +"Now, there's something puzzling about the year 1774 to anyone who knows a " +"little about copyright law. The better-known year in the history of " +"copyright is 1710, the year that the British Parliament adopted the first " +"\"copyright\" act. Known as the Statute of Anne, the act stated that all " +"published works would get a copyright term of fourteen years, renewable once " +"if the author was alive, and that all works already published by 1710 would " +"get a single term of twenty-one additional years.<placeholder " +"type=\"footnote\" id=\"0\"/> 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?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4423 +msgid "" +"The reason is that the English hadn't yet agreed on what a \"copyright\" " +"was—indeed, no one had. At the time the English passed the Statute of " +"Anne, there was no other legislation governing copyrights. The last law " +"regulating publishers, the Licensing Act of 1662, had expired in 1695. That " +"law gave publishers a monopoly over publishing, as a way to make it easier " +"for the Crown to control what was published. But after it expired, there " +"was no positive law that said that the publishers, or \"Stationers,\" had an " +"exclusive right to print books." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4436 +msgid "" +"There was no positive law, but that didn't mean that there was no law. The " +"Anglo-American legal tradition looks to both the words of legislatures and " +"the words of judges to know the rules that are to govern how people are to " +"behave. We call the words from legislatures \"positive law.\" We call the " +"words from judges \"common law.\" The common law sets the background against " +"which legislatures legislate; the legislature, ordinarily, can trump that " +"background only if it passes a law to displace it. And so the real question " +"after the licensing statutes had expired was whether the common law " +"protected a copyright, independent of any positive law." +msgstr "" + +#. PAGE BREAK 98 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4453 +msgid "" +"This question was important to the publishers, or \"booksellers,\" as they " +"were called, because there was growing competition from foreign " +"publishers. The Scottish, in particular, were increasingly publishing and " +"exporting books to England. That competition reduced the profits of the " +"Conger, which reacted by demanding that Parliament pass a law to again give " +"them exclusive control over publishing. That demand ultimately resulted in " +"the Statute of Anne." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4465 +msgid "" +"The Statute of Anne granted the author or \"proprietor\" of a book an " +"exclusive right to print that book. In an important limitation, however, and " +"to the horror of the booksellers, the law gave the bookseller that right for " +"a limited term. At the end of that term, the copyright \"expired,\" and the " +"work would then be free and could be published by anyone. Or so the " +"legislature is thought to have believed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4475 +msgid "" +"Now, the thing to puzzle about for a moment is this: Why would Parliament " +"limit the exclusive right? Not why would they limit it to the particular " +"limit they set, but why would they limit the right at all?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4480 +msgid "" +"For the booksellers, and the authors whom they represented, had a very " +"strong claim. Take Romeo and Juliet as an example: That play was written by " +"Shakespeare. It was his genius that brought it into the world. He didn't " +"take anybody's property when he created this play (that's a controversial " +"claim, but never mind), and by his creating this play, he didn't make it any " +"harder for others to craft a play. So why is it that the law would ever " +"allow someone else to come along and take Shakespeare's play without his, or " +"his estate's, permission? What reason is there to allow someone else to " +"\"steal\" Shakespeare's work?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4492 +msgid "" +"The answer comes in two parts. We first need to see something special about " +"the notion of \"copyright\" that existed at the time of the Statute of " +"Anne. Second, we have to see something important about \"booksellers.\"" +msgstr "" + +#. PAGE BREAK 99 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4499 +msgid "" +"First, about copyright. In the last three hundred years, we have come to " +"apply the concept of \"copyright\" ever more broadly. But in 1710, it wasn't " +"so much a concept as it was a very particular right. The copyright was born " +"as a very specific set of restrictions: It forbade others from reprinting a " +"book. In 1710, the \"copy-right\" was a right to use a particular machine to " +"replicate a particular work. It did not go beyond that very narrow right. It " +"did not control any more generally how a work could be used. Today the right " +"includes a large collection of restrictions on the freedom of others: It " +"grants the author the exclusive right to copy, the exclusive right to " +"distribute, the exclusive right to perform, and so on." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4516 +msgid "" +"So, for example, even if the copyright to Shakespeare's works were " +"perpetual, all that would have meant under the original meaning of the term " +"was that no one could reprint Shakespeare's work without the permission of " +"the Shakespeare estate. It would not have controlled anything, for example, " +"about how the work could be performed, whether the work could be translated, " +"or whether Kenneth Branagh would be allowed to make his films. The " +"\"copy-right\" was only an exclusive right to print—no less, of " +"course, but also no more." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4528 +msgid "" +"Even that limited right was viewed with skepticism by the British. They had " +"had a long and ugly experience with \"exclusive rights,\" especially " +"\"exclusive rights\" granted by the Crown. The English had fought a civil " +"war in part about the Crown's practice of handing out " +"monopolies—especially monopolies for works that already existed. King " +"Henry VIII granted a patent to print the Bible and a monopoly to Darcy to " +"print playing cards. The English Parliament began to fight back against this " +"power of the Crown. In 1656, it passed the Statute of Monopolies, limiting " +"monopolies to patents for new inventions. And by 1710, Parliament was eager " +"to deal with the growing monopoly in publishing." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4544 +msgid "" +"Thus the \"copy-right,\" when viewed as a monopoly right, was naturally " +"viewed as a right that should be limited. (However convincing the claim that " +"\"it's my property, and I should have it forever,\" try sounding convincing " +"when uttering, \"It's my monopoly, and I should have it forever.\") The " +"state would protect the exclusive right, but only so long as it benefited " +"society. The British saw the harms from specialinterest favors; they passed " +"a law to stop them." +msgstr "" + +#. f4 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4568 +msgid "" +"Philip Wittenberg, The Protection and Marketing of Literary Property (New " +"York: J. Messner, Inc., 1937), 31." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4555 +msgid "" +"Second, about booksellers. It wasn't just that the copyright was a " +"monopoly. It was also that it was a monopoly held by the booksellers. " +"Booksellers sound quaint and harmless to us. They were not viewed as " +"harmless in seventeenth-century England. Members of the Conger were " +"increasingly seen as monopolists of the worst kind—tools of the " +"Crown's repression, selling the liberty of England to guarantee themselves a " +"monopoly profit. The attacks against these monopolists were harsh: Milton " +"described them as \"old patentees and monopolizers in the trade of " +"book-selling\"; they were \"men who do not therefore labour in an honest " +"profession to which learning is indetted.\"<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4573 +msgid "" +"Many believed the power the booksellers exercised over the spread of " +"knowledge was harming that spread, just at the time the Enlightenment was " +"teaching the importance of education and knowledge spread generally. The " +"idea that knowledge should be free was a hallmark of the time, and these " +"powerful commercial interests were interfering with that idea." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4582 +msgid "" +"To balance this power, Parliament decided to increase competition among " +"booksellers, and the simplest way to do that was to spread the wealth of " +"valuable books. Parliament therefore limited the term of copyrights, and " +"thereby guaranteed that valuable books would become open to any publisher to " +"publish after a limited time. Thus the setting of the term for existing " +"works to just twenty-one years was a compromise to fight the power of the " +"booksellers. The limitation on terms was an indirect way to assure " +"competition among publishers, and thus the construction and spread of " +"culture." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4594 +msgid "" +"When 1731 (1710 + 21) came along, however, the booksellers were getting " +"anxious. They saw the consequences of more competition, and like every " +"competitor, they didn't like them. At first booksellers simply ignored the " +"Statute of Anne, continuing to insist on the perpetual right to control " +"publication. But in 1735 and 1737, they tried to persuade Parliament to " +"extend their terms. Twenty-one years was not enough, they said; they needed " +"more time." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4603 +msgid "" +"Parliament rejected their requests. As one pamphleteer put it, in words that " +"echo today," +msgstr "" + +#. f5 +#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> +#: freeculture.xml:4618 +msgid "" +"A Letter to a Member of Parliament concerning the Bill now depending in the " +"House of Commons, for making more effectual an Act in the Eighth Year of the " +"Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by " +"Vesting the Copies of Printed Books in the Authors or Purchasers of such " +"Copies, during the Times therein mentioned (London, 1735), in Brief Amici " +"Curiae of Tyler T. Ochoa et al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) " +"(No. 01-618)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:4608 +msgid "" +"I see no Reason for granting a further Term now, which will not hold as well " +"for granting it again and again, as often as the Old ones Expire; so that " +"should this Bill pass, it will in Effect be establishing a perpetual " +"Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a " +"great Cramp to Trade, a Discouragement to Learning, no Benefit to the " +"Authors, but a general Tax on the Publick; and all this only to increase the " +"private Gain of the Booksellers.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4629 +msgid "" +"Having failed in Parliament, the publishers turned to the courts in a series " +"of cases. Their argument was simple and direct: The Statute of Anne gave " +"authors certain protections through positive law, but those protections were " +"not intended as replacements for the common law. Instead, they were " +"intended simply to supplement the common law. Under common law, it was " +"already wrong to take another person's creative \"property\" and use it " +"without his permission. The Statute of Anne, the booksellers argued, didn't " +"change that. Therefore, just because the protections of the Statute of Anne " +"expired, that didn't mean the protections of the common law expired: Under " +"the common law they had the right to ban the publication of a book, even if " +"its Statute of Anne copyright had expired. This, they argued, was the only " +"way to protect authors." +msgstr "" + +#. f6 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4650 +msgid "" +"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" Vanderbilt " +"Law Review 40 (1987): 28. For a wonderfully compelling account, see " +"Vaidhyanathan, 37–48." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4644 +msgid "" +"This was a clever argument, and one that had the support of some of the " +"leading jurists of the day. It also displayed extraordinary chutzpah. Until " +"then, as law professor Raymond Patterson has put it, \"The publishers " +". . . had as much concern for authors as a cattle rancher has for " +"cattle.\"<placeholder type=\"footnote\" id=\"0\"/> The bookseller didn't " +"care squat for the rights of the author. His concern was the monopoly " +"profit that the author's work gave." +msgstr "" + +#. f7 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4662 +msgid "" +"For a compelling account, see David Saunders, Authorship and Copyright " +"(London: Routledge, 1992), 62–69." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4658 +msgid "" +"The booksellers' argument was not accepted without a fight. The hero of " +"this fight was a Scottish bookseller named Alexander Donaldson.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f8 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4672 +msgid "" +"Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), " +"92." +msgstr "" + +#. f9 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4682 +msgid "Ibid., 93." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4684 +msgid "Erskine, Andrew" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4667 +msgid "" +"Donaldson was an outsider to the London Conger. He began his career in " +"Edinburgh in 1750. The focus of his business was inexpensive reprints \"of " +"standard works whose copyright term had expired,\" at least under the " +"Statute of Anne.<placeholder type=\"footnote\" id=\"0\"/> 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.\"<placeholder " +"type=\"footnote\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>" +msgstr "" + +#. f10 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4693 +msgid "" +"Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting " +"Borwell)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4687 +msgid "" +"When the London booksellers tried to shut down Donaldson's shop in Scotland, " +"he responded by moving his shop to London, where he sold inexpensive " +"editions \"of the most popular English books, in defiance of the supposed " +"common law right of Literary Property.\"<placeholder type=\"footnote\" " +"id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4701 +msgid "" +"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." +msgstr "" + +#. f11 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4713 +msgid "" +"Howard B. Abrams, \"The Historic Foundation of American Copyright Law: " +"Exploding the Myth of Common Law Copyright,\" Wayne Law Review 29 (1983): " +"1152." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4706 +msgid "" +"Millar was a bookseller who in 1729 had purchased the rights to James " +"Thomson's poem \"The Seasons.\" Millar complied with the requirements of the " +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4719 +msgid "" +"Astonishingly to modern lawyers, one of the greatest judges in English " +"history, Lord Mansfield, agreed with the booksellers. Whatever protection " +"the Statute of Anne gave booksellers, it did not, he held, extinguish any " +"common law right. The question was whether the common law would protect the " +"author against subsequent \"pirates.\" Mansfield's answer was yes: The " +"common law would bar Taylor from reprinting Thomson's poem without Millar's " +"permission. That common law rule thus effectively gave the booksellers a " +"perpetual right to control the publication of any book assigned to them." +msgstr "" + +#. PAGE BREAK 103 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4730 +msgid "" +"Considered as a matter of abstract justice—reasoning as if justice " +"were just a matter of logical deduction from first " +"principles—Mansfield's conclusion might make some sense. But what it " +"ignored was the larger issue that Parliament had struggled with in 1710: How " +"best to limit the monopoly power of publishers? Parliament's strategy was to " +"offer a term for existing works that was long enough to buy peace in 1710, " +"but short enough to assure that culture would pass into competition within a " +"reasonable period of time. Within twenty-one years, Parliament believed, " +"Britain would mature from the controlled culture that the Crown coveted to " +"the free culture that we inherited." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4744 +msgid "" +"The fight to defend the limits of the Statute of Anne was not to end there, " +"however, and it is here that Donaldson enters the mix." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:4747 +msgid "Beckett, Thomas" +msgstr "" + +#. f12 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4753 +msgid "Ibid., 1156." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4749 +msgid "" +"Millar died soon after his victory, so his case was not appealed. His estate " +"sold Thomson's poems to a syndicate of printers that included Thomas " +"Beckett.<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4763 +msgid "" +"As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of " +"attention throughout Britain. Donaldson's lawyers argued that whatever " +"rights may have existed under the common law, the Statute of Anne terminated " +"those rights. After passage of the Statute of Anne, the only legal " +"protection for an exclusive right to control publication came from that " +"statute. Thus, they argued, after the term specified in the Statute of Anne " +"expired, works that had been protected by the statute were no longer " +"protected." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4773 +msgid "" +"The House of Lords was an odd institution. Legal questions were presented to " +"the House and voted upon first by the \"law lords,\" members of special " +"legal distinction who functioned much like the Justices in our Supreme " +"Court. Then, after the law lords voted, the House of Lords generally voted." +msgstr "" + +#. PAGE BREAK 104 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4780 +msgid "" +"The reports about the law lords' votes are mixed. On some counts, it looks " +"as if perpetual copyright prevailed. But there is no ambiguity about how the " +"House of Lords voted as whole. By a two-to-one majority (22 to 11) they " +"voted to reject the idea of perpetual copyrights. Whatever one's " +"understanding of the common law, now a copyright was fixed for a limited " +"time, after which the work protected by copyright passed into the public " +"domain." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4798 +msgid "Bacon, Francis" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4799 +msgid "Bunyan, John" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4800 +msgid "Johnson, Samuel" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4801 +msgid "Milton, John" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:4802 +msgid "Shakespeare, William" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4790 +msgid "" +"\"The public domain.\" Before the case of Donaldson v. Beckett, there was no " +"clear idea of a public domain in England. Before 1774, there was a strong " +"argument that common law copyrights were perpetual. After 1774, the public " +"domain was born. For the first time in Anglo-American history, the legal " +"control over creative works expired, and the greatest works in English " +"history—including those of Shakespeare, Bacon, Milton, Johnson, and " +"Bunyan—were free of legal restraint. <placeholder type=\"indexterm\" " +"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " +"type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/> " +"<placeholder type=\"indexterm\" id=\"4\"/>" +msgstr "" + +#. f13 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4815 +msgid "Rose, 97." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4805 +msgid "" +"It is hard for us to imagine, but this decision by the House of Lords fueled " +"an extraordinarily popular and political reaction. In Scotland, where most " +"of the \"pirate publishers\" did their work, people celebrated the decision " +"in the streets. As the Edinburgh Advertiser reported, \"No private cause has " +"so much engrossed the attention of the public, and none has been tried " +"before the House of Lords in the decision of which so many individuals were " +"interested.\" \"Great rejoicing in Edinburgh upon victory over literary " +"property: bonfires and illuminations.\"<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4819 +msgid "" +"In London, however, at least among publishers, the reaction was equally " +"strong in the opposite direction. The Morning Chronicle reported:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:4825 +msgid "" +"By the above decision . . . near 200,000 pounds worth of what was honestly " +"purchased at public sale, and which was yesterday thought property is now " +"reduced to nothing. The Booksellers of London and Westminster, many of whom " +"sold estates and houses to purchase Copy-right, are in a manner ruined, and " +"those who after many years industry thought they had acquired a competency " +"to provide for their families now find themselves without a shilling to " +"devise to their successors.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 105 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4840 +msgid "" +"\"Ruined\" is a bit of an exaggeration. But it is not an exaggeration to say " +"that the change was profound. The decision of the House of Lords meant that " +"the booksellers could no longer control how culture in England would grow " +"and develop. Culture in England was thereafter free. Not in the sense that " +"copyrights would not be respected, for of course, for a limited time after a " +"work was published, the bookseller had an exclusive right to control the " +"publication of that book. And not in the sense that books could be stolen, " +"for even after a copyright expired, you still had to buy the book from " +"someone. But free in the sense that the culture and its growth would no " +"longer be controlled by a small group of publishers. As every free market " +"does, this free market of free culture would grow as the consumers and " +"producers chose. English culture would develop as the many English readers " +"chose to let it develop— chose in the books they bought and wrote; " +"chose in the memes they repeated and endorsed. Chose in a competitive " +"context, not a context in which the choices about what culture is available " +"to people and how they get access to it are made by the few despite the " +"wishes of the many." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4860 +msgid "" +"At least, this was the rule in a world where the Parliament is antimonopoly, " +"resistant to the protectionist pleas of publishers. In a world where the " +"Parliament is more pliant, free culture would be less protected." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:4868 +msgid "CHAPTER SEVEN: Recorders" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4870 +msgid "" +"Jon Else is a filmmaker. He is best known for his documentaries and has been " +"very successful in spreading his art. He is also a teacher, and as a teacher " +"myself, I envy the loyalty and admiration that his students feel for him. (I " +"met, by accident, two of his students at a dinner party. He was their god.)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4877 +msgid "" +"Else worked on a documentary that I was involved in. At a break, he told me " +"a story about the freedom to create with film in America today." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4882 +msgid "" +"In 1990, Else was working on a documentary about Wagner's Ring Cycle. The " +"focus was stagehands at the San Francisco Opera. Stagehands are a " +"particularly funny and colorful element of an opera. During a show, they " +"hang out below the stage in the grips' lounge and in the lighting loft. They " +"make a perfect contrast to the art on the stage." +msgstr "" + +#. PAGE BREAK 107 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4890 +msgid "" +"During one of the performances, Else was shooting some stagehands playing " +"checkers. In one corner of the room was a television set. Playing on the " +"television set, while the stagehands played checkers and the opera company " +"played Wagner, was The Simpsons. As Else judged it, this touch of cartoon " +"helped capture the flavor of what was special about the scene." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4899 +msgid "" +"Years later, when he finally got funding to complete the film, Else " +"attempted to clear the rights for those few seconds of The Simpsons. For of " +"course, those few seconds are copyrighted; and of course, to use copyrighted " +"material you need the permission of the copyright owner, unless \"fair use\" " +"or some other privilege applies." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4906 +msgid "" +"Else called Simpsons creator Matt Groening's office to get permission. " +"Groening approved the shot. The shot was a four-and-a-halfsecond image on a " +"tiny television set in the corner of the room. How could it hurt? Groening " +"was happy to have it in the film, but he told Else to contact Gracie Films, " +"the company that produces the program." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4913 +msgid "" +"Gracie Films was okay with it, too, but they, like Groening, wanted to be " +"careful. So they told Else to contact Fox, Gracie's parent company. Else " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4920 +msgid "" +"Then, as Else told me, \"two things happened. First we discovered . . . that " +"Matt Groening doesn't own his own creation—or at least that someone " +"[at Fox] believes he doesn't own his own creation.\" And second, Fox " +"\"wanted ten thousand dollars as a licensing fee for us to use this " +"four-point-five seconds of . . . entirely unsolicited Simpsons which was in " +"the corner of the shot.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4928 +msgid "" +"Else was certain there was a mistake. He worked his way up to someone he " +"thought was a vice president for licensing, Rebecca Herrera. He explained " +"to her, \"There must be some mistake here. . . . We're asking for your " +"educational rate on this.\" That was the educational rate, Herrera told " +"Else. A day or so later, Else called again to confirm what he had been told." +msgstr "" + +#. PAGE BREAK 108 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4936 +msgid "" +"\"I wanted to make sure I had my facts straight,\" he told me. \"Yes, you " +"have your facts straight,\" she said. It would cost $10,000 to use the clip " +"of The Simpsons in the corner of a shot in a documentary film about Wagner's " +"Ring Cycle. And then, astonishingly, Herrera told Else, \"And if you quote " +"me, I'll turn you over to our attorneys.\" As an assistant to Herrera told " +"Else later on, \"They don't give a shit. They just want the money.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4948 +msgid "" +"Else didn't have the money to buy the right to replay what was playing on " +"the television backstage at the San Francisco Opera. To reproduce this " +"reality was beyond the documentary filmmaker's budget. At the very last " +"minute before the film was to be released, Else digitally replaced the shot " +"with a clip from another film that he had worked on, The Day After Trinity, " +"from ten years before." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4956 +msgid "" +"There's no doubt that someone, whether Matt Groening or Fox, owns the " +"copyright to The Simpsons. That copyright is their property. To use that " +"copyrighted material thus sometimes requires the permission of the copyright " +"owner. If the use that Else wanted to make of the Simpsons copyright were " +"one of the uses restricted by the law, then he would need to get the " +"permission of the copyright owner before he could use the work in that " +"way. And in a free market, it is the owner of the copyright who gets to set " +"the price for any use that the law says the owner gets to control." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4967 +msgid "" +"For example, \"public performance\" is a use of The Simpsons that the " +"copyright owner gets to control. If you take a selection of favorite " +"episodes, rent a movie theater, and charge for tickets to come see \"My " +"Favorite Simpsons,\" then you need to get permission from the copyright " +"owner. And the copyright owner (rightly, in my view) can charge whatever she " +"wants—$10 or $1,000,000. That's her right, as set by the law." +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:4979 +msgid "" +"For an excellent argument that such use is \"fair use,\" but that lawyers " +"don't permit recognition that it is \"fair use,\" see Richard A. Posner with " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4976 +msgid "" +"But when lawyers hear this story about Jon Else and Fox, their first thought " +"is \"fair use.\"<placeholder type=\"footnote\" id=\"0\"/> Else's use of just " +"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." +msgstr "" + +#. PAGE BREAK 109 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:4991 +msgid "So I asked Else why he didn't just rely upon \"fair use.\" Here's his reply:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:4995 +msgid "" +"The Simpsons fiasco was for me a great lesson in the gulf between what " +"lawyers find irrelevant in some abstract sense, and what is crushingly " +"relevant in practice to those of us actually trying to make and broadcast " +"documentaries. I never had any doubt that it was \"clearly fair use\" in an " +"absolute legal sense. But I couldn't rely on the concept in any concrete " +"way. Here's why:" +msgstr "" + +#. 1. +#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> +#: freeculture.xml:5005 +msgid "" +"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." +msgstr "" + +#. 2. +#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> +#: freeculture.xml:5013 +msgid "" +"I probably never should have asked Matt Groening in the first place. But I " +"knew (at least from folklore) that Fox had a history of tracking down and " +"stopping unlicensed Simpsons usage, just as George Lucas had a very high " +"profile litigating Star Wars usage. So I decided to play by the book, " +"thinking that we would be granted free or cheap license to four seconds of " +"Simpsons. As a documentary producer working to exhaustion on a shoestring, " +"the last thing I wanted was to risk legal trouble, even nuisance legal " +"trouble, and even to defend a principle." +msgstr "" + +#. 3. +#. PAGE BREAK 110 +#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> +#: freeculture.xml:5025 +msgid "" +"I did, in fact, speak with one of your colleagues at Stanford Law School " +". . . who confirmed that it was fair use. He also confirmed that Fox would " +"\"depose and litigate you to within an inch of your life,\" regardless of " +"the merits of my claim. He made clear that it would boil down to who had the " +"bigger legal department and the deeper pockets, me or them." +msgstr "" + +#. 4. +#. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> +#: freeculture.xml:5035 +msgid "" +"The question of fair use usually comes up at the end of the project, when we " +"are up against a release deadline and out of money." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5042 +msgid "" +"In theory, fair use means you need no permission. The theory therefore " +"supports free culture and insulates against a permission culture. But in " +"practice, fair use functions very differently. The fuzzy lines of the law, " +"tied to the extraordinary liability if lines are crossed, means that the " +"effective fair use for many types of creators is slight. The law has the " +"right aim; practice has defeated the aim." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5050 +msgid "" +"This practice shows just how far the law has come from its " +"eighteenth-century roots. The law was born as a shield to protect " +"publishers' profits against the unfair competition of a pirate. It has " +"matured into a sword that interferes with any use, transformative or not." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:5059 +msgid "CHAPTER EIGHT: Transformers" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:5060 +msgid "Allen, Paul" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:5061 freeculture.xml:5069 freeculture.xml:5080 freeculture.xml:5095 freeculture.xml:5104 freeculture.xml:5109 freeculture.xml:5161 freeculture.xml:5177 freeculture.xml:5200 freeculture.xml:5262 freeculture.xml:9613 +msgid "Alben, Alex" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5063 +msgid "" +"In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an " +"innovative company founded by Microsoft cofounder Paul Allen to develop " +"digital entertainment. Long before the Internet became popular, Starwave " +"began investing in new technology for delivering entertainment in " +"anticipation of the power of networks." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5071 +msgid "" +"Alben had a special interest in new technology. He was intrigued by the " +"emerging market for CD-ROM technology—not to distribute film, but to " +"do things with film that otherwise would be very difficult. In 1993, he " +"launched an initiative to develop a product to build retrospectives on the " +"work of particular actors. The first actor chosen was Clint Eastwood. The " +"idea was to showcase all of the work of Eastwood, with clips from his films " +"and interviews with figures important to his career." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5082 +msgid "" +"At that time, Eastwood had made more than fifty films, as an actor and as a " +"director. Alben began with a series of interviews with Eastwood, asking him " +"about his career. Because Starwave produced those interviews, it was free to " +"include them on the CD." +msgstr "" + +#. PAGE BREAK 112 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5089 +msgid "" +"That alone would not have made a very interesting product, so Starwave " +"wanted to add content from the movies in Eastwood's career: posters, " +"scripts, and other material relating to the films Eastwood made. Most of his " +"career was spent at Warner Brothers, and so it was relatively easy to get " +"permission for that content." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5097 +msgid "" +"Then Alben and his team decided to include actual film clips. \"Our goal was " +"that we were going to have a clip from every one of Eastwood's films,\" " +"Alben told me. It was here that the problem arose. \"No one had ever really " +"done this before,\" Alben explained. \"No one had ever tried to do this in " +"the context of an artistic look at an actor's career.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5106 +msgid "" +"Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, " +"\"Well, what will it take?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> +#: freeculture.xml:5122 +msgid "artists" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><secondary> +#: freeculture.xml:5123 +msgid "publicity rights on images of" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:5117 +msgid "" +"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. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5111 +msgid "" +"Alben replied, \"Well, we're going to have to clear rights from everyone who " +"appears in these films, and the music and everything else that we want to " +"use in these film clips.\" Slade said, \"Great! Go for it.\"<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5128 +msgid "" +"The problem was that neither Alben nor Slade had any idea what clearing " +"those rights would mean. Every actor in each of the films could have a claim " +"to royalties for the reuse of that film. But CD- ROMs had not been specified " +"in the contracts for the actors, so there was no clear way to know just what " +"Starwave was to do." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5135 +msgid "" +"I asked Alben how he dealt with the problem. With an obvious pride in his " +"resourcefulness that obscured the obvious bizarreness of his tale, Alben " +"recounted just what they did:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5141 +msgid "" +"So we very mechanically went about looking up the film clips. We made some " +"artistic decisions about what film clips to include—of course we were " +"going to use the \"Make my day\" clip from Dirty Harry. But you then need to " +"get the guy on the ground who's wiggling under the gun and you need to get " +"his permission. And then you have to decide what you are going to pay him." +msgstr "" + +#. PAGE BREAK 113 +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5150 +msgid "" +"We decided that it would be fair if we offered them the dayplayer rate for " +"the right to reuse that performance. We're talking about a clip of less than " +"a minute, but to reuse that performance in the CD-ROM the rate at the time " +"was about $600. So we had to identify the people—some of them were " +"hard to identify because in Eastwood movies you can't tell who's the guy " +"crashing through the glass—is it the actor or is it the stuntman? And " +"then we just, we put together a team, my assistant and some others, and we " +"just started calling people." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5163 +msgid "" +"Some actors were glad to help—Donald Sutherland, for example, followed " +"up himself to be sure that the rights had been cleared. Others were " +"dumbfounded at their good fortune. Alben would ask, \"Hey, can I pay you " +"$600 or maybe if you were in two films, you know, $1,200?\" And they would " +"say, \"Are you for real? Hey, I'd love to get $1,200.\" And some of course " +"were a bit difficult (estranged ex-wives, in particular). But eventually, " +"Alben and his team had cleared the rights to this retrospective CD-ROM on " +"Clint Eastwood's career." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5174 +msgid "" +"It was one year later—\"and even then we weren't sure whether we were " +"totally in the clear.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5179 +msgid "" +"Alben is proud of his work. The project was the first of its kind and the " +"only time he knew of that a team had undertaken such a massive project for " +"the purpose of releasing a retrospective." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5185 +msgid "" +"Everyone thought it would be too hard. Everyone just threw up their hands " +"and said, \"Oh, my gosh, a film, it's so many copyrights, there's the music, " +"there's the screenplay, there's the director, there's the actors.\" But we " +"just broke it down. We just put it into its constituent parts and said, " +"\"Okay, there's this many actors, this many directors, . . . this many " +"musicians,\" and we just went at it very systematically and cleared the " +"rights." +msgstr "" + +#. PAGE BREAK 114 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5197 +msgid "" +"And no doubt, the product itself was exceptionally good. Eastwood loved it, " +"and it sold very well." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:5201 +msgid "Drucker, Peter" +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:5209 +msgid "" +"U.S. Department of Commerce Office of Acquisition Management, Seven Steps to " +"Performance-Based Services Acquisition, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #22</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5203 +msgid "" +"But I pressed Alben about how weird it seems that it would have to take a " +"year's work simply to clear rights. No doubt Alben had done this " +"efficiently, but as Peter Drucker has famously quipped, \"There is nothing " +"so useless as doing efficiently that which should not be done at " +"all.\"<placeholder type=\"footnote\" id=\"0\"/> Did it make sense, I asked " +"Alben, that this is the way a new work has to be made?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5217 +msgid "" +"For, as he acknowledged, \"very few . . . have the time and resources, and " +"the will to do this,\" and thus, very few such works would ever be " +"made. Does it make sense, I asked him, from the standpoint of what anybody " +"really thought they were ever giving rights for originally, that you would " +"have to go clear rights for these kinds of clips?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5225 +msgid "" +"I don't think so. When an actor renders a performance in a movie, he or she " +"gets paid very well. . . . And then when 30 seconds of that performance is " +"used in a new product that is a retrospective of somebody's career, I don't " +"think that that person . . . should be compensated for that." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5233 +msgid "" +"Or at least, is this how the artist should be compensated? Would it make " +"sense, I asked, for there to be some kind of statutory license that someone " +"could pay and be free to make derivative use of clips like this? Did it " +"really make sense that a follow-on creator would have to track down every " +"artist, actor, director, musician, and get explicit permission from each? " +"Wouldn't a lot more be created if the legal part of the creative process " +"could be made to be more clean?" +msgstr "" + +#. PAGE BREAK 115 +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5243 +msgid "" +"Absolutely. I think that if there were some fair-licensing " +"mechanism—where you weren't subject to hold-ups and you weren't " +"subject to estranged former spouses—you'd see a lot more of this work, " +"because it wouldn't be so daunting to try to put together a retrospective of " +"someone's career and meaningfully illustrate it with lots of media from that " +"person's career. You'd build in a cost as the producer of one of these " +"things. You'd build in a cost of paying X dollars to the talent that " +"performed. But it would be a known cost. That's the thing that trips " +"everybody up and makes this kind of product hard to get off the ground. If " +"you knew I have a hundred minutes of film in this product and it's going to " +"cost me X, then you build your budget around it, and you can get investments " +"and everything else that you need to produce it. But if you say, \"Oh, I " +"want a hundred minutes of something and I have no idea what it's going to " +"cost me, and a certain number of people are going to hold me up for money,\" " +"then it becomes difficult to put one of these things together." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5264 +msgid "" +"Alben worked for a big company. His company was backed by some of the " +"richest investors in the world. He therefore had authority and access that " +"the average Web designer would not have. So if it took him a year, how long " +"would it take someone else? And how much creativity is never made just " +"because the costs of clearing the rights are so high? These costs are the " +"burdens of a kind of regulation. Put on a Republican hat for a moment, and " +"get angry for a bit. The government defines the scope of these rights, and " +"the scope defined determines how much it's going to cost to negotiate " +"them. (Remember the idea that land runs to the heavens, and imagine the " +"pilot purchasing flythrough rights as he negotiates to fly from Los Angeles " +"to San Francisco.) These rights might well have once made sense; but as " +"circumstances change, they make no sense at all. Or at least, a " +"well-trained, regulationminimizing Republican should look at the rights and " +"ask, \"Does this still make sense?\"" +msgstr "" + +#. PAGE BREAK 116 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5281 +msgid "" +"I've seen the flash of recognition when people get this point, but only a " +"few times. The first was at a conference of federal judges in California. " +"The judges were gathered to discuss the emerging topic of cyber-law. I was " +"asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an " +"L.A. firm, introduced the panel with a video that he and a friend, Robert " +"Fairbank, had produced." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5291 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:5296 +msgid "Nimmer, David" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5298 +msgid "" +"When the lights came up, I looked over to my copanelist, David Nimmer, " +"perhaps the leading copyright scholar and practitioner in the nation. He had " +"an astonished look on his face, as he peered across the room of over 250 " +"well-entertained judges. Taking an ominous tone, he began his talk with a " +"question: \"Do you know how many federal laws were just violated in this " +"room?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:5305 +msgid "Boies, David" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5307 +msgid "" +"For of course, the two brilliantly talented creators who made this film " +"hadn't done what Alben did. They hadn't spent a year clearing the rights to " +"these clips; technically, what they had done violated the law. Of course, " +"it wasn't as if they or anyone were going to be prosecuted for this " +"violation (the presence of 250 judges and a gaggle of federal marshals " +"notwithstanding). But Nimmer was making an important point: A year before " +"anyone would have heard of the word Napster, and two years before another " +"member of our panel, David Boies, would defend Napster before the Ninth " +"Circuit Court of Appeals, Nimmer was trying to get the judges to see that " +"the law would not be friendly to the capacities that this technology would " +"enable. Technology means you can now do amazing things easily; but you " +"couldn't easily do them legally." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5322 +msgid "" +"We live in a \"cut and paste\" culture enabled by technology. Anyone " +"building a presentation knows the extraordinary freedom that the cut and " +"paste architecture of the Internet created—in a second you can find " +"just about any image you want; in another second, you can have it planted in " +"your presentation." +msgstr "" + +#. PAGE BREAK 117 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5329 +msgid "" +"But presentations are just a tiny beginning. Using the Internet and its " +"archives, musicians are able to string together mixes of sound never before " +"imagined; filmmakers are able to build movies out of clips on computers " +"around the world. An extraordinary site in Sweden takes images of " +"politicians and blends them with music to create biting political " +"commentary. A site called Camp Chaos has produced some of the most biting " +"criticism of the record industry that there is through the mixing of Flash! " +"and music." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5340 +msgid "" +"All of these creations are technically illegal. Even if the creators wanted " +"to be \"legal,\" the cost of complying with the law is impossibly " +"high. Therefore, for the law-abiding sorts, a wealth of creativity is never " +"made. And for that part that is made, if it doesn't follow the clearance " +"rules, it doesn't get released." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5347 +msgid "" +"To some, these stories suggest a solution: Let's alter the mix of rights so " +"that people are free to build upon our culture. Free to add or mix as they " +"see fit. We could even make this change without necessarily requiring that " +"the \"free\" use be free as in \"free beer.\" Instead, the system could " +"simply make it easy for follow-on creators to compensate artists without " +"requiring an army of lawyers to come along: a rule, for example, that says " +"\"the royalty owed the copyright owner of an unregistered work for the " +"derivative reuse of his work will be a flat 1 percent of net revenues, to be " +"held in escrow for the copyright owner.\" Under this rule, the copyright " +"owner could benefit from some royalty, but he would not have the benefit of " +"a full property right (meaning the right to name his own price) unless he " +"registers the work." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5362 +msgid "" +"Who could possibly object to this? And what reason would there be for " +"objecting? We're talking about work that is not now being made; which if " +"made, under this plan, would produce new income for artists. What reason " +"would anyone have to oppose it?" +msgstr "" + +#. PAGE BREAK 118 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5368 +msgid "" +"In February 2003, DreamWorks studios announced an agreement with Mike Myers, " +"the comic genius of Saturday Night Live and Austin Powers. According to the " +"announcement, Myers and Dream-Works would work together to form a \"unique " +"filmmaking pact.\" Under the agreement, DreamWorks \"will acquire the rights " +"to existing motion picture hits and classics, write new storylines " +"and—with the use of stateof-the-art digital technology—insert " +"Myers and other actors into the film, thereby creating an entirely new piece " +"of entertainment.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5380 +msgid "" +"The announcement called this \"film sampling.\" As Myers explained, \"Film " +"Sampling is an exciting way to put an original spin on existing films and " +"allow audiences to see old movies in a new light. Rap artists have been " +"doing this for years with music and now we are able to take that same " +"concept and apply it to film.\" Steven Spielberg is quoted as saying, \"If " +"anyone can create a way to bring old films to new audiences, it is Mike.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5389 +msgid "" +"Spielberg is right. Film sampling by Myers will be brilliant. But if you " +"don't think about it, you might miss the truly astonishing point about this " +"announcement. As the vast majority of our film heritage remains under " +"copyright, the real meaning of the DreamWorks announcement is just this: It " +"is Mike Myers and only Mike Myers who is free to sample. Any general freedom " +"to build upon the film archive of our culture, a freedom in other contexts " +"presumed for us all, is now a privilege reserved for the funny and " +"famous—and presumably rich." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5399 +msgid "" +"This privilege becomes reserved for two sorts of reasons. The first " +"continues the story of the last chapter: the vagueness of \"fair use.\" Much " +"of \"sampling\" should be considered \"fair use.\" But few would rely upon " +"so weak a doctrine to create. That leads to the second reason that the " +"privilege is reserved for the few: The costs of negotiating the legal rights " +"for the creative reuse of content are astronomically high. These costs " +"mirror the costs with fair use: You either pay a lawyer to defend your fair " +"use rights or pay a lawyer to track down permissions so you don't have to " +"rely upon fair use rights. Either way, the creative process is a process of " +"paying lawyers—again a privilege, or perhaps a curse, reserved for the " +"few." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:5414 +msgid "CHAPTER NINE: Collectors" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5416 +msgid "" +"In April 1996, millions of \"bots\"—computer codes designed to " +"\"spider,\" or automatically search the Internet and copy " +"content—began running across the Net. Page by page, these bots copied " +"Internet-based information onto a small set of computers located in a " +"basement in San Francisco's Presidio. Once the bots finished the whole of " +"the Internet, they started again. Over and over again, once every two " +"months, these bits of code took copies of the Internet and stored them." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5425 +msgid "" +"By October 2001, the bots had collected more than five years of copies. And " +"at a small announcement in Berkeley, California, the archive that these " +"copies created, the Internet Archive, was opened to the world. Using a " +"technology called \"the Way Back Machine,\" you could enter a Web page, and " +"see all of its copies going back to 1996, as well as when those pages " +"changed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5433 +msgid "" +"This is the thing about the Internet that Orwell would have appreciated. In " +"the dystopia described in 1984, old newspapers were constantly updated to " +"assure that the current view of the world, approved of by the government, " +"was not contradicted by previous news reports." +msgstr "" + +#. PAGE BREAK 120 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5441 +msgid "" +"Thousands of workers constantly reedited the past, meaning there was no way " +"ever to know whether the story you were reading today was the story that was " +"printed on the date published on the paper." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5446 +msgid "" +"It's the same with the Internet. If you go to a Web page today, there's no " +"way for you to know whether the content you are reading is the same as the " +"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." +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:5459 +msgid "" +"The temptations remain, however. Brewster Kahle reports that the White House " +"changes its own press releases without notice. A May 13, 2003, press release " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5453 +msgid "" +"Until the Way Back Machine, at least. With the Way Back Machine, and the " +"Internet Archive underlying it, you can see what the Internet was. You have " +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5467 +msgid "" +"We take it for granted that we can go back to see what we remember " +"reading. Think about newspapers. If you wanted to study the reaction of your " +"hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's " +"water cannon in 1963, you could go to your public library and look at the " +"newspapers. Those papers probably exist on microfiche. If you're lucky, they " +"exist in paper, too. Either way, you are free, using a library, to go back " +"and remember—not just what it is convenient to remember, but remember " +"something close to the truth." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5478 +msgid "" +"It is said that those who fail to remember history are doomed to repeat " +"it. That's not quite correct. We all forget history. The key is whether we " +"have a way to go back to rediscover what we forget. More directly, the key " +"is whether an objective past can keep us honest. Libraries help do that, by " +"collecting content and keeping it, for schoolchildren, for researchers, for " +"grandma. A free society presumes this knowedge." +msgstr "" + +#. PAGE BREAK 121 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5487 +msgid "" +"The Internet was an exception to this presumption. Until the Internet " +"Archive, there was no way to go back. The Internet was the quintessentially " +"transitory medium. And yet, as it becomes more important in forming and " +"reforming society, it becomes more and more important to maintain in some " +"historical form. It's just bizarre to think that we have scads of archives " +"of newspapers from tiny towns around the world, yet there is but one copy of " +"the Internet—the one kept by the Internet Archive." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5498 +msgid "" +"Brewster Kahle is the founder of the Internet Archive. He was a very " +"successful Internet entrepreneur after he was a successful computer " +"researcher. In the 1990s, Kahle decided he had had enough business " +"success. It was time to become a different kind of success. So he launched " +"a series of projects designed to archive human knowledge. The Internet " +"Archive was just the first of the projects of this Andrew Carnegie of the " +"Internet. By December of 2002, the archive had over 10 billion pages, and it " +"was growing at about a billion pages a month." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5508 +msgid "" +"The Way Back Machine is the largest archive of human knowledge in human " +"history. At the end of 2002, it held \"two hundred and thirty terabytes of " +"material\"—and was \"ten times larger than the Library of Congress.\" " +"And this was just the first of the archives that Kahle set out to build. In " +"addition to the Internet Archive, Kahle has been constructing the Television " +"Archive. Television, it turns out, is even more ephemeral than the " +"Internet. While much of twentieth-century culture was constructed through " +"television, only a tiny proportion of that culture is available for anyone " +"to see today. Three hours of news are recorded each evening by Vanderbilt " +"University—thanks to a specific exemption in the copyright law. That " +"content is indexed, and is available to scholars for a very low fee. \"But " +"other than that, [television] is almost unavailable,\" Kahle told me. \"If " +"you were Barbara Walters you could get access to [the archives], but if you " +"are just a graduate student?\" As Kahle put it," +msgstr "" + +#. PAGE BREAK 122 +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5526 +msgid "" +"Do you remember when Dan Quayle was interacting with Murphy Brown? Remember " +"that back and forth surreal experience of a politician interacting with a " +"fictional television character? If you were a graduate student wanting to " +"study that, and you wanted to get those original back and forth exchanges " +"between the two, the 60 Minutes episode that came out after it . . . it " +"would be almost impossible. . . . Those materials are almost " +"unfindable. . . ." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5538 +msgid "" +"Why is that? Why is it that the part of our culture that is recorded in " +"newspapers remains perpetually accessible, while the part that is recorded " +"on videotape is not? How is it that we've created a world where researchers " +"trying to understand the effect of media on nineteenthcentury America will " +"have an easier time than researchers trying to understand the effect of " +"media on twentieth-century America?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5546 +msgid "" +"In part, this is because of the law. Early in American copyright law, " +"copyright owners were required to deposit copies of their work in " +"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." +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:5563 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5554 +msgid "" +"These rules applied to film as well. But in 1915, the Library of Congress " +"made an exception for film. Film could be copyrighted so long as such " +"deposits were made. But the filmmaker was then allowed to borrow back the " +"deposits—for an unlimited time at no cost. In 1915 alone, there were " +"more than 5,475 films deposited and \"borrowed back.\" Thus, when the " +"copyrights to films expire, there is no copy held by any library. The copy " +"exists—if it exists at all—in the library archive of the film " +"company.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5571 +msgid "" +"The same is generally true about television. Television broadcasts were " +"originally not copyrighted—there was no way to capture the broadcasts, " +"so there was no fear of \"theft.\" But as technology enabled capturing, " +"broadcasters relied increasingly upon the law. The law required they make a " +"copy of each broadcast for the work to be \"copyrighted.\" But those copies " +"were simply kept by the broadcasters. No library had any right to them; the " +"government didn't demand them. The content of this part of American culture " +"is practically invisible to anyone who would look." +msgstr "" + +#. PAGE BREAK 123 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5582 +msgid "" +"Kahle was eager to correct this. Before September 11, 2001, he and his " +"allies had started capturing television. They selected twenty stations from " +"around the world and hit the Record button. After September 11, Kahle, " +"working with dozens of others, selected twenty stations from around the " +"world and, beginning October 11, 2001, made their coverage during the week " +"of September 11 available free on-line. Anyone could see how news reports " +"from around the world covered the events of that day." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5593 +msgid "" +"Kahle had the same idea with film. Working with Rick Prelinger, whose " +"archive of film includes close to 45,000 \"ephemeral films\" (meaning films " +"other than Hollywood movies, films that were never copyrighted), Kahle " +"established the Movie Archive. Prelinger let Kahle digitize 1,300 films in " +"this archive and post those films on the Internet to be downloaded for " +"free. Prelinger's is a for-profit company. It sells copies of these films as " +"stock footage. What he has discovered is that after he made a significant " +"chunk available for free, his stock footage sales went up " +"dramatically. People could easily find the material they wanted to use. Some " +"downloaded that material and made films on their own. Others purchased " +"copies to enable other films to be made. Either way, the archive enabled " +"access to this important part of our culture. Want to see a copy of the " +"\"Duck and Cover\" film that instructed children how to save themselves in " +"the middle of nuclear attack? Go to archive.org, and you can download the " +"film in a few minutes—for free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5611 +msgid "" +"Here again, Kahle is providing access to a part of our culture that we " +"otherwise could not get easily, if at all. It is yet another part of what " +"defines the twentieth century that we have lost to history. The law doesn't " +"require these copies to be kept by anyone, or to be deposited in an archive " +"by anyone. Therefore, there is no simple way to find them." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5619 +msgid "" +"The key here is access, not price. Kahle wants to enable free access to this " +"content, but he also wants to enable others to sell access to it. His aim is " +"to ensure competition in access to this important part of our culture. Not " +"during the commercial life of a bit of creative property, but during a " +"second life that all creative property has—a noncommercial life." +msgstr "" + +#. PAGE BREAK 124 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5627 +msgid "" +"For here is an idea that we should more clearly recognize. Every bit of " +"creative property goes through different \"lives.\" In its first life, if " +"the creator is lucky, the content is sold. In such cases the commercial " +"market is successful for the creator. The vast majority of creative property " +"doesn't enjoy such success, but some clearly does. For that content, " +"commercial life is extremely important. Without this commercial market, " +"there would be, many argue, much less creativity." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5639 +msgid "" +"After the commercial life of creative property has ended, our tradition has " +"always supported a second life as well. A newspaper delivers the news every " +"day to the doorsteps of America. The very next day, it is used to wrap fish " +"or to fill boxes with fragile gifts or to build an archive of knowledge " +"about our history. In this second life, the content can continue to inform " +"even if that information is no longer sold." +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:5651 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5648 +msgid "" +"The same has always been true about books. A book goes out of print very " +"quickly (the average today is after about a year<placeholder " +"type=\"footnote\" id=\"0\"/>). After it is out of print, it can be sold in " +"used book stores without the copyright owner getting anything and stored in " +"libraries, where many get to read the book, also for free. Used book stores " +"and libraries are thus the second life of a book. That second life is " +"extremely important to the spread and stability of culture." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5665 +msgid "" +"Yet increasingly, any assumption about a stable second life for creative " +"property does not hold true with the most important components of popular " +"culture in the twentieth and twenty-first centuries. For " +"these—television, movies, music, radio, the Internet—there is no " +"guarantee of a second life. For these sorts of culture, it is as if we've " +"replaced libraries with Barnes & Noble superstores. With this culture, " +"what's accessible is nothing but what a certain limited market demands. " +"Beyond that, culture disappears." +msgstr "" + +#. PAGE BREAK 125 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5676 +msgid "" +"For most of the twentieth century, it was economics that made this so. It " +"would have been insanely expensive to collect and make accessible all " +"television and film and music: The cost of analog copies is extraordinarily " +"high. So even though the law in principle would have restricted the ability " +"of a Brewster Kahle to copy culture generally, the real restriction was " +"economics. The market made it impossibly difficult to do anything about this " +"ephemeral culture; the law had little practical effect." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5688 +msgid "" +"Perhaps the single most important feature of the digital revolution is that " +"for the first time since the Library of Alexandria, it is feasible to " +"imagine constructing archives that hold all culture produced or distributed " +"publicly. Technology makes it possible to imagine an archive of all books " +"published, and increasingly makes it possible to imagine an archive of all " +"moving images and sound." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5696 +msgid "" +"The scale of this potential archive is something we've never imagined " +"before. The Brewster Kahles of our history have dreamed about it; but we are " +"for the first time at a point where that dream is possible. As Kahle " +"describes," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5703 +msgid "" +"It looks like there's about two to three million recordings of music. " +"Ever. There are about a hundred thousand theatrical releases of movies, " +". . . and about one to two million movies [distributed] during the twentieth " +"century. There are about twenty-six million different titles of books. All " +"of these would fit on computers that would fit in this room and be able to " +"be afforded by a small company. So we're at a turning point in our " +"history. Universal access is the goal. And the opportunity of leading a " +"different life, based on this, is . . . thrilling. It could be one of the " +"things humankind would be most proud of. Up there with the Library of " +"Alexandria, putting a man on the moon, and the invention of the printing " +"press." +msgstr "" + +#. PAGE BREAK 126 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5717 +msgid "" +"Kahle is not the only librarian. The Internet Archive is not the only " +"archive. But Kahle and the Internet Archive suggest what the future of " +"libraries or archives could be. When the commercial life of creative " +"property ends, I don't know. But it does. And whenever it does, Kahle and " +"his archive hint at a world where this knowledge, and culture, remains " +"perpetually available. Some will draw upon it to understand it; some to " +"criticize it. Some will use it, as Walt Disney did, to re-create the past " +"for the future. These technologies promise something that had become " +"unimaginable for much of our past—a future for our past. The " +"technology of digital arts could make the dream of the Library of Alexandria " +"real again." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5732 +msgid "" +"Technologists have thus removed the economic costs of building such an " +"archive. But lawyers' costs remain. For as much as we might like to call " +"these \"archives,\" as warm as the idea of a \"library\" might seem, the " +"\"content\" that is collected in these digital spaces is also someone's " +"\"property.\" And the law of property restricts the freedoms that Kahle and " +"others would exercise." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:5742 +msgid "CHAPTER TEN: \"Property\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:5751 +msgid "Johnson, Lyndon" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5744 +msgid "" +"Jack Valenti has been the president of the Motion Picture Association of " +"America since 1966. He first came to Washington, D.C., with Lyndon Johnson's " +"administration—literally. The famous picture of Johnson's swearing-in " +"on Air Force One after the assassination of President Kennedy has Valenti in " +"the background. In his almost forty years of running the MPAA, Valenti has " +"established himself as perhaps the most prominent and effective lobbyist in " +"Washington. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5754 +msgid "" +"The MPAA is the American branch of the international Motion Picture " +"Association. It was formed in 1922 as a trade association whose goal was to " +"defend American movies against increasing domestic criticism. The " +"organization now represents not only filmmakers but producers and " +"distributors of entertainment for television, video, and cable. Its board is " +"made up of the chairmen and presidents of the seven major producers and " +"distributors of motion picture and television programs in the United States: " +"Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth " +"Century Fox, Universal Studios, and Warner Brothers." +msgstr "" + +#. PAGE BREAK 128 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5767 +msgid "" +"Valenti is only the third president of the MPAA. No president before him has " +"had as much influence over that organization, or over Washington. As a " +"Texan, Valenti has mastered the single most important political skill of a " +"Southerner—the ability to appear simple and slow while hiding a " +"lightning-fast intellect. To this day, Valenti plays the simple, humble " +"man. But this Harvard MBA, and author of four books, who finished high " +"school at the age of fifteen and flew more than fifty combat missions in " +"World War II, is no Mr. Smith. When Valenti went to Washington, he mastered " +"the city in a quintessentially Washingtonian way." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5779 +msgid "" +"In defending artistic liberty and the freedom of speech that our culture " +"depends upon, the MPAA has done important good. In crafting the MPAA rating " +"system, it has probably avoided a great deal of speech-regulating harm. But " +"there is an aspect to the organization's mission that is both the most " +"radical and the most important. This is the organization's effort, " +"epitomized in Valenti's every act, to redefine the meaning of \"creative " +"property.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5788 +msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:" +msgstr "" + +#. f1 +#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> +#: freeculture.xml:5802 +msgid "" +"Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, " +"H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on " +"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)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:5793 +msgid "" +"No matter the lengthy arguments made, no matter the charges and the " +"counter-charges, no matter the tumult and the shouting, reasonable men and " +"women will keep returning to the fundamental issue, the central theme which " +"animates this entire debate: Creative property owners must be accorded the " +"same rights and protection resident in all other property owners in the " +"nation. That is the issue. That is the question. And that is the rostrum on " +"which this entire hearing and the debates to follow must rest.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 129 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5812 +msgid "" +"The strategy of this rhetoric, like the strategy of most of Valenti's " +"rhetoric, is brilliant and simple and brilliant because simple. The " +"\"central theme\" to which \"reasonable men and women\" will return is this: " +"\"Creative property owners must be accorded the same rights and protections " +"resident in all other property owners in the nation.\" There are no " +"second-class citizens, Valenti might have continued. There should be no " +"second-class property owners." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5823 +msgid "" +"This claim has an obvious and powerful intuitive pull. It is stated with " +"such clarity as to make the idea as obvious as the notion that we use " +"elections to pick presidents. But in fact, there is no more extreme a claim " +"made by anyone who is serious in this debate than this claim of " +"Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps the " +"nation's foremost extremist when it comes to the nature and scope of " +"\"creative property.\" His views have no reasonable connection to our actual " +"legal tradition, even if the subtle pull of his Texan charm has slowly " +"redefined that tradition, at least in Washington." +msgstr "" + +#. f2 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:5838 +msgid "" +"Lawyers speak of \"property\" not as an absolute thing, but as a bundle of " +"rights that are sometimes associated with a particular object. Thus, my " +"\"property right\" to my car gives me the right to exclusive use, but not " +"the right to drive at 150 miles an hour. For the best effort to connect the " +"ordinary meaning of \"property\" to \"lawyer talk,\" see Bruce Ackerman, " +"Private Property and the Constitution (New Haven: Yale University Press, " +"1977), 26–27." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5835 +msgid "" +"While \"creative property\" is certainly \"property\" in a nerdy and precise " +"sense that lawyers are trained to understand,<placeholder type=\"footnote\" " +"id=\"0\"/> it has never been the case, nor should it be, that \"creative " +"property owners\" have been \"accorded the same rights and protection " +"resident in all other property owners.\" Indeed, if creative property owners " +"were given the same rights as all other property owners, that would effect a " +"radical, and radically undesirable, change in our tradition." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5853 +msgid "" +"Valenti knows this. But he speaks for an industry that cares squat for our " +"tradition and the values it represents. He speaks for an industry that is " +"instead fighting to restore the tradition that the British overturned in " +"1710. In the world that Valenti's changes would create, a powerful few would " +"exercise powerful control over how our creative culture would develop." +msgstr "" + +#. PAGE BREAK 130 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5861 +msgid "" +"I have two purposes in this chapter. The first is to convince you that, " +"historically, Valenti's claim is absolutely wrong. The second is to convince " +"you that it would be terribly wrong for us to reject our history. We have " +"always treated rights in creative property differently from the rights " +"resident in all other property owners. They have never been the same. And " +"they should never be the same, because, however counterintuitive this may " +"seem, to make them the same would be to fundamentally weaken the opportunity " +"for new creators to create. Creativity depends upon the owners of " +"creativity having less than perfect control." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5876 +msgid "" +"Organizations such as the MPAA, whose board includes the most powerful of " +"the old guard, have little interest, their rhetoric notwithstanding, in " +"assuring that the new can displace them. No organization does. No person " +"does. (Ask me about tenure, for example.) But what's good for the MPAA is " +"not necessarily good for America. A society that defends the ideals of free " +"culture must preserve precisely the opportunity for new creativity to " +"threaten the old. To get just a hint that there is something fundamentally " +"wrong in Valenti's argument, we need look no further than the United States " +"Constitution itself." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5888 +msgid "" +"The framers of our Constitution loved \"property.\" Indeed, so strongly did " +"they love property that they built into the Constitution an important " +"requirement. If the government takes your property—if it condemns your " +"house, or acquires a slice of land from your farm—it is required, " +"under the Fifth Amendment's \"Takings Clause,\" to pay you \"just " +"compensation\" for that taking. The Constitution thus guarantees that " +"property is, in a certain sense, sacred. It cannot ever be taken from the " +"property owner unless the government pays for the privilege." +msgstr "" + +#. PAGE BREAK 131 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5899 +msgid "" +"Yet the very same Constitution speaks very differently about what Valenti " +"calls \"creative property.\" In the clause granting Congress the power to " +"create \"creative property,\" the Constitution requires that after a " +"\"limited time,\" Congress take back the rights that it has granted and set " +"the \"creative property\" free to the public domain. Yet when Congress does " +"this, when the expiration of a copyright term \"takes\" your copyright and " +"turns it over to the public domain, Congress does not have any obligation to " +"pay \"just compensation\" for this \"taking.\" Instead, the same " +"Constitution that requires compensation for your land requires that you lose " +"your \"creative property\" right without any compensation at all." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5914 +msgid "" +"The Constitution thus on its face states that these two forms of property " +"are not to be accorded the same rights. They are plainly to be treated " +"differently. Valenti is therefore not just asking for a change in our " +"tradition when he argues that creative-property owners should be accorded " +"the same rights as every other property-right owner. He is effectively " +"arguing for a change in our Constitution itself." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5923 +msgid "" +"Arguing for a change in our Constitution is not necessarily wrong. There " +"was much in our original Constitution that was plainly wrong. The " +"Constitution of 1789 entrenched slavery; it left senators to be appointed " +"rather than elected; it made it possible for the electoral college to " +"produce a tie between the president and his own vice president (as it did in " +"1800). The framers were no doubt extraordinary, but I would be the first to " +"admit that they made big mistakes. We have since rejected some of those " +"mistakes; no doubt there could be others that we should reject as well. So " +"my argument is not simply that because Jefferson did it, we should, too." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5935 +msgid "" +"Instead, my argument is that because Jefferson did it, we should at least " +"try to understand why. Why did the framers, fanatical property types that " +"they were, reject the claim that creative property be given the same rights " +"as all other property? Why did they require that for creative property there " +"must be a public domain?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5942 +msgid "" +"To answer this question, we need to get some perspective on the history of " +"these \"creative property\" rights, and the control that they enabled. Once " +"we see clearly how differently these rights have been defined, we will be in " +"a better position to ask the question that should be at the core of this " +"war: Not whether creative property should be protected, but how. Not whether " +"we will enforce the rights the law gives to creative-property owners, but " +"what the particular mix of rights ought to be. Not whether artists should be " +"paid, but whether institutions designed to assure that artists get paid need " +"also control how culture develops." +msgstr "" + +#. PAGE BREAK 132 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5956 +msgid "" +"To answer these questions, we need a more general way to talk about how " +"property is protected. More precisely, we need a more general way than the " +"narrow language of the law allows. In Code and Other Laws of Cyberspace, I " +"used a simple model to capture this more general perspective. For any " +"particular right or regulation, this model asks how four different " +"modalities of regulation interact to support or weaken the right or " +"regulation. I represented it with this diagram:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><figure><title> +#: freeculture.xml:5965 +msgid "" +"How four different modalities of regulation interact to support or weaken " +"the right or regulation." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:5966 freeculture.xml:6140 freeculture.xml:6433 +msgid "<graphic fileref=\"images/1331.png\"></graphic>" +msgstr "" + +#. PAGE BREAK 133 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5969 +msgid "" +"At the center of this picture is a regulated dot: the individual or group " +"that is the target of regulation, or the holder of a right. (In each case " +"throughout, we can describe this either as regulation or as a right. For " +"simplicity's sake, I will speak only of regulations.) The ovals represent " +"four ways in which the individual or group might be regulated— either " +"constrained or, alternatively, enabled. Law is the most obvious constraint " +"(to lawyers, at least). It constrains by threatening punishments after the " +"fact if the rules set in advance are violated. So if, for example, you " +"willfully infringe Madonna's copyright by copying a song from her latest CD " +"and posting it on the Web, you can be punished with a $150,000 fine. The " +"fine is an ex post punishment for violating an ex ante rule. It is imposed " +"by the state." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5985 +msgid "" +"Norms are a different kind of constraint. They, too, punish an individual " +"for violating a rule. But the punishment of a norm is imposed by a " +"community, not (or not only) by the state. There may be no law against " +"spitting, but that doesn't mean you won't be punished if you spit on the " +"ground while standing in line at a movie. The punishment might not be harsh, " +"though depending upon the community, it could easily be more harsh than many " +"of the punishments imposed by the state. The mark of the difference is not " +"the severity of the rule, but the source of the enforcement." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:5996 +msgid "" +"The market is a third type of constraint. Its constraint is effected through " +"conditions: You can do X if you pay Y; you'll be paid M if you do N. These " +"constraints are obviously not independent of law or norms—it is " +"property law that defines what must be bought if it is to be taken legally; " +"it is norms that say what is appropriately sold. But given a set of norms, " +"and a background of property and contract law, the market imposes a " +"simultaneous constraint upon how an individual or group might behave." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:6006 +msgid "" +"Finally, and for the moment, perhaps, most mysteriously, " +"\"architecture\"—the physical world as one finds it—is a " +"constraint on behavior. A fallen bridge might constrain your ability to get " +"across a river. Railroad tracks might constrain the ability of a community " +"to integrate its social life. As with the market, architecture does not " +"effect its constraint through ex post punishments. Instead, also as with the " +"market, architecture effects its constraint through simultaneous " +"conditions. These conditions are imposed not by courts enforcing contracts, " +"or by police punishing theft, but by nature, by \"architecture.\" If a " +"500-pound boulder blocks your way, it is the law of gravity that enforces " +"this constraint. If a $500 airplane ticket stands between you and a flight " +"to New York, it is the market that enforces this constraint." +msgstr "" + +#. PAGE BREAK 134 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:6023 +msgid "" +"So the first point about these four modalities of regulation is obvious: " +"They interact. Restrictions imposed by one might be reinforced by " +"another. Or restrictions imposed by one might be undermined by another." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:6029 +msgid "" +"The second point follows directly: If we want to understand the effective " +"freedom that anyone has at a given moment to do any particular thing, we " +"have to consider how these four modalities interact. Whether or not there " +"are other constraints (there may well be; my claim is not about " +"comprehensiveness), these four are among the most significant, and any " +"regulator (whether controlling or freeing) must consider how these four in " +"particular interact." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:6038 +msgid "driving speed, constraints on" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:6041 +msgid "" +"So, for example, consider the \"freedom\" to drive a car at a high " +"speed. That freedom is in part restricted by laws: speed limits that say how " +"fast you can drive in particular places at particular times. It is in part " +"restricted by architecture: speed bumps, for example, slow most rational " +"drivers; governors in buses, as another example, set the maximum rate at " +"which the driver can drive. The freedom is in part restricted by the market: " +"Fuel efficiency drops as speed increases, thus the price of gasoline " +"indirectly constrains speed. And finally, the norms of a community may or " +"may not constrain the freedom to speed. Drive at 50 mph by a school in your " +"own neighborhood and you're likely to be punished by the neighbors. The same " +"norm wouldn't be as effective in a different town, or at night." +msgstr "" + +#. f3 +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:6059 +msgid "" +"By describing the way law affects the other three modalities, I don't mean " +"to suggest that the other three don't affect law. Obviously, they do. Law's " +"only distinction is that it alone speaks as if it has a right " +"self-consciously to change the other three. The right of the other three is " +"more timidly expressed. See Lawrence Lessig, Code: And Other Laws of " +"Cyberspace (New York: Basic Books, 1999): 90–95; Lawrence Lessig, " +"\"The New Chicago School,\" Journal of Legal Studies, June 1998." +msgstr "" + +#. PAGE BREAK 135 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:6055 +msgid "" +"The final point about this simple model should also be fairly clear: While " +"these four modalities are analytically independent, law has a special role " +"in affecting the three.<placeholder type=\"footnote\" id=\"0\"/> The law, in " +"other words, sometimes operates to increase or decrease the constraint of a " +"particular modality. Thus, the law might be used to increase taxes on " +"gasoline, so as to increase the incentives to drive more slowly. The law " +"might be used to mandate more speed bumps, so as to increase the difficulty " +"of driving rapidly. The law might be used to fund ads that stigmatize " +"reckless driving. Or the law might be used to require that other laws be " +"more strict—a federal requirement that states decrease the speed " +"limit, for example—so as to decrease the attractiveness of fast " +"driving." +msgstr "" + +#. type: Content of: <book><chapter><sect1><figure><title> +#: freeculture.xml:6083 +msgid "Law has a special role in affecting the three." +msgstr "" + +#. type: Content of: <book><chapter><sect1><figure> +#: freeculture.xml:6084 +msgid "<graphic fileref=\"images/1361.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> +#: freeculture.xml:6123 +msgid "Commons, John R." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:6095 +msgid "" +"Some people object to this way of talking about \"liberty.\" They object " +"because their focus when considering the constraints that exist at any " +"particular moment are constraints imposed exclusively by the government. For " +"instance, if a storm destroys a bridge, these people think it is meaningless " +"to say that one's liberty has been restrained. A bridge has washed out, and " +"it's harder to get from one place to another. To talk about this as a loss " +"of freedom, they say, is to confuse the stuff of politics with the vagaries " +"of ordinary life. I don't mean to deny the value in this narrower view, " +"which depends upon the context of the inquiry. I do, however, mean to argue " +"against any insistence that this narrower view is the only proper view of " +"liberty. As I argued in Code, we come from a long tradition of political " +"thought with a broader focus than the narrow question of what the government " +"did when. John Stuart Mill defended freedom of speech, for example, from " +"the tyranny of narrow minds, not from the fear of government prosecution; " +"John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. " +"John R. Commons famously defended the economic freedom of labor from " +"constraints imposed by the market; John R. Commons, \"The Right to Work,\" " +"in Malcom Rutherford and Warren J. Samuels, eds., John R. Commons: Selected " +"Essays (London: Routledge: 1997), 62. The Americans with Disabilities Act " +"increases the liberty of people with physical disabilities by changing the " +"architecture of certain public places, thereby making access to those places " +"easier; 42 United States Code, section 12101 (2000). Each of these " +"interventions to change existing conditions changes the liberty of a " +"particular group. The effect of those interventions should be accounted for " +"in order to understand the effective liberty that each of these groups might " +"face. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:6087 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:6127 +msgid "Why Hollywood Is Right" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6129 +msgid "" +"The most obvious point that this model reveals is just why, or just how, " +"Hollywood is right. The copyright warriors have rallied Congress and the " +"courts to defend copyright. This model helps us see why that rallying makes " +"sense." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6135 +msgid "Let's say this is the picture of copyright's regulation before the Internet:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6139 freeculture.xml:6432 +msgid "Copyright's regulation before the Internet." +msgstr "" + +#. PAGE BREAK 136 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6144 +msgid "" +"There is balance between law, norms, market, and architecture. The law " +"limits the ability to copy and share content, by imposing penalties on those " +"who copy and share content. Those penalties are reinforced by technologies " +"that make it hard to copy and share content (architecture) and expensive to " +"copy and share content (market). Finally, those penalties are mitigated by " +"norms we all recognize—kids, for example, taping other kids' " +"records. These uses of copyrighted material may well be infringement, but " +"the norms of our society (before the Internet, at least) had no problem with " +"this form of infringement." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6156 +msgid "" +"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." +msgstr "" + +#. PAGE BREAK 137 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6164 +msgid "" +"Thus the sense of, and justification for, the warriors' response. " +"Technology has changed, the warriors say, and the effect of this change, " +"when ramified through the market and norms, is that a balance of protection " +"for the copyright owners' rights has been lost. This is Iraq after the fall " +"of Saddam, but this time no government is justifying the looting that " +"results." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6174 +msgid "effective state of anarchy after the Internet." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:6175 +msgid "<graphic fileref=\"images/1381.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6178 +msgid "" +"Neither this analysis nor the conclusions that follow are new to the " +"warriors. Indeed, in a \"White Paper\" prepared by the Commerce Department " +"(one heavily influenced by the copyright warriors) in 1995, this mix of " +"regulatory modalities had already been identified and the strategy to " +"respond already mapped. In response to the changes the Internet had " +"effected, the White Paper argued (1) Congress should strengthen intellectual " +"property law, (2) businesses should adopt innovative marketing techniques, " +"(3) technologists should push to develop code to protect copyrighted " +"material, and (4) educators should educate kids to better protect copyright." +msgstr "" + +#. PAGE BREAK 138 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6190 +msgid "" +"This mixed strategy is just what copyright needed—if it was to " +"preserve the particular balance that existed before the change induced by " +"the Internet. And it's just what we should expect the content industry to " +"push for. It is as American as apple pie to consider the happy life you have " +"as an entitlement, and to look to the law to protect it if something comes " +"along to change that happy life. Homeowners living in a flood plain have no " +"hesitation appealing to the government to rebuild (and rebuild again) when a " +"flood (architecture) wipes away their property (law). Farmers have no " +"hesitation appealing to the government to bail them out when a virus " +"(architecture) devastates their crop. Unions have no hesitation appealing to " +"the government to bail them out when imports (market) wipe out the " +"U.S. steel industry." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6207 +msgid "" +"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.\"" +msgstr "" + +#. f5 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6223 +msgid "" +"See Geoffrey Smith, \"Film vs. Digital: Can Kodak Build a Bridge?\" " +"BusinessWeek online, 2 August 1999, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #23</ulink>. For a more recent " +"analysis of Kodak's place in the market, see Chana R. Schoenberger, \"Can " +"Kodak Make Up for Lost Moments?\" Forbes.com, 6 October 2003, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #24</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6215 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> Does anyone believe the " +"government should ban digital cameras just to support Kodak? Highways have " +"weakened the freight business for railroads. Does anyone think we should ban " +"trucks from roads for the purpose of protecting the railroads? Closer to the " +"subject of this book, remote channel changers have weakened the " +"\"stickiness\" of television advertising (if a boring commercial comes on " +"the TV, the remote makes it easy to surf ), and it may well be that this " +"change has weakened the television advertising market. But does anyone " +"believe we should regulate remotes to reinforce commercial television? " +"(Maybe by limiting them to function only once a second, or to switch to only " +"ten channels within an hour?)" +msgstr "" + +#. f6 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6255 +msgid "Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6245 +msgid "" +"The obvious answer to these obviously rhetorical questions is no. In a free " +"society, with a free market, supported by free enterprise and free trade, " +"the government's role is not to support one way of doing business against " +"others. Its role is not to pick winners and protect them against loss. If " +"the government did this generally, then we would never have any progress. As " +"Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software " +"patents, \"established companies have an interest in excluding future " +"competitors.\"<placeholder type=\"footnote\" id=\"0\"/> And relative to a " +"startup, established companies also have the means. (Think RCA and FM " +"radio.) A world in which competitors with new ideas must fight not only the " +"market but also the government is a world in which competitors with new " +"ideas will not succeed. It is a world of stasis and increasingly " +"concentrated stagnation. It is the Soviet Union under Brezhnev." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6266 +msgid "" +"Thus, while it is understandable for industries threatened with new " +"technologies that change the way they do business to look to the government " +"for protection, it is the special duty of policy makers to guarantee that " +"that protection not become a deterrent to progress. It is the duty of policy " +"makers, in other words, to assure that the changes they create, in response " +"to the request of those hurt by changing technology, are changes that " +"preserve the incentives and opportunities for innovation and change." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6276 +msgid "" +"In the context of laws regulating speech—which include, obviously, " +"copyright law—that duty is even stronger. When the industry " +"complaining about changing technologies is asking Congress to respond in a " +"way that burdens speech and creativity, policy makers should be especially " +"wary of the request. It is always a bad deal for the government to get into " +"the business of regulating speech markets. The risks and dangers of that " +"game are precisely why our framers created the First Amendment to our " +"Constitution: \"Congress shall make no law . . . abridging the freedom of " +"speech.\" So when Congress is being asked to pass laws that would " +"\"abridge\" the freedom of speech, it should ask— " +"carefully—whether such regulation is justified." +msgstr "" + +#. PAGE BREAK 140 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6290 +msgid "" +"My argument just now, however, has nothing to do with whether the changes " +"that are being pushed by the copyright warriors are \"justified.\" My " +"argument is about their effect. For before we get to the question of " +"justification, a hard question that depends a great deal upon your values, " +"we should first ask whether we understand the effect of the changes the " +"content industry wants." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6299 +msgid "Here's the metaphor that will capture the argument to follow." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6302 +msgid "" +"In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul " +"Hermann Müller won the Nobel Prize for his work demonstrating the " +"insecticidal properties of DDT. By the 1950s, the insecticide was widely " +"used around the world to kill disease-carrying pests. It was also used to " +"increase farm production." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6309 +msgid "" +"No one doubts that killing disease-carrying pests or increasing crop " +"production is a good thing. No one doubts that the work of Müller was " +"important and valuable and probably saved lives, possibly millions." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:6313 +msgid "Carson, Rachel" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6315 +msgid "" +"But in 1962, Rachel Carson published Silent Spring, which argued that DDT, " +"whatever its primary benefits, was also having unintended environmental " +"consequences. Birds were losing the ability to reproduce. Whole chains of " +"the ecology were being destroyed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6321 +msgid "" +"No one set out to destroy the environment. Paul Müller certainly did not aim " +"to harm any birds. But the effort to solve one set of problems produced " +"another set which, in the view of some, was far worse than the problems that " +"were originally attacked. Or more accurately, the problems DDT caused were " +"worse than the problems it solved, at least when considering the other, more " +"environmentally friendly ways to solve the problems that DDT was meant to " +"solve." +msgstr "" + +#. f7 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6334 +msgid "" +"See, for example, James Boyle, \"A Politics of Intellectual Property: " +"Environmentalism for the Net?\" Duke Law Journal 47 (1997): 87." +msgstr "" + +#. PAGE BREAK 141 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6330 +msgid "" +"It is to this image precisely that Duke University law professor James Boyle " +"appeals when he argues that we need an \"environmentalism\" for " +"culture.<placeholder type=\"footnote\" id=\"0\"/> His point, and the point I " +"want to develop in the balance of this chapter, is not that the aims of " +"copyright are flawed. Or that authors should not be paid for their work. Or " +"that music should be given away \"for free.\" The point is that some of the " +"ways in which we might protect authors will have unintended consequences for " +"the cultural environment, much like DDT had for the natural environment. And " +"just as criticism of DDT is not an endorsement of malaria or an attack on " +"farmers, so, too, is criticism of one particular set of regulations " +"protecting copyright not an endorsement of anarchy or an attack on authors. " +"It is an environment of creativity that we seek, and we should be aware of " +"our actions' effects on the environment." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6351 +msgid "" +"My argument, in the balance of this chapter, tries to map exactly this " +"effect. No doubt the technology of the Internet has had a dramatic effect on " +"the ability of copyright owners to protect their content. But there should " +"also be little doubt that when you add together the changes in copyright law " +"over time, plus the change in technology that the Internet is undergoing " +"just now, the net effect of these changes will not be only that copyrighted " +"work is effectively protected. Also, and generally missed, the net effect of " +"this massive increase in protection will be devastating to the environment " +"for creativity." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6362 +msgid "" +"In a line: To kill a gnat, we are spraying DDT with consequences for free " +"culture that will be far more devastating than that this gnat will be lost." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:6368 +msgid "Beginnings" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6370 +msgid "" +"America copied English copyright law. Actually, we copied and improved " +"English copyright law. Our Constitution makes the purpose of \"creative " +"property\" rights clear; its express limitations reinforce the English aim " +"to avoid overly powerful publishers." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6376 +msgid "" +"The power to establish \"creative property\" rights is granted to Congress " +"in a way that, for our Constitution, at least, is very odd. Article I, " +"section 8, clause 8 of our Constitution states that:" +msgstr "" + +#. PAGE BREAK 142 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6381 +msgid "" +"Congress has the power to promote the Progress of Science and useful Arts, " +"by securing for limited Times to Authors and Inventors the exclusive Right " +"to their respective Writings and Discoveries. We can call this the " +"\"Progress Clause,\" for notice what this clause does not say. It does not " +"say Congress has the power to grant \"creative property rights.\" It says " +"that Congress has the power to promote progress. The grant of power is its " +"purpose, and its purpose is a public one, not the purpose of enriching " +"publishers, nor even primarily the purpose of rewarding authors." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6394 +msgid "" +"The Progress Clause expressly limits the term of copyrights. As we saw in " +"chapter 6, the English limited the term of copyright so as to assure that a " +"few would not exercise disproportionate control over culture by exercising " +"disproportionate control over publishing. We can assume the framers followed " +"the English for a similar purpose. Indeed, unlike the English, the framers " +"reinforced that objective, by requiring that copyrights extend \"to " +"Authors\" only." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6403 +msgid "" +"The design of the Progress Clause reflects something about the " +"Constitution's design in general. To avoid a problem, the framers built " +"structure. To prevent the concentrated power of publishers, they built a " +"structure that kept copyrights away from publishers and kept them short. To " +"prevent the concentrated power of a church, they banned the federal " +"government from establishing a church. To prevent concentrating power in the " +"federal government, they built structures to reinforce the power of the " +"states—including the Senate, whose members were at the time selected " +"by the states, and an electoral college, also selected by the states, to " +"select the president. In each case, a structure built checks and balances " +"into the constitutional frame, structured to prevent otherwise inevitable " +"concentrations of power." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6418 +msgid "" +"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." +msgstr "" + +#. PAGE BREAK 143 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6425 +msgid "" +"Some of these changes come from the law: some in light of changes in " +"technology, and some in light of changes in technology given a particular " +"concentration of market power. In terms of our model, we started here:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6436 +msgid "We will end here:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6439 +msgid ""Copyright" today." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:6440 +msgid "<graphic fileref=\"images/1442.png\"></graphic>" +msgstr "" + +#. PAGE BREAK 144 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6443 +msgid "Let me explain how." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:6448 +msgid "Law: Duration" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:6463 +msgid "Crosskey, William W." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6458 +msgid "" +"William W. Crosskey, Politics and the Constitution in the History of the " +"United States (London: Cambridge University Press, 1953), vol. 1, " +"485–86: \"extinguish[ing], by plain implication of `the supreme Law of " +"the Land,' the perpetual rights which authors had, or were supposed by some " +"to have, under the Common Law\" (emphasis added). <placeholder " +"type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6450 +msgid "" +"When the first Congress enacted laws to protect creative property, it faced " +"the same uncertainty about the status of creative property that the English " +"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.<placeholder " +"type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6473 +msgid "" +"That uncertainty ended after Congress passed legislation granting " +"copyrights. Because federal law overrides any contrary state law, federal " +"protections for copyrighted works displaced any state law protections. Just " +"as in England the Statute of Anne eventually meant that the copyrights for " +"all English works expired, a federal statute meant that any state copyrights " +"expired as well." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6481 +msgid "" +"In 1790, Congress enacted the first copyright law. It created a federal " +"copyright and secured that copyright for fourteen years. If the author was " +"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." +msgstr "" + +#. f9 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6496 +msgid "" +"Although 13,000 titles were published in the United States from 1790 to " +"1799, only 556 copyright registrations were filed; John Tebbel, A History of " +"Book Publishing in the United States, vol. 1, The Creation of an Industry, " +"1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints " +"recorded before 1790, only twelve were copyrighted under the 1790 act; " +"William J. Maher, Copyright Term, Retrospective Extension and the Copyright " +"Law of 1790 in Historical Context, 7–10 (2002), available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #25</ulink>. Thus, the " +"overwhelming majority of works fell immediately into the public domain. Even " +"those works that were copyrighted fell into the public domain quickly, " +"because the term of copyright was short. The initial term of copyright was " +"fourteen years, with the option of renewal for an additional fourteen " +"years. Copyright Act of May 31, 1790, §1, 1 stat. 124." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6488 +msgid "" +"While there were many works created in the United States in the first ten " +"years of the Republic, only 5 percent of the works were actually registered " +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 145 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6512 +msgid "" +"This system of renewal was a crucial part of the American system of " +"copyright. It assured that the maximum terms of copyright would be granted " +"only for works where they were wanted. After the initial term of fourteen " +"years, if it wasn't worth it to an author to renew his copyright, then it " +"wasn't worth it to society to insist on the copyright, either." +msgstr "" + +#. f10 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6527 +msgid "" +"Few copyright holders ever chose to renew their copyrights. For instance, of " +"the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For " +"a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, " +"\"Study No. 31: Renewal of Copyright,\" Studies on Copyright, vol. 1 (New " +"York: Practicing Law Institute, 1963), 618. For a more recent and " +"comprehensive analysis, see William M. Landes and Richard A. Posner, " +"\"Indefinitely Renewable Copyright,\" University of Chicago Law Review 70 " +"(2003): 471, 498–501, and accompanying figures." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6521 +msgid "" +"Fourteen years may not seem long to us, but for the vast majority of " +"copyright owners at that time, it was long enough: Only a small minority of " +"them renewed their copyright after fourteen years; the balance allowed their " +"work to pass into the public domain.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. f11 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6542 +msgid "See Ringer, ch. 9, n. 2." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6538 +msgid "" +"Even today, this structure would make sense. Most creative work has an " +"actual commercial life of just a couple of years. Most books fall out of " +"print after one year.<placeholder type=\"footnote\" id=\"0\"/> When that " +"happens, the used books are traded free of copyright regulation. Thus the " +"books are no longer effectively controlled by copyright. The only practical " +"commercial use of the books at that time is to sell the books as used books; " +"that use—because it does not involve publication—is effectively " +"free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6550 +msgid "" +"In the first hundred years of the Republic, the term of copyright was " +"changed once. In 1831, the term was increased from a maximum of 28 years to " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6558 +msgid "" +"Then, beginning in 1962, Congress started a practice that has defined " +"copyright law since. Eleven times in the last forty years, Congress has " +"extended the terms of existing copyrights; twice in those forty years, " +"Congress extended the term of future copyrights. Initially, the extensions " +"of existing copyrights were short, a mere one to two years. In 1976, " +"Congress extended all existing copyrights by nineteen years. And in 1998, " +"in the Sonny Bono Copyright Term Extension Act, Congress extended the term " +"of existing and future copyrights by twenty years." +msgstr "" + +#. PAGE BREAK 146 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6568 +msgid "" +"The effect of these extensions is simply to toll, or delay, the passing of " +"works into the public domain. This latest extension means that the public " +"domain will have been tolled for thirty-nine out of fifty-five years, or 70 " +"percent of the time since 1962. Thus, in the twenty years after the Sonny " +"Bono Act, while one million patents will pass into the public domain, zero " +"copyrights will pass into the public domain by virtue of the expiration of a " +"copyright term." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6579 +msgid "" +"The effect of these extensions has been exacerbated by another, " +"little-noticed change in the copyright law. Remember I said that the framers " +"established a two-part copyright regime, requiring a copyright owner to " +"renew his copyright after an initial term. The requirement of renewal meant " +"that works that no longer needed copyright protection would pass more " +"quickly into the public domain. The works remaining under protection would " +"be those that had some continuing commercial value." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6589 +msgid "" +"The United States abandoned this sensible system in 1976. For all works " +"created after 1978, there was only one copyright term—the maximum " +"term. For \"natural\" authors, that term was life plus fifty years. For " +"corporations, the term was seventy-five years. Then, in 1992, Congress " +"abandoned the renewal requirement for all works created before 1978. All " +"works still under copyright would be accorded the maximum term then " +"available. After the Sonny Bono Act, that term was ninety-five years." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6599 +msgid "" +"This change meant that American law no longer had an automatic way to assure " +"that works that were no longer exploited passed into the public domain. And " +"indeed, after these changes, it is unclear whether it is even possible to " +"put works into the public domain. The public domain is orphaned by these " +"changes in copyright law. Despite the requirement that terms be \"limited,\" " +"we have no evidence that anything will limit them." +msgstr "" + +#. f12 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6616 +msgid "" +"These statistics are understated. Between the years 1910 and 1962 (the first " +"year the renewal term was extended), the average term was never more than " +"thirty-two years, and averaged thirty years. See Landes and Posner, " +"\"Indefinitely Renewable Copyright,\" loc. cit." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6608 +msgid "" +"The effect of these changes on the average duration of copyright is " +"dramatic. In 1973, more than 85 percent of copyright owners failed to renew " +"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.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:6625 +msgid "Law: Scope" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6627 +msgid "" +"The \"scope\" of a copyright is the range of rights granted by the law. The " +"scope of American copyright has changed dramatically. Those changes are not " +"necessarily bad. But we should understand the extent of the changes if we're " +"to keep this debate in context." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6633 +msgid "" +"In 1790, that scope was very narrow. Copyright covered only \"maps, charts, " +"and books.\" That means it didn't cover, for example, music or " +"architecture. More significantly, the right granted by a copyright gave the " +"author the exclusive right to \"publish\" copyrighted works. That means " +"someone else violated the copyright only if he republished the work without " +"the copyright owner's permission. Finally, the right granted by a copyright " +"was an exclusive right to that particular book. The right did not extend to " +"what lawyers call \"derivative works.\" It would not, therefore, interfere " +"with the right of someone other than the author to translate a copyrighted " +"book, or to adapt the story to a different form (such as a drama based on a " +"published book)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6646 +msgid "" +"This, too, has changed dramatically. While the contours of copyright today " +"are extremely hard to describe simply, in general terms, the right covers " +"practically any creative work that is reduced to a tangible form. It covers " +"music as well as architecture, drama as well as computer programs. It gives " +"the copyright owner of that creative work not only the exclusive right to " +"\"publish\" the work, but also the exclusive right of control over any " +"\"copies\" of that work. And most significant for our purposes here, the " +"right gives the copyright owner control over not only his or her particular " +"work, but also any \"derivative work\" that might grow out of the original " +"work. In this way, the right covers more creative work, protects the " +"creative work more broadly, and protects works that are based in a " +"significant way on the initial creative work." +msgstr "" + +#. PAGE BREAK 148 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6661 +msgid "" +"At the same time that the scope of copyright has expanded, procedural " +"limitations on the right have been relaxed. I've already described the " +"complete removal of the renewal requirement in 1992. In addition to the " +"renewal requirement, for most of the history of American copyright law, " +"there was a requirement that a work be registered before it could receive " +"the protection of a copyright. There was also a requirement that any " +"copyrighted work be marked either with that famous © or the word " +"copyright. And for most of the history of American copyright law, there was " +"a requirement that works be deposited with the government before a copyright " +"could be secured." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6674 +msgid "" +"The reason for the registration requirement was the sensible understanding " +"that for most works, no copyright was required. Again, in the first ten " +"years of the Republic, 95 percent of works eligible for copyright were never " +"copyrighted. Thus, the rule reflected the norm: Most works apparently didn't " +"need copyright, so registration narrowed the regulation of the law to the " +"few that did. The same reasoning justified the requirement that a work be " +"marked as copyrighted—that way it was easy to know whether a copyright " +"was being claimed. The requirement that works be deposited was to assure " +"that after the copyright expired, there would be a copy of the work " +"somewhere so that it could be copied by others without locating the original " +"author." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6688 +msgid "" +"All of these \"formalities\" were abolished in the American system when we " +"decided to follow European copyright law. There is no requirement that you " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6696 +msgid "Consider a practical example to understand the scope of these differences." +msgstr "" + +#. f13 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6707 +msgid "" +"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)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6700 +msgid "" +"If, in 1790, you wrote a book and you were one of the 5 percent who actually " +"copyrighted that book, then the copyright law protected you against another " +"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.<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. PAGE BREAK 149 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6720 +msgid "" +"The act left other creators totally unregulated. If I copied your poem by " +"hand, over and over again, as a way to learn it by heart, my act was totally " +"unregulated by the 1790 act. If I took your novel and made a play based upon " +"it, or if I translated it or abridged it, none of those activities were " +"regulated by the original copyright act. These creative activities remained " +"free, while the activities of publishers were restrained." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6730 +msgid "" +"Today the story is very different: If you write a book, your book is " +"automatically protected. Indeed, not just your book. Every e-mail, every " +"note to your spouse, every doodle, every creative act that's reduced to a " +"tangible form—all of this is automatically copyrighted. There is no " +"need to register or mark your work. The protection follows the creation, not " +"the steps you take to protect it." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6739 +msgid "" +"That protection gives you the right (subject to a narrow range of fair use " +"exceptions) to control how others copy the work, whether they copy it to " +"republish it or to share an excerpt." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6744 +msgid "" +"That much is the obvious part. Any system of copyright would control " +"competing publishing. But there's a second part to the copyright of today " +"that is not at all obvious. This is the protection of \"derivative rights.\" " +"If you write a book, no one can make a movie out of your book without " +"permission. No one can translate it without permission. CliffsNotes can't " +"make an abridgment unless permission is granted. All of these derivative " +"uses of your original work are controlled by the copyright holder. The " +"copyright, in other words, is now not just an exclusive right to your " +"writings, but an exclusive right to your writings and a large proportion of " +"the writings inspired by them." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6758 +msgid "" +"It is this derivative right that would seem most bizarre to our framers, " +"though it has become second nature to us. Initially, this expansion was " +"created to deal with obvious evasions of a narrower copyright. If I write a " +"book, can you change one word and then claim a copyright in a new and " +"different book? Obviously that would make a joke of the copyright, so the " +"law was properly expanded to include those slight modifications as well as " +"the verbatim original work." +msgstr "" + +#. f14 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6781 +msgid "" +"Jonathan Zittrain, \"The Copyright Cage,\" Legal Affairs, July/August 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #26</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6771 +msgid "" +"In preventing that joke, the law created an astonishing power within a free " +"culture—at least, it's astonishing when you understand that the law " +"applies not just to the commercial publisher but to anyone with a " +"computer. I understand the wrong in duplicating and selling someone else's " +"work. But whatever that wrong is, transforming someone else's work is a " +"different wrong. Some view transformation as no wrong at all—they " +"believe that our law, as the framers penned it, should not protect " +"derivative rights at all.<placeholder type=\"footnote\" id=\"0\"/> Whether " +"or not you go that far, it seems plain that whatever wrong is involved is " +"fundamentally different from the wrong of direct piracy." +msgstr "" + +#. f15 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6796 +msgid "" +"Professor Rubenfeld has presented a powerful constitutional argument about " +"the difference that copyright law should draw (from the perspective of the " +"First Amendment) between mere \"copies\" and derivative works. See Jed " +"Rubenfeld, \"The Freedom of Imagination: Copyright's Constitutionality,\" " +"Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6790 +msgid "" +"Yet copyright law treats these two different wrongs in the same way. I can " +"go to court and get an injunction against your pirating my book. I can go to " +"court and get an injunction against your transformative use of my " +"book.<placeholder type=\"footnote\" id=\"0\"/> These two different uses of " +"my creative work are treated the same." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6807 +msgid "" +"This again may seem right to you. If I wrote a book, then why should you be " +"able to write a movie that takes my story and makes money from it without " +"paying me or crediting me? Or if Disney creates a creature called \"Mickey " +"Mouse,\" why should you be able to make Mickey Mouse toys and be the one to " +"trade on the value that Disney originally created?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6816 +msgid "" +"These are good arguments, and, in general, my point is not that the " +"derivative right is unjustified. My aim just now is much narrower: simply to " +"make clear that this expansion is a significant change from the rights " +"originally granted." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:6824 +msgid "Law and Architecture: Reach" +msgstr "" + +#. f16 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6831 +msgid "" +"This is a simplification of the law, but not much of one. The law certainly " +"regulates more than \"copies\"—a public performance of a copyrighted " +"song, for example, is regulated even though performance per se doesn't make " +"a copy; 17 United States Code, section 106(4). And it certainly sometimes " +"doesn't regulate a \"copy\"; 17 United States Code, section 112(a). But the " +"presumption under the existing law (which regulates \"copies;\" 17 United " +"States Code, section 102) is that if there is a copy, there is a right." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6826 +msgid "" +"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.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 151 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6843 +msgid "" +"\"Copies.\" That certainly sounds like the obvious thing for copyright law " +"to regulate. But as with Jack Valenti's argument at the start of this " +"chapter, that \"creative property\" deserves the \"same rights\" as all " +"other property, it is the obvious that we need to be most careful about. For " +"while it may be obvious that in the world before the Internet, copies were " +"the obvious trigger for copyright law, upon reflection, it should be obvious " +"that in the world with the Internet, copies should not be the trigger for " +"copyright law. More precisely, they should not always be the trigger for " +"copyright law." +msgstr "" + +#. f17 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6859 +msgid "" +"Thus, my argument is not that in each place that copyright law extends, we " +"should repeal it. It is instead that we should have a good argument for its " +"extending where it does, and should not determine its reach on the basis of " +"arbitrary and automatic changes caused by technology." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6854 +msgid "" +"This is perhaps the central claim of this book, so let me take this very " +"slowly so that the point is not easily missed. My claim is that the Internet " +"should at least force us to rethink the conditions under which the law of " +"copyright automatically applies,<placeholder type=\"footnote\" id=\"0\"/> " +"because it is clear that the current reach of copyright was never " +"contemplated, much less chosen, by the legislators who enacted copyright " +"law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6870 +msgid "" +"We can see this point abstractly by beginning with this largely empty " +"circle." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6874 +msgid "All potential uses of a book." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:6875 +msgid "<graphic fileref=\"images/1521.png\"></graphic>" +msgstr "" + +#. PAGE BREAK 152 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6879 +msgid "" +"Think about a book in real space, and imagine this circle to represent all " +"its potential uses. Most of these uses are unregulated by copyright law, " +"because the uses don't create a copy. If you read a book, that act is not " +"regulated by copyright law. If you give someone the book, that act is not " +"regulated by copyright law. If you resell a book, that act is not regulated " +"(copyright law expressly states that after the first sale of a book, the " +"copyright owner can impose no further conditions on the disposition of the " +"book). If you sleep on the book or use it to hold up a lamp or let your " +"puppy chew it up, those acts are not regulated by copyright law, because " +"those acts do not make a copy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6892 +msgid "Examples of unregulated uses of a book." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:6893 +msgid "<graphic fileref=\"images/1531.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6896 +msgid "" +"Obviously, however, some uses of a copyrighted book are regulated by " +"copyright law. Republishing the book, for example, makes a copy. It is " +"therefore regulated by copyright law. Indeed, this particular use stands at " +"the core of this circle of possible uses of a copyrighted work. It is the " +"paradigmatic use properly regulated by copyright regulation (see first " +"diagram on next page)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6904 +msgid "" +"Finally, there is a tiny sliver of otherwise regulated copying uses that " +"remain unregulated because the law considers these \"fair uses.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6909 +msgid "" +"Republishing stands at the core of this circle of possible uses of a " +"copyrighted work." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:6910 +msgid "<graphic fileref=\"images/1541.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6913 +msgid "" +"These are uses that themselves involve copying, but which the law treats as " +"unregulated because public policy demands that they remain unregulated. You " +"are free to quote from this book, even in a review that is quite negative, " +"without my permission, even though that quoting makes a copy. That copy " +"would ordinarily give the copyright owner the exclusive right to say whether " +"the copy is allowed or not, but the law denies the owner any exclusive right " +"over such \"fair uses\" for public policy (and possibly First Amendment) " +"reasons." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6924 +msgid "Unregulated copying considered "fair uses."" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:6925 +msgid "<graphic fileref=\"images/1542.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:6929 +msgid "" +"Uses that before were presumptively unregulated are now presumptively " +"regulated." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:6930 +msgid "<graphic fileref=\"images/1551.png\"></graphic>" +msgstr "" + +#. PAGE BREAK 154 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6934 +msgid "" +"In real space, then, the possible uses of a book are divided into three " +"sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that " +"are nonetheless deemed \"fair\" regardless of the copyright owner's views." +msgstr "" + +#. f18 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:6942 +msgid "" +"I don't mean \"nature\" in the sense that it couldn't be different, but " +"rather that its present instantiation entails a copy. Optical networks need " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6939 +msgid "" +"Enter the Internet—a distributed, digital network where every use of a " +"copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> " +"And because of this single, arbitrary feature of the design of a digital " +"network, the scope of category 1 changes dramatically. Uses that before were " +"presumptively unregulated are now presumptively regulated. No longer is " +"there a set of presumptively unregulated uses that define a freedom " +"associated with a copyrighted work. Instead, each use is now subject to the " +"copyright, because each use also makes a copy—category 1 gets sucked " +"into category 2. And those who would defend the unregulated uses of " +"copyrighted work must look exclusively to category 3, fair uses, to bear the " +"burden of this shift." +msgstr "" + +#. PAGE BREAK 155 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6963 +msgid "" +"So let's be very specific to make this general point clear. Before the " +"Internet, if you purchased a book and read it ten times, there would be no " +"plausible copyright-related argument that the copyright owner could make to " +"control that use of her book. Copyright law would have nothing to say about " +"whether you read the book once, ten times, or every night before you went to " +"bed. None of those instances of use—reading— could be regulated " +"by copyright law because none of those uses produced a copy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6976 +msgid "" +"But the same book as an e-book is effectively governed by a different set of " +"rules. Now if the copyright owner says you may read the book only once or " +"only once a month, then copyright law would aid the copyright owner in " +"exercising this degree of control, because of the accidental feature of " +"copyright law that triggers its application upon there being a copy. Now if " +"you read the book ten times and the license says you may read it only five " +"times, then whenever you read the book (or any portion of it) beyond the " +"fifth time, you are making a copy of the book contrary to the copyright " +"owner's wish." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6990 +msgid "" +"There are some people who think this makes perfect sense. My aim just now is " +"not to argue about whether it makes sense or not. My aim is only to make " +"clear the change. Once you see this point, a few other points also become " +"clear:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:6996 +msgid "" +"First, making category 1 disappear is not anything any policy maker ever " +"intended. Congress did not think through the collapse of the presumptively " +"unregulated uses of copyrighted works. There is no evidence at all that " +"policy makers had this idea in mind when they allowed our policy here to " +"shift. Unregulated uses were an important part of free culture before the " +"Internet." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7006 +msgid "" +"Second, this shift is especially troubling in the context of transformative " +"uses of creative content. Again, we can all understand the wrong in " +"commercial piracy. But the law now purports to regulate any transformation " +"you make of creative work using a machine. \"Copy and paste\" and \"cut and " +"paste\" become crimes. Tinkering with a story and releasing it to others " +"exposes the tinkerer to at least a requirement of justification. However " +"troubling the expansion with respect to copying a particular work, it is " +"extraordinarily troubling with respect to transformative uses of creative " +"work." +msgstr "" + +#. PAGE BREAK 156 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7022 +msgid "" +"Third, this shift from category 1 to category 2 puts an extraordinary burden " +"on category 3 (\"fair use\") that fair use never before had to bear. If a " +"copyright owner now tried to control how many times I could read a book " +"on-line, the natural response would be to argue that this is a violation of " +"my fair use rights. But there has never been any litigation about whether I " +"have a fair use right to read, because before the Internet, reading did not " +"trigger the application of copyright law and hence the need for a fair use " +"defense. The right to read was effectively protected before because reading " +"was not regulated." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7037 +msgid "" +"This point about fair use is totally ignored, even by advocates for free " +"culture. We have been cornered into arguing that our rights depend upon fair " +"use—never even addressing the earlier question about the expansion in " +"effective regulation. A thin protection grounded in fair use makes sense " +"when the vast majority of uses are unregulated. But when everything becomes " +"presumptively regulated, then the protections of fair use are not enough." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7048 +msgid "" +"The case of Video Pipeline is a good example. Video Pipeline was in the " +"business of making \"trailer\" advertisements for movies available to video " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7055 +msgid "" +"The company did this for about fifteen years. Then, in 1997, it began to " +"think about the Internet as another way to distribute these previews. The " +"idea was to expand their \"selling by sampling\" technique by giving on-line " +"stores the same ability to enable \"browsing.\" Just as in a bookstore you " +"can read a few pages of a book before you buy the book, so, too, you would " +"be able to sample a bit from the movie on-line before you bought it." +msgstr "" + +#. PAGE BREAK 157 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7067 +msgid "" +"In 1998, Video Pipeline informed Disney and other film distributors that it " +"intended to distribute the trailers through the Internet (rather than " +"sending the tapes) to distributors of their videos. Two years later, Disney " +"told Video Pipeline to stop. The owner of Video Pipeline asked Disney to " +"talk about the matter—he had built a business on distributing this " +"content as a way to help sell Disney films; he had customers who depended " +"upon his delivering this content. Disney would agree to talk only if Video " +"Pipeline stopped the distribution immediately. Video Pipeline thought it " +"was within their \"fair use\" rights to distribute the clips as they had. So " +"they filed a lawsuit to ask the court to declare that these rights were in " +"fact their rights." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7084 +msgid "" +"Disney countersued—for $100 million in damages. Those damages were " +"predicated upon a claim that Video Pipeline had \"willfully infringed\" on " +"Disney's copyright. When a court makes a finding of willful infringement, it " +"can award damages not on the basis of the actual harm to the copyright " +"owner, but on the basis of an amount set in the statute. Because Video " +"Pipeline had distributed seven hundred clips of Disney movies to enable " +"video stores to sell copies of those movies, Disney was now suing Video " +"Pipeline for $100 million." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7096 +msgid "" +"Disney has the right to control its property, of course. But the video " +"stores that were selling Disney's films also had some sort of right to be " +"able to sell the films that they had bought from Disney. Disney's claim in " +"court was that the stores were allowed to sell the films and they were " +"permitted to list the titles of the films they were selling, but they were " +"not allowed to show clips of the films as a way of selling them without " +"Disney's permission." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7105 +msgid "" +"Now, you might think this is a close case, and I think the courts would " +"consider it a close case. My point here is to map the change that gives " +"Disney this power. Before the Internet, Disney couldn't really control how " +"people got access to their content. Once a video was in the marketplace, the " +"\"first-sale doctrine\" would free the seller to use the video as he wished, " +"including showing portions of it in order to engender sales of the entire " +"movie video. But with the Internet, it becomes possible for Disney to " +"centralize control over access to this content. Because each use of the " +"Internet produces a copy, use on the Internet becomes subject to the " +"copyright owner's control. The technology expands the scope of effective " +"control, because the technology builds a copy into every transaction." +msgstr "" + +#. PAGE BREAK 158 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7120 +msgid "" +"No doubt, a potential is not yet an abuse, and so the potential for control " +"is not yet the abuse of control. Barnes & Noble has the right to say you " +"can't touch a book in their store; property law gives them that right. But " +"the market effectively protects against that abuse. If Barnes & Noble " +"banned browsing, then consumers would choose other bookstores. Competition " +"protects against the extremes. And it may well be (my argument so far does " +"not even question this) that competition would prevent any similar danger " +"when it comes to copyright. Sure, publishers exercising the rights that " +"authors have assigned to them might try to regulate how many times you read " +"a book, or try to stop you from sharing the book with anyone. But in a " +"competitive market such as the book market, the dangers of this happening " +"are quite slight." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7138 +msgid "" +"Again, my aim so far is simply to map the changes that this changed " +"architecture enables. Enabling technology to enforce the control of " +"copyright means that the control of copyright is no longer defined by " +"balanced policy. The control of copyright is simply what private owners " +"choose. In some contexts, at least, that fact is harmless. But in some " +"contexts it is a recipe for disaster." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:7148 +msgid "Architecture and Law: Force" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7150 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7156 +msgid "" +"In the world before digital technology, it was generally the law that " +"controlled whether and how someone was regulated by copyright law. The law, " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:7163 +msgid "Casablanca" +msgstr "" + +#. f19 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7172 +msgid "" +"See David Lange, \"Recognizing the Public Domain,\" Law and Contemporary " +"Problems 44 (1981): 172–73." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7165 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f20 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7182 +msgid "Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7178 +msgid "" +"This led the Marx Brothers to respond in kind. They warned Warner Brothers " +"that the Marx Brothers \"were brothers long before you were.\"<placeholder " +"type=\"footnote\" id=\"0\"/> The Marx Brothers therefore owned the word " +"brothers, and if Warner Brothers insisted on trying to control Casablanca, " +"then the Marx Brothers would insist on control over brothers." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7189 +msgid "" +"An absurd and hollow threat, of course, because Warner Brothers, like the " +"Marx Brothers, knew that no court would ever enforce such a silly " +"claim. This extremism was irrelevant to the real freedoms anyone (including " +"Warner Brothers) enjoyed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7195 +msgid "" +"On the Internet, however, there is no check on silly rules, because on the " +"Internet, increasingly, rules are enforced not by a human but by a machine: " +"Increasingly, the rules of copyright law, as interpreted by the copyright " +"owner, get built into the technology that delivers copyrighted content. It " +"is code, rather than law, that rules. And the problem with code regulations " +"is that, unlike law, code has no shame. Code would not get the humor of the " +"Marx Brothers. The consequence of that is not at all funny." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7206 +msgid "Consider the life of my Adobe eBook Reader." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7209 +msgid "" +"An e-book is a book delivered in electronic form. An Adobe eBook is not a " +"book that Adobe has published; Adobe simply produces the software that " +"publishers use to deliver e-books. It provides the technology, and the " +"publisher delivers the content by using the technology." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7216 +msgid "On the next page is a picture of an old version of my Adobe eBook Reader." +msgstr "" + +#. PAGE BREAK 160 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7220 +msgid "" +"As you can see, I have a small collection of e-books within this e-book " +"library. Some of these books reproduce content that is in the public domain: " +"Middlemarch, for example, is in the public domain. Some of them reproduce " +"content that is not in the public domain: My own book The Future of Ideas is " +"not yet within the public domain. Consider Middlemarch first. If you click " +"on my e-book copy of Middlemarch, you'll see a fancy cover, and then a " +"button at the bottom called Permissions." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7231 +msgid "Picture of an old version of Adobe eBook Reader" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7232 +msgid "<graphic fileref=\"images/1611.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7235 +msgid "" +"If you click on the Permissions button, you'll see a list of the permissions " +"that the publisher purports to grant with this book." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7239 +msgid "List of the permissions that the publisher purports to grant." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7240 +msgid "<graphic fileref=\"images/1612.png\"></graphic>" +msgstr "" + +#. PAGE BREAK 161 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7244 +msgid "" +"According to my eBook Reader, I have the permission to copy to the clipboard " +"of the computer ten text selections every ten days. (So far, I've copied no " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7260 +msgid "" +"Here's the e-book for another work in the public domain (including the " +"translation): Aristotle's Politics." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7264 +msgid "E-book of Aristotle;s "Politics"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7265 +msgid "<graphic fileref=\"images/1621.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7268 +msgid "" +"According to its permissions, no printing or copying is permitted at " +"all. But fortunately, you can use the Read Aloud button to hear the book." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7273 +msgid "List of the permissions for Aristotle;s "Politics"." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7274 +msgid "<graphic fileref=\"images/1622.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7277 +msgid "" +"Finally (and most embarrassingly), here are the permissions for the original " +"e-book version of my last book, The Future of Ideas:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7282 +msgid "List of the permissions for "The Future of Ideas"." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7283 +msgid "<graphic fileref=\"images/1631.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7286 +msgid "No copying, no printing, and don't you dare try to listen to this book!" +msgstr "" + +#. f21 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7296 +msgid "" +"In principle, a contract might impose a requirement on me. I might, for " +"example, buy a book from you that includes a contract that says I will read " +"it only three times, or that I promise to read it three times. But that " +"obligation (and the limits for creating that obligation) would come from the " +"contract, not from copyright law, and the obligations of contract would not " +"necessarily pass to anyone who subsequently acquired the book." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7289 +msgid "" +"Now, the Adobe eBook Reader calls these controls \"permissions\"— as " +"if the publisher has the power to control how you use these works. For " +"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.<placeholder type=\"footnote\" " +"id=\"0\"/> When my e-book of Middlemarch says I have the permission to copy " +"only ten text selections into the memory every ten days, what that really " +"means is that the eBook Reader has enabled the publisher to control how I " +"use the book on my computer, far beyond the control that the law would " +"enable." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7311 +msgid "" +"The control comes instead from the code—from the technology within " +"which the e-book \"lives.\" Though the e-book says that these are " +"permissions, they are not the sort of \"permissions\" that most of us deal " +"with. When a teenager gets \"permission\" to stay out till midnight, she " +"knows (unless she's Cinderella) that she can stay out till 2 A.M., but will " +"suffer a punishment if she's caught. But when the Adobe eBook Reader says I " +"have the permission to make ten copies of the text into the computer's " +"memory, that means that after I've made ten copies, the computer will not " +"make any more. The same with the printing restrictions: After ten pages, the " +"eBook Reader will not print any more pages. It's the same with the silly " +"restriction that says that you can't use the Read Aloud button to read my " +"book aloud—it's not that the company will sue you if you do; instead, " +"if you push the Read Aloud button with my book, the machine simply won't " +"read aloud." +msgstr "" + +#. PAGE BREAK 163 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7329 +msgid "" +"These are controls, not permissions. Imagine a world where the Marx Brothers " +"sold word processing software that, when you tried to type \"Warner " +"Brothers,\" erased \"Brothers\" from the sentence." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7334 +msgid "" +"This is the future of copyright law: not so much copyright law as copyright " +"code. The controls over access to content will not be controls that are " +"ratified by courts; the controls over access to content will be controls " +"that are coded by programmers. And whereas the controls that are built into " +"the law are always to be checked by a judge, the controls that are built " +"into the technology have no similar built-in check." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7342 +msgid "" +"How significant is this? Isn't it always possible to get around the controls " +"built into the technology? Software used to be sold with technologies that " +"limited the ability of users to copy the software, but those were trivial " +"protections to defeat. Why won't it be trivial to defeat these protections " +"as well?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7350 +msgid "" +"We've only scratched the surface of this story. Return to the Adobe eBook " +"Reader." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7354 +msgid "" +"Early in the life of the Adobe eBook Reader, Adobe suffered a public " +"relations nightmare. Among the books that you could download for free on the " +"Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful " +"book is in the public domain. Yet when you clicked on Permissions for that " +"book, you got the following report:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7362 +msgid "List of the permissions for "Alice's Adventures in Wonderland"." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7364 +msgid "<graphic fileref=\"images/1641.png\"></graphic>" +msgstr "" + +#. PAGE BREAK 164 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7368 +msgid "" +"Here was a public domain children's book that you were not allowed to copy, " +"not allowed to lend, not allowed to give, and, as the \"permissions\" " +"indicated, not allowed to \"read aloud\"!" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7375 +msgid "" +"The public relations nightmare attached to that final permission. For the " +"text did not say that you were not permitted to use the Read Aloud button; " +"it said you did not have the permission to read the book aloud. That led " +"some people to think that Adobe was restricting the right of parents, for " +"example, to read the book to their children, which seemed, to say the least, " +"absurd." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7383 +msgid "" +"Adobe responded quickly that it was absurd to think that it was trying to " +"restrict the right to read a book aloud. Obviously it was only restricting " +"the ability to use the Read Aloud button to have the book read aloud. But " +"the question Adobe never did answer is this: Would Adobe thus agree that a " +"consumer was free to use software to hack around the restrictions built into " +"the eBook Reader? If some company (call it Elcomsoft) developed a program to " +"disable the technological protection built into an Adobe eBook so that a " +"blind person, say, could use a computer to read the book aloud, would Adobe " +"agree that such a use of an eBook Reader was fair? Adobe didn't answer " +"because the answer, however absurd it might seem, is no." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7396 +msgid "" +"The point is not to blame Adobe. Indeed, Adobe is among the most innovative " +"companies developing strategies to balance open access to content with " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7404 +msgid "" +"To see the point in a particularly absurd context, consider a favorite story " +"of mine that makes the same point." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:7407 freeculture.xml:7449 +msgid "Aibo robotic dog" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7409 +msgid "" +"Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns " +"tricks, cuddles, and follows you around. It eats only electricity and that " +"doesn't leave that much of a mess (at least in your house)." +msgstr "" + +#. PAGE BREAK 165 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7414 +msgid "" +"The Aibo is expensive and popular. Fans from around the world have set up " +"clubs to trade stories. One fan in particular set up a Web site to enable " +"information about the Aibo dog to be shared. This fan set up aibopet.com " +"(and aibohack.com, but that resolves to the same site), and on that site he " +"provided information about how to teach an Aibo to do tricks in addition to " +"the ones Sony had taught it." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7423 +msgid "" +"\"Teach\" here has a special meaning. Aibos are just cute computers. You " +"teach a computer how to do something by programming it differently. So to " +"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)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7431 +msgid "" +"If you're not a programmer or don't know many programmers, the word hack has " +"a particularly unfriendly connotation. Nonprogrammers hack bushes or " +"weeds. Nonprogrammers in horror movies do even worse. But to programmers, or " +"coders, as I call them, hack is a much more positive term. Hack just means " +"code that enables the program to do something it wasn't originally intended " +"or enabled to do. If you buy a new printer for an old computer, you might " +"find the old computer doesn't run, or \"drive,\" the printer. If you " +"discovered that, you'd later be happy to discover a hack on the Net by " +"someone who has written a driver to enable the computer to drive the printer " +"you just bought." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7443 +msgid "" +"Some hacks are easy. Some are unbelievably hard. Hackers as a community like " +"to challenge themselves and others with increasingly difficult " +"tasks. There's a certain respect that goes with the talent to hack " +"well. There's a well-deserved respect that goes with the talent to hack " +"ethically." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7451 +msgid "" +"The Aibo fan was displaying a bit of both when he hacked the program and " +"offered to the world a bit of code that would enable the Aibo to dance " +"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." +msgstr "" + +#. PAGE BREAK 166 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7458 +msgid "" +"I've told this story in many contexts, both inside and outside the United " +"States. Once I was asked by a puzzled member of the audience, is it " +"permissible for a dog to dance jazz in the United States? We forget that " +"stories about the backcountry still flow across much of the world. So let's " +"just be clear before we continue: It's not a crime anywhere (anymore) to " +"dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it " +"be a crime (though we don't have a lot to go on here) to teach your robot " +"dog to dance jazz. Dancing jazz is a completely legal activity. One imagines " +"that the owner of aibopet.com thought, What possible problem could there be " +"with teaching a robot dog to dance?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7474 +msgid "" +"Let's put the dog to sleep for a minute, and turn to a pony show— not " +"literally a pony show, but rather a paper that a Princeton academic named Ed " +"Felten prepared for a conference. This Princeton academic is well known and " +"respected. He was hired by the government in the Microsoft case to test " +"Microsoft's claims about what could and could not be done with its own " +"code. In that trial, he demonstrated both his brilliance and his " +"coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his " +"ground. He was not about to be bullied into being silent about something he " +"knew very well." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> +#: freeculture.xml:7497 freeculture.xml:9925 +msgid "Electronic Frontier Foundation" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7487 +msgid "" +"See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" " +"Science 293 (2001): 2028; Brendan I. Koerner, \"Play Dead: Sony Muzzles the " +"Techies Who Teach a Robot Dog New Tricks,\" American Prospect, January 2002; " +"\"Court Dismisses Computer Scientists' Challenge to DMCA,\" Intellectual " +"Property Litigation Reporter, 11 December 2001; Bill Holland, \"Copyright " +"Act Raising Free-Speech Concerns,\" Billboard, May 2001; Janelle Brown, \"Is " +"the RIAA Running Scared?\" Salon.com, April 2001; Electronic Frontier " +"Foundation, \"Frequently Asked Questions about Felten and USENIX v. RIAA " +"Legal Case,\" available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#27</ulink>. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7485 +msgid "" +"But Felten's bravery was really tested in April 2001.<placeholder " +"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a " +"paper to be submitted at conference. The paper was intended to describe the " +"weakness in an encryption system being developed by the Secure Digital Music " +"Initiative as a technique to control the distribution of music." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7505 +msgid "" +"The SDMI coalition had as its goal a technology to enable content owners to " +"exercise much better control over their content than the Internet, as it " +"originally stood, granted them. Using encryption, SDMI hoped to develop a " +"standard that would allow the content owner to say \"this music cannot be " +"copied,\" and have a computer respect that command. The technology was to " +"be part of a \"trusted system\" of control that would get content owners to " +"trust the system of the Internet much more." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7515 +msgid "" +"When SDMI thought it was close to a standard, it set up a competition. In " +"exchange for providing contestants with the code to an SDMI-encrypted bit of " +"content, contestants were to try to crack it and, if they did, report the " +"problems to the consortium." +msgstr "" + +#. PAGE BREAK 167 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7522 +msgid "" +"Felten and his team figured out the encryption system quickly. He and the " +"team saw the weakness of this system as a type: Many encryption systems " +"would suffer the same weakness, and Felten and his team thought it " +"worthwhile to point this out to those who study encryption." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7528 +msgid "" +"Let's review just what Felten was doing. Again, this is the United " +"States. We have a principle of free speech. We have this principle not just " +"because it is the law, but also because it is a really great idea. A " +"strongly protected tradition of free speech is likely to encourage a wide " +"range of criticism. That criticism is likely, in turn, to improve the " +"systems or people or ideas criticized." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7536 +msgid "" +"What Felten and his colleagues were doing was publishing a paper describing " +"the weakness in a technology. They were not spreading free music, or " +"building and deploying this technology. The paper was an academic essay, " +"unintelligible to most people. But it clearly showed the weakness in the " +"SDMI system, and why SDMI would not, as presently constituted, succeed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7544 +msgid "" +"What links these two, aibopet.com and Felten, is the letters they then " +"received. Aibopet.com received a letter from Sony about the aibopet.com " +"hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:7551 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7557 +msgid "" +"And though an academic paper describing the weakness in a system of " +"encryption should also be perfectly legal, Felten received a letter from an " +"RIAA lawyer that read:" +msgstr "" + +#. PAGE BREAK 168 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:7563 +msgid "" +"Any disclosure of information gained from participating in the Public " +"Challenge would be outside the scope of activities permitted by the " +"Agreement and could subject you and your research team to actions under the " +"Digital Millennium Copyright Act (\"DMCA\")." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7571 +msgid "" +"In both cases, this weirdly Orwellian law was invoked to control the spread " +"of information. The Digital Millennium Copyright Act made spreading such " +"information an offense." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7576 +msgid "" +"The DMCA was enacted as a response to copyright owners' first fear about " +"cyberspace. The fear was that copyright control was effectively dead; the " +"response was to find technologies that might compensate. These new " +"technologies would be copyright protection technologies— technologies " +"to control the replication and distribution of copyrighted material. They " +"were designed as code to modify the original code of the Internet, to " +"reestablish some protection for copyright owners." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7585 +msgid "" +"The DMCA was a bit of law intended to back up the protection of this code " +"designed to protect copyrighted material. It was, we could say, legal code " +"intended to buttress software code which itself was intended to support the " +"legal code of copyright." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7591 +msgid "" +"But the DMCA was not designed merely to protect copyrighted works to the " +"extent copyright law protected them. Its protection, that is, did not end at " +"the line that copyright law drew. The DMCA regulated devices that were " +"designed to circumvent copyright protection measures. It was designed to ban " +"those devices, whether or not the use of the copyrighted material made " +"possible by that circumvention would have been a copyright violation." +msgstr "" + +#. PAGE BREAK 169 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7600 +msgid "" +"Aibopet.com and Felten make the point. The Aibo hack circumvented a " +"copyright protection system for the purpose of enabling the dog to dance " +"jazz. That enablement no doubt involved the use of copyrighted material. But " +"as aibopet.com's site was noncommercial, and the use did not enable " +"subsequent copyright infringements, there's no doubt that aibopet.com's hack " +"was fair use of Sony's copyrighted material. Yet fair use is not a defense " +"to the DMCA. The question is not whether the use of the copyrighted material " +"was a copyright violation. The question is whether a copyright protection " +"system was circumvented." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7612 +msgid "" +"The threat against Felten was more attenuated, but it followed the same line " +"of reasoning. By publishing a paper describing how a copyright protection " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7620 +msgid "" +"The bizarreness of these arguments is captured in a cartoon drawn in 1981 by " +"Paul Conrad. At that time, a court in California had held that the VCR could " +"be banned because it was a copyright-infringing technology: It enabled " +"consumers to copy films without the permission of the copyright owner. No " +"doubt there were uses of the technology that were legal: Fred Rogers, aka " +"\"Mr. Rogers,\" for example, had testified in that case that he wanted " +"people to feel free to tape Mr. Rogers' Neighborhood." +msgstr "" + +#. f23 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:7646 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:7631 +msgid "" +"Some public stations, as well as commercial stations, program the " +"\"Neighborhood\" at hours when some children cannot use it. I think that " +"it's a real service to families to be able to record such programs and show " +"them at appropriate times. I have always felt that with the advent of all of " +"this new technology that allows people to tape the \"Neighborhood\" " +"off-the-air, and I'm speaking for the \"Neighborhood\" because that's what I " +"produce, that they then become much more active in the programming of their " +"family's television life. Very frankly, I am opposed to people being " +"programmed by others. My whole approach in broadcasting has always been " +"\"You are an important person just the way you are. You can make healthy " +"decisions.\" Maybe I'm going on too long, but I just feel that anything that " +"allows a person to be more active in the control of his or her life, in a " +"healthy way, is important.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 170 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7655 +msgid "" +"Even though there were uses that were legal, because there were some uses " +"that were illegal, the court held the companies producing the VCR " +"responsible." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7660 +msgid "This led Conrad to draw the cartoon below, which we can adopt to the DMCA." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7664 +msgid "No argument I have can top this picture, but let me try to get close." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7667 +msgid "" +"The anticircumvention provisions of the DMCA target copyright circumvention " +"technologies. Circumvention technologies can be used for different " +"ends. They can be used, for example, to enable massive pirating of " +"copyrighted material—a bad end. Or they can be used to enable the use " +"of particular copyrighted materials in ways that would be considered fair " +"use—a good end." +msgstr "" + +#. PAGE BREAK 171 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7675 +msgid "" +"A handgun can be used to shoot a police officer or a child. Most would agree " +"such a use is bad. Or a handgun can be used for target practice or to " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7683 +msgid "VCR/handgun cartoon." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7684 +msgid "<graphic fileref=\"images/1711.png\"></graphic>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7687 +msgid "" +"The obvious point of Conrad's cartoon is the weirdness of a world where guns " +"are legal, despite the harm they can do, while VCRs (and circumvention " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7695 +msgid "" +"The Aibo and RIAA examples demonstrate how copyright owners are changing the " +"balance that copyright law grants. Using code, copyright owners restrict " +"fair use; using the DMCA, they punish those who would attempt to evade the " +"restrictions on fair use that they impose through code. Technology becomes a " +"means by which fair use can be erased; the law of the DMCA backs up that " +"erasing." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7703 +msgid "" +"This is how code becomes law. The controls built into the technology of copy " +"and access protection become rules the violation of which is also a " +"violation of the law. In this way, the code extends the law—increasing " +"its regulation, even if the subject it regulates (activities that would " +"otherwise plainly constitute fair use) is beyond the reach of the law. Code " +"becomes law; code extends the law; code thus extends the control that " +"copyright owners effect—at least for those copyright holders with the " +"lawyers who can write the nasty letters that Felten and aibopet.com " +"received." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7713 +msgid "" +"There is one final aspect of the interaction between architecture and law " +"that contributes to the force of copyright's regulation. This is the ease " +"with which infringements of the law can be detected. For contrary to the " +"rhetoric common at the birth of cyberspace that on the Internet, no one " +"knows you're a dog, increasingly, given changing technologies deployed on " +"the Internet, it is easy to find the dog who committed a legal wrong. The " +"technologies of the Internet are open to snoops as well as sharers, and the " +"snoops are increasingly good at tracking down the identity of those who " +"violate the rules." +msgstr "" + +#. f24 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7732 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7726 +msgid "" +"For example, imagine you were part of a Star Trek fan club. You gathered " +"every month to share trivia, and maybe to enact a kind of fan fiction about " +"the show. One person would play Spock, another, Captain Kirk. The characters " +"would begin with a plot from a real story, then simply continue " +"it.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7738 +msgid "" +"Before the Internet, this was, in effect, a totally unregulated activity. " +"No matter what happened inside your club room, you would never be interfered " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7745 +msgid "" +"But if you moved your club onto the Internet, and made it generally " +"available for others to join, the story would be very different. Bots " +"scouring the Net for trademark and copyright infringement would quickly find " +"your site. Your posting of fan fiction, depending upon the ownership of the " +"series that you're depicting, could well inspire a lawyer's threat. And " +"ignoring the lawyer's threat would be extremely costly indeed. The law of " +"copyright is extremely efficient. The penalties are severe, and the process " +"is quick." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7755 +msgid "" +"This change in the effective force of the law is caused by a change in the " +"ease with which the law can be enforced. That change too shifts the law's " +"balance radically. It is as if your car transmitted the speed at which you " +"traveled at every moment that you drove; that would be just one step before " +"the state started issuing tickets based upon the data you transmitted. That " +"is, in effect, what is happening here." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:7764 +msgid "Market: Concentration" +msgstr "" + +#. PAGE BREAK 173 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7766 +msgid "" +"So copyright's duration has increased dramatically—tripled in the past " +"thirty years. And copyright's scope has increased as well—from " +"regulating only publishers to now regulating just about everyone. And " +"copyright's reach has changed, as every action becomes a copy and hence " +"presumptively regulated. And as technologists find better ways to control " +"the use of content, and as copyright is increasingly enforced through " +"technology, copyright's force changes, too. Misuse is easier to find and " +"easier to control. This regulation of the creative process, which began as a " +"tiny regulation governing a tiny part of the market for creative work, has " +"become the single most important regulator of creativity there is. It is a " +"massive expansion in the scope of the government's control over innovation " +"and creativity; it would be totally unrecognizable to those who gave birth " +"to copyright's control." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7784 +msgid "" +"Still, in my view, all of these changes would not matter much if it weren't " +"for one more change that we must also consider. This is a change that is in " +"some sense the most familiar, though its significance and scope are not well " +"understood. It is the one that creates precisely the reason to be concerned " +"about all the other changes I have described." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7791 +msgid "" +"This is the change in the concentration and integration of the media. In " +"the past twenty years, the nature of media ownership has undergone a radical " +"alteration, caused by changes in legal rules governing the media. Before " +"this change happened, the different forms of media were owned by separate " +"media companies. Now, the media is increasingly owned by only a few " +"companies. Indeed, after the changes that the FCC announced in June 2003, " +"most expect that within a few years, we will live in a world where just " +"three companies control more than percent of the media." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7802 +msgid "These changes are of two sorts: the scope of concentration, and its nature." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:7805 +msgid "BMG" +msgstr "" + +#. f25 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7811 +msgid "" +"FCC Oversight: Hearing Before the Senate Commerce, Science and " +"Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement " +"of Senator John McCain)." +msgstr "" + +#. f26 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7818 +msgid "" +"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" " +"New York Times, 23 December 2002." +msgstr "" + +#. f27 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7824 +msgid "" +"Molly Ivins, \"Media Consolidation Must Be Stopped,\" Charleston Gazette, 31 " +"May 2003." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7807 +msgid "" +"Changes in scope are the easier ones to describe. As Senator John McCain " +"summarized the data produced in the FCC's review of media ownership, \"five " +"companies control 85 percent of our media sources.\"<placeholder " +"type=\"footnote\" id=\"0\"/> 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.<placeholder type=\"footnote\" " +"id=\"1\"/> The \"five largest cable companies pipe programming to 74 percent " +"of the cable subscribers nationwide.\"<placeholder type=\"footnote\" " +"id=\"2\"/>" +msgstr "" + +#. PAGE BREAK 174 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7829 +msgid "" +"The story with radio is even more dramatic. Before deregulation, the " +"nation's largest radio broadcasting conglomerate owned fewer than " +"seventy-five stations. Today one company owns more than 1,200 stations. " +"During that period of consolidation, the total number of radio owners " +"dropped by 34 percent. Today, in most markets, the two largest broadcasters " +"control 74 percent of that market's revenues. Overall, just four companies " +"control 90 percent of the nation's radio advertising revenues." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7840 +msgid "" +"Newspaper ownership is becoming more concentrated as well. Today, there are " +"six hundred fewer daily newspapers in the United States than there were " +"eighty years ago, and ten companies control half of the nation's " +"circulation. There are twenty major newspaper publishers in the United " +"States. The top ten film studios receive 99 percent of all film revenue. The " +"ten largest cable companies account for 85 percent of all cable " +"revenue. This is a market far from the free press the framers sought to " +"protect. Indeed, it is a market that is quite well protected— by the " +"market." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary> +#: freeculture.xml:7854 freeculture.xml:7871 +msgid "Fallows, James" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7851 +msgid "" +"Concentration in size alone is one thing. The more invidious change is in " +"the nature of that concentration. As author James Fallows put it in a recent " +"article about Rupert Murdoch, <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:7869 +msgid "" +"James Fallows, \"The Age of Murdoch,\" Atlantic Monthly (September 2003): " +"89. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:7858 +msgid "" +"Murdoch's companies now constitute a production system unmatched in its " +"integration. They supply content—Fox movies . . . Fox TV shows " +". . . Fox-controlled sports broadcasts, plus newspapers and books. They sell " +"the content to the public and to advertisers—in newspapers, on the " +"broadcast network, on the cable channels. And they operate the physical " +"distribution system through which the content reaches the " +"customers. Murdoch's satellite systems now distribute News Corp. content in " +"Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that " +"system will serve the same function in the United States.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7876 +msgid "" +"The pattern with Murdoch is the pattern of modern media. Not just large " +"companies owning many radio stations, but a few companies owning as many " +"outlets of media as possible. A picture describes this pattern better than a " +"thousand words could do:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure><title> +#: freeculture.xml:7882 +msgid "Pattern of modern media ownership." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><figure> +#: freeculture.xml:7883 +msgid "<graphic fileref=\"images/1761.png\"></graphic>" +msgstr "" + +#. PAGE BREAK 175 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7887 +msgid "" +"Does this concentration matter? Will it affect what is made, or what is " +"distributed? Or is it merely a more efficient way to produce and distribute " +"content?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7892 +msgid "" +"My view was that concentration wouldn't matter. I thought it was nothing " +"more than a more efficient financial structure. But now, after reading and " +"listening to a barrage of creators try to convince me to the contrary, I am " +"beginning to change my mind." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7898 +msgid "" +"Here's a representative story that begins to suggest how this integration " +"may matter." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:7901 +msgid "Lear, Norman" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:7903 freeculture.xml:7967 +msgid "All in the Family" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7905 +msgid "" +"In 1969, Norman Lear created a pilot for All in the Family. He took the " +"pilot to ABC. The network didn't like it. It was too edgy, they told " +"Lear. Make it again. Lear made a second pilot, more edgy than the first. ABC " +"was exasperated. You're missing the point, they told Lear. We wanted less " +"edgy, not more." +msgstr "" + +#. f29 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7917 +msgid "" +"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center " +"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, " +"3 April 2003 (transcript of prepared remarks available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #28</ulink>; for the Lear story, " +"not included in the prepared remarks, see <ulink " +"url=\"http://free-culture.cc/notes/\">link #29</ulink>)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7912 +msgid "" +"Rather than comply, Lear simply took the show elsewhere. CBS was happy to " +"have the series; ABC could not stop Lear from walking. The copyrights that " +"Lear held assured an independence from network control.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 176 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7929 +msgid "" +"The network did not control those copyrights because the law forbade the " +"networks from controlling the content they syndicated. The law required a " +"separation between the networks and the content producers; that separation " +"would guarantee Lear freedom. And as late as 1992, because of these rules, " +"the vast majority of prime time television—75 percent of it—was " +"\"independent\" of the networks." +msgstr "" + +#. f30 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:7948 +msgid "" +"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media " +"Ownership Before the Senate Commerce Committee, 108th Cong., 1st " +"sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union and " +"the Consumer Federation of America), available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #30</ulink>. Kimmelman quotes " +"Victoria Riskin, president of Writers Guild of America, West, in her Remarks " +"at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7938 +msgid "" +"In 1994, the FCC abandoned the rules that required this independence. After " +"that change, the networks quickly changed the balance. In 1985, there were " +"twenty-five independent television production studios; in 2002, only five " +"independent television studios remained. \"In 1992, only 15 percent of new " +"series were produced for a network by a company it controlled. Last year, " +"the percentage of shows produced by controlled companies more than " +"quintupled to 77 percent.\" \"In 1992, 16 new series were produced " +"independently of conglomerate control, last year there was " +"one.\"<placeholder type=\"footnote\" id=\"0\"/> 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%.\"<placeholder type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7969 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7975 +msgid "" +"While the number of channels has increased dramatically, the ownership of " +"those channels has narrowed to an ever smaller and smaller few. As Barry " +"Diller said to Bill Moyers," +msgstr "" + +#. f32 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:7990 +msgid "" +"\"Barry Diller Takes on Media Deregulation,\" Now with Bill Moyers, Bill " +"Moyers, 25 April 2003, edited transcript available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #31</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:7981 +msgid "" +"Well, if you have companies that produce, that finance, that air on their " +"channel and then distribute worldwide everything that goes through their " +"controlled distribution system, then what you get is fewer and fewer actual " +"voices participating in the process. [We u]sed to have dozens and dozens of " +"thriving independent production companies producing television programs. Now " +"you have less than a handful.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:7997 +msgid "" +"This narrowing has an effect on what is produced. The product of such large " +"and concentrated networks is increasingly homogenous. Increasingly " +"safe. Increasingly sterile. The product of news shows from networks like " +"this is increasingly tailored to the message the network wants to " +"convey. This is not the communist party, though from the inside, it must " +"feel a bit like the communist party. No one can question without risk of " +"consequence—not necessarily banishment to Siberia, but punishment " +"nonetheless. Independent, critical, different views are quashed. This is not " +"the environment for a democracy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:8008 +msgid "Clark, Kim B." +msgstr "" + +#. f33 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:8017 +msgid "" +"Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National " +"Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business " +"School Press, 1997). Christensen acknowledges that the idea was first " +"suggested by Dean Kim Clark. See Kim B. Clark, \"The Interaction of Design " +"Hierarchies and Market Concepts in Technological Evolution,\" Research " +"Policy 14 (1985): 235–51. For a more recent study, see Richard Foster " +"and Sarah Kaplan, Creative Destruction: Why Companies That Are Built to Last " +"Underperform the Market—and How to Successfully Transform Them (New " +"York: Currency/Doubleday, 2001)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8010 +msgid "" +"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.<placeholder " +"type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8033 +msgid "" +"I don't think we know enough about the economics of the media market to say " +"with certainty what concentration and integration will do. The efficiencies " +"are important, and the effect on culture is hard to measure." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8039 +msgid "" +"But there is a quintessentially obvious example that does strongly suggest " +"the concern." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8043 +msgid "" +"In addition to the copyright wars, we're in the middle of the drug " +"wars. Government policy is strongly directed against the drug cartels; " +"criminal and civil courts are filled with the consequences of this battle." +msgstr "" + +#. PAGE BREAK 178 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8048 +msgid "" +"Let me hereby disqualify myself from any possible appointment to any " +"position in government by saying I believe this war is a profound mistake. I " +"am not pro drugs. Indeed, I come from a family once wrecked by " +"drugs—though the drugs that wrecked my family were all quite legal. I " +"believe this war is a profound mistake because the collateral damage from it " +"is so great as to make waging the war insane. When you add together the " +"burdens on the criminal justice system, the desperation of generations of " +"kids whose only real economic opportunities are as drug warriors, the " +"queering of constitutional protections because of the constant surveillance " +"this war requires, and, most profoundly, the total destruction of the legal " +"systems of many South American nations because of the power of the local " +"drug cartels, I find it impossible to believe that the marginal benefit in " +"reduced drug consumption by Americans could possibly outweigh these costs." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8067 +msgid "" +"You may not be convinced. That's fine. We live in a democracy, and it is " +"through votes that we are to choose policy. But to do that, we depend " +"fundamentally upon the press to help inform Americans about these issues." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8073 +msgid "" +"Beginning in 1998, the Office of National Drug Control Policy launched a " +"media campaign as part of the \"war on drugs.\" The campaign produced scores " +"of short film clips about issues related to illegal drugs. In one series " +"(the Nick and Norm series) two men are in a bar, discussing the idea of " +"legalizing drugs as a way to avoid some of the collateral damage from the " +"war. One advances an argument in favor of drug legalization. The other " +"responds in a powerful and effective way against the argument of the " +"first. In the end, the first guy changes his mind (hey, it's " +"television). The plug at the end is a damning attack on the pro-legalization " +"campaign." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8085 +msgid "" +"Fair enough. It's a good ad. Not terribly misleading. It delivers its " +"message well. It's a fair and reasonable message." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8089 +msgid "" +"But let's say you think it is a wrong message, and you'd like to run a " +"countercommercial. Say you want to run a series of ads that try to " +"demonstrate the extraordinary collateral harm that comes from the drug " +"war. Can you do it?" +msgstr "" + +#. PAGE BREAK 179 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8095 +msgid "" +"Well, obviously, these ads cost lots of money. Assume you raise the " +"money. Assume a group of concerned citizens donates all the money in the " +"world to help you get your message out. Can you be sure your message will be " +"heard then?" +msgstr "" + +#. f34 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:8112 +msgid "" +"The Marijuana Policy Project, in February 2003, sought to place ads that " +"directly responded to the Nick and Norm series on stations within the " +"Washington, D.C., area. Comcast rejected the ads as \"against [their] " +"policy.\" The local NBC affiliate, WRC, rejected the ads without reviewing " +"them. The local ABC affiliate, WJOA, originally agreed to run the ads and " +"accepted payment to do so, but later decided not to run the ads and returned " +"the collected fees. Interview with Neal Levine, 15 October 2003. These " +"restrictions are, of course, not limited to drug policy. See, for example, " +"Nat Ives, \"On the Issue of an Iraq War, Advocacy Ads Meet with Rejection " +"from TV Networks,\" New York Times, 13 March 2003, C4. Outside of " +"election-related air time there is very little that the FCC or the courts " +"are willing to do to even the playing field. For a general overview, see " +"Rhonda Brown, \"Ad Hoc Access: The Regulation of Editorial Advertising on " +"Television and Radio,\" Yale Law and Policy Review 6 (1988): 449–79, " +"and for a more recent summary of the stance of the FCC and the courts, see " +"Radio-Television News Directors Association v. FCC, 184 F. 3d 872 " +"(D.C. Cir. 1999). Municipal authorities exercise the same authority as the " +"networks. In a recent example from San Francisco, the San Francisco transit " +"authority rejected an ad that criticized its Muni diesel buses. Phillip " +"Matier and Andrew Ross, \"Antidiesel Group Fuming After Muni Rejects Ad,\" " +"SFGate.com, 16 June 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #32</ulink>. The ground was that " +"the criticism was \"too controversial.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8102 +msgid "" +"No. You cannot. Television stations have a general policy of avoiding " +"\"controversial\" ads. Ads sponsored by the government are deemed " +"uncontroversial; ads disagreeing with the government are controversial. " +"This selectivity might be thought inconsistent with the First Amendment, but " +"the Supreme Court has held that stations have the right to choose what they " +"run. Thus, the major channels of commercial media will refuse one side of a " +"crucial debate the opportunity to present its case. And the courts will " +"defend the rights of the stations to be this biased.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8139 +msgid "" +"I'd be happy to defend the networks' rights, as well—if we lived in a " +"media market that was truly diverse. But concentration in the media throws " +"that condition into doubt. If a handful of companies control access to the " +"media, and that handful of companies gets to decide which political " +"positions it will allow to be promoted on its channels, then in an obvious " +"and important way, concentration matters. You might like the positions the " +"handful of companies selects. But you should not like a world in which a " +"mere few get to decide which issues the rest of us get to know about." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:8151 +msgid "Together" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8153 +msgid "" +"There is something innocent and obvious about the claim of the copyright " +"warriors that the government should \"protect my property.\" In the " +"abstract, it is obviously true and, ordinarily, totally harmless. No sane " +"sort who is not an anarchist could disagree." +msgstr "" + +#. PAGE BREAK 180 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8159 +msgid "" +"But when we see how dramatically this \"property\" has changed— when " +"we recognize how it might now interact with both technology and markets to " +"mean that the effective constraint on the liberty to cultivate our culture " +"is dramatically different—the claim begins to seem less innocent and " +"obvious. Given (1) the power of technology to supplement the law's control, " +"and (2) the power of concentrated markets to weaken the opportunity for " +"dissent, if strictly enforcing the massively expanded \"property\" rights " +"granted by copyright fundamentally changes the freedom within this culture " +"to cultivate and build upon our past, then we have to ask whether this " +"property should be redefined." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8175 +msgid "" +"Not starkly. Or absolutely. My point is not that we should abolish copyright " +"or go back to the eighteenth century. That would be a total mistake, " +"disastrous for the most important creative enterprises within our culture " +"today." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8181 +msgid "" +"But there is a space between zero and one, Internet culture " +"notwithstanding. And these massive shifts in the effective power of " +"copyright regulation, tied to increased concentration of the content " +"industry and resting in the hands of technology that will increasingly " +"enable control over the use of culture, should drive us to consider whether " +"another adjustment is called for. Not an adjustment that increases " +"copyright's power. Not an adjustment that increases its term. Rather, an " +"adjustment to restore the balance that has traditionally defined copyright's " +"regulation—a weakening of that regulation, to strengthen creativity." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8193 +msgid "" +"Copyright law has not been a rock of Gibraltar. It's not a set of constant " +"commitments that, for some mysterious reason, teenagers and geeks now " +"flout. Instead, copyright power has grown dramatically in a short period of " +"time, as the technologies of distribution and creation have changed and as " +"lobbyists have pushed for more control by copyright holders. Changes in the " +"past in response to changes in technology suggest that we may well need " +"similar changes in the future. And these changes have to be reductions in " +"the scope of copyright, in response to the extraordinary increase in control " +"that technology and the market enable." +msgstr "" + +#. PAGE BREAK 181 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8205 +msgid "" +"For the single point that is lost in this war on pirates is a point that we " +"see only after surveying the range of these changes. When you add together " +"the effect of changing law, concentrated markets, and changing technology, " +"together they produce an astonishing conclusion: Never in our history have " +"fewer had a legal right to control more of the development of our culture " +"than now." +msgstr "" + +#. f35 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:8227 +msgid "" +"Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of " +"copyright law in the digital age. See Vaidhyanathan, 159–60." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8213 +msgid "" +"Not when copyrights were perpetual, for when copyrights were perpetual, they " +"affected only that precise creative work. Not when only publishers had the " +"tools to publish, for the market then was much more diverse. Not when there " +"were only three television networks, for even then, newspapers, film " +"studios, radio stations, and publishers were independent of the " +"networks. Never has copyright protected such a wide range of rights, against " +"as broad a range of actors, for a term that was remotely as long. This form " +"of regulation—a tiny regulation of a tiny part of the creative energy " +"of a nation at the founding—is now a massive regulation of the overall " +"creative process. Law plus technology plus the market now interact to turn " +"this historically benign regulation into the most significant regulation of " +"culture that our free society has known.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8232 +msgid "This has been a long chapter. Its point can now be briefly stated." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8235 +msgid "" +"At the start of this book, I distinguished between commercial and " +"noncommercial culture. In the course of this chapter, I have distinguished " +"between copying a work and transforming it. We can now combine these two " +"distinctions and draw a clear map of the changes that copyright law has " +"undergone. In 1790, the law looked like this:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> +#: freeculture.xml:8248 freeculture.xml:8286 +msgid "PUBLISH" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> +#: freeculture.xml:8249 freeculture.xml:8287 freeculture.xml:8326 freeculture.xml:8359 +msgid "TRANSFORM" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:8254 freeculture.xml:8292 freeculture.xml:8331 freeculture.xml:8364 +msgid "Commercial" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:8255 freeculture.xml:8293 freeculture.xml:8294 freeculture.xml:8332 freeculture.xml:8333 freeculture.xml:8365 freeculture.xml:8366 freeculture.xml:8370 freeculture.xml:8371 +msgid "©" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:8256 freeculture.xml:8260 freeculture.xml:8261 freeculture.xml:8298 freeculture.xml:8299 freeculture.xml:8338 +msgid "Free" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:8259 freeculture.xml:8297 freeculture.xml:8336 freeculture.xml:8369 +msgid "Noncommercial" +msgstr "" + +#. PAGE BREAK 182 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8268 +msgid "" +"The act of publishing a map, chart, and book was regulated by copyright " +"law. Nothing else was. Transformations were free. And as copyright attached " +"only with registration, and only those who intended to benefit commercially " +"would register, copying through publishing of noncommercial work was also " +"free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8277 +msgid "By the end of the nineteenth century, the law had changed to this:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8306 +msgid "" +"Derivative works were now regulated by copyright law—if published, " +"which again, given the economics of publishing at the time, means if offered " +"commercially. But noncommercial publishing and transformation were still " +"essentially free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8312 +msgid "" +"In 1909 the law changed to regulate copies, not publishing, and after this " +"change, the scope of the law was tied to technology. As the technology of " +"copying became more prevalent, the reach of the law expanded. Thus by 1975, " +"as photocopying machines became more common, we could say the law began to " +"look like this:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> +#: freeculture.xml:8325 freeculture.xml:8358 +msgid "COPY" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> +#: freeculture.xml:8337 +msgid "©/Free" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8345 +msgid "" +"The law was interpreted to reach noncommercial copying through, say, copy " +"machines, but still much of copying outside of the commercial market " +"remained free. But the consequence of the emergence of digital technologies, " +"especially in the context of a digital network, means that the law now looks " +"like this:" +msgstr "" + +#. PAGE BREAK 183 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8378 +msgid "" +"Every realm is governed by copyright law, whereas before most creativity was " +"not. The law now regulates the full range of creativity— commercial or " +"not, transformative or not—with the same rules designed to regulate " +"commercial publishers." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8386 +msgid "" +"Obviously, copyright law is not the enemy. The enemy is regulation that does " +"no good. So the question that we should be asking just now is whether " +"extending the regulations of copyright law into each of these domains " +"actually does any good." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8392 +msgid "" +"I have no doubt that it does good in regulating commercial copying. But I " +"also have no doubt that it does more harm than good when regulating (as it " +"regulates just now) noncommercial copying and, especially, noncommercial " +"transformation. And increasingly, for the reasons sketched especially in " +"chapters 7 and 8, one might well wonder whether it does more harm than good " +"for commercial transformation. More commercial transformative work would be " +"created if derivative rights were more sharply restricted." +msgstr "" + +#. f36 +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:8408 +msgid "" +"It was the single most important contribution of the legal realist movement " +"to demonstrate that all property rights are always crafted to balance public " +"and private interests. See Thomas C. Grey, \"The Disintegration of " +"Property,\" in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, " +"eds. (New York: New York University Press, 1980)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8402 +msgid "" +"The issue is therefore not simply whether copyright is property. Of course " +"copyright is a kind of \"property,\" and of course, as with any property, " +"the state ought to protect it. But first impressions notwithstanding, " +"historically, this property right (as with all property rights<placeholder " +"type=\"footnote\" id=\"0\"/>) has been crafted to balance the important " +"need to give authors and artists incentives with the equally important need " +"to assure access to creative work. This balance has always been struck in " +"light of new technologies. And for almost half of our tradition, the " +"\"copyright\" did not control at all the freedom of others to build upon or " +"transform a creative work. American culture was born free, and for almost " +"180 years our country consistently protected a vibrant and rich free " +"culture." +msgstr "" + +#. PAGE BREAK 184 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8425 +msgid "" +"We achieved that free culture because our law respected important limits on " +"the scope of the interests protected by \"property.\" The very birth of " +"\"copyright\" as a statutory right recognized those limits, by granting " +"copyright owners protection for a limited time only (the story of chapter " +"6). The tradition of \"fair use\" is animated by a similar concern that is " +"increasingly under strain as the costs of exercising any fair use right " +"become unavoidably high (the story of chapter 7). Adding statutory rights " +"where markets might stifle innovation is another familiar limit on the " +"property right that copyright is (chapter 8). And granting archives and " +"libraries a broad freedom to collect, claims of property notwithstanding, is " +"a crucial part of guaranteeing the soul of a culture (chapter 9). Free " +"cultures, like free markets, are built with property. But the nature of the " +"property that builds a free culture is very different from the extremist " +"vision that dominates the debate today." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8444 +msgid "" +"Free culture is increasingly the casualty in this war on piracy. In response " +"to a real, if not yet quantified, threat that the technologies of the " +"Internet present to twentieth-century business models for producing and " +"distributing culture, the law and technology are being transformed in a way " +"that will undermine our tradition of free culture. The property right that " +"is copyright is no longer the balanced right that it was, or was intended to " +"be. The property right that is copyright has become unbalanced, tilted " +"toward an extreme. The opportunity to create and transform becomes weakened " +"in a world in which creation requires permission and creativity must check " +"with a lawyer." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:8461 +msgid "PUZZLES" +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:8465 +msgid "CHAPTER ELEVEN: Chimera" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:8467 +msgid "chimeras" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:8470 +msgid "Wells, H. G." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:8473 +msgid ""Country of the Blind, The" (Wells)" +msgstr "" + +#. f1. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:8481 +msgid "" +"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)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8477 +msgid "" +"In a well-known short story by H. G. Wells, a mountain climber named Nunez " +"trips (literally, down an ice slope) into an unknown and isolated valley in " +"the Peruvian Andes.<placeholder type=\"footnote\" id=\"0\"/> The valley is " +"extraordinarily beautiful, with \"sweet water, pasture, an even climate, " +"slopes of rich brown soil with tangles of a shrub that bore an excellent " +"fruit.\" But the villagers are all blind. Nunez takes this as an " +"opportunity. \"In the Country of the Blind,\" he tells himself, \"the " +"One-Eyed Man is King.\" So he resolves to live with the villagers to explore " +"life as a king." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8493 +msgid "" +"Things don't go quite as he planned. He tries to explain the idea of sight " +"to the villagers. They don't understand. He tells them they are \"blind.\" " +"They don't have the word blind. They think he's just thick. Indeed, as they " +"increasingly notice the things he can't do (hear the sound of grass being " +"stepped on, for example), they increasingly try to control him. He, in turn, " +"becomes increasingly frustrated. \"`You don't understand,' he cried, in a " +"voice that was meant to be great and resolute, and which broke. `You are " +"blind and I can see. Leave me alone!'\"" +msgstr "" + +#. PAGE BREAK 187 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8505 +msgid "" +"The villagers don't leave him alone. Nor do they see (so to speak) the " +"virtue of his special power. Not even the ultimate target of his affection, " +"a young woman who to him seems \"the most beautiful thing in the whole of " +"creation,\" understands the beauty of sight. Nunez's description of what he " +"sees \"seemed to her the most poetical of fancies, and she listened to his " +"description of the stars and the mountains and her own sweet white-lit " +"beauty as though it was a guilty indulgence.\" \"She did not believe,\" " +"Wells tells us, and \"she could only half understand, but she was " +"mysteriously delighted.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8516 +msgid "" +"When Nunez announces his desire to marry his \"mysteriously delighted\" " +"love, the father and the village object. \"You see, my dear,\" her father " +"instructs, \"he's an idiot. He has delusions. He can't do anything right.\" " +"They take Nunez to the village doctor." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8522 +msgid "" +"After a careful examination, the doctor gives his opinion. \"His brain is " +"affected,\" he reports." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8526 +msgid "" +"\"What affects it?\" the father asks. \"Those queer things that are called " +"the eyes . . . are diseased . . . in such a way as to affect his brain.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8531 +msgid "" +"The doctor continues: \"I think I may say with reasonable certainty that in " +"order to cure him completely, all that we need to do is a simple and easy " +"surgical operation—namely, to remove these irritant bodies [the " +"eyes].\"" +msgstr "" + +#. PAGE BREAK 188 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8537 +msgid "" +"\"Thank Heaven for science!\" says the father to the doctor. They inform " +"Nunez of this condition necessary for him to be allowed his bride. (You'll " +"have to read the original to learn what happens in the end. I believe in " +"free culture, but never in giving away the end of a story.) It sometimes " +"happens that the eggs of twins fuse in the mother's womb. That fusion " +"produces a \"chimera.\" A chimera is a single creature with two sets of " +"DNA. The DNA in the blood, for example, might be different from the DNA of " +"the skin. This possibility is an underused plot for murder mysteries. \"But " +"the DNA shows with 100 percent certainty that she was not the person whose " +"blood was at the scene. . . .\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8554 +msgid "" +"Before I had read about chimeras, I would have said they were impossible. A " +"single person can't have two sets of DNA. The very idea of DNA is that it is " +"the code of an individual. Yet in fact, not only can two individuals have " +"the same set of DNA (identical twins), but one person can have two different " +"sets of DNA (a chimera). Our understanding of a \"person\" should reflect " +"this reality." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8562 +msgid "" +"The more I work to understand the current struggle over copyright and " +"culture, which I've sometimes called unfairly, and sometimes not unfairly " +"enough, \"the copyright wars,\" the more I think we're dealing with a " +"chimera. For example, in the battle over the question \"What is p2p file " +"sharing?\" both sides have it right, and both sides have it wrong. One side " +"says, \"File sharing is just like two kids taping each others' " +"records—the sort of thing we've been doing for the last thirty years " +"without any question at all.\" That's true, at least in part. When I tell my " +"best friend to try out a new CD that I've bought, but rather than just send " +"the CD, I point him to my p2p server, that is, in all relevant respects, " +"just like what every executive in every recording company no doubt did as a " +"kid: sharing music." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8576 +msgid "" +"But the description is also false in part. For when my p2p server is on a " +"p2p network through which anyone can get access to my music, then sure, my " +"friends can get access, but it stretches the meaning of \"friends\" beyond " +"recognition to say \"my ten thousand best friends\" can get access. Whether " +"or not sharing my music with my best friend is what \"we have always been " +"allowed to do,\" we have not always been allowed to share music with \"our " +"ten thousand best friends.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8585 +msgid "" +"Likewise, when the other side says, \"File sharing is just like walking into " +"a Tower Records and taking a CD off the shelf and walking out with it,\" " +"that's true, at least in part. If, after Lyle Lovett (finally) releases a " +"new album, rather than buying it, I go to Kazaa and find a free copy to " +"take, that is very much like stealing a copy from Tower." +msgstr "" + +#. PAGE BREAK 189 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8595 +msgid "" +"But it is not quite stealing from Tower. After all, when I take a CD from " +"Tower Records, Tower has one less CD to sell. And when I take a CD from " +"Tower Records, I get a bit of plastic and a cover, and something to show on " +"my shelves. (And, while we're at it, we could also note that when I take a " +"CD from Tower Records, the maximum fine that might be imposed on me, under " +"California law, at least, is $1,000. According to the RIAA, by contrast, if " +"I download a ten-song CD, I'm liable for $1,500,000 in damages.)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8605 +msgid "" +"The point is not that it is as neither side describes. The point is that it " +"is both—both as the RIAA describes it and as Kazaa describes it. It is " +"a chimera. And rather than simply denying what the other side asserts, we " +"need to begin to think about how we should respond to this chimera. What " +"rules should govern it?" +msgstr "" + +#. f2. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:8620 +msgid "" +"For an excellent summary, see the report prepared by GartnerG2 and the " +"Berkman Center for Internet and Society at Harvard Law School, \"Copyright " +"and Digital Media in a Post-Napster World,\" 27 June 2003, available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #33</ulink>. Reps. John " +"Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill " +"that would treat unauthorized on-line copying as a felony offense with " +"punishments ranging as high as five years imprisonment; see Jon Healey, " +"\"House Bill Aims to Up Stakes on Piracy,\" Los Angeles Times, 17 July 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#34</ulink>. Civil penalties are currently set at $150,000 per copied " +"song. For a recent (and unsuccessful) legal challenge to the RIAA's demand " +"that an ISP reveal the identity of a user accused of sharing more than 600 " +"songs through a family computer, see RIAA v. Verizon Internet Services (In " +"re. Verizon Internet Services), 240 F. Supp. 2d 24 (D.D.C. 2003). Such a " +"user could face liability ranging as high as $90 million. Such astronomical " +"figures furnish the RIAA with a powerful arsenal in its prosecution of file " +"sharers. Settlements ranging from $12,000 to $17,500 for four students " +"accused of heavy file sharing on university networks must have seemed a mere " +"pittance next to the $98 billion the RIAA could seek should the matter " +"proceed to court. See Elizabeth Young, \"Downloading Could Lead to Fines,\" " +"redandblack.com, August 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #35</ulink>. For an example of " +"the RIAA's targeting of student file sharing, and of the subpoenas issued to " +"universities to reveal student file-sharer identities, see James Collins, " +"\"RIAA Steps Up Bid to Force BC, MIT to Name Students,\" Boston Globe, 8 " +"August 2003, D3, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #36</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8612 +msgid "" +"We could respond by simply pretending that it is not a chimera. We could, " +"with the RIAA, decide that every act of file sharing should be a felony. We " +"could prosecute families for millions of dollars in damages just because " +"file sharing occurred on a family computer. And we can get universities to " +"monitor all computer traffic to make sure that no computer is used to commit " +"this crime. These responses might be extreme, but each of them has either " +"been proposed or actually implemented.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8657 +msgid "" +"Alternatively, we could respond to file sharing the way many kids act as " +"though we've responded. We could totally legalize it. Let there be no " +"copyright liability, either civil or criminal, for making copyrighted " +"content available on the Net. Make file sharing like gossip: regulated, if " +"at all, by social norms but not by law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8664 +msgid "" +"Either response is possible. I think either would be a mistake. Rather than " +"embrace one of these two extremes, we should embrace something that " +"recognizes the truth in both. And while I end this book with a sketch of a " +"system that does just that, my aim in the next chapter is to show just how " +"awful it would be for us to adopt the zero-tolerance extreme. I believe " +"either extreme would be worse than a reasonable alternative. But I believe " +"the zero-tolerance solution would be the worse of the two extremes." +msgstr "" + +#. PAGE BREAK 190 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8676 +msgid "" +"Yet zero tolerance is increasingly our government's policy. In the middle of " +"the chaos that the Internet has created, an extraordinary land grab is " +"occurring. The law and technology are being shifted to give content holders " +"a kind of control over our culture that they have never had before. And in " +"this extremism, many an opportunity for new innovation and new creativity " +"will be lost." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8684 +msgid "" +"I'm not talking about the opportunities for kids to \"steal\" music. My " +"focus instead is the commercial and cultural innovation that this war will " +"also kill. We have never seen the power to innovate spread so broadly among " +"our citizens, and we have just begun to see the innovation that this power " +"will unleash. Yet the Internet has already seen the passing of one cycle of " +"innovation around technologies to distribute content. The law is responsible " +"for this passing. As the vice president for global public policy at one of " +"these new innovators, eMusic.com, put it when criticizing the DMCA's added " +"protection for copyrighted material," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:8697 +msgid "" +"eMusic opposes music piracy. We are a distributor of copyrighted material, " +"and we want to protect those rights." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:8701 +msgid "" +"But building a technology fortress that locks in the clout of the major " +"labels is by no means the only way to protect copyright interests, nor is it " +"necessarily the best. It is simply too early to answer that question. Market " +"forces operating naturally may very well produce a totally different " +"industry model." +msgstr "" + +#. f3. +#. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> +#: freeculture.xml:8718 +msgid "" +"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital " +"Entertainment on the Internet and Other Media: Hearing Before the " +"Subcommittee on Telecommunications, Trade, and Consumer Protection, House " +"Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, " +"vice president, Global Public Policy and Standards, EMusic.com), available " +"in LEXIS, Federal Document Clearing House Congressional Testimony File." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:8709 +msgid "" +"This is a critical point. The choices that industry sectors make with " +"respect to these systems will in many ways directly shape the market for " +"digital media and the manner in which digital media are distributed. This in " +"turn will directly influence the options that are available to consumers, " +"both in terms of the ease with which they will be able to access digital " +"media and the equipment that they will require to do so. Poor choices made " +"this early in the game will retard the growth of this market, hurting " +"everyone's interests.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8733 +msgid "" +"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the " +"major labels.\" Its position on these matters has now changed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8738 +msgid "" +"Reversing our tradition of tolerance now will not merely quash piracy. It " +"will sacrifice values that are important to this culture, and will kill " +"opportunities that could be extraordinarily valuable." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:8746 +msgid "CHAPTER TWELVE: Harms" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8749 +msgid "" +"To fight \"piracy,\" to protect \"property,\" the content industry has " +"launched a war. Lobbying and lots of campaign contributions have now brought " +"the government into this war. As with any war, this one will have both " +"direct and collateral damage. As with any war of prohibition, these damages " +"will be suffered most by our own people." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8757 +msgid "" +"My aim so far has been to describe the consequences of this war, in " +"particular, the consequences for \"free culture.\" But my aim now is to " +"extend this description of consequences into an argument. Is this war " +"justified?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8764 +msgid "" +"In my view, it is not. There is no good reason why this time, for the first " +"time, the law should defend the old against the new, just when the power of " +"the property called \"intellectual property\" is at its greatest in our " +"history." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8772 +msgid "" +"Yet \"common sense\" does not see it this way. Common sense is still on the " +"side of the Causbys and the content industry. The extreme claims of control " +"in the name of property still resonate; the uncritical rejection of " +"\"piracy\" still has play." +msgstr "" + +#. PAGE BREAK 193 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:8779 +msgid "" +"There will be many consequences of continuing this war. I want to describe " +"just three. All three might be said to be unintended. I am quite confident " +"the third is unintended. I'm less sure about the first two. The first two " +"protect modern RCAs, but there is no Howard Armstrong in the wings to fight " +"today's monopolists of culture." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:8786 +msgid "Constraining Creators" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8788 +msgid "" +"In the next ten years we will see an explosion of digital technologies. " +"These technologies will enable almost anyone to capture and share " +"content. Capturing and sharing content, of course, is what humans have done " +"since the dawn of man. It is how we learn and communicate. But capturing and " +"sharing through digital technology is different. The fidelity and power are " +"different. You could send an e-mail telling someone about a joke you saw on " +"Comedy Central, or you could send the clip. You could write an essay about " +"the inconsistencies in the arguments of the politician you most love to " +"hate, or you could make a short film that puts statement against " +"statement. You could write a poem to express your love, or you could weave " +"together a string—a mash-up— of songs from your favorite artists " +"in a collage and make it available on the Net." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8803 +msgid "" +"This digital \"capturing and sharing\" is in part an extension of the " +"capturing and sharing that has always been integral to our culture, and in " +"part it is something new. It is continuous with the Kodak, but it explodes " +"the boundaries of Kodak-like technologies. The technology of digital " +"\"capturing and sharing\" promises a world of extraordinarily diverse " +"creativity that can be easily and broadly shared. And as that creativity is " +"applied to democracy, it will enable a broad range of citizens to use " +"technology to express and criticize and contribute to the culture all " +"around." +msgstr "" + +#. PAGE BREAK 194 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8814 +msgid "" +"Technology has thus given us an opportunity to do something with culture " +"that has only ever been possible for individuals in small groups, isolated " +"from others. Think about an old man telling a story to a collection of " +"neighbors in a small town. Now imagine that same storytelling extended " +"across the globe." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8824 +msgid "" +"Yet all this is possible only if the activity is presumptively legal. In the " +"current regime of legal regulation, it is not. Forget file sharing for a " +"moment. Think about your favorite amazing sites on the Net. Web sites that " +"offer plot summaries from forgotten television shows; sites that catalog " +"cartoons from the 1960s; sites that mix images and sound to criticize " +"politicians or businesses; sites that gather newspaper articles on remote " +"topics of science or culture. There is a vast amount of creative work spread " +"across the Internet. But as the law is currently crafted, this work is " +"presumptively illegal." +msgstr "" + +#. f1. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:8847 +msgid "" +"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 <ulink " +"url=\"http://free-culture.cc/notes/\">link #37</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:8867 +msgid "Bush, George W." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:8858 +msgid "" +"The bill, modeled after California's tort reform model, was passed in the " +"House of Representatives but defeated in a Senate vote in July 2003. For an " +"overview, see Tanya Albert, \"Measure Stalls in Senate: `We'll Be Back,' Say " +"Tort Reformers,\" amednews.com, 28 July 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #38</ulink>, and \"Senate Turns " +"Back Malpractice Caps,\" CBSNews.com, 9 July 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #39</ulink>. President Bush has " +"continued to urge tort reform in recent months. <placeholder " +"type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8835 +msgid "" +"That presumption will increasingly chill creativity, as the examples of " +"extreme penalties for vague infringements continue to proliferate. It is " +"impossible to get a clear sense of what's allowed and what's not, and at the " +"same time, the penalties for crossing the line are astonishingly harsh. The " +"four students who were threatened by the RIAA ( Jesse Jordan of chapter 3 " +"was just one) were threatened with a $98 billion lawsuit for building search " +"engines that permitted songs to be copied. Yet World-Com—which " +"defrauded investors of $11 billion, resulting in a loss to investors in " +"market capitalization of over $200 billion—received a fine of a mere " +"$750 million.<placeholder type=\"footnote\" id=\"0\"/> 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.<placeholder type=\"footnote\" id=\"1\"/> 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?" +msgstr "" + +#. f3. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:8894 +msgid "" +"See Danit Lidor, \"Artists Just Wanna Be Free,\" Wired, 7 July 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#40</ulink>. For an overview of the exhibition, see <ulink " +"url=\"http://free-culture.cc/notes/\">link #41</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8874 +msgid "" +"The consequence of this legal uncertainty, tied to these extremely high " +"penalties, is that an extraordinary amount of creativity will either never " +"be exercised, or never be exercised in the open. We drive this creative " +"process underground by branding the modern-day Walt Disneys \"pirates.\" We " +"make it impossible for businesses to rely upon a public domain, because the " +"boundaries of the public domain are designed to be unclear. It never pays to " +"do anything except pay for the right to create, and hence only those who can " +"pay are allowed to create. As was the case in the Soviet Union, though for " +"very different reasons, we will begin to see a world of underground " +"art—not because the message is necessarily political, or because the " +"subject is controversial, but because the very act of creating the art is " +"legally fraught. Already, exhibits of \"illegal art\" tour the United " +"States.<placeholder type=\"footnote\" id=\"0\"/> In what does their " +"\"illegality\" consist? In the act of mixing the culture around us with an " +"expression that is critical or reflective." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8905 +msgid "" +"Part of the reason for this fear of illegality has to do with the changing " +"law. I described that change in detail in chapter 10. But an even bigger " +"part has to do with the increasing ease with which infractions can be " +"tracked. As users of file-sharing systems discovered in 2002, it is a " +"trivial matter for copyright owners to get courts to order Internet service " +"providers to reveal who has what content. It is as if your cassette tape " +"player transmitted a list of the songs that you played in the privacy of " +"your own home that anyone could tune into for whatever reason they chose." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8916 +msgid "" +"Never in our history has a painter had to worry about whether his painting " +"infringed on someone else's work; but the modern-day painter, using the " +"tools of Photoshop, sharing content on the Web, must worry all the " +"time. Images are all around, but the only safe images to use in the act of " +"creation are those purchased from Corbis or another image farm. And in " +"purchasing, censoring happens. There is a free market in pencils; we needn't " +"worry about its effect on creativity. But there is a highly regulated, " +"monopolized market in cultural icons; the right to cultivate and transform " +"them is not similarly free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8927 +msgid "" +"Lawyers rarely see this because lawyers are rarely empirical. As I described " +"in chapter 7, in response to the story about documentary filmmaker Jon Else, " +"I have been lectured again and again by lawyers who insist Else's use was " +"fair use, and hence I am wrong to say that the law regulates such a use." +msgstr "" + +#. PAGE BREAK 196 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8936 +msgid "" +"But fair use in America simply means the right to hire a lawyer to defend " +"your right to create. And as lawyers love to forget, our system for " +"defending rights such as fair use is astonishingly bad—in practically " +"every context, but especially here. It costs too much, it delivers too " +"slowly, and what it delivers often has little connection to the justice " +"underlying the claim. The legal system may be tolerable for the very rich. " +"For everyone else, it is an embarrassment to a tradition that prides itself " +"on the rule of law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8946 +msgid "" +"Judges and lawyers can tell themselves that fair use provides adequate " +"\"breathing room\" between regulation by the law and the access the law " +"should allow. But it is a measure of how out of touch our legal system has " +"become that anyone actually believes this. The rules that publishers impose " +"upon writers, the rules that film distributors impose upon filmmakers, the " +"rules that newspapers impose upon journalists— these are the real laws " +"governing creativity. And these rules have little relationship to the " +"\"law\" with which judges comfort themselves." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8957 +msgid "" +"For in a world that threatens $150,000 for a single willful infringement of " +"a copyright, and which demands tens of thousands of dollars to even defend " +"against a copyright infringement claim, and which would never return to the " +"wrongfully accused defendant anything of the costs she suffered to defend " +"her right to speak—in that world, the astonishingly broad regulations " +"that pass under the name \"copyright\" silence speech and creativity. And in " +"that world, it takes a studied blindness for people to continue to believe " +"they live in a culture that is free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8968 +msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me," +msgstr "" + +#. PAGE BREAK 197 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:8972 +msgid "" +"We're losing [creative] opportunities right and left. Creative people are " +"being forced not to express themselves. Thoughts are not being " +"expressed. And while a lot of stuff may [still] be created, it still won't " +"get distributed. Even if the stuff gets made . . . you're not going to get " +"it distributed in the mainstream media unless you've got a little note from " +"a lawyer saying, \"This has been cleared.\" You're not even going to get it " +"on PBS without that kind of permission. That's the point at which they " +"control it." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:8985 +msgid "Constraining Innovators" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8987 +msgid "" +"The story of the last section was a crunchy-lefty story—creativity " +"quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you " +"going. Maybe you think there's enough weird art out there, and enough " +"expression that is critical of what seems to be just about everything. And " +"if you think that, you might think there's little in this story to worry " +"you." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:8995 +msgid "" +"But there's an aspect of this story that is not lefty in any sense. Indeed, " +"it is an aspect that could be written by the most extreme promarket " +"ideologue. And if you're one of these sorts (and a special one at that, 188 " +"pages into a book like this), then you can see this other aspect by " +"substituting \"free market\" every place I've spoken of \"free culture.\" " +"The point is the same, even if the interests affecting culture are more " +"fundamental." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9004 +msgid "" +"The charge I've been making about the regulation of culture is the same " +"charge free marketers make about regulating markets. Everyone, of course, " +"concedes that some regulation of markets is necessary—at a minimum, we " +"need rules of property and contract, and courts to enforce both. Likewise, " +"in this culture debate, everyone concedes that at least some framework of " +"copyright is also required. But both perspectives vehemently insist that " +"just because some regulation is good, it doesn't follow that more regulation " +"is better. And both perspectives are constantly attuned to the ways in which " +"regulation simply enables the powerful industries of today to protect " +"themselves against the competitors of tomorrow." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:9016 freeculture.xml:9117 +msgid "Barry, Hank" +msgstr "" + +#. PAGE BREAK 198 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9018 +msgid "" +"This is the single most dramatic effect of the shift in regulatory strategy " +"that I described in chapter 10. The consequence of this massive threat of " +"liability tied to the murky boundaries of copyright law is that innovators " +"who want to innovate in this space can safely innovate only if they have the " +"sign-off from last generation's dominant industries. That lesson has been " +"taught through a series of cases that were designed and executed to teach " +"venture capitalists a lesson. That lesson—what former Napster CEO Hank " +"Barry calls a \"nuclear pall\" that has fallen over the Valley—has " +"been learned." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9030 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9035 +msgid "" +"In 1997, Michael Roberts launched a company called MP3.com. MP3.com was " +"keen to remake the music business. Their goal was not just to facilitate new " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9043 +msgid "" +"To make this system work, however, MP3.com needed a reliable way to " +"recommend music to its users. The idea behind this alternative was to " +"leverage the revealed preferences of music listeners to recommend new " +"artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And " +"so on." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9050 +msgid "" +"This idea required a simple way to gather data about user preferences. " +"MP3.com came up with an extraordinarily clever way to gather this preference " +"data. In January 2000, the company launched a service called " +"my.mp3.com. Using software provided by MP3.com, a user would sign into an " +"account and then insert into her computer a CD. The software would identify " +"the CD, and then give the user access to that content. So, for example, if " +"you inserted a CD by Jill Sobule, then wherever you were—at work or at " +"home—you could get access to that music once you signed into your " +"account. The system was therefore a kind of music-lockbox." +msgstr "" + +#. PAGE BREAK 199 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9062 +msgid "" +"No doubt some could use this system to illegally copy content. But that " +"opportunity existed with or without MP3.com. The aim of the my.mp3.com " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9071 +msgid "" +"To make this system function, however, MP3.com needed to copy 50,000 CDs to " +"a server. (In principle, it could have been the user who uploaded the music, " +"but that would have taken a great deal of time, and would have produced a " +"product of questionable quality.) It therefore purchased 50,000 CDs from a " +"store, and started the process of making copies of those CDs. Again, it " +"would not serve the content from those copies to anyone except those who " +"authenticated that they had a copy of the CD they wanted to access. So while " +"this was 50,000 copies, it was 50,000 copies directed at giving customers " +"something they had already bought." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9083 +msgid "" +"Nine days after MP3.com launched its service, the five major labels, headed " +"by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of " +"the five. Nine months later, a federal judge found MP3.com to have been " +"guilty of willful infringement with respect to the fifth. Applying the law " +"as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com " +"then settled with the remaining plaintiff, Vivendi Universal, paying over " +"$54 million. Vivendi purchased MP3.com just about a year later." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9093 +msgid "That part of the story I have told before. Now consider its conclusion." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9096 +msgid "" +"After Vivendi purchased MP3.com, Vivendi turned around and filed a " +"malpractice lawsuit against the lawyers who had advised it that they had a " +"good faith claim that the service they wanted to offer would be considered " +"legal under copyright law. This lawsuit alleged that it should have been " +"obvious that the courts would find this behavior illegal; therefore, this " +"lawsuit sought to punish any lawyer who had dared to suggest that the law " +"was less restrictive than the labels demanded." +msgstr "" + +#. PAGE BREAK 200 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9106 +msgid "" +"The clear purpose of this lawsuit (which was settled for an unspecified " +"amount shortly after the story was no longer covered in the press) was to " +"send an unequivocal message to lawyers advising clients in this space: It is " +"not just your clients who might suffer if the content industry directs its " +"guns against them. It is also you. So those of you who believe the law " +"should be less restrictive should realize that such a view of the law will " +"cost you and your firm dearly." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:9116 +msgid "Hummer, John" +msgstr "" + +#. f4. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9124 +msgid "" +"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" Los Angeles Times, " +"23 April 2003. For a parallel argument about the effects on innovation in " +"the distribution of music, see Janelle Brown, \"The Music Revolution Will " +"Not Be Digitized,\" Salon.com, 1 June 2001, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #42</ulink>. See also Jon " +"Healey, \"Online Music Services Besieged,\" Los Angeles Times, 28 May 2001." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9119 +msgid "" +"This strategy is not just limited to the lawyers. In April 2003, Universal " +"and EMI brought a lawsuit against Hummer Winblad, the venture capital firm " +"(VC) that had funded Napster at a certain stage of its development, its " +"cofounder ( John Hummer), and general partner (Hank Barry).<placeholder " +"type=\"footnote\" id=\"0\"/> The claim here, as well, was that the VC should " +"have recognized the right of the content industry to control how the " +"industry should develop. They should be held personally liable for funding a " +"company whose business turned out to be beyond the law. Here again, the aim " +"of the lawsuit is transparent: Any VC now recognizes that if you fund a " +"company whose business is not approved of by the dinosaurs, you are at risk " +"not just in the marketplace, but in the courtroom as well. Your investment " +"buys you not only a company, it also buys you a lawsuit. So extreme has the " +"environment become that even car manufacturers are afraid of technologies " +"that touch content. In an article in Business 2.0, Rafe Needleman describes " +"a discussion with BMW:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><indexterm><primary> +#: freeculture.xml:9148 +msgid "BMW" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary> +#: freeculture.xml:9163 +msgid "Needleman, Rafe" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:9159 +msgid "" +"Rafe Needleman, \"Driving in Cars with MP3s,\" Business 2.0, 16 June 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli for this example. " +"<placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:9150 +msgid "" +"I asked why, with all the storage capacity and computer power in the car, " +"there was no way to play MP3 files. I was told that BMW engineers in Germany " +"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. . . . <placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9168 +msgid "" +"This is the world of the mafia—filled with \"your money or your life\" " +"offers, governed in the end not by courts but by the threats that the law " +"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." +msgstr "" + +#. PAGE BREAK 201 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9178 +msgid "" +"The point is not that businesses should have a right to start illegal " +"enterprises. The point is the definition of \"illegal.\" The law is a mess " +"of uncertainty. We have no good way to know how it should apply to new " +"technologies. Yet by reversing our tradition of judicial deference, and by " +"embracing the astonishingly high penalties that copyright law imposes, that " +"uncertainty now yields a reality which is far more conservative than is " +"right. If the law imposed the death penalty for parking tickets, we'd not " +"only have fewer parking tickets, we'd also have much less driving. The same " +"principle applies to innovation. If innovation is constantly checked by this " +"uncertain and unlimited liability, we will have much less vibrant innovation " +"and much less creativity." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9193 +msgid "" +"The point is directly parallel to the crunchy-lefty point about fair " +"use. Whatever the \"real\" law is, realism about the effect of law in both " +"contexts is the same. This wildly punitive system of regulation will " +"systematically stifle creativity and innovation. It will protect some " +"industries and some creators, but it will harm industry and creativity " +"generally. Free market and free culture depend upon vibrant competition. " +"Yet the effect of the law today is to stifle just this kind of competition. " +"The effect is to produce an overregulated culture, just as the effect of too " +"much control in the market is to produce an overregulatedregulated market." +msgstr "" + +#. PAGE BREAK 202 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9210 +msgid "" +"The building of a permission culture, rather than a free culture, is the " +"first important way in which the changes I have described will burden " +"innovation. A permission culture means a lawyer's culture—a culture in " +"which the ability to create requires a call to your lawyer. Again, I am not " +"antilawyer, at least when they're kept in their proper place. I am certainly " +"not antilaw. But our profession has lost the sense of its limits. And " +"leaders in our profession have lost an appreciation of the high costs that " +"our profession imposes upon others. The inefficiency of the law is an " +"embarrassment to our tradition. And while I believe our profession should " +"therefore do everything it can to make the law more efficient, it should at " +"least do everything it can to limit the reach of the law where the law is " +"not doing any good. The transaction costs buried within a permission culture " +"are enough to bury a wide range of creativity. Someone needs to do a lot of " +"justifying to justify that result. The uncertainty of the law is one burden " +"on innovation. There is a second burden that operates more directly. This is " +"the effort by many in the content industry to use the law to directly " +"regulate the technology of the Internet so that it better protects their " +"content." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9235 +msgid "" +"The motivation for this response is obvious. The Internet enables the " +"efficient spread of content. That efficiency is a feature of the Internet's " +"design. But from the perspective of the content industry, this feature is a " +"\"bug.\" The efficient spread of content means that content distributors " +"have a harder time controlling the distribution of content. One obvious " +"response to this efficiency is thus to make the Internet less efficient. If " +"the Internet enables \"piracy,\" then, this response says, we should break " +"the kneecaps of the Internet." +msgstr "" + +#. f6. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9251 +msgid "" +"\"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 <ulink url=\"http://free-culture.cc/notes/\">link " +"#44</ulink>." +msgstr "" + +#. f7. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9267 +msgid "GartnerG2, 26–27." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9247 +msgid "" +"The examples of this form of legislation are many. At the urging of the " +"content industry, some in Congress have threatened legislation that would " +"require computers to determine whether the content they access is protected " +"or not, and to disable the spread of protected content.<placeholder " +"type=\"footnote\" id=\"0\"/> 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.<placeholder " +"type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. PAGE BREAK 203 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9272 +msgid "" +"In one sense, these solutions seem sensible. If the problem is the code, why " +"not regulate the code to remove the problem. But any regulation of technical " +"infrastructure will always be tuned to the particular technology of the " +"day. It will impose significant burdens and costs on the technology, but " +"will likely be eclipsed by advances around exactly those requirements." +msgstr "" + +#. f8. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9286 +msgid "" +"See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, " +"February 2002 (Entertainment)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9283 +msgid "" +"In March 2002, a broad coalition of technology companies, led by Intel, " +"tried to get Congress to see the harm that such legislation would " +"impose.<placeholder type=\"footnote\" id=\"0\"/> Their argument was " +"obviously not that copyright should not be protected. Instead, they argued, " +"any protection should not do more harm than good." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9294 +msgid "" +"There is one more obvious way in which this war has harmed " +"innovation—again, a story that will be quite familiar to the free " +"market crowd." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9300 +msgid "" +"Copyright may be property, but like all property, it is also a form of " +"regulation. It is a regulation that benefits some and harms others. When " +"done right, it benefits creators and harms leeches. When done wrong, it is " +"regulation the powerful use to defeat competitors." +msgstr "" + +#. f9. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9309 +msgid "Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9306 +msgid "" +"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,<placeholder type=\"footnote\" " +"id=\"0\"/> overall this history of copyright is not bad. As chapter 10 " +"details, when new technologies have come along, Congress has struck a " +"balance to assure that the new is protected from the old. Compulsory, or " +"statutory, licenses have been one part of that strategy. Free use (as in the " +"case of the VCR) has been another." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9319 +msgid "" +"But that pattern of deference to new technologies has now changed with the " +"rise of the Internet. Rather than striking a balance between the claims of a " +"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." +msgstr "" + +#. f10. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9327 +msgid "" +"The only circuit court exception is found in Recording Industry Association " +"of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th " +"Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that " +"makers of a portable MP3 player were not liable for contributory copyright " +"infringement for a device that is unable to record or redistribute music (a " +"device whose only copying function is to render portable a music file " +"already stored on a user's hard drive). At the district court level, the " +"only exception is found in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, " +"Ltd., 259 F. Supp. 2d 1029 (C.D. Cal., 2003), where the court found the " +"link between the distributor and any given user's conduct too attenuated to " +"make the distributor liable for contributory or vicarious infringement " +"liability." +msgstr "" + +#. f11. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9346 +msgid "" +"For example, in July 2002, Representative Howard Berman introduced the " +"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize " +"copyright holders from liability for damage done to computers when the " +"copyright holders use technology to stop copyright infringement. In August " +"2002, Representative Billy Tauzin introduced a bill to mandate that " +"technologies capable of rebroadcasting digital copies of films broadcast on " +"TV (i.e., computers) respect a \"broadcast flag\" that would disable copying " +"of that content. And in March of the same year, Senator Fritz Hollings " +"introduced the Consumer Broadband and Digital Television Promotion Act, " +"which mandated copyright protection technology in all digital media " +"devices. See GartnerG2, \"Copyright and Digital Media in a Post-Napster " +"World,\" 27 June 2003, 33–34, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #44</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9326 +msgid "" +"The response by the courts has been fairly universal.<placeholder " +"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses " +"threatened and actually implemented by Congress. I won't catalog all of " +"those responses here.<placeholder type=\"footnote\" id=\"1\"/> But there is " +"one example that captures the flavor of them all. This is the story of the " +"demise of Internet radio." +msgstr "" + +#. PAGE BREAK 204 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9369 +msgid "" +"As I described in chapter 4, when a radio station plays a song, the " +"recording artist doesn't get paid for that \"radio performance\" unless he " +"or she is also the composer. So, for example if Marilyn Monroe had recorded " +"a version of \"Happy Birthday\"—to memorialize her famous performance " +"before President Kennedy at Madison Square Garden— then whenever that " +"recording was played on the radio, the current copyright owners of \"Happy " +"Birthday\" would get some money, whereas Marilyn Monroe would not." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9380 +msgid "" +"The reasoning behind this balance struck by Congress makes some sense. The " +"justification was that radio was a kind of advertising. The recording artist " +"thus benefited because by playing her music, the radio station was making it " +"more likely that her records would be purchased. Thus, the recording artist " +"got something, even if only indirectly. Probably this reasoning had less to " +"do with the result than with the power of radio stations: Their lobbyists " +"were quite good at stopping any efforts to get Congress to require " +"compensation to the recording artists." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9392 +msgid "" +"Enter Internet radio. Like regular radio, Internet radio is a technology to " +"stream content from a broadcaster to a listener. The broadcast travels " +"across the Internet, not across the ether of radio spectrum. Thus, I can " +"\"tune in\" to an Internet radio station in Berlin while sitting in San " +"Francisco, even though there's no way for me to tune in to a regular radio " +"station much beyond the San Francisco metropolitan area." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9402 +msgid "" +"This feature of the architecture of Internet radio means that there are " +"potentially an unlimited number of radio stations that a user could tune in " +"to using her computer, whereas under the existing architecture for broadcast " +"radio, there is an obvious limit to the number of broadcasters and clear " +"broadcast frequencies. Internet radio could therefore be more competitive " +"than regular radio; it could provide a wider range of selections. And " +"because the potential audience for Internet radio is the whole world, niche " +"stations could easily develop and market their content to a relatively large " +"number of users worldwide. According to some estimates, more than eighty " +"million users worldwide have tuned in to this new form of radio." +msgstr "" + +#. PAGE BREAK 205 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9418 +msgid "" +"Internet radio is thus to radio what FM was to AM. It is an improvement " +"potentially vastly more significant than the FM improvement over AM, since " +"not only is the technology better, so, too, is the competition. Indeed, " +"there is a direct parallel between the fight to establish FM radio and the " +"fight to protect Internet radio. As one author describes Howard Armstrong's " +"struggle to enable FM radio," +msgstr "" + +#. f12. +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:9447 +msgid "Lessing, 239." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:9430 +msgid "" +"An almost unlimited number of FM stations was possible in the shortwaves, " +"thus ending the unnatural restrictions imposed on radio in the crowded " +"longwaves. If FM were freely developed, the number of stations would be " +"limited only by economics and competition rather than by technical " +"restrictions. . . . Armstrong likened the situation that had grown up in " +"radio to that following the invention of the printing press, when " +"governments and ruling interests attempted to control this new instrument of " +"mass communications by imposing restrictive licenses on it. This tyranny was " +"broken only when it became possible for men freely to acquire printing " +"presses and freely to run them. FM in this sense was as great an invention " +"as the printing presses, for it gave radio the opportunity to strike off its " +"shackles.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f13. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9456 +msgid "Ibid., 229." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9452 +msgid "" +"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\"<placeholder " +"type=\"footnote\" id=\"0\"/> to retard the growth of this competing " +"technology." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9463 +msgid "" +"Now the very same claim could be made about Internet radio. For again, there " +"is no technical limitation that could restrict the number of Internet radio " +"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?" +msgstr "" + +#. PAGE BREAK 206 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9471 +msgid "" +"But here the power of the lobbyists is reversed. Internet radio is a new " +"industry. The recording artists, on the other hand, have a very powerful " +"lobby, the RIAA. Thus when Congress considered the phenomenon of Internet " +"radio in 1995, the lobbyists had primed Congress to adopt a different rule " +"for Internet radio than the rule that applies to terrestrial radio. While " +"terrestrial radio does not have to pay our hypothetical Marilyn Monroe when " +"it plays her hypothetical recording of \"Happy Birthday\" on the air, " +"Internet radio does. Not only is the law not neutral toward Internet " +"radio—the law actually burdens Internet radio more than it burdens " +"terrestrial radio." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:9511 +msgid "CARP (Copyright Arbitration Royalty Panel)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9494 +msgid "" +"This example was derived from fees set by the original Copyright Arbitration " +"Royalty Panel (CARP) proceedings, and is drawn from an example offered by " +"Professor William Fisher. Conference Proceedings, iLaw (Stanford), 3 July " +"2003, on file with author. Professors Fisher and Zittrain submitted " +"testimony in the CARP proceeding that was ultimately rejected. See Jonathan " +"Zittrain, Digital Performance Right in Sound Recordings and Ephemeral " +"Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #45</ulink>. For an excellent " +"analysis making a similar point, see Randal C. Picker, \"Copyright as Entry " +"Policy: The Case of Digital Distribution,\" Antitrust Bulletin (Summer/Fall " +"2002): 461: \"This was not confusion, these are just old-fashioned entry " +"barriers. Analog radio stations are protected from digital entrants, " +"reducing entry in radio and diversity. Yes, this is done in the name of " +"getting royalties to copyright holders, but, absent the play of powerful " +"interests, that could have been done in a media-neutral way.\" <placeholder " +"type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9487 +msgid "" +"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.<placeholder type=\"footnote\" id=\"0\"/> A regular radio station " +"broadcasting the same content would pay no equivalent fee." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9517 +msgid "" +"The burden is not financial only. Under the original rules that were " +"proposed, an Internet radio station (but not a terrestrial radio station) " +"would have to collect the following data from every listening transaction:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9524 +msgid "name of the service;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9527 +msgid "channel of the program (AM/FM stations use station ID);" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9530 +msgid "type of program (archived/looped/live);" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9533 +msgid "date of transmission;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9536 +msgid "time of transmission;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9539 +msgid "time zone of origination of transmission;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9542 +msgid "numeric designation of the place of the sound recording within the program;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9545 +msgid "duration of transmission (to nearest second);" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9548 +msgid "sound recording title;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9551 +msgid "ISRC code of the recording;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9554 +msgid "" +"release year of the album per copyright notice and in the case of " +"compilation albums, the release year of the album and copy- right date of " +"the track;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9557 +msgid "featured recording artist;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9560 +msgid "retail album title;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9563 +msgid "recording label;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9566 +msgid "UPC code of the retail album;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9569 +msgid "catalog number;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9572 +msgid "copyright owner information;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9575 +msgid "musical genre of the channel or program (station format);" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9578 +msgid "name of the service or entity;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9581 +msgid "channel or program;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9584 +msgid "date and time that the user logged in (in the user's time zone);" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9587 +msgid "date and time that the user logged out (in the user's time zone);" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9590 +msgid "time zone where the signal was received (user);" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9593 +msgid "Unique User identifier;" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:9596 +msgid "the country in which the user received the transmissions." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9601 +msgid "" +"The Librarian of Congress eventually suspended these reporting requirements, " +"pending further study. And he also changed the original rates set by the " +"arbitration panel charged with setting rates. But the basic difference " +"between Internet radio and terrestrial radio remains: Internet radio has to " +"pay a type of copyright fee that terrestrial radio does not." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9609 +msgid "" +"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?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9615 +msgid "" +"In a rare bit of candor, one RIAA expert admitted what seemed obvious to " +"everyone at the time. As Alex Alben, vice president for Public Policy at " +"Real Networks, told me," +msgstr "" + +#. PAGE BREAK 208 +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:9621 +msgid "" +"The RIAA, which was representing the record labels, presented some testimony " +"about what they thought a willing buyer would pay to a willing seller, and " +"it was much higher. It was ten times higher than what radio stations pay to " +"perform the same songs for the same period of time. And so the attorneys " +"representing the webcasters asked the RIAA, . . . \"How do you come up with " +"a rate that's so much higher? Why is it worth more than radio? Because here " +"we have hundreds of thousands of webcasters who want to pay, and that should " +"establish the market rate, and if you set the rate so high, you're going to " +"drive the small webcasters out of business. . . .\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:9637 +msgid "" +"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.)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9644 +msgid "" +"Translation: The aim is to use the law to eliminate competition, so that " +"this platform of potentially immense competition, which would cause the " +"diversity and range of content available to explode, would not cause pain to " +"the dinosaurs of old. There is no one, on either the right or the left, who " +"should endorse this use of the law. And yet there is practically no one, on " +"either the right or the left, who is doing anything effective to prevent it." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:9654 +msgid "Corrupting Citizens" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9656 +msgid "" +"Overregulation stifles creativity. It smothers innovation. It gives " +"dinosaurs a veto over the future. It wastes the extraordinary opportunity " +"for a democratic creativity that digital technology enables." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9662 +msgid "" +"In addition to these important harms, there is one more that was important " +"to our forebears, but seems forgotten today. Overregulation corrupts " +"citizens and weakens the rule of law." +msgstr "" + +#. f15. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9671 +msgid "" +"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet " +"and American Life Project (24 April 2001), available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #46</ulink>. The Pew Internet " +"and American Life Project reported that 37 million Americans had downloaded " +"music files from the Internet by early 2001." +msgstr "" + +#. PAGE BREAK 209 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9667 +msgid "" +"The war that is being waged today is a war of prohibition. As with every war " +"of prohibition, it is targeted against the behavior of a very large number " +"of citizens. According to The New York Times, 43 million Americans " +"downloaded music in May 2002.<placeholder type=\"footnote\" id=\"0\"/> " +"According to the RIAA, the behavior of those 43 million Americans is a " +"felony. We thus have a set of rules that transform 20 percent of America " +"into criminals. As the RIAA launches lawsuits against not only the Napsters " +"and Kazaas of the world, but against students building search engines, and " +"increasingly against ordinary users downloading content, the technologies " +"for sharing will advance to further protect and hide illegal use. It is an " +"arms race or a civil war, with the extremes of one side inviting a more " +"extreme response by the other." +msgstr "" + +#. f16. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9705 +msgid "" +"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" Los " +"Angeles Times, 10 September 2003, Business." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9692 +msgid "" +"The content industry's tactics exploit the failings of the American legal " +"system. When the RIAA brought suit against Jesse Jordan, it knew that in " +"Jordan it had found a scapegoat, not a defendant. The threat of having to " +"pay either all the money in the world in damages ($15,000,000) or almost all " +"the money in the world to defend against paying all the money in the world " +"in damages ($250,000 in legal fees) led Jordan to choose to pay all the " +"money he had in the world ($12,000) to make the suit go away. The same " +"strategy animates the RIAA's suits against individual users. In September " +"2003, the RIAA sued 261 individuals—including a twelve-year-old girl " +"living in public housing and a seventy-year-old man who had no idea what " +"file sharing was.<placeholder type=\"footnote\" id=\"0\"/> As these " +"scapegoats discovered, it will always cost more to defend against these " +"suits than it would cost to simply settle. (The twelve year old, for " +"example, like Jesse Jordan, paid her life savings of $2,000 to settle the " +"case.) Our law is an awful system for defending rights. It is an " +"embarrassment to our tradition. And the consequence of our law as it is, is " +"that those with the power can use the law to quash any rights they oppose." +msgstr "" + +#. f17. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9727 +msgid "" +"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During " +"Prohibition,\" American Economic Review 81, no. 2 (1991): 242." +msgstr "" + +#. f18. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9735 +msgid "" +"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)." +msgstr "" + +#. f19. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9745 +msgid "" +"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" " +"Journal of Economic Literature 36 (1998): 818 (survey of compliance " +"literature)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9717 +msgid "" +"Wars of prohibition are nothing new in America. This one is just something " +"more extreme than anything we've seen before. We experimented with alcohol " +"prohibition, at a time when the per capita consumption of alcohol was 1.5 " +"gallons per capita per year. The war against drinking initially reduced that " +"consumption to just 30 percent of its preprohibition levels, but by the end " +"of prohibition, consumption was up to 70 percent of the preprohibition " +"level. Americans were drinking just about as much, but now, a vast number " +"were criminals.<placeholder type=\"footnote\" id=\"0\"/> We have launched a " +"war on drugs aimed at reducing the consumption of regulated narcotics that 7 " +"percent (or 16 million) Americans now use.<placeholder type=\"footnote\" " +"id=\"1\"/> 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.<placeholder " +"type=\"footnote\" id=\"2\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9754 +msgid "" +"This state of affairs is not without consequence. It is a particularly " +"salient issue for teachers like me, whose job it is to teach law students " +"about the importance of \"ethics.\" As my colleague Charlie Nesson told a " +"class at Stanford, each year law schools admit thousands of students who " +"have illegally downloaded music, illegally consumed alcohol and sometimes " +"drugs, illegally worked without paying taxes, illegally driven cars. These " +"are kids for whom behaving illegally is increasingly the norm. And then we, " +"as law professors, are supposed to teach them how to behave " +"ethically—how to say no to bribes, or keep client funds separate, or " +"honor a demand to disclose a document that will mean that your case is " +"over. Generations of Americans—more significantly in some parts of " +"America than in others, but still, everywhere in America today—can't " +"live their lives both normally and legally, since \"normally\" entails a " +"certain degree of illegality." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9771 +msgid "" +"The response to this general illegality is either to enforce the law more " +"severely or to change the law. We, as a society, have to learn how to make " +"that choice more rationally. Whether a law makes sense depends, in part, at " +"least, upon whether the costs of the law, both intended and collateral, " +"outweigh the benefits. If the costs, intended and collateral, do outweigh " +"the benefits, then the law ought to be changed. Alternatively, if the costs " +"of the existing system are much greater than the costs of an alternative, " +"then we have a good reason to consider the alternative." +msgstr "" + +#. PAGE BREAK 211 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9784 +msgid "" +"My point is not the idiotic one: Just because people violate a law, we " +"should therefore repeal it. Obviously, we could reduce murder statistics " +"dramatically by legalizing murder on Wednesdays and Fridays. But that " +"wouldn't make any sense, since murder is wrong every day of the week. A " +"society is right to ban murder always and everywhere." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9791 +msgid "" +"My point is instead one that democracies understood for generations, but " +"that we recently have learned to forget. The rule of law depends upon people " +"obeying the law. The more often, and more repeatedly, we as citizens " +"experience violating the law, the less we respect the law. Obviously, in " +"most cases, the important issue is the law, not respect for the law. I don't " +"care whether the rapist respects the law or not; I want to catch and " +"incarcerate the rapist. But I do care whether my students respect the " +"law. And I do care if the rules of law sow increasing disrespect because of " +"the extreme of regulation they impose. Twenty million Americans have come " +"of age since the Internet introduced this different idea of \"sharing.\" We " +"need to be able to call these twenty million Americans \"citizens,\" not " +"\"felons.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9805 +msgid "" +"When at least forty-three million citizens download content from the " +"Internet, and when they use tools to combine that content in ways " +"unauthorized by copyright holders, the first question we should be asking is " +"not how best to involve the FBI. The first question should be whether this " +"particular prohibition is really necessary in order to achieve the proper " +"ends that copyright law serves. Is there another way to assure that artists " +"get paid without transforming forty-three million Americans into felons? " +"Does it make sense if there are other ways to assure that artists get paid " +"without transforming America into a nation of felons?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9817 +msgid "This abstract point can be made more clear with a particular example." +msgstr "" + +#. PAGE BREAK 212 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9820 +msgid "" +"We all own CDs. Many of us still own phonograph records. These pieces of " +"plastic encode music that in a certain sense we have bought. The law " +"protects our right to buy and sell that plastic: It is not a copyright " +"infringement for me to sell all my classical records at a used record store " +"and buy jazz records to replace them. That \"use\" of the recordings is " +"free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9831 +msgid "" +"But as the MP3 craze has demonstrated, there is another use of phonograph " +"records that is effectively free. Because these recordings were made without " +"copy-protection technologies, I am \"free\" to copy, or \"rip,\" music from " +"my records onto a computer hard disk. Indeed, Apple Corporation went so far " +"as to suggest that \"freedom\" was a right: In a series of commercials, " +"Apple endorsed the \"Rip, Mix, Burn\" capacities of digital technologies." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:9839 +msgid "Adromeda" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9841 +msgid "" +"This \"use\" of my records is certainly valuable. I have begun a large " +"process at home of ripping all of my and my wife's CDs, and storing them in " +"one archive. Then, using Apple's iTunes, or a wonderful program called " +"Andromeda, we can build different play lists of our music: Bach, Baroque, " +"Love Songs, Love Songs of Significant Others—the potential is " +"endless. And by reducing the costs of mixing play lists, these technologies " +"help build a creativity with play lists that is itself independently " +"valuable. Compilations of songs are creative and meaningful in their own " +"right." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9852 +msgid "" +"This use is enabled by unprotected media—either CDs or records. But " +"unprotected media also enable file sharing. File sharing threatens (or so " +"the content industry believes) the ability of creators to earn a fair return " +"from their creativity. And thus, many are beginning to experiment with " +"technologies to eliminate unprotected media. These technologies, for " +"example, would enable CDs that could not be ripped. Or they might enable spy " +"programs to identify ripped content on people's machines." +msgstr "" + +#. PAGE BREAK 213 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9862 +msgid "" +"If these technologies took off, then the building of large archives of your " +"own music would become quite difficult. You might hang in hacker circles, " +"and get technology to disable the technologies that protect the " +"content. Trading in those technologies is illegal, but maybe that doesn't " +"bother you much. In any case, for the vast majority of people, these " +"protection technologies would effectively destroy the archiving use of " +"CDs. The technology, in other words, would force us all back to the world " +"where we either listened to music by manipulating pieces of plastic or were " +"part of a massively complex \"digital rights management\" system." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9876 +msgid "" +"If the only way to assure that artists get paid were the elimination of the " +"ability to freely move content, then these technologies to interfere with " +"the freedom to move content would be justifiable. But what if there were " +"another way to assure that artists are paid, without locking down any " +"content? What if, in other words, a different system could assure " +"compensation to artists while also preserving the freedom to move content " +"easily?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9885 +msgid "" +"My point just now is not to prove that there is such a system. I offer a " +"version of such a system in the last chapter of this book. For now, the only " +"point is the relatively uncontroversial one: If a different system achieved " +"the same legitimate objectives that the existing copyright system achieved, " +"but left consumers and creators much more free, then we'd have a very good " +"reason to pursue this alternative—namely, freedom. The choice, in " +"other words, would not be between property and piracy; the choice would be " +"between different property systems and the freedoms each allowed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9896 +msgid "" +"I believe there is a way to assure that artists are paid without turning " +"forty-three million Americans into felons. But the salient feature of this " +"alternative is that it would lead to a very different market for producing " +"and distributing creativity. The dominant few, who today control the vast " +"majority of the distribution of content in the world, would no longer " +"exercise this extreme of control. Rather, they would go the way of the " +"horse-drawn buggy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9905 +msgid "" +"Except that this generation's buggy manufacturers have already saddled " +"Congress, and are riding the law to protect themselves against this new form " +"of competition. For them the choice is between fortythree million Americans " +"as criminals and their own survival." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9911 +msgid "" +"It is understandable why they choose as they do. It is not understandable " +"why we as a democracy continue to choose as we do. Jack Valenti is charming; " +"but not so charming as to justify giving up a tradition as deep and " +"important as our tradition of free culture. There's one more aspect to this " +"corruption that is particularly important to civil liberties, and follows " +"directly from any war of prohibition. As Electronic Frontier Foundation " +"attorney Fred von Lohmann describes, this is the \"collateral damage\" that " +"\"arises whenever you turn a very large percentage of the population into " +"criminals.\" This is the collateral damage to civil liberties generally. " +"<placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9928 +msgid "\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains," +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:9933 +msgid "" +"then all of a sudden a lot of basic civil liberty protections evaporate to " +"one degree or another. . . . If you're a copyright infringer, how can you " +"hope to have any privacy rights? If you're a copyright infringer, how can " +"you hope to be secure against seizures of your computer? How can you hope to " +"continue to receive Internet access? . . . Our sensibilities change as soon " +"as we think, \"Oh, well, but that person's a criminal, a lawbreaker.\" Well, " +"what this campaign against file sharing has done is turn a remarkable " +"percentage of the American Internet-using population into \"lawbreakers.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9945 +msgid "" +"And the consequence of this transformation of the American public into " +"criminals is that it becomes trivial, as a matter of due process, to " +"effectively erase much of the privacy most would presume." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9950 +msgid "" +"Users of the Internet began to see this generally in 2003 as the RIAA " +"launched its campaign to force Internet service providers to turn over the " +"names of customers who the RIAA believed were violating copyright " +"law. Verizon fought that demand and lost. With a simple request to a judge, " +"and without any notice to the customer at all, the identity of an Internet " +"user is revealed." +msgstr "" + +#. f20. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9968 +msgid "" +"See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in " +"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 " +"September 2003, E1; Chris Cobbs, \"Worried Parents Pull Plug on File " +"`Stealing'; With the Music Industry Cracking Down on File Swapping, Parents " +"are Yanking Software from Home PCs to Avoid Being Sued,\" Orlando Sentinel " +"Tribune, 30 August 2003, C1; Jefferson Graham, \"Recording Industry Sues " +"Parents,\" USA Today, 15 September 2003, 4D; John Schwartz, \"She Says She's " +"No Music Pirate. No Snoop Fan, Either,\" New York Times, 25 September 2003, " +"C1; Margo Varadi, \"Is Brianna a Criminal?\" Toronto Star, 18 September " +"2003, P7." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9959 +msgid "" +"The RIAA then expanded this campaign, by announcing a general strategy to " +"sue individual users of the Internet who are alleged to have downloaded " +"copyrighted music from file-sharing systems. But as we've seen, the " +"potential damages from these suits are astronomical: If a family's computer " +"is used to download a single CD's worth of music, the family could be liable " +"for $2 million in damages. That didn't stop the RIAA from suing a number of " +"these families, just as they had sued Jesse Jordan.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f21. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:9986 +msgid "" +"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some " +"Methods Used,\" CNN.com, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #47</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9982 +msgid "" +"Even this understates the espionage that is being waged by the RIAA. A " +"report from CNN late last summer described a strategy the RIAA had adopted " +"to track Napster users.<placeholder type=\"footnote\" id=\"0\"/> 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.\"" +msgstr "" + +#. f22. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:10007 +msgid "" +"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" Boston " +"Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, \"Four Students Sued over " +"Music Sites; Industry Group Targets File Sharing at Colleges,\" Washington " +"Post, 4 April 2003, E1; Elizabeth Armstrong, \"Students `Rip, Mix, Burn' at " +"Their Own Risk,\" Christian Science Monitor, 2 September 2003, 20; Robert " +"Becker and Angela Rozas, \"Music Pirate Hunt Turns to Loyola; Two Students " +"Names Are Handed Over; Lawsuit Possible,\" Chicago Tribune, 16 July 2003, " +"1C; Beth Cox, \"RIAA Trains Antipiracy Guns on Universities,\" Internet " +"News, 30 January 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #48</ulink>; Benny Evangelista, " +"\"Download Warning 101: Freshman Orientation This Fall to Include Record " +"Industry Warnings Against File Sharing,\" San Francisco Chronicle, 11 August " +"2003, E11; \"Raid, Letters Are Weapons at Universities,\" USA Today, 26 " +"September 2000, 3D." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:9995 +msgid "" +"So imagine the following not-implausible scenario: Imagine a friend gives a " +"CD to your daughter—a collection of songs just like the cassettes you " +"used to make as a kid. You don't know, and neither does your daughter, where " +"these songs came from. But she copies these songs onto her computer. She " +"then takes her computer to college and connects it to a college network, and " +"if the college network is \"cooperating\" with the RIAA's espionage, and she " +"hasn't properly protected her content from the network (do you know how to " +"do that yourself ?), then the RIAA will be able to identify your daughter as " +"a \"criminal.\" And under the rules that universities are beginning to " +"deploy,<placeholder type=\"footnote\" id=\"0\"/> your daughter can lose the " +"right to use the university's computer network. She can, in some cases, be " +"expelled." +msgstr "" + +#. PAGE BREAK 216 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:10026 +msgid "" +"Now, of course, she'll have the right to defend herself. You can hire a " +"lawyer for her (at $300 per hour, if you're lucky), and she can plead that " +"she didn't know anything about the source of the songs or that they came " +"from Napster. And it may well be that the university believes her. But the " +"university might not believe her. It might treat this \"contraband\" as " +"presumptive of guilt. And as any number of college students have already " +"learned, our presumptions about innocence disappear in the middle of wars of " +"prohibition. This war is no different. Says von Lohmann," +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:10041 +msgid "" +"So when we're talking about numbers like forty to sixty million Americans " +"that are essentially copyright infringers, you create a situation where the " +"civil liberties of those people are very much in peril in a general " +"matter. [I don't] think [there is any] analog where you could randomly " +"choose any person off the street and be confident that they were committing " +"an unlawful act that could put them on the hook for potential felony " +"liability or hundreds of millions of dollars of civil liability. Certainly " +"we all speed, but speeding isn't the kind of an act for which we routinely " +"forfeit civil liberties. Some people use drugs, and I think that's the " +"closest analog, [but] many have noted that the war against drugs has eroded " +"all of our civil liberties because it's treated so many Americans as " +"criminals. Well, I think it's fair to say that file sharing is an order of " +"magnitude larger number of Americans than drug use. . . . If forty to sixty " +"million Americans have become lawbreakers, then we're really on a slippery " +"slope to lose a lot of civil liberties for all forty to sixty million of " +"them." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:10061 +msgid "" +"When forty to sixty million Americans are considered \"criminals\" under the " +"law, and when the law could achieve the same objective— securing " +"rights to authors—without these millions being considered " +"\"criminals,\" who is the villain? Americans or the law? Which is American, " +"a constant war on our own people or a concerted effort through our democracy " +"to change our law?" +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:10074 +msgid "BALANCES" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:10078 +msgid "" +"So here's the picture: You're standing at the side of the road. Your car is " +"on fire. You are angry and upset because in part you helped start the " +"fire. Now you don't know how to put it out. Next to you is a bucket, filled " +"with gasoline. Obviously, gasoline won't put the fire out." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:10084 +msgid "" +"As you ponder the mess, someone else comes along. In a panic, she grabs the " +"bucket. Before you have a chance to tell her to stop—or before she " +"understands just why she should stop—the bucket is in the air. The " +"gasoline is about to hit the blazing car. And the fire that gasoline will " +"ignite is about to ignite everything around." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:10092 +msgid "" +"A war about copyright rages all around—and we're all focusing on the " +"wrong thing. No doubt, current technologies threaten existing businesses. " +"No doubt they may threaten artists. But technologies change. The industry " +"and technologists have plenty of ways to use technology to protect " +"themselves against the current threats of the Internet. This is a fire that " +"if let alone would burn itself out." +msgstr "" + +#. PAGE BREAK 219 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:10101 +msgid "" +"Yet policy makers are not willing to leave this fire to itself. Primed with " +"plenty of lobbyists' money, they are keen to intervene to eliminate the " +"problem they perceive. But the problem they perceive is not the real threat " +"this culture faces. For while we watch this small fire in the corner, there " +"is a massive change in the way culture is made that is happening all around." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:10109 +msgid "" +"Somehow we have to find a way to turn attention to this more important and " +"fundamental issue. Somehow we have to find a way to avoid pouring gasoline " +"onto this fire." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:10114 +msgid "" +"We have not found that way yet. Instead, we seem trapped in a simpler, " +"binary view. However much many people push to frame this debate more " +"broadly, it is the simple, binary view that remains. We rubberneck to look " +"at the fire when we should be keeping our eyes on the road." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:10120 +msgid "" +"This challenge has been my life these last few years. It has also been my " +"failure. In the two chapters that follow, I describe one small brace of " +"efforts, so far failed, to find a way to refocus this debate. We must " +"understand these failures if we're to understand what success will require." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:10129 +msgid "CHAPTER THIRTEEN: Eldred" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10131 +msgid "" +"In 1995, a father was frustrated that his daughters didn't seem to like " +"Hawthorne. No doubt there was more than one such father, but at least one " +"did something about it. Eric Eldred, a retired computer programmer living in " +"New Hampshire, decided to put Hawthorne on the Web. An electronic version, " +"Eldred thought, with links to pictures and explanatory text, would make this " +"nineteenth-century author's work come alive." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10140 +msgid "" +"It didn't work—at least for his daughters. They didn't find Hawthorne " +"any more interesting than before. But Eldred's experiment gave birth to a " +"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." +msgstr "" + +#. PAGE BREAK 221 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10147 +msgid "" +"Eldred's library was not simply a copy of certain public domain works, " +"though even a copy would have been of great value to people across the world " +"who can't get access to printed versions of these works. Instead, Eldred was " +"producing derivative works from these public domain works. Just as Disney " +"turned Grimm into stories more accessible to the twentieth century, Eldred " +"transformed Hawthorne, and many others, into a form more " +"accessible—technically accessible—today." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10158 +msgid "" +"Eldred's freedom to do this with Hawthorne's work grew from the same source " +"as Disney's. Hawthorne's Scarlet Letter had passed into the public domain in " +"1907. It was free for anyone to take without the permission of the Hawthorne " +"estate or anyone else. Some, such as Dover Press and Penguin Classics, take " +"works from the public domain and produce printed editions, which they sell " +"in bookstores across the country. Others, such as Disney, take these stories " +"and turn them into animated cartoons, sometimes successfully (Cinderella), " +"sometimes not (The Hunchback of Notre Dame, Treasure Planet). These are all " +"commercial publications of public domain works." +msgstr "" + +#. f1. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10181 +msgid "" +"There's a parallel here with pornography that is a bit hard to describe, but " +"it's a strong one. One phenomenon that the Internet created was a world of " +"noncommercial pornographers—people who were distributing porn but were " +"not making money directly or indirectly from that distribution. Such a " +"class didn't exist before the Internet came into being because the costs of " +"distributing porn were so high. Yet this new class of distributors got " +"special attention in the Supreme Court, when the Court struck down the " +"Communications Decency Act of 1996. It was partly because of the burden on " +"noncommercial speakers that the statute was found to exceed Congress's " +"power. The same point could have been made about noncommercial publishers " +"after the advent of the Internet. The Eric Eldreds of the world before the " +"Internet were extremely few. Yet one would think it at least as important to " +"protect the Eldreds of the world as to protect noncommercial pornographers." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10170 +msgid "" +"The Internet created the possibility of noncommercial publications of public " +"domain works. Eldred's is just one example. There are literally thousands of " +"others. Hundreds of thousands from across the world have discovered this " +"platform of expression and now use it to share works that are, by law, free " +"for the taking. This has produced what we might call the \"noncommercial " +"publishing industry,\" which before the Internet was limited to people with " +"large egos or with political or social causes. But with the Internet, it " +"includes a wide range of individuals and groups dedicated to spreading " +"culture generally.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10198 +msgid "" +"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection " +"of poems New Hampshire was slated to pass into the public domain. Eldred " +"wanted to post that collection in his free public library. But Congress got " +"in the way. As I described in chapter 10, in 1998, for the eleventh time in " +"forty years, Congress extended the terms of existing copyrights—this " +"time by twenty years. Eldred would not be free to add any works more recent " +"than 1923 to his collection until 2019. Indeed, no copyrighted work would " +"pass into the public domain until that year (and not even then, if Congress " +"extends the term again). By contrast, in the same period, more than 1 " +"million patents will pass into the public domain." +msgstr "" + +#. f2. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10218 +msgid "" +"The full text is: \"Sonny [Bono] wanted the term of copyright protection to " +"last forever. I am informed by staff that such a change would violate the " +"Constitution. I invite all of you to work with me to strengthen our " +"copyright laws in all of the ways available to us. As you know, there is " +"also Jack Valenti's proposal for a term to last forever less one " +"day. Perhaps the Committee may look at that next Congress,\" 144 " +"Cong. Rec. H9946, 9951-2 (October 7, 1998)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10213 +msgid "" +"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in " +"memory of the congressman and former musician Sonny Bono, who, his widow, " +"Mary Bono, says, believed that \"copyrights should be forever.\"<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10229 +msgid "" +"Eldred decided to fight this law. He first resolved to fight it through " +"civil disobedience. In a series of interviews, Eldred announced that he " +"would publish as planned, CTEA notwithstanding. But because of a second law " +"passed in 1998, the NET (No Electronic Theft) Act, his act of publishing " +"would make Eldred a felon—whether or not anyone complained. This was a " +"dangerous strategy for a disabled programmer to undertake." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10238 +msgid "" +"It was here that I became involved in Eldred's battle. I was a " +"constitutional scholar whose first passion was constitutional " +"interpretation. And though constitutional law courses never focus upon the " +"Progress Clause of the Constitution, it had always struck me as importantly " +"different. As you know, the Constitution says," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:10249 +msgid "" +"Congress has the power to promote the Progress of Science . . . by securing " +"for limited Times to Authors . . . exclusive Right to their " +". . . Writings. . . ." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10255 +msgid "" +"As I've described, this clause is unique within the power-granting clause of " +"Article I, section 8 of our Constitution. Every other clause granting power " +"to Congress simply says Congress has the power to do something—for " +"example, to regulate \"commerce among the several states\" or \"declare " +"War.\" But here, the \"something\" is something quite specific—to " +"\"promote . . . Progress\"—through means that are also specific— " +"by \"securing\" \"exclusive Rights\" (i.e., copyrights) \"for limited " +"Times.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para><indexterm><primary> +#: freeculture.xml:10274 freeculture.xml:11728 +msgid "Jaszi, Peter" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10265 +msgid "" +"In the past forty years, Congress has gotten into the practice of extending " +"existing terms of copyright protection. What puzzled me about this was, if " +"Congress has the power to extend existing terms, then the Constitution's " +"requirement that terms be \"limited\" will have no practical effect. If " +"every time a copyright is about to expire, Congress has the power to extend " +"its term, then Congress can achieve what the Constitution plainly " +"forbids—perpetual terms \"on the installment plan,\" as Professor " +"Peter Jaszi so nicely put it. <placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10277 +msgid "" +"As an academic, my first response was to hit the books. I remember sitting " +"late at the office, scouring on-line databases for any serious consideration " +"of the question. No one had ever challenged Congress's practice of extending " +"existing terms. That failure may in part be why Congress seemed so " +"untroubled in its habit. That, and the fact that the practice had become so " +"lucrative for Congress. Congress knows that copyright owners will be willing " +"to pay a great deal of money to see their copyright terms extended. And so " +"Congress is quite happy to keep this gravy train going." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10288 +msgid "" +"For this is the core of the corruption in our present system of " +"government. \"Corruption\" not in the sense that representatives are " +"bribed. Rather, \"corruption\" in the sense that the system induces the " +"beneficiaries of Congress's acts to raise and give money to Congress to " +"induce it to act. There's only so much time; there's only so much Congress " +"can do. Why not limit its actions to those things it must do—and those " +"things that pay? Extending copyright terms pays." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10297 +msgid "" +"If that's not obvious to you, consider the following: Say you're one of the " +"very few lucky copyright owners whose copyright continues to make money one " +"hundred years after it was created. The Estate of Robert Frost is a good " +"example. Frost died in 1963. His poetry continues to be extraordinarily " +"valuable. Thus the Robert Frost estate benefits greatly from any extension " +"of copyright, since no publisher would pay the estate any money if the poems " +"Frost wrote could be published by anyone for free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10307 +msgid "" +"So imagine the Robert Frost estate is earning $100,000 a year from three of " +"Frost's poems. And imagine the copyright for those poems is about to " +"expire. You sit on the board of the Robert Frost estate. Your financial " +"adviser comes to your board meeting with a very grim report:" +msgstr "" + +#. PAGE BREAK 224 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10314 +msgid "" +"\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C " +"will expire. That means that after next year, we will no longer be receiving " +"the annual royalty check of $100,000 from the publishers of those works." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10322 +msgid "" +"\"There's a proposal in Congress, however,\" she continues, \"that could " +"change this. A few congressmen are floating a bill to extend the terms of " +"copyright by twenty years. That bill would be extraordinarily valuable to " +"us. So we should hope this bill passes.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10328 +msgid "" +"\"Hope?\" a fellow board member says. \"Can't we be doing something about " +"it?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10332 +msgid "" +"\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the " +"campaigns of a number of representatives to try to assure that they support " +"the bill.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10337 +msgid "" +"You hate politics. You hate contributing to campaigns. So you want to know " +"whether this disgusting practice is worth it. \"How much would we get if " +"this extension were passed?\" you ask the adviser. \"How much is it worth?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10343 +msgid "" +"\"Well,\" the adviser says, \"if you're confident that you will continue to " +"get at least $100,000 a year from these copyrights, and you use the " +"`discount rate' that we use to evaluate estate investments (6 percent), then " +"this law would be worth $1,146,000 to the estate.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10349 +msgid "" +"You're a bit shocked by the number, but you quickly come to the correct " +"conclusion:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10353 +msgid "" +"\"So you're saying it would be worth it for us to pay more than $1,000,000 " +"in campaign contributions if we were confident those contributions would " +"assure that the bill was passed?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10359 +msgid "" +"\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute " +"up to the `present value' of the income you expect from these " +"copyrights. Which for us means over $1,000,000.\"" +msgstr "" + +#. PAGE BREAK 225 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10365 +msgid "" +"You quickly get the point—you as the member of the board and, I trust, " +"you the reader. Each time copyrights are about to expire, every beneficiary " +"in the position of the Robert Frost estate faces the same choice: If they " +"can contribute to get a law passed to extend copyrights, they will benefit " +"greatly from that extension. And so each time copyrights are about to " +"expire, there is a massive amount of lobbying to get the copyright term " +"extended." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10376 +msgid "" +"Thus a congressional perpetual motion machine: So long as legislation can be " +"bought (albeit indirectly), there will be all the incentive in the world to " +"buy further extensions of copyright." +msgstr "" + +#. f3. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10389 +msgid "" +"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." +msgstr "" + +#. f4. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10396 +msgid "" +"See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>." +msgstr "" + +#. f5. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10403 +msgid "" +"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" Congressional " +"Quarterly This Week, 8 August 1990, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #50</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10382 +msgid "" +"In the lobbying that led to the passage of the Sonny Bono Copyright Term " +"Extension Act, this \"theory\" about incentives was proved real. Ten of the " +"thirteen original sponsors of the act in the House received the maximum " +"contribution from Disney's political action committee; in the Senate, eight " +"of the twelve sponsors received contributions.<placeholder type=\"footnote\" " +"id=\"0\"/> 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.<placeholder type=\"footnote\" id=\"1\"/> " +"Disney is estimated to have contributed more than $800,000 to reelection " +"campaigns in the cycle.<placeholder type=\"footnote\" id=\"2\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10411 +msgid "" +"Constitutional law is not oblivious to the obvious. Or at least, it need not " +"be. So when I was considering Eldred's complaint, this reality about the " +"never-ending incentives to increase the copyright term was central to my " +"thinking. In my view, a pragmatic court committed to interpreting and " +"applying the Constitution of our framers would see that if Congress has the " +"power to extend existing terms, then there would be no effective " +"constitutional requirement that terms be \"limited.\" If they could extend " +"it once, they would extend it again and again and again." +msgstr "" + +#. PAGE BREAK 226 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10424 +msgid "" +"It was also my judgment that this Supreme Court would not allow Congress to " +"extend existing terms. As anyone close to the Supreme Court's work knows, " +"this Court has increasingly restricted the power of Congress when it has " +"viewed Congress's actions as exceeding the power granted to it by the " +"Constitution. Among constitutional scholars, the most famous example of this " +"trend was the Supreme Court's decision in 1995 to strike down a law that " +"banned the possession of guns near schools." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10437 +msgid "" +"Since 1937, the Supreme Court had interpreted Congress's granted powers very " +"broadly; so, while the Constitution grants Congress the power to regulate " +"only \"commerce among the several states\" (aka \"interstate commerce\"), " +"the Supreme Court had interpreted that power to include the power to " +"regulate any activity that merely affected interstate commerce." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10447 +msgid "" +"As the economy grew, this standard increasingly meant that there was no " +"limit to Congress's power to regulate, since just about every activity, when " +"considered on a national scale, affects interstate commerce. A Constitution " +"designed to limit Congress's power was instead interpreted to impose no " +"limit." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10456 +msgid "" +"The Supreme Court, under Chief Justice Rehnquist's command, changed that in " +"United States v. Lopez. The government had argued that possessing guns near " +"schools affected interstate commerce. Guns near schools increase crime, " +"crime lowers property values, and so on. In the oral argument, the Chief " +"Justice asked the government whether there was any activity that would not " +"affect interstate commerce under the reasoning the government advanced. The " +"government said there was not; if Congress says an activity affects " +"interstate commerce, then that activity affects interstate commerce. The " +"Supreme Court, the government said, was not in the position to second-guess " +"Congress." +msgstr "" + +#. f6. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10472 +msgid "United States v. Lopez, 514 U.S. 549, 564 (1995)." +msgstr "" + +#. f7. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10478 +msgid "United States v. Morrison, 529 U.S. 598 (2000)." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10469 +msgid "" +"\"We pause to consider the implications of the government's arguments,\" the " +"Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> 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.<placeholder type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. f8. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10485 +msgid "" +"If it is a principle about enumerated powers, then the principle carries " +"from one enumerated power to another. The animating point in the context of " +"the Commerce Clause was that the interpretation offered by the government " +"would allow the government unending power to regulate commerce—the " +"limitation to interstate commerce notwithstanding. The same point is true in " +"the context of the Copyright Clause. Here, too, the government's " +"interpretation would allow the government unending power to regulate " +"copyrights—the limitation to \"limited times\" notwithstanding." +msgstr "" + +#. PAGE BREAK 227 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10483 +msgid "" +"If a principle were at work here, then it should apply to the Progress " +"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" " +"id=\"0\"/> And if it is applied to the Progress Clause, the principle should " +"yield the conclusion that Congress can't extend an existing term. If " +"Congress could extend an existing term, then there would be no \"stopping " +"point\" to Congress's power over terms, though the Constitution expressly " +"states that there is such a limit. Thus, the same principle applied to the " +"power to grant copyrights should entail that Congress is not allowed to " +"extend the term of existing copyrights." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10509 +msgid "" +"If, that is, the principle announced in Lopez stood for a principle. Many " +"believed the decision in Lopez stood for politics—a conservative " +"Supreme Court, which believed in states' rights, using its power over " +"Congress to advance its own personal political preferences. But I rejected " +"that view of the Supreme Court's decision. Indeed, shortly after the " +"decision, I wrote an article demonstrating the \"fidelity\" in such an " +"interpretation of the Constitution. The idea that the Supreme Court decides " +"cases based upon its politics struck me as extraordinarily boring. I was " +"not going to devote my life to teaching constitutional law if these nine " +"Justices were going to be petty politicians." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10523 +msgid "" +"Now let's pause for a moment to make sure we understand what the argument in " +"Eldred was not about. By insisting on the Constitution's limits to " +"copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious " +"sense, he was fighting a kind of piracy—piracy of the public " +"domain. When Robert Frost wrote his work and when Walt Disney created Mickey " +"Mouse, the maximum copyright term was just fifty-six years. Because of " +"interim changes, Frost and Disney had already enjoyed a seventy-five-year " +"monopoly for their work. They had gotten the benefit of the bargain that the " +"Constitution envisions: In exchange for a monopoly protected for fifty-six " +"years, they created new work. But now these entities were using their " +"power—expressed through the power of lobbyists' money—to get " +"another twenty-year dollop of monopoly. That twenty-year dollop would be " +"taken from the public domain. Eric Eldred was fighting a piracy that affects " +"us all." +msgstr "" + +#. f9. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10546 +msgid "" +"Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 " +"U.S. 186 (2003) (No. 01-618), n.10, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #51</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10541 +msgid "" +"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.\"<placeholder type=\"footnote\" " +"id=\"0\"/> But it is not piracy when the law allows it; and in our " +"constitutional system, our law requires it. Some may not like the " +"Constitution's requirements, but that doesn't make the Constitution a " +"pirate's charter." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10556 +msgid "" +"As we've seen, our constitutional system requires limits on copyright as a " +"way to assure that copyright holders do not too heavily influence the " +"development and distribution of our culture. Yet, as Eric Eldred discovered, " +"we have set up a system that assures that copyright terms will be repeatedly " +"extended, and extended, and extended. We have created the perfect storm for " +"the public domain. Copyrights have not expired, and will not expire, so long " +"as Congress is free to be bought to extend them again." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10568 +msgid "" +"It is valuable copyrights that are responsible for terms being extended. " +"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for " +"copyright owners to ignore. But the real harm to our society from copyright " +"extensions is not that Mickey Mouse remains Disney's. Forget Mickey " +"Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s " +"that have continuing commercial value. The real harm of term extension comes " +"not from these famous works. The real harm is to the works that are not " +"famous, not commercially exploited, and no longer available as a result." +msgstr "" + +#. f10. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10589 +msgid "" +"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 <ulink " +"url=\"http://free-culture.cc/notes/\">link #52</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10583 +msgid "" +"If you look at the work created in the first twenty years (1923 to 1942) " +"affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that " +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 229 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10598 +msgid "" +"Think practically about the consequence of this extension—practically, " +"as a businessperson, and not as a lawyer eager for more legal work. In 1930, " +"10,047 books were published. In 2000, 174 of those books were still in " +"print. Let's say you were Brewster Kahle, and you wanted to make available " +"to the world in your iArchive project the remaining 9,873. What would you " +"have to do?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10610 +msgid "" +"Well, first, you'd have to determine which of the 9,873 books were still " +"under copyright. That requires going to a library (these data are not " +"on-line) and paging through tomes of books, cross-checking the titles and " +"authors of the 9,873 books with the copyright registration and renewal " +"records for works published in 1930. That will produce a list of books still " +"under copyright." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10618 +msgid "" +"Then for the books still under copyright, you would need to locate the " +"current copyright owners. How would you do that?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10622 +msgid "" +"Most people think that there must be a list of these copyright owners " +"somewhere. Practical people think this way. How could there be thousands and " +"thousands of government monopolies without there being at least a list?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10629 +msgid "" +"But there is no list. There may be a name from 1930, and then in 1959, of " +"the person who registered the copyright. But just think practically about " +"how impossibly difficult it would be to track down thousands of such " +"records—especially since the person who registered is not necessarily " +"the current owner. And we're just talking about 1930!" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10638 +msgid "" +"\"But there isn't a list of who owns property generally,\" the apologists " +"for the system respond. \"Why should there be a list of copyright owners?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10644 +msgid "" +"Well, actually, if you think about it, there are plenty of lists of who owns " +"what property. Think about deeds on houses, or titles to cars. And where " +"there isn't a list, the code of real space is pretty good at suggesting who " +"the owner of a bit of property is. (A swing set in your backyard is probably " +"yours.) So formally or informally, we have a pretty good way to know who " +"owns what tangible property." +msgstr "" + +#. PAGE BREAK 230 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10653 +msgid "" +"So: You walk down a street and see a house. You can know who owns the house " +"by looking it up in the courthouse registry. If you see a car, there is " +"ordinarily a license plate that will link the owner to the car. If you see a " +"bunch of children's toys sitting on the front lawn of a house, it's fairly " +"easy to determine who owns the toys. And if you happen to see a baseball " +"lying in a gutter on the side of the road, look around for a second for some " +"kids playing ball. If you don't see any kids, then okay: Here's a bit of " +"property whose owner we can't easily determine. It is the exception that " +"proves the rule: that we ordinarily know quite well who owns what property." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10668 +msgid "" +"Compare this story to intangible property. You go into a library. The " +"library owns the books. But who owns the copyrights? As I've already " +"described, there's no list of copyright owners. There are authors' names, of " +"course, but their copyrights could have been assigned, or passed down in an " +"estate like Grandma's old jewelry. To know who owns what, you would have to " +"hire a private detective. The bottom line: The owner cannot easily be " +"located. And in a regime like ours, in which it is a felony to use such " +"property without the property owner's permission, the property isn't going " +"to be used." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10680 +msgid "" +"The consequence with respect to old books is that they won't be digitized, " +"and hence will simply rot away on shelves. But the consequence for other " +"creative works is much more dire." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:10685 +msgid "Agee, Michael" +msgstr "" + +#. f11. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10698 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10687 +msgid "" +"Consider the story of Michael Agee, chairman of Hal Roach Studios, which " +"owns the copyrights for the Laurel and Hardy films. Agee is a direct " +"beneficiary of the Bono Act. The Laurel and Hardy films were made between " +"1921 and 1951. Only one of these films, The Lucky Dog, is currently out of " +"copyright. But for the CTEA, films made after 1923 would have begun entering " +"the public domain. Because Agee controls the exclusive rights for these " +"popular films, he makes a great deal of money. According to one estimate, " +"\"Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo's " +"silent films.\"<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10706 +msgid "" +"Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this " +"culture: selflessness. He argued in a brief before the Supreme Court that " +"the Sonny Bono Copyright Term Extension Act will, if left standing, destroy " +"a whole generation of American film." +msgstr "" + +#. PAGE BREAK 231 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10712 +msgid "" +"His argument is straightforward. A tiny fraction of this work has any " +"continuing commercial value. The rest—to the extent it survives at " +"all—sits in vaults gathering dust. It may be that some of this work " +"not now commercially valuable will be deemed to be valuable by the owners of " +"the vaults. For this to occur, however, the commercial benefit from the work " +"must exceed the costs of making the work available for distribution." +msgstr "" + +#. f12. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10729 +msgid "" +"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the " +"Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618), 12. See " +"also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet " +"Archive, Eldred v. Ashcroft, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #53</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10723 +msgid "" +"We can't know the benefits, but we do know a lot about the costs. For most " +"of the history of film, the costs of restoring film were very high; digital " +"technology has lowered these costs substantially. While it cost more than " +"$10,000 to restore a ninety-minute black-and-white film in 1993, it can now " +"cost as little as $100 to digitize one hour of mm film.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10739 +msgid "" +"Restoration technology is not the only cost, nor the most important. " +"Lawyers, too, are a cost, and increasingly, a very important one. In " +"addition to preserving the film, a distributor needs to secure the rights. " +"And to secure the rights for a film that is under copyright, you need to " +"locate the copyright owner." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10747 +msgid "" +"Or more accurately, owners. As we've seen, there isn't only a single " +"copyright associated with a film; there are many. There isn't a single " +"person whom you can contact about those copyrights; there are as many as can " +"hold the rights, which turns out to be an extremely large number. Thus the " +"costs of clearing the rights to these films is exceptionally high." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10756 +msgid "" +"\"But can't you just restore the film, distribute it, and then pay the " +"copyright owner when she shows up?\" Sure, if you want to commit a " +"felony. And even if you're not worried about committing a felony, when she " +"does show up, she'll have the right to sue you for all the profits you have " +"made. So, if you're successful, you can be fairly confident you'll be " +"getting a call from someone's lawyer. And if you're not successful, you " +"won't make enough to cover the costs of your own lawyer. Either way, you " +"have to talk to a lawyer. And as is too often the case, saying you have to " +"talk to a lawyer is the same as saying you won't make any money." +msgstr "" + +#. PAGE BREAK 232 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10767 +msgid "" +"For some films, the benefit of releasing the film may well exceed these " +"costs. But for the vast majority of them, there is no way the benefit would " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10777 +msgid "" +"But by the time the copyright for these films expires, the film will have " +"expired. These films were produced on nitrate-based stock, and nitrate stock " +"dissolves over time. They will be gone, and the metal canisters in which " +"they are now stored will be filled with nothing more than dust." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10785 +msgid "" +"Of all the creative work produced by humans anywhere, a tiny fraction has " +"continuing commercial value. For that tiny fraction, the copyright is a " +"crucially important legal device. For that tiny fraction, the copyright " +"creates incentives to produce and distribute the creative work. For that " +"tiny fraction, the copyright acts as an \"engine of free expression.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10794 +msgid "" +"But even for that tiny fraction, the actual time during which the creative " +"work has a commercial life is extremely short. As I've indicated, most books " +"go out of print within one year. The same is true of music and " +"film. Commercial culture is sharklike. It must keep moving. And when a " +"creative work falls out of favor with the commercial distributors, the " +"commercial life ends." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10804 +msgid "" +"Yet that doesn't mean the life of the creative work ends. We don't keep " +"libraries of books in order to compete with Barnes & Noble, and we don't " +"have archives of films because we expect people to choose between spending " +"Friday night watching new movies and spending Friday night watching a 1930 " +"news documentary. The noncommercial life of culture is important and " +"valuable—for entertainment but also, and more importantly, for " +"knowledge. To understand who we are, and where we came from, and how we have " +"made the mistakes that we have, we need to have access to this history." +msgstr "" + +#. PAGE BREAK 233 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10817 +msgid "" +"Copyrights in this context do not drive an engine of free expression. In " +"this context, there is no need for an exclusive right. Copyrights in this " +"context do no good." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10824 +msgid "" +"Yet, for most of our history, they also did little harm. For most of our " +"history, when a work ended its commercial life, there was no " +"copyright-related use that would be inhibited by an exclusive right. When a " +"book went out of print, you could not buy it from a publisher. But you " +"could still buy it from a used book store, and when a used book store sells " +"it, in America, at least, there is no need to pay the copyright owner " +"anything. Thus, the ordinary use of a book after its commercial life ended " +"was a use that was independent of copyright law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10834 +msgid "" +"The same was effectively true of film. Because the costs of restoring a " +"film—the real economic costs, not the lawyer costs—were so high, " +"it was never at all feasible to preserve or restore film. Like the remains " +"of a great dinner, when it's over, it's over. Once a film passed out of its " +"commercial life, it may have been archived for a bit, but that was the end " +"of its life so long as the market didn't have more to offer." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10843 +msgid "" +"In other words, though copyright has been relatively short for most of our " +"history, long copyrights wouldn't have mattered for the works that lost " +"their commercial value. Long copyrights for these works would not have " +"interfered with anything." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10849 +msgid "But this situation has now changed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10852 +msgid "" +"One crucially important consequence of the emergence of digital technologies " +"is to enable the archive that Brewster Kahle dreams of. Digital " +"technologies now make it possible to preserve and give access to all sorts " +"of knowledge. Once a book goes out of print, we can now imagine digitizing " +"it and making it available to everyone, forever. Once a film goes out of " +"distribution, we could digitize it and make it available to everyone, " +"forever. Digital technologies give new life to copyrighted material after it " +"passes out of its commercial life. It is now possible to preserve and assure " +"universal access to this knowledge and culture, whereas before it was not." +msgstr "" + +#. PAGE BREAK 234 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10865 +msgid "" +"And now copyright law does get in the way. Every step of producing this " +"digital archive of our culture infringes on the exclusive right of " +"copyright. To digitize a book is to copy it. To do that requires permission " +"of the copyright owner. The same with music, film, or any other aspect of " +"our culture protected by copyright. The effort to make these things " +"available to history, or to researchers, or to those who just want to " +"explore, is now inhibited by a set of rules that were written for a " +"radically different context." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10875 +msgid "" +"Here is the core of the harm that comes from extending terms: Now that " +"technology enables us to rebuild the library of Alexandria, the law gets in " +"the way. And it doesn't get in the way for any useful copyright purpose, for " +"the purpose of copyright is to enable the commercial market that spreads " +"culture. No, we are talking about culture after it has lived its commercial " +"life. In this context, copyright is serving no purpose at all related to the " +"spread of knowledge. In this context, copyright is not an engine of free " +"expression. Copyright is a brake." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10886 +msgid "" +"You may well ask, \"But if digital technologies lower the costs for Brewster " +"Kahle, then they will lower the costs for Random House, too. So won't " +"Random House do as well as Brewster Kahle in spreading culture widely?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10892 +msgid "" +"Maybe. Someday. But there is absolutely no evidence to suggest that " +"publishers would be as complete as libraries. If Barnes & Noble offered " +"to lend books from its stores for a low price, would that eliminate the need " +"for libraries? Only if you think that the only role of a library is to serve " +"what \"the market\" would demand. But if you think the role of a library is " +"bigger than this—if you think its role is to archive culture, whether " +"there's a demand for any particular bit of that culture or not—then we " +"can't count on the commercial market to do our library work for us." +msgstr "" + +#. f13. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:10915 +msgid "" +"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 " +"December 2002, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #54</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10903 +msgid "" +"I would be the first to agree that it should do as much as it can: We should " +"rely upon the market as much as possible to spread and enable culture. My " +"message is absolutely not antimarket. But where we see the market is not " +"doing the job, then we should allow nonmarket forces the freedom to fill the " +"gaps. As one researcher calculated for American culture, 94 percent of the " +"films, books, and music produced between and 1946 is not commercially " +"available. However much you love the commercial market, if access is a " +"value, then 6 percent is a failure to provide that value.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10922 +msgid "" +"In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal " +"district court in Washington, D.C., asking the court to declare the Sonny " +"Bono Copyright Term Extension Act unconstitutional. The two central claims " +"that we made were (1) that extending existing terms violated the " +"Constitution's \"limited Times\" requirement, and (2) that extending terms " +"by another twenty years violated the First Amendment." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10930 +msgid "" +"The district court dismissed our claims without even hearing an argument. A " +"panel of the Court of Appeals for the D.C. Circuit also dismissed our " +"claims, though after hearing an extensive argument. But that decision at " +"least had a dissent, by one of the most conservative judges on that " +"court. That dissent gave our claims life." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10937 +msgid "" +"Judge David Sentelle said the CTEA violated the requirement that copyrights " +"be for \"limited Times\" only. His argument was as elegant as it was simple: " +"If Congress can extend existing terms, then there is no \"stopping point\" " +"to Congress's power under the Copyright Clause. The power to extend existing " +"terms means Congress is not required to grant terms that are \"limited.\" " +"Thus, Judge Sentelle argued, the court had to interpret the term \"limited " +"Times\" to give it meaning. And the best interpretation, Judge Sentelle " +"argued, would be to deny Congress the power to extend existing terms." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10948 +msgid "" +"We asked the Court of Appeals for the D.C. Circuit as a whole to hear the " +"case. Cases are ordinarily heard in panels of three, except for important " +"cases or cases that raise issues specific to the circuit as a whole, where " +"the court will sit \"en banc\" to hear the case." +msgstr "" + +#. PAGE BREAK 236 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10954 +msgid "" +"The Court of Appeals rejected our request to hear the case en banc. This " +"time, Judge Sentelle was joined by the most liberal member of the " +"D.C. Circuit, Judge David Tatel. Both the most conservative and the most " +"liberal judges in the D.C. Circuit believed Congress had overstepped its " +"bounds." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10963 +msgid "" +"It was here that most expected Eldred v. Ashcroft would die, for the Supreme " +"Court rarely reviews any decision by a court of appeals. (It hears about one " +"hundred cases a year, out of more than five thousand appeals.) And it " +"practically never reviews a decision that upholds a statute when no other " +"court has yet reviewed the statute." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10970 +msgid "" +"But in February 2002, the Supreme Court surprised the world by granting our " +"petition to review the D.C. Circuit opinion. Argument was set for October of " +"2002. The summer would be spent writing briefs and preparing for argument." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10976 +msgid "" +"It is over a year later as I write these words. It is still astonishingly " +"hard. If you know anything at all about this story, you know that we lost " +"the appeal. And if you know something more than just the minimum, you " +"probably think there was no way this case could have been won. After our " +"defeat, I received literally thousands of missives by well-wishers and " +"supporters, thanking me for my work on behalf of this noble but doomed " +"cause. And none from this pile was more significant to me than the e-mail " +"from my client, Eric Eldred." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10986 +msgid "" +"But my client and these friends were wrong. This case could have been " +"won. It should have been won. And no matter how hard I try to retell this " +"story to myself, I can never escape believing that my own mistake lost it." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:10991 freeculture.xml:11005 +msgid "Steward, Geoffrey" +msgstr "" + +#. PAGE BREAK 237 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:10993 +msgid "" +"The mistake was made early, though it became obvious only at the very " +"end. Our case had been supported from the very beginning by an extraordinary " +"lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, " +"Reavis and Pogue. Jones Day took a great deal of heat from its " +"copyright-protectionist clients for supporting us. They ignored this " +"pressure (something that few law firms today would ever do), and throughout " +"the case, they gave it everything they could." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11003 freeculture.xml:11342 freeculture.xml:11356 freeculture.xml:11450 freeculture.xml:11672 freeculture.xml:11703 freeculture.xml:11789 +msgid "Ayer, Don" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11004 +msgid "Bromberg, Dan" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11007 +msgid "" +"There were three key lawyers on the case from Jones Day. Geoff Stewart was " +"the first, but then Dan Bromberg and Don Ayer became quite " +"involved. Bromberg and Ayer in particular had a common view about how this " +"case would be won: We would only win, they repeatedly told me, if we could " +"make the issue seem \"important\" to the Supreme Court. It had to seem as if " +"dramatic harm were being done to free speech and free culture; otherwise, " +"they would never vote against \"the most powerful media companies in the " +"world.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11017 +msgid "" +"I hate this view of the law. Of course I thought the Sonny Bono Act was a " +"dramatic harm to free speech and free culture. Of course I still think it " +"is. But the idea that the Supreme Court decides the law based on how " +"important they believe the issues are is just wrong. It might be \"right\" " +"as in \"true,\" I thought, but it is \"wrong\" as in \"it just shouldn't be " +"that way.\" As I believed that any faithful interpretation of what the " +"framers of our Constitution did would yield the conclusion that the CTEA was " +"unconstitutional, and as I believed that any faithful interpretation of what " +"the First Amendment means would yield the conclusion that the power to " +"extend existing copyright terms is unconstitutional, I was not persuaded " +"that we had to sell our case like soap. Just as a law that bans the " +"swastika is unconstitutional not because the Court likes Nazis but because " +"such a law would violate the Constitution, so too, in my view, would the " +"Court decide whether Congress's law was constitutional based on the " +"Constitution, not based on whether they liked the values that the framers " +"put in the Constitution." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11038 +msgid "" +"In any case, I thought, the Court must already see the danger and the harm " +"caused by this sort of law. Why else would they grant review? There was no " +"reason to hear the case in the Supreme Court if they weren't convinced that " +"this regulation was harmful. So in my view, we didn't need to persuade them " +"that this law was bad, we needed to show why it was unconstitutional." +msgstr "" + +#. PAGE BREAK 238 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11046 +msgid "" +"There was one way, however, in which I felt politics would matter and in " +"which I thought a response was appropriate. I was convinced that the Court " +"would not hear our arguments if it thought these were just the arguments of " +"a group of lefty loons. This Supreme Court was not about to launch into a " +"new field of judicial review if it seemed that this field of review was " +"simply the preference of a small political minority. Although my focus in " +"the case was not to demonstrate how bad the Sonny Bono Act was but to " +"demonstrate that it was unconstitutional, my hope was to make this argument " +"against a background of briefs that covered the full range of political " +"views. To show that this claim against the CTEA was grounded in law and not " +"politics, then, we tried to gather the widest range of credible " +"critics—credible not because they were rich and famous, but because " +"they, in the aggregate, demonstrated that this law was unconstitutional " +"regardless of one's politics." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11065 +msgid "" +"The first step happened all by itself. Phyllis Schlafly's organization, " +"Eagle Forum, had been an opponent of the CTEA from the very beginning. " +"Mrs. Schlafly viewed the CTEA as a sellout by Congress. In November 1998, " +"she wrote a stinging editorial attacking the Republican Congress for " +"allowing the law to pass. As she wrote, \"Do you sometimes wonder why bills " +"that create a financial windfall to narrow special interests slide easily " +"through the intricate legislative process, while bills that benefit the " +"general public seem to get bogged down?\" The answer, as the editorial " +"documented, was the power of money. Schlafly enumerated Disney's " +"contributions to the key players on the committees. It was money, not " +"justice, that gave Mickey Mouse twenty more years in Disney's control, " +"Schlafly argued." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11081 +msgid "" +"In the Court of Appeals, Eagle Forum was eager to file a brief supporting " +"our position. Their brief made the argument that became the core claim in " +"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." +msgstr "" + +#. PAGE BREAK 239 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11090 +msgid "" +"In the Supreme Court, the briefs on our side were about as diverse as it " +"gets. They included an extraordinary historical brief by the Free Software " +"Foundation (home of the GNU project that made GNU/ Linux possible). They " +"included a powerful brief about the costs of uncertainty by Intel. There " +"were two law professors' briefs, one by copyright scholars and one by First " +"Amendment scholars. There was an exhaustive and uncontroverted brief by the " +"world's experts in the history of the Progress Clause. And of course, there " +"was a new brief by Eagle Forum, repeating and strengthening its arguments." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11103 +msgid "" +"Those briefs framed a legal argument. Then to support the legal argument, " +"there were a number of powerful briefs by libraries and archives, including " +"the Internet Archive, the American Association of Law Libraries, and the " +"National Writers Union." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11109 +msgid "" +"But two briefs captured the policy argument best. One made the argument I've " +"already described: A brief by Hal Roach Studios argued that unless the law " +"was struck, a whole generation of American film would disappear. The other " +"made the economic argument absolutely clear." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11115 +msgid "Akerlof, George" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11116 +msgid "Arrow, Kenneth" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11117 +msgid "Buchanan, James" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11118 +msgid "Coase, Ronald" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11119 +msgid "Friedman, Milton" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11121 +msgid "" +"This economists' brief was signed by seventeen economists, including five " +"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton " +"Friedman, Kenneth Arrow, and George Akerlof. The economists, as the list of " +"Nobel winners demonstrates, spanned the political spectrum. Their " +"conclusions were powerful: There was no plausible claim that extending the " +"terms of existing copyrights would do anything to increase incentives to " +"create. Such extensions were nothing more than \"rent-seeking\"—the " +"fancy term economists use to describe special-interest legislation gone " +"wild." +msgstr "" + +#. PAGE BREAK 240 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11132 +msgid "" +"The same effort at balance was reflected in the legal team we gathered to " +"write our briefs in the case. The Jones Day lawyers had been with us from " +"the start. But when the case got to the Supreme Court, we added three " +"lawyers to help us frame this argument to this Court: Alan Morrison, a " +"lawyer from Public Citizen, a Washington group that had made constitutional " +"history with a series of seminal victories in the Supreme Court defending " +"individual rights; my colleague and dean, Kathleen Sullivan, who had argued " +"many cases in the Court, and who had advised us early on about a First " +"Amendment strategy; and finally, former solicitor general Charles Fried." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11146 +msgid "" +"Fried was a special victory for our side. Every other former solicitor " +"general was hired by the other side to defend Congress's power to give media " +"companies the special favor of extended copyright terms. Fried was the only " +"one who turned down that lucrative assignment to stand up for something he " +"believed in. He had been Ronald Reagan's chief lawyer in the Supreme " +"Court. He had helped craft the line of cases that limited Congress's power " +"in the context of the Commerce Clause. And while he had argued many " +"positions in the Supreme Court that I personally disagreed with, his joining " +"the cause was a vote of confidence in our argument." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11158 +msgid "" +"The government, in defending the statute, had its collection of friends, as " +"well. Significantly, however, none of these \"friends\" included historians " +"or economists. The briefs on the other side of the case were written " +"exclusively by major media companies, congressmen, and copyright holders." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11165 +msgid "" +"The media companies were not surprising. They had the most to gain from the " +"law. The congressmen were not surprising either—they were defending " +"their power and, indirectly, the gravy train of contributions such power " +"induced. And of course it was not surprising that the copyright holders " +"would defend the idea that they should continue to have the right to control " +"who did what with content they wanted to control." +msgstr "" + +#. f14. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:11181 +msgid "" +"Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. " +"(2003) (No. 01-618), 19." +msgstr "" + +#. f15. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:11189 +msgid "" +"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins " +"the Fray,\" New York Times, 28 March 1998, B7." +msgstr "" + +#. PAGE BREAK 241 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11174 +msgid "" +"Dr. Seuss's representatives, for example, argued that it was better for the " +"Dr. Seuss estate to control what happened to Dr. Seuss's work— better " +"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.\"<placeholder type=\"footnote\" id=\"0\"/> " +"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.<placeholder type=\"footnote\" id=\"1\"/> That's their view of how this " +"part of American culture should be controlled, and they wanted this law to " +"help them effect that control." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11199 +msgid "" +"This argument made clear a theme that is rarely noticed in this debate. " +"When Congress decides to extend the term of existing copyrights, Congress is " +"making a choice about which speakers it will favor. Famous and beloved " +"copyright owners, such as the Gershwin estate and Dr. Seuss, come to " +"Congress and say, \"Give us twenty years to control the speech about these " +"icons of American culture. We'll do better with them than anyone else.\" " +"Congress of course likes to reward the popular and famous by giving them " +"what they want. But when Congress gives people an exclusive right to speak " +"in a certain way, that's just what the First Amendment is traditionally " +"meant to block." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11211 +msgid "" +"We argued as much in a final brief. Not only would upholding the CTEA mean " +"that there was no limit to the power of Congress to extend " +"copyrights—extensions that would further concentrate the market; it " +"would also mean that there was no limit to Congress's power to play " +"favorites, through copyright, with who has the right to speak. Between " +"February and October, there was little I did beyond preparing for this " +"case. Early on, as I said, I set the strategy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11220 +msgid "" +"The Supreme Court was divided into two important camps. One camp we called " +"\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives " +"included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice " +"Kennedy, and Justice Thomas. These five had been the most consistent in " +"limiting Congress's power. They were the five who had supported the " +"Lopez/Morrison line of cases that said that an enumerated power had to be " +"interpreted to assure that Congress's powers had limits." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11229 freeculture.xml:11253 freeculture.xml:11601 freeculture.xml:11613 +msgid "Breyer, Stephen" +msgstr "" + +#. PAGE BREAK 242 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11231 +msgid "" +"The Rest were the four Justices who had strongly opposed limits on " +"Congress's power. These four—Justice Stevens, Justice Souter, Justice " +"Ginsburg, and Justice Breyer—had repeatedly argued that the " +"Constitution gives Congress broad discretion to decide how best to implement " +"its powers. In case after case, these justices had argued that the Court's " +"role should be one of deference. Though the votes of these four justices " +"were the votes that I personally had most consistently agreed with, they " +"were also the votes that we were least likely to get." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11243 +msgid "" +"In particular, the least likely was Justice Ginsburg's. In addition to her " +"general view about deference to Congress (except where issues of gender are " +"involved), she had been particularly deferential in the context of " +"intellectual property protections. She and her daughter (an excellent and " +"well-known intellectual property scholar) were cut from the same " +"intellectual property cloth. We expected she would agree with the writings " +"of her daughter: that Congress had the power in this context to do as it " +"wished, even if what Congress wished made little sense." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11255 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11263 +msgid "" +"The only vote we could be confident about was that of Justice " +"Stevens. History will record Justice Stevens as one of the greatest judges " +"on this Court. His votes are consistently eclectic, which just means that no " +"simple ideology explains where he will stand. But he had consistently argued " +"for limits in the context of intellectual property generally. We were fairly " +"confident he would recognize limits here." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11271 +msgid "" +"This analysis of \"the Rest\" showed most clearly where our focus had to be: " +"on the Conservatives. To win this case, we had to crack open these five and " +"get at least a majority to go our way. Thus, the single overriding argument " +"that animated our claim rested on the Conservatives' most important " +"jurisprudential innovation—the argument that Judge Sentelle had relied " +"upon in the Court of Appeals, that Congress's power must be interpreted so " +"that its enumerated powers have limits." +msgstr "" + +#. PAGE BREAK 243 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11281 +msgid "" +"This then was the core of our strategy—a strategy for which I am " +"responsible. We would get the Court to see that just as with the Lopez case, " +"under the government's argument here, Congress would always have unlimited " +"power to extend existing terms. If anything was plain about Congress's power " +"under the Progress Clause, it was that this power was supposed to be " +"\"limited.\" Our aim would be to get the Court to reconcile Eldred with " +"Lopez: If Congress's power to regulate commerce was limited, then so, too, " +"must Congress's power to regulate copyright be limited." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11294 +msgid "" +"The argument on the government's side came down to this: Congress has done " +"it before. It should be allowed to do it again. The government claimed that " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11303 +msgid "" +"There was some truth to the government's claim, but not much. We certainly " +"agreed that Congress had extended existing terms in and in 1909. And of " +"course, in 1962, Congress began extending existing terms " +"regularly—eleven times in forty years." +msgstr "" + +#. PAGE BREAK 244 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11310 +msgid "" +"But this \"consistency\" should be kept in perspective. Congress extended " +"existing terms once in the first hundred years of the Republic. It then " +"extended existing terms once again in the next fifty. Those rare extensions " +"are in contrast to the now regular practice of extending existing " +"terms. Whatever restraint Congress had had in the past, that restraint was " +"now gone. Congress was now in a cycle of extensions; there was no reason to " +"expect that cycle would end. This Court had not hesitated to intervene where " +"Congress was in a similar cycle of extension. There was no reason it " +"couldn't intervene here. Oral argument was scheduled for the first week in " +"October. I arrived in D.C. two weeks before the argument. During those two " +"weeks, I was repeatedly \"mooted\" by lawyers who had volunteered to help in " +"the case. Such \"moots\" are basically practice rounds, where wannabe " +"justices fire questions at wannabe winners." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11333 +msgid "" +"I was convinced that to win, I had to keep the Court focused on a single " +"point: that if this extension is permitted, then there is no limit to the " +"power to set terms. Going with the government would mean that terms would be " +"effectively unlimited; going with us would give Congress a clear line to " +"follow: Don't extend existing terms. The moots were an effective practice; I " +"found ways to take every question back to this central idea." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11344 +msgid "" +"One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He " +"had served in the Reagan Justice Department with Solicitor General Charles " +"Fried. He had argued many cases before the Supreme Court. And in his review " +"of the moot, he let his concern speak:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11350 +msgid "" +"\"I'm just afraid that unless they really see the harm, they won't be " +"willing to upset this practice that the government says has been a " +"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.\"" +msgstr "" + +#. PAGE BREAK 245 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11358 +msgid "" +"He may have argued many cases before this Court, I thought, but he didn't " +"understand its soul. As a clerk, I had seen the Justices do the right " +"thing—not because of politics but because it was right. As a law " +"professor, I had spent my life teaching my students that this Court does the " +"right thing—not because of politics but because it is right. As I " +"listened to Ayer's plea for passion in pressing politics, I understood his " +"point, and I rejected it. Our argument was right. That was enough. Let the " +"politicians learn to see that it was also good. The night before the " +"argument, a line of people began to form in front of the Supreme Court. The " +"case had become a focus of the press and of the movement to free " +"culture. Hundreds stood in line for the chance to see the " +"proceedings. Scores spent the night on the Supreme Court steps so that they " +"would be assured a seat." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11375 +msgid "" +"Not everyone has to wait in line. People who know the Justices can ask for " +"seats they control. (I asked Justice Scalia's chambers for seats for my " +"parents, for example.) Members of the Supreme Court bar can get a seat in a " +"special section reserved for them. And senators and congressmen have a " +"special place where they get to sit, too. And finally, of course, the press " +"has a gallery, as do clerks working for the Justices on the Court. As we " +"entered that morning, there was no place that was not taken. This was an " +"argument about intellectual property law, yet the halls were filled. As I " +"walked in to take my seat at the front of the Court, I saw my parents " +"sitting on the left. As I sat down at the table, I saw Jack Valenti sitting " +"in the special section ordinarily reserved for family of the Justices." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11390 +msgid "" +"When the Chief Justice called me to begin my argument, I began where I " +"intended to stay: on the question of the limits on Congress's power. This " +"was a case about enumerated powers, I said, and whether those enumerated " +"powers had any limit." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11396 +msgid "" +"Justice O'Connor stopped me within one minute of my opening. The history " +"was bothering her." +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11401 +msgid "" +"justice o'connor: Congress has extended the term so often through the years, " +"and if you are right, don't we run the risk of upsetting previous extensions " +"of time? I mean, this seems to be a practice that began with the very first " +"act." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11408 +msgid "" +"She was quite willing to concede \"that this flies directly in the face of " +"what the framers had in mind.\" But my response again and again was to " +"emphasize limits on Congress's power." +msgstr "" + +#. PAGE BREAK 246 +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11414 +msgid "" +"mr. lessig: Well, if it flies in the face of what the framers had in mind, " +"then the question is, is there a way of interpreting their words that gives " +"effect to what they had in mind, and the answer is yes." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11422 +msgid "" +"There were two points in this argument when I should have seen where the " +"Court was going. The first was a question by Justice Kennedy, who observed," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11428 +msgid "" +"justice kennedy: Well, I suppose implicit in the argument that the '76 act, " +"too, should have been declared void, and that we might leave it alone " +"because of the disruption, is that for all these years the act has impeded " +"progress in science and the useful arts. I just don't see any empirical " +"evidence for that." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11436 +msgid "" +"Here follows my clear mistake. Like a professor correcting a student, I " +"answered," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11442 +msgid "" +"mr. lessig: Justice, we are not making an empirical claim at all. Nothing " +"in our Copyright Clause claim hangs upon the empirical assertion about " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11452 +msgid "" +"That was a correct answer, but it wasn't the right answer. The right answer " +"was instead that there was an obvious and profound harm. Any number of " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11459 +msgid "" +"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." +msgstr "" + +#. PAGE BREAK 247 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11464 +msgid "" +"It was clear a second into his question that he wasn't at all sympathetic. " +"To him, we were a bunch of anarchists. As he asked:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11472 +msgid "" +"chief justice: Well, but you want more than that. You want the right to copy " +"verbatim other people's books, don't you?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11476 +msgid "" +"mr. lessig: We want the right to copy verbatim works that should be in the " +"public domain and would be in the public domain but for a statute that " +"cannot be justified under ordinary First Amendment analysis or under a " +"proper reading of the limits built into the Copyright Clause." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11485 +msgid "" +"Things went better for us when the government gave its argument; for now the " +"Court picked up on the core of our claim. As Justice Scalia asked Solicitor " +"General Olson," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11491 +msgid "" +"justice scalia: You say that the functional equivalent of an unlimited time " +"would be a violation [of the Constitution], but that's precisely the " +"argument that's being made by petitioners here, that a limited time which is " +"extendable is the functional equivalent of an unlimited time." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11500 +msgid "" +"When Olson was finished, it was my turn to give a closing rebuttal. Olson's " +"flailing had revived my anger. But my anger still was directed to the " +"academic, not the practical. The government was arguing as if this were the " +"first case ever to consider limits on Congress's Copyright and Patent Clause " +"power. Ever the professor and not the advocate, I closed by pointing out the " +"long history of the Court imposing limits on Congress's power in the name of " +"the Copyright and Patent Clause— indeed, the very first case striking " +"a law of Congress as exceeding a specific enumerated power was based upon " +"the Copyright and Patent Clause. All true. But it wasn't going to move the " +"Court to my side." +msgstr "" + +#. PAGE BREAK 248 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11513 +msgid "" +"As I left the court that day, I knew there were a hundred points I wished I " +"could remake. There were a hundred questions I wished I had answered " +"differently. But one way of thinking about this case left me optimistic." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11521 +msgid "" +"The government had been asked over and over again, what is the limit? Over " +"and over again, it had answered there is no limit. This was precisely the " +"answer I wanted the Court to hear. For I could not imagine how the Court " +"could understand that the government believed Congress's power was unlimited " +"under the terms of the Copyright Clause, and sustain the government's " +"argument. The solicitor general had made my argument for me. No matter how " +"often I tried, I could not understand how the Court could find that " +"Congress's power under the Commerce Clause was limited, but under the " +"Copyright Clause, unlimited. In those rare moments when I let myself believe " +"that we may have prevailed, it was because I felt this Court—in " +"particular, the Conservatives—would feel itself constrained by the " +"rule of law that it had established elsewhere." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11540 +msgid "" +"The morning of January 15, 2003, I was five minutes late to the office and " +"missed the 7:00 A.M. call from the Supreme Court clerk. Listening to the " +"message, I could tell in an instant that she had bad news to report.The " +"Supreme Court had affirmed the decision of the Court of Appeals. Seven " +"justices had voted in the majority. There were two dissents." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11547 +msgid "" +"A few seconds later, the opinions arrived by e-mail. I took the phone off " +"the hook, posted an announcement to our blog, and sat down to see where I " +"had been wrong in my reasoning." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11552 +msgid "" +"My reasoning. Here was a case that pitted all the money in the world against " +"reasoning. And here was the last naïve law professor, scouring the pages, " +"looking for reasoning." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11557 +msgid "" +"I first scoured the opinion, looking for how the Court would distinguish the " +"principle in this case from the principle in Lopez. The argument was nowhere " +"to be found. The case was not even cited. The argument that was the core " +"argument of our case did not even appear in the Court's opinion." +msgstr "" + +#. PAGE BREAK 249 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11568 +msgid "" +"Justice Ginsburg simply ignored the enumerated powers argument. Consistent " +"with her view that Congress's power was not limited generally, she had found " +"Congress's power not limited here." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11574 +msgid "" +"Her opinion was perfectly reasonable—for her, and for Justice " +"Souter. Neither believes in Lopez. It would be too much to expect them to " +"write an opinion that recognized, much less explained, the doctrine they had " +"worked so hard to defeat." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11580 +msgid "" +"But as I realized what had happened, I couldn't quite believe what I was " +"reading. I had said there was no way this Court could reconcile limited " +"powers with the Commerce Clause and unlimited powers with the Progress " +"Clause. It had never even occurred to me that they could reconcile the two " +"simply by not addressing the argument. There was no inconsistency because " +"they would not talk about the two together. There was therefore no " +"principle that followed from the Lopez case: In that context, Congress's " +"power would be limited, but in this context it would not." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11591 +msgid "" +"Yet by what right did they get to choose which of the framers' values they " +"would respect? By what right did they—the silent five—get to " +"select the part of the Constitution they would enforce based on the values " +"they thought important? We were right back to the argument that I said I " +"hated at the start: I had failed to convince them that the issue here was " +"important, and I had failed to recognize that however much I might hate a " +"system in which the Court gets to pick the constitutional values that it " +"will respect, that is the system we have." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11603 +msgid "" +"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion " +"was crafted internal to the law: He argued that the tradition of " +"intellectual property law should not support this unjustified extension of " +"terms. He based his argument on a parallel analysis that had governed in the " +"context of patents (so had we). But the rest of the Court discounted the " +"parallel—without explaining how the very same words in the Progress " +"Clause could come to mean totally different things depending upon whether " +"the words were about patents or copyrights. The Court let Justice Stevens's " +"charge go unanswered." +msgstr "" + +#. PAGE BREAK 250 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11616 +msgid "" +"Justice Breyer's opinion, perhaps the best opinion he has ever written, was " +"external to the Constitution. He argued that the term of copyrights has " +"become so long as to be effectively unlimited. We had said that under the " +"current term, a copyright gave an author 99.8 percent of the value of a " +"perpetual term. Breyer said we were wrong, that the actual number was " +"99.9997 percent of a perpetual term. Either way, the point was clear: If the " +"Constitution said a term had to be \"limited,\" and the existing term was so " +"long as to be effectively unlimited, then it was unconstitutional." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11627 +msgid "" +"These two justices understood all the arguments we had made. But because " +"neither believed in the Lopez case, neither was willing to push it as a " +"reason to reject this extension. The case was decided without anyone having " +"addressed the argument that we had carried from Judge Sentelle. It was " +"Hamlet without the Prince." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11634 +msgid "" +"Defeat brings depression. They say it is a sign of health when depression " +"gives way to anger. My anger came quickly, but it didn't cure the " +"depression. This anger was of two sorts." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11639 +msgid "" +"It was first anger with the five \"Conservatives.\" It would have been one " +"thing for them to have explained why the principle of Lopez didn't apply in " +"this case. That wouldn't have been a very convincing argument, I don't " +"believe, having read it made by others, and having tried to make it " +"myself. But it at least would have been an act of integrity. These justices " +"in particular have repeatedly said that the proper mode of interpreting the " +"Constitution is \"originalism\"—to first understand the framers' text, " +"interpreted in their context, in light of the structure of the " +"Constitution. That method had produced Lopez and many other \"originalist\" " +"rulings. Where was their \"originalism\" now?" +msgstr "" + +#. PAGE BREAK 251 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11652 +msgid "" +"Here, they had joined an opinion that never once tried to explain what the " +"framers had meant by crafting the Progress Clause as they did; they joined " +"an opinion that never once tried to explain how the structure of that clause " +"would affect the interpretation of Congress's power. And they joined an " +"opinion that didn't even try to explain why this grant of power could be " +"unlimited, whereas the Commerce Clause would be limited. In short, they had " +"joined an opinion that did not apply to, and was inconsistent with, their " +"own method for interpreting the Constitution. This opinion may well have " +"yielded a result that they liked. It did not produce a reason that was " +"consistent with their own principles." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11667 +msgid "" +"My anger with the Conservatives quickly yielded to anger with myself. For I " +"had let a view of the law that I liked interfere with a view of the law as " +"it is." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11674 +msgid "" +"Most lawyers, and most law professors, have little patience for idealism " +"about courts in general and this Supreme Court in particular. Most have a " +"much more pragmatic view. When Don Ayer said that this case would be won " +"based on whether I could convince the Justices that the framers' values were " +"important, I fought the idea, because I didn't want to believe that that is " +"how this Court decides. I insisted on arguing this case as if it were a " +"simple application of a set of principles. I had an argument that followed " +"in logic. I didn't need to waste my time showing it should also follow in " +"popularity." +msgstr "" + +#. PAGE BREAK 252 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11685 +msgid "" +"As I read back over the transcript from that argument in October, I can see " +"a hundred places where the answers could have taken the conversation in " +"different directions, where the truth about the harm that this unchecked " +"power will cause could have been made clear to this Court. Justice Kennedy " +"in good faith wanted to be shown. I, idiotically, corrected his " +"question. Justice Souter in good faith wanted to be shown the First " +"Amendment harms. I, like a math teacher, reframed the question to make the " +"logical point. I had shown them how they could strike this law of Congress " +"if they wanted to. There were a hundred places where I could have helped " +"them want to, yet my stubbornness, my refusal to give in, stopped me. I have " +"stood before hundreds of audiences trying to persuade; I have used passion " +"in that effort to persuade; but I refused to stand before this audience and " +"try to persuade with the passion I had used elsewhere. It was not the basis " +"on which a court should decide the issue." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11705 +msgid "" +"Would it have been different if I had argued it differently? Would it have " +"been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen " +"Sullivan?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11710 +msgid "" +"My friends huddled around me to insist it would not. The Court was not " +"ready, my friends insisted. This was a loss that was destined. It would take " +"a great deal more to show our society why our framers were right. And when " +"we do that, we will be able to show that Court." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11716 +msgid "" +"Maybe, but I doubt it. These Justices have no financial interest in doing " +"anything except the right thing. They are not lobbied. They have little " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11723 +msgid "" +"And even if I couldn't, then that doesn't excuse what happened in " +"January. For at the start of this case, one of America's leading " +"intellectual property professors stated publicly that my bringing this case " +"was a mistake. \"The Court is not ready,\" Peter Jaszi said; this issue " +"should not be raised until it is. <placeholder type=\"indexterm\" " +"id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 253 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11731 +msgid "" +"After the argument and after the decision, Peter said to me, and publicly, " +"that he was wrong. But if indeed that Court could not have been persuaded, " +"then that is all the evidence that's needed to know that here again Peter " +"was right. Either I was not ready to argue this case in a way that would do " +"some good or they were not ready to hear this case in a way that would do " +"some good. Either way, the decision to bring this case—a decision I " +"had made four years before—was wrong. While the reaction to the Sonny " +"Bono Act itself was almost unanimously negative, the reaction to the Court's " +"decision was mixed. No one, at least in the press, tried to say that " +"extending the term of copyright was a good idea. We had won that battle over " +"ideas. Where the decision was praised, it was praised by papers that had " +"been skeptical of the Court's activism in other cases. Deference was a good " +"thing, even if it left standing a silly law. But where the decision was " +"attacked, it was attacked because it left standing a silly and harmful " +"law. The New York Times wrote in its editorial," +msgstr "" + +#. type: Content of: <book><chapter><sect1><blockquote><para> +#: freeculture.xml:11752 +msgid "" +"In effect, the Supreme Court's decision makes it likely that we are seeing " +"the beginning of the end of public domain and the birth of copyright " +"perpetuity. The public domain has been a grand experiment, one that should " +"not be allowed to die. The ability to draw freely on the entire creative " +"output of humanity is one of the reasons we live in a time of such fruitful " +"creative ferment." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11761 +msgid "" +"The best responses were in the cartoons. There was a gaggle of hilarious " +"images—of Mickey in jail and the like. The best, from my view of the " +"case, was Ruben Bolling's, reproduced on the next page. The \"powerful and " +"wealthy\" line is a bit unfair. But the punch in the face felt exactly like " +"that." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11768 +msgid "" +"The image that will always stick in my head is that evoked by the quote from " +"The New York Times. That \"grand experiment\" we call the \"public domain\" " +"is over? When I can make light of it, I think, \"Honey, I shrunk the " +"Constitution.\" But I can rarely make light of it. We had in our " +"Constitution a commitment to free culture. In the case that I fathered, the " +"Supreme Court effectively renounced that commitment. A better lawyer would " +"have made them see differently." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:11779 +msgid "CHAPTER FOURTEEN: Eldred II" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11781 +msgid "" +"The day Eldred was decided, fate would have it that I was to travel to " +"Washington, D.C. (The day the rehearing petition in Eldred was " +"denied—meaning the case was really finally over—fate would have " +"it that I was giving a speech to technologists at Disney World.) This was a " +"particularly long flight to my least favorite city. The drive into the city " +"from Dulles was delayed because of traffic, so I opened up my computer and " +"wrote an op-ed piece." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11791 +msgid "" +"It was an act of contrition. During the whole of the flight from San " +"Francisco to Washington, I had heard over and over again in my head the same " +"advice from Don Ayer: You need to make them see why it is important. And " +"alternating with that command was the question of Justice Kennedy: \"For all " +"these years the act has impeded progress in science and the useful arts. I " +"just don't see any empirical evidence for that.\" And so, having failed in " +"the argument of constitutional principle, finally, I turned to an argument " +"of politics." +msgstr "" + +#. PAGE BREAK 256 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11801 +msgid "" +"The New York Times published the piece. In it, I proposed a simple fix: " +"Fifty years after a work has been published, the copyright owner would be " +"required to register the work and pay a small fee. If he paid the fee, he " +"got the benefit of the full term of copyright. If he did not, the work " +"passed into the public domain." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11809 +msgid "" +"We called this the Eldred Act, but that was just to give it a name. Eric " +"Eldred was kind enough to let his name be used once again, but as he said " +"early on, it won't get passed unless it has another name." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11814 +msgid "" +"Or another two names. For depending upon your perspective, this is either " +"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation " +"Act.\" Either way, the essence of the idea is clear and obvious: Remove " +"copyright where it is doing nothing except blocking access and the spread of " +"knowledge. Leave it for as long as Congress allows for those works where its " +"worth is at least $1. But for everything else, let the content go." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11822 freeculture.xml:12020 +msgid "Forbes, Steve" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11824 +msgid "" +"The reaction to this idea was amazingly strong. Steve Forbes endorsed it in " +"an editorial. I received an avalanche of e-mail and letters expressing " +"support. When you focus the issue on lost creativity, people can see the " +"copyright system makes no sense. As a good Republican might say, here " +"government regulation is simply getting in the way of innovation and " +"creativity. And as a good Democrat might say, here the government is " +"blocking access and the spread of knowledge for no good reason. Indeed, " +"there is no real difference between Democrats and Republicans on this " +"issue. Anyone can recognize the stupid harm of the present system." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11836 +msgid "" +"Indeed, many recognized the obvious benefit of the registration " +"requirement. For one of the hardest things about the current system for " +"people who want to license content is that there is no obvious place to look " +"for the current copyright owners. Since registration is not required, since " +"marking content is not required, since no formality at all is required, it " +"is often impossibly hard to locate copyright owners to ask permission to use " +"or license their work. This system would lower these costs, by establishing " +"at least one registry where copyright owners could be identified." +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11846 +msgid "Berlin Act (1908)" +msgstr "" + +#. type: Content of: <book><chapter><sect1><indexterm><primary> +#: freeculture.xml:11847 freeculture.xml:11886 +msgid "Berne Convention (1908)" +msgstr "" + +#. f1. +#. type: Content of: <book><chapter><sect1><para><footnote><para> +#: freeculture.xml:11854 +msgid "" +"Until the 1908 Berlin Act of the Berne Convention, national copyright " +"legislation sometimes made protection depend upon compliance with " +"formalities such as registration, deposit, and affixation of notice of the " +"author's claim of copyright. However, starting with the 1908 act, every text " +"of the Convention has provided that \"the enjoyment and the exercise\" of " +"rights guaranteed by the Convention \"shall not be subject to any " +"formality.\" The prohibition against formalities is presently embodied in " +"Article 5(2) of the Paris Text of the Berne Convention. Many countries " +"continue to impose some form of deposit or registration requirement, albeit " +"not as a condition of copyright. French law, for example, requires the " +"deposit of copies of works in national repositories, principally the " +"National Museum. Copies of books published in the United Kingdom must be " +"deposited in the British Library. The German Copyright Act provides for a " +"Registrar of Authors where the author's true name can be filed in the case " +"of anonymous or pseudonymous works. Paul Goldstein, International " +"Intellectual Property Law, Cases and Materials (New York: Foundation Press, " +"2001), 153–54." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11850 +msgid "" +"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.<placeholder type=\"footnote\" " +"id=\"0\"/> The Europeans are said to view copyright as a \"natural right.\" " +"Natural rights don't need forms to exist. Traditions, like the " +"Anglo-American tradition that required copyright owners to follow form if " +"their rights were to be protected, did not, the Europeans thought, properly " +"respect the dignity of the author. My right as a creator turns on my " +"creativity, not upon the special favor of the government." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11880 +msgid "" +"That's great rhetoric. It sounds wonderfully romantic. But it is absurd " +"copyright policy. It is absurd especially for authors, because a world " +"without formalities harms the creator. The ability to spread \"Walt Disney " +"creativity\" is destroyed when there is no simple way to know what's " +"protected and what's not." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11888 +msgid "" +"The fight against formalities achieved its first real victory in Berlin in " +"1908. International copyright lawyers amended the Berne Convention in 1908, " +"to require copyright terms of life plus fifty years, as well as the " +"abolition of copyright formalities. The formalities were hated because the " +"stories of inadvertent loss were increasingly common. It was as if a Charles " +"Dickens character ran all copyright offices, and the failure to dot an i or " +"cross a t resulted in the loss of widows' only income." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11898 +msgid "" +"These complaints were real and sensible. And the strictness of the " +"formalities, especially in the United States, was absurd. The law should " +"always have ways of forgiving innocent mistakes. There is no reason " +"copyright law couldn't, as well. Rather than abandoning formalities totally, " +"the response in Berlin should have been to embrace a more equitable system " +"of registration." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11906 +msgid "" +"Even that would have been resisted, however, because registration in the " +"nineteenth and twentieth centuries was still expensive. It was also a " +"hassle. The abolishment of formalities promised not only to save the " +"starving widows, but also to lighten an unnecessary regulatory burden " +"imposed upon creators." +msgstr "" + +#. PAGE BREAK 258 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11914 +msgid "" +"In addition to the practical complaint of authors in 1908, there was a moral " +"claim as well. There was no reason that creative property should be a " +"second-class form of property. If a carpenter builds a table, his rights " +"over the table don't depend upon filing a form with the government. He has " +"a property right over the table \"naturally,\" and he can assert that right " +"against anyone who would steal the table, whether or not he has informed the " +"government of his ownership of the table." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11926 +msgid "" +"This argument is correct, but its implications are misleading. For the " +"argument in favor of formalities does not depend upon creative property " +"being second-class property. The argument in favor of formalities turns upon " +"the special problems that creative property presents. The law of " +"formalities responds to the special physics of creative property, to assure " +"that it can be efficiently and fairly spread." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11935 +msgid "" +"No one thinks, for example, that land is second-class property just because " +"you have to register a deed with a court if your sale of land is to be " +"effective. And few would think a car is second-class property just because " +"you must register the car with the state and tag it with a license. In both " +"of those cases, everyone sees that there is an important reason to secure " +"registration—both because it makes the markets more efficient and " +"because it better secures the rights of the owner. Without a registration " +"system for land, landowners would perpetually have to guard their " +"property. With registration, they can simply point the police to a " +"deed. Without a registration system for cars, auto theft would be much " +"easier. With a registration system, the thief has a high burden to sell a " +"stolen car. A slight burden is placed on the property owner, but those " +"burdens produce a much better system of protection for property generally." +msgstr "" + +#. PAGE BREAK 259 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11951 +msgid "" +"It is similarly special physics that makes formalities important in " +"copyright law. Unlike a carpenter's table, there's nothing in nature that " +"makes it relatively obvious who might own a particular bit of creative " +"property. A recording of Lyle Lovett's latest album can exist in a billion " +"places without anything necessarily linking it back to a particular " +"owner. And like a car, there's no way to buy and sell creative property with " +"confidence unless there is some simple way to authenticate who is the author " +"and what rights he has. Simple transactions are destroyed in a world without " +"formalities. Complex, expensive, lawyer transactions take their place." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11965 +msgid "" +"This was the understanding of the problem with the Sonny Bono Act that we " +"tried to demonstrate to the Court. This was the part it didn't \"get.\" " +"Because we live in a system without formalities, there is no way easily to " +"build upon or use culture from our past. If copyright terms were, as Justice " +"Story said they would be, \"short,\" then this wouldn't matter much. For " +"fourteen years, under the framers' system, a work would be presumptively " +"controlled. After fourteen years, it would be presumptively uncontrolled." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11975 +msgid "" +"But now that copyrights can be just about a century long, the inability to " +"know what is protected and what is not protected becomes a huge and obvious " +"burden on the creative process. If the only way a library can offer an " +"Internet exhibit about the New Deal is to hire a lawyer to clear the rights " +"to every image and sound, then the copyright system is burdening creativity " +"in a way that has never been seen before because there are no formalities." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11984 +msgid "" +"The Eldred Act was designed to respond to exactly this problem. If it is " +"worth $1 to you, then register your work and you can get the longer " +"term. Others will know how to contact you and, therefore, how to get your " +"permission if they want to use your work. And you will get the benefit of an " +"extended copyright term." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11991 +msgid "" +"If it isn't worth it to you to register to get the benefit of an extended " +"term, then it shouldn't be worth it for the government to defend your " +"monopoly over that work either. The work should pass into the public domain " +"where anyone can copy it, or build archives with it, or create a movie based " +"on it. It should become free if it is not worth $1 to you." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:11998 +msgid "" +"Some worry about the burden on authors. Won't the burden of registering the " +"work mean that the $1 is really misleading? Isn't the hassle worth more than " +"$1? Isn't that the real problem with registration?" +msgstr "" + +#. PAGE BREAK 260 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12004 +msgid "" +"It is. The hassle is terrible. The system that exists now is awful. I " +"completely agree that the Copyright Office has done a terrible job (no doubt " +"because they are terribly funded) in enabling simple and cheap " +"registrations. Any real solution to the problem of formalities must address " +"the real problem of governments standing at the core of any system of " +"formalities. In this book, I offer such a solution. That solution " +"essentially remakes the Copyright Office. For now, assume it was Amazon that " +"ran the registration system. Assume it was one-click registration. The " +"Eldred Act would propose a simple, one-click registration fifty years after " +"a work was published. Based upon historical data, that system would move up " +"to 98 percent of commercial work, commercial work that no longer had a " +"commercial life, into the public domain within fifty years. What do you " +"think?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12022 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12028 +msgid "" +"One representative, Zoe Lofgren of California, went so far as to get the " +"bill drafted. The draft solved any problem with international law. It " +"imposed the simplest requirement upon copyright owners possible. In May " +"2003, it looked as if the bill would be introduced. On May 16, I posted on " +"the Eldred Act blog, \"we are close.\" There was a general reaction in the " +"blog community that something good might happen here." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12037 +msgid "" +"But at this stage, the lobbyists began to intervene. Jack Valenti and the " +"MPAA general counsel came to the congresswoman's office to give the view of " +"the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the " +"congresswoman that the MPAA would oppose the Eldred Act. The reasons are " +"embarrassingly thin. More importantly, their thinness shows something clear " +"about what this debate is really about." +msgstr "" + +#. PAGE BREAK 261 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12045 +msgid "" +"The MPAA argued first that Congress had \"firmly rejected the central " +"concept in the proposed bill\"—that copyrights be renewed. That was " +"true, but irrelevant, as Congress's \"firm rejection\" had occurred long " +"before the Internet made subsequent uses much more likely. Second, they " +"argued that the proposal would harm poor copyright owners—apparently " +"those who could not afford the $1 fee. Third, they argued that Congress had " +"determined that extending a copyright term would encourage restoration " +"work. Maybe in the case of the small percentage of work covered by copyright " +"law that is still commercially valuable, but again this was irrelevant, as " +"the proposal would not cut off the extended term unless the $1 fee was not " +"paid. Fourth, the MPAA argued that the bill would impose \"enormous\" costs, " +"since a registration system is not free. True enough, but those costs are " +"certainly less than the costs of clearing the rights for a copyright whose " +"owner is not known. Fifth, they worried about the risks if the copyright to " +"a story underlying a film were to pass into the public domain. But what risk " +"is that? If it is in the public domain, then the film is a valid derivative " +"use." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12066 +msgid "" +"Finally, the MPAA argued that existing law enabled copyright owners to do " +"this if they wanted. But the whole point is that there are thousands of " +"copyright owners who don't even know they have a copyright to give. Whether " +"they are free to give away their copyright or not—a controversial " +"claim in any case—unless they know about a copyright, they're not " +"likely to." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12074 +msgid "" +"At the beginning of this book, I told two stories about the law reacting to " +"changes in technology. In the one, common sense prevailed. In the other, " +"common sense was delayed. The difference between the two stories was the " +"power of the opposition—the power of the side that fought to defend " +"the status quo. In both cases, a new technology threatened old " +"interests. But in only one case did those interest's have the power to " +"protect themselves against this new competitive threat." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12084 +msgid "" +"I used these two cases as a way to frame the war that this book has been " +"about. For here, too, a new technology is forcing the law to react. And " +"here, too, we should ask, is the law following or resisting common sense? If " +"common sense supports the law, what explains this common sense?" +msgstr "" + +#. PAGE BREAK 262 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12093 +msgid "" +"When the issue is piracy, it is right for the law to back the copyright " +"owners. The commercial piracy that I described is wrong and harmful, and the " +"law should work to eliminate it. When the issue is p2p sharing, it is easy " +"to understand why the law backs the owners still: Much of this sharing is " +"wrong, even if much is harmless. When the issue is copyright terms for the " +"Mickey Mouses of the world, it is possible still to understand why the law " +"favors Hollywood: Most people don't recognize the reasons for limiting " +"copyright terms; it is thus still possible to see good faith within the " +"resistance." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12104 +msgid "" +"But when the copyright owners oppose a proposal such as the Eldred Act, " +"then, finally, there is an example that lays bare the naked selfinterest " +"driving this war. This act would free an extraordinary range of content that " +"is otherwise unused. It wouldn't interfere with any copyright owner's desire " +"to exercise continued control over his content. It would simply liberate " +"what Kevin Kelly calls the \"Dark Content\" that fills archives around the " +"world. So when the warriors oppose a change like this, we should ask one " +"simple question:" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12114 +msgid "What does this industry really want?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12117 +msgid "" +"With very little effort, the warriors could protect their content. So the " +"effort to block something like the Eldred Act is not really about protecting " +"their content. The effort to block the Eldred Act is an effort to assure " +"that nothing more passes into the public domain. It is another step to " +"assure that the public domain will never compete, that there will be no use " +"of content that is not commercially controlled, and that there will be no " +"commercial use of content that doesn't require their permission first." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12127 +msgid "" +"The opposition to the Eldred Act reveals how extreme the other side is. The " +"most powerful and sexy and well loved of lobbies really has as its aim not " +"the protection of \"property\" but the rejection of a tradition. Their aim " +"is not simply to protect what is theirs. Their aim is to assure that all " +"there is is what is theirs." +msgstr "" + +#. PAGE BREAK 263 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12134 +msgid "" +"It is not hard to understand why the warriors take this view. It is not hard " +"to see why it would benefit them if the competition of the public domain " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12146 +msgid "" +"What is hard to understand is why the public takes this view. It is as if " +"the law made airplanes trespassers. The MPAA stands with the Causbys and " +"demands that their remote and useless property rights be respected, so that " +"these remote and forgotten copyright holders might block the progress of " +"others." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12153 +msgid "" +"All this seems to follow easily from this untroubled acceptance of the " +"\"property\" in intellectual property. Common sense supports it, and so long " +"as it does, the assaults will rain down upon the technologies of the " +"Internet. The consequence will be an increasing \"permission society.\" The " +"past can be cultivated only if you can identify the owner and gain " +"permission to build upon his work. The future will be controlled by this " +"dead (and often unfindable) hand of the past." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:12165 +msgid "CONCLUSION" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12167 +msgid "" +"There are more than 35 million people with the AIDS virus " +"worldwide. Twenty-five million of them live in sub-Saharan Africa. " +"Seventeen million have already died. Seventeen million Africans is " +"proportional percentage-wise to seven million Americans. More importantly, " +"it is seventeen million Africans." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12174 +msgid "" +"There is no cure for AIDS, but there are drugs to slow its progression. " +"These antiretroviral therapies are still experimental, but they have already " +"had a dramatic effect. In the United States, AIDS patients who regularly " +"take a cocktail of these drugs increase their life expectancy by ten to " +"twenty years. For some, the drugs make the disease almost invisible." +msgstr "" + +#. f1. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12189 +msgid "" +"Commission on Intellectual Property Rights, \"Final Report: Integrating " +"Intellectual Property Rights and Development Policy\" (London, 2002), " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#55</ulink>. According to a World Health Organization press release issued 9 " +"July 2002, only 230,000 of the 6 million who need drugs in the developing " +"world receive them—and half of them are in Brazil." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12182 +msgid "" +"These drugs are expensive. When they were first introduced in the United " +"States, they cost between $10,000 and $15,000 per person per year. Today, " +"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.<placeholder type=\"footnote\" " +"id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 265 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12200 +msgid "" +"These prices are not high because the ingredients of the drugs are " +"expensive. These prices are high because the drugs are protected by " +"patents. The drug companies that produced these life-saving mixes enjoy at " +"least a twenty-year monopoly for their inventions. They use that monopoly " +"power to extract the most they can from the market. That power is in turn " +"used to keep the prices high." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12208 +msgid "" +"There are many who are skeptical of patents, especially drug patents. I am " +"not. Indeed, of all the areas of research that might be supported by " +"patents, drug research is, in my view, the clearest case where patents are " +"needed. The patent gives the drug company some assurance that if it is " +"successful in inventing a new drug to treat a disease, it will be able to " +"earn back its investment and more. This is socially an extremely valuable " +"incentive. I am the last person who would argue that the law should abolish " +"it, at least without other changes." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12219 +msgid "" +"But it is one thing to support patents, even drug patents. It is another " +"thing to determine how best to deal with a crisis. And as African leaders " +"began to recognize the devastation that AIDS was bringing, they started " +"looking for ways to import HIV treatments at costs significantly below the " +"market price." +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:12237 freeculture.xml:12671 +msgid "Braithwaite, John" +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12235 +msgid "" +"See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the " +"Knowledge Economy? (New York: The New Press, 2003), 37. <placeholder " +"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12226 +msgid "" +"In 1997, South Africa tried one tack. It passed a law to allow the " +"importation of patented medicines that had been produced or sold in another " +"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.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. f3. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12247 +msgid "" +"International Intellectual Property Institute (IIPI), Patent Protection and " +"Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared " +"for the World Intellectual Property Organization (Washington, D.C., 2000), " +"14, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#56</ulink>. For a firsthand account of the struggle over South Africa, see " +"Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human " +"Resources, House Committee on Government Reform, H. Rep., 1st sess., " +"Ser. No. 106-126 (22 July 1999), 150–57 (statement of James Love)." +msgstr "" + +#. f4. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12279 +msgid "" +"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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12242 +msgid "" +"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.\"<placeholder " +"type=\"footnote\" id=\"0\"/> Through the Office of the United States Trade " +"Representative, the government asked South Africa to change the " +"law—and to add pressure to that request, in 1998, the USTR listed " +"South Africa for possible trade sanctions. That same year, more than forty " +"pharmaceutical companies began proceedings in the South African courts to " +"challenge the government's actions. The United States was then joined by " +"other governments from the EU. Their claim, and the claim of the " +"pharmaceutical companies, was that South Africa was violating its " +"obligations under international law by discriminating against a particular " +"kind of patent— pharmaceutical patents. The demand of these " +"governments, with the United States in the lead, was that South Africa " +"respect these patents as it respects any other patent, regardless of any " +"effect on the treatment of AIDS within South Africa.<placeholder " +"type=\"footnote\" id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12285 +msgid "" +"We should place the intervention by the United States in context. No doubt " +"patents are not the most important reason that Africans don't have access to " +"drugs. Poverty and the total absence of an effective health care " +"infrastructure matter more. But whether patents are the most important " +"reason or not, the price of drugs has an effect on their demand, and patents " +"affect price. And so, whether massive or marginal, there was an effect from " +"our government's intervention to stop the flow of medications into Africa." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12295 +msgid "" +"By stopping the flow of HIV treatment into Africa, the United States " +"government was not saving drugs for United States citizens. This is not " +"like wheat (if they eat it, we can't); instead, the flow that the United " +"States intervened to stop was, in effect, a flow of knowledge: information " +"about how to take chemicals that exist within Africa, and turn those " +"chemicals into drugs that would save 15 to 30 million lives." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12303 +msgid "" +"Nor was the intervention by the United States going to protect the profits " +"of United States drug companies—at least, not substantially. It was " +"not as if these countries were in the position to buy the drugs for the " +"prices the drug companies were charging. Again, the Africans are wildly too " +"poor to afford these drugs at the offered prices. Stopping the parallel " +"import of these drugs would not substantially increase the sales by " +"U.S. companies." +msgstr "" + +#. f5. +#. PAGE BREAK 333 +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12318 +msgid "" +"See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at " +"Odds with Firms' Profit Motive,\" San Francisco Chronicle, 24 May 1999, A1, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #57</ulink> " +"(\"compulsory licenses and gray markets pose a threat to the entire system " +"of intellectual property protection\"); Robert Weissman, \"AIDS and " +"Developing Countries: Democratizing Access to Essential Medicines,\" Foreign " +"Policy in Focus 4:23 (August 1999), available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing " +"U.S. policy); John A. Harrelson, \"TRIPS, Pharmaceutical Patents, and the " +"HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property " +"Rights and Compassion, a Synopsis,\" Widener Law Symposium Journal (Spring " +"2001): 175." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12312 +msgid "" +"Instead, the argument in favor of restricting this flow of information, " +"which was needed to save the lives of millions, was an argument about the " +"sanctity of property.<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12339 +msgid "" +"Now just step back for a moment. There will be a time thirty years from now " +"when our children look back at us and ask, how could we have let this " +"happen? How could we allow a policy to be pursued whose direct cost would be " +"to speed the death of 15 to 30 million Africans, and whose only real benefit " +"would be to uphold the \"sanctity\" of an idea? What possible justification " +"could there ever be for a policy that results in so many deaths? What " +"exactly is the insanity that would allow so many to die for such an " +"abstraction?" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12349 +msgid "" +"Some blame the drug companies. I don't. They are corporations. Their " +"managers are ordered by law to make money for the corporation. They push a " +"certain patent policy not because of ideals, but because it is the policy " +"that makes them the most money. And it only makes them the most money " +"because of a certain corruption within our political system— a " +"corruption the drug companies are certainly not responsible for." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12357 +msgid "" +"The corruption is our own politicians' failure of integrity. For the drug " +"companies would love—they say, and I believe them—to sell their " +"drugs as cheaply as they can to countries in Africa and elsewhere. There " +"are issues they'd have to resolve to make sure the drugs didn't get back " +"into the United States, but those are mere problems of technology. They " +"could be overcome." +msgstr "" + +#. PAGE BREAK 268 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12365 +msgid "" +"A different problem, however, could not be overcome. This is the fear of the " +"grandstanding politician who would call the presidents of the drug companies " +"before a Senate or House hearing, and ask, \"How is it you can sell this HIV " +"drug in Africa for only $1 a pill, but the same drug would cost an American " +"$1,500?\" Because there is no \"sound bite\" answer to that question, its " +"effect would be to induce regulation of prices in America. The drug " +"companies thus avoid this spiral by avoiding the first step. They reinforce " +"the idea that property should be sacred. They adopt a rational strategy in " +"an irrational context, with the unintended consequence that perhaps millions " +"die. And that rational strategy thus becomes framed in terms of this " +"ideal—the sanctity of an idea called \"intellectual property.\"" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12380 +msgid "" +"So when the common sense of your child confronts you, what will you say? " +"When the common sense of a generation finally revolts against what we have " +"done, how will we justify what we have done? What is the argument?" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12386 +msgid "" +"A sensible patent policy could endorse and strongly support the patent " +"system without having to reach everyone everywhere in exactly the same " +"way. Just as a sensible copyright policy could endorse and strongly support " +"a copyright system without having to regulate the spread of culture " +"perfectly and forever, a sensible patent policy could endorse and strongly " +"support a patent system without having to block the spread of drugs to a " +"country not rich enough to afford market prices in any case. A sensible " +"policy, in other words, could be a balanced policy. For most of our history, " +"both copyright and patent policies were balanced in just this sense." +msgstr "" + +#. PAGE BREAK 269 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12398 +msgid "" +"But we as a culture have lost this sense of balance. We have lost the " +"critical eye that helps us see the difference between truth and extremism. " +"A certain property fundamentalism, having no connection to our tradition, " +"now reigns in this culture—bizarrely, and with consequences more grave " +"to the spread of ideas and culture than almost any other single policy " +"decision that we as a democracy will make. A simple idea blinds us, and " +"under the cover of darkness, much happens that most of us would reject if " +"any of us looked. So uncritically do we accept the idea of property in ideas " +"that we don't even notice how monstrous it is to deny ideas to a people who " +"are dying without them. So uncritically do we accept the idea of property in " +"culture that we don't even question when the control of that property " +"removes our ability, as a people, to develop our culture " +"democratically. Blindness becomes our common sense. And the challenge for " +"anyone who would reclaim the right to cultivate our culture is to find a way " +"to make this common sense open its eyes." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12418 +msgid "" +"So far, common sense sleeps. There is no revolt. Common sense does not yet " +"see what there could be to revolt about. The extremism that now dominates " +"this debate fits with ideas that seem natural, and that fit is reinforced by " +"the RCAs of our day. They wage a frantic war to fight \"piracy,\" and " +"devastate a culture for creativity. They defend the idea of \"creative " +"property,\" while transforming real creators into modern-day " +"sharecroppers. They are insulted by the idea that rights should be balanced, " +"even though each of the major players in this content war was itself a " +"beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city " +"like Washington, hypocrisy is not even noticed. Powerful lobbies, complex " +"issues, and MTV attention spans produce the \"perfect storm\" for free " +"culture." +msgstr "" + +#. f6. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12435 +msgid "" +"Jonathan Krim, \"The Quiet War over Open-Source,\" Washington Post, August " +"2003, E1, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#59</ulink>; William New, \"Global Group's Shift on `Open Source' Meeting " +"Spurs Stir,\" National Journal's Technology Daily, 19 August 2003, available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #60</ulink>; William " +"New, \"U.S. Official Opposes `Open Source' Talks at WIPO,\" National " +"Journal's Technology Daily, 19 August 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #61</ulink>." +msgstr "" + +#. PAGE BREAK 270 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12432 +msgid "" +"In August 2003, a fight broke out in the United States about a decision by " +"the World Intellectual Property Organization to cancel a " +"meeting.<placeholder type=\"footnote\" id=\"0\"/> At the request of a wide " +"range of interests, WIPO had decided to hold a meeting to discuss \"open and " +"collaborative projects to create public goods.\" These are projects that " +"have been successful in producing public goods without relying exclusively " +"upon a proprietary use of intellectual property. Examples include the " +"Internet and the World Wide Web, both of which were developed on the basis " +"of protocols in the public domain. It included an emerging trend to support " +"open academic journals, including the Public Library of Science project that " +"I describe in the Afterword. It included a project to develop single " +"nucleotide polymorphisms (SNPs), which are thought to have great " +"significance in biomedical research. (That nonprofit project comprised a " +"consortium of the Wellcome Trust and pharmaceutical and technological " +"companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, " +"Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, " +"Novartis, Pfizer, and Searle.) It included the Global Positioning System, " +"which Ronald Reagan set free in the early 1980s. And it included \"open " +"source and free software.\"" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12465 +msgid "" +"The aim of the meeting was to consider this wide range of projects from one " +"common perspective: that none of these projects relied upon intellectual " +"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." +msgstr "" + +#. f7. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12473 +msgid "" +"I should disclose that I was one of the people who asked WIPO for the " +"meeting." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12472 +msgid "" +"From the perspective of this book, then, the conference was " +"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its " +"scope included both commercial and noncommercial work. They primarily " +"involved science, but from many perspectives. And WIPO was an ideal venue " +"for this discussion, since WIPO is the preeminent international body dealing " +"with intellectual property issues." +msgstr "" + +#. PAGE BREAK 271 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12483 +msgid "" +"Indeed, I was once publicly scolded for not recognizing this fact about " +"WIPO. In February 2003, I delivered a keynote address to a preparatory " +"conference for the World Summit on the Information Society (WSIS). At a " +"press conference before the address, I was asked what I would say. I " +"responded that I would be talking a little about the importance of balance " +"in intellectual property for the development of an information society. The " +"moderator for the event then promptly interrupted to inform me and the " +"assembled reporters that no question about intellectual property would be " +"discussed by WSIS, since those questions were the exclusive domain of " +"WIPO. In the talk that I had prepared, I had actually made the issue of " +"intellectual property relatively minor. But after this astonishing " +"statement, I made intellectual property the sole focus of my talk. There was " +"no way to talk about an \"Information Society\" unless one also talked about " +"the range of information and culture that would be free. My talk did not " +"make my immoderate moderator very happy. And she was no doubt correct that " +"the scope of intellectual property protections was ordinarily the stuff of " +"WIPO. But in my view, there couldn't be too much of a conversation about how " +"much intellectual property is needed, since in my view, the very idea of " +"balance in intellectual property had been lost." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12507 +msgid "" +"So whether or not WSIS can discuss balance in intellectual property, I had " +"thought it was taken for granted that WIPO could and should. And thus the " +"meeting about \"open and collaborative projects to create public goods\" " +"seemed perfectly appropriate within the WIPO agenda." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12513 +msgid "" +"But there is one project within that list that is highly controversial, at " +"least among lobbyists. That project is \"open source and free software.\" " +"Microsoft in particular is wary of discussion of the subject. From its " +"perspective, a conference to discuss open source and free software would be " +"like a conference to discuss Apple's operating system. Both open source and " +"free software compete with Microsoft's software. And internationally, many " +"governments have begun to explore requirements that they use open source or " +"free software, rather than \"proprietary software,\" for their own internal " +"uses." +msgstr "" + +#. f8. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12536 +msgid "" +"Microsoft's position about free and open source software is more " +"sophisticated. As it has repeatedly asserted, it has no problem with \"open " +"source\" software or software in the public domain. Microsoft's principal " +"opposition is to \"free software\" licensed under a \"copyleft\" license, " +"meaning a license that requires the licensee to adopt the same terms on any " +"derivative work. See Bradford L. Smith, \"The Future of Software: Enabling " +"the Marketplace to Decide,\" Government Policy Toward Open Source Software " +"(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, " +"American Enterprise Institute for Public Policy Research, 2002), 69, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#62</ulink>. See also Craig Mundie, Microsoft senior vice president, The " +"Commercial Software Model, discussion at New York University Stern School of " +"Business (3 May 2001), available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #63</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12524 +msgid "" +"I don't mean to enter that debate here. It is important only to make clear " +"that the distinction is not between commercial and noncommercial " +"software. There are many important companies that depend fundamentally upon " +"open source and free software, IBM being the most prominent. IBM is " +"increasingly shifting its focus to the GNU/Linux operating system, the most " +"famous bit of \"free software\"—and IBM is emphatically a commercial " +"entity. Thus, to support \"open source and free software\" is not to oppose " +"commercial entities. It is, instead, to support a mode of software " +"development that is different from Microsoft's.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 272 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12558 +msgid "" +"More important for our purposes, to support \"open source and free " +"software\" is not to oppose copyright. \"Open source and free software\" is " +"not software in the public domain. Instead, like Microsoft's software, the " +"copyright owners of free and open source software insist quite strongly that " +"the terms of their software license be respected by adopters of free and " +"open source software. The terms of that license are no doubt different from " +"the terms of a proprietary software license. Free software licensed under " +"the General Public License (GPL), for example, requires that the source code " +"for the software be made available by anyone who modifies and redistributes " +"the software. But that requirement is effective only if copyright governs " +"software. If copyright did not govern software, then free software could not " +"impose the same kind of requirements on its adopters. It thus depends upon " +"copyright law just as Microsoft does." +msgstr "" + +#. f9. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12584 +msgid "" +"Krim, \"The Quiet War over Open-Source,\" available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #64</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12576 +msgid "" +"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.<placeholder " +"type=\"footnote\" id=\"0\"/> And without U.S. backing, the meeting was " +"canceled." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12590 +msgid "" +"I don't blame Microsoft for doing what it can to advance its own interests, " +"consistent with the law. And lobbying governments is plainly consistent with " +"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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12598 +msgid "" +"What was surprising was the United States government's reason for opposing " +"the meeting. Again, as reported by Krim, Lois Boland, acting director of " +"international relations for the U.S. Patent and Trademark Office, explained " +"that \"open-source software runs counter to the mission of WIPO, which is to " +"promote intellectual-property rights.\" She is quoted as saying, \"To hold a " +"meeting which has as its purpose to disclaim or waive such rights seems to " +"us to be contrary to the goals of WIPO.\"" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12608 +msgid "These statements are astonishing on a number of levels." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12612 +msgid "" +"First, they are just flat wrong. As I described, most open source and free " +"software relies fundamentally upon the intellectual property right called " +"\"copyright\". Without it, restrictions imposed by those licenses wouldn't " +"work. Thus, to say it \"runs counter\" to the mission of promoting " +"intellectual property rights reveals an extraordinary gap in " +"understanding—the sort of mistake that is excusable in a first-year " +"law student, but an embarrassment from a high government official dealing " +"with intellectual property issues." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12622 +msgid "" +"Second, who ever said that WIPO's exclusive aim was to \"promote\" " +"intellectual property maximally? As I had been scolded at the preparatory " +"conference of WSIS, WIPO is to consider not only how best to protect " +"intellectual property, but also what the best balance of intellectual " +"property is. As every economist and lawyer knows, the hard question in " +"intellectual property law is to find that balance. But that there should be " +"limits is, I had thought, uncontested. One wants to ask Ms. Boland, are " +"generic drugs (drugs based on drugs whose patent has expired) contrary to " +"the WIPO mission? Does the public domain weaken intellectual property? Would " +"it have been better if the protocols of the Internet had been patented?" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12635 +msgid "" +"Third, even if one believed that the purpose of WIPO was to maximize " +"intellectual property rights, in our tradition, intellectual property rights " +"are held by individuals and corporations. They get to decide what to do with " +"those rights because, again, they are their rights. If they want to " +"\"waive\" or \"disclaim\" their rights, that is, within our tradition, " +"totally appropriate. When Bill Gates gives away more than $20 billion to do " +"good in the world, that is not inconsistent with the objectives of the " +"property system. That is, on the contrary, just what a property system is " +"supposed to be about: giving individuals the right to decide what to do with " +"their property." +msgstr "" + +#. PAGE BREAK 274 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12647 +msgid "" +"When Ms. Boland says that there is something wrong with a meeting \"which " +"has as its purpose to disclaim or waive such rights,\" she's saying that " +"WIPO has an interest in interfering with the choices of the individuals who " +"own intellectual property rights. That somehow, WIPO's objective should be " +"to stop an individual from \"waiving\" or \"disclaiming\" an intellectual " +"property right. That the interest of WIPO is not just that intellectual " +"property rights be maximized, but that they also should be exercised in the " +"most extreme and restrictive way possible." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12659 +msgid "" +"There is a history of just such a property system that is well known in the " +"Anglo-American tradition. It is called \"feudalism.\" Under feudalism, not " +"only was property held by a relatively small number of individuals and " +"entities. And not only were the rights that ran with that property powerful " +"and extensive. But the feudal system had a strong interest in assuring that " +"property holders within that system not weaken feudalism by liberating " +"people or property within their control to the free market. Feudalism " +"depended upon maximum control and concentration. It fought any freedom that " +"might interfere with that control." +msgstr "" + +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12676 +msgid "" +"See Drahos with Braithwaite, Information Feudalism, 210–20. " +"<placeholder type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12673 +msgid "" +"As Peter Drahos and John Braithwaite relate, this is precisely the choice we " +"are now making about intellectual property.<placeholder type=\"footnote\" " +"id=\"0\"/> 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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12684 +msgid "" +"When this battle broke, I blogged it. A spirited debate within the comment " +"section ensued. Ms. Boland had a number of supporters who tried to show why " +"her comments made sense. But there was one comment that was particularly " +"depressing for me. An anonymous poster wrote," +msgstr "" + +#. PAGE BREAK 275 +#. type: Content of: <book><chapter><blockquote><para> +#: freeculture.xml:12691 +msgid "" +"George, you misunderstand Lessig: He's only talking about the world as it " +"should be (\"the goal of WIPO, and the goal of any government, should be to " +"promote the right balance of intellectual property rights, not simply to " +"promote intellectual property rights\"), not as it is. If we were talking " +"about the world as it is, then of course Boland didn't say anything " +"wrong. But in the world as Lessig would have it, then of course she " +"did. Always pay attention to the distinction between Lessig's world and " +"ours." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12703 +msgid "" +"I missed the irony the first time I read it. I read it quickly and thought " +"the poster was supporting the idea that seeking balance was what our " +"government should be doing. (Of course, my criticism of Ms. Boland was not " +"about whether she was seeking balance or not; my criticism was that her " +"comments betrayed a first-year law student's mistake. I have no illusion " +"about the extremism of our government, whether Republican or Democrat. My " +"only illusion apparently is about whether our government should speak the " +"truth or not.)" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12713 +msgid "" +"Obviously, however, the poster was not supporting that idea. Instead, the " +"poster was ridiculing the very idea that in the real world, the \"goal\" of " +"a government should be \"to promote the right balance\" of intellectual " +"property. That was obviously silly to him. And it obviously betrayed, he " +"believed, my own silly utopianism. \"Typical for an academic,\" the poster " +"might well have continued." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12721 +msgid "" +"I understand criticism of academic utopianism. I think utopianism is silly, " +"too, and I'd be the first to poke fun at the absurdly unrealistic ideals of " +"academics throughout history (and not just in our own country's history)." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12727 +msgid "" +"But when it has become silly to suppose that the role of our government " +"should be to \"seek balance,\" then count me with the silly, for that means " +"that this has become quite serious indeed. If it should be obvious to " +"everyone that the government does not seek balance, that the government is " +"simply the tool of the most powerful lobbyists, that the idea of holding the " +"government to a different standard is absurd, that the idea of demanding of " +"the government that it speak truth and not lies is just naïve, then who " +"have we, the most powerful democracy in the world, become?" +msgstr "" + +#. PAGE BREAK 276 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12738 +msgid "" +"It might be crazy to expect a high government official to speak the " +"truth. It might be crazy to believe that government policy will be something " +"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." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12747 +msgid "" +"If this is crazy, then let there be more crazies. Soon. There are moments " +"of hope in this struggle. And moments that surprise. When the FCC was " +"considering relaxing ownership rules, which would thereby further increase " +"the concentration in media ownership, an extraordinary bipartisan coalition " +"formed to fight this change. For perhaps the first time in history, " +"interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted " +"Turner, and CodePink Women for Peace organized to oppose this change in FCC " +"policy. An astonishing 700,000 letters were sent to the FCC, demanding more " +"hearings and a different result." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12759 +msgid "" +"This activism did not stop the FCC, but soon after, a broad coalition in the " +"Senate voted to reverse the FCC decision. The hostile hearings leading up to " +"that vote revealed just how powerful this movement had become. There was no " +"substantial support for the FCC's decision, and there was broad and " +"sustained support for fighting further concentration in the media." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12767 +msgid "" +"But even this movement misses an important piece of the puzzle. Largeness " +"as such is not bad. Freedom is not threatened just because some become very " +"rich, or because there are only a handful of big players. The poor quality " +"of Big Macs or Quarter Pounders does not mean that you can't get a good " +"hamburger from somewhere else." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12774 +msgid "" +"The danger in media concentration comes not from the concentration, but " +"instead from the feudalism that this concentration, tied to the change in " +"copyright, produces. It is not just that there are a few powerful companies " +"that control an ever expanding slice of the media. It is that this " +"concentration can call upon an equally bloated range of " +"rights—property rights of a historically extreme form—that makes " +"their bigness bad." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12784 +msgid "" +"It is therefore significant that so many would rally to demand competition " +"and increased diversity. Still, if the rally is understood as being about " +"bigness alone, it is not terribly surprising. We Americans have a long " +"history of fighting \"big,\" wisely or not. That we could be motivated to " +"fight \"big\" again is not something new." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12791 +msgid "" +"It would be something new, and something very important, if an equal number " +"could be rallied to fight the increasing extremism built within the idea of " +"\"intellectual property.\" Not because balance is alien to our tradition; " +"indeed, as I've argued, balance is our tradition. But because the muscle to " +"think critically about the scope of anything called \"property\" is not well " +"exercised within this tradition anymore." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12799 +msgid "" +"If we were Achilles, this would be our heel. This would be the place of our " +"tragedy." +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:12802 +msgid "Dylan, Bob" +msgstr "" + +#. f11. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12807 +msgid "" +"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September " +"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#65</ulink>; Paul R. La Monica, \"Music Industry Sues Swappers,\" CNN/Money, " +"8 September 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #66</ulink>; Soni Sangha and " +"Phyllis Furman with Robert Gearty, \"Sued for a Song, N.Y.C. 12-Yr-Old Among " +"261 Cited as Sharers,\" New York Daily News, 9 September 2003, 3; Frank " +"Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., " +"12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 September " +"2003, E1; Katie Dean, \"Schoolgirl Settles with RIAA,\" Wired News, 10 " +"September 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #67</ulink>." +msgstr "" + +#. f12. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12825 +msgid "" +"Jon Wiederhorn, \"Eminem Gets Sued . . . by a Little Old Lady,\" mtv.com, 17 " +"September 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #68</ulink>." +msgstr "" + +#. f13. +#. PAGE BREAK 334 +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12832 +msgid "" +"Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan " +"Songs,\" Kansascity.com, 9 July 2003, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #69</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12804 +msgid "" +"As I write these final words, the news is filled with stories about the RIAA " +"lawsuits against almost three hundred individuals.<placeholder " +"type=\"footnote\" id=\"0\"/> Eminem has just been sued for \"sampling\" " +"someone else's music.<placeholder type=\"footnote\" id=\"1\"/> The story " +"about Bob Dylan \"stealing\" from a Japanese author has just finished making " +"the rounds.<placeholder type=\"footnote\" id=\"2\"/> An insider from " +"Hollywood—who insists he must remain anonymous—reports \"an " +"amazing conversation with these studio guys. They've got extraordinary [old] " +"content that they'd love to use but can't because they can't begin to clear " +"the rights. They've got scores of kids who could do amazing things with the " +"content, but it would take scores of lawyers to clean it first.\" " +"Congressmen are talking about deputizing computer viruses to bring down " +"computers thought to violate the law. Universities are threatening expulsion " +"for kids who use a computer to share content." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:12849 freeculture.xml:13199 +msgid "Creative Commons" +msgstr "" + +#. type: Content of: <book><chapter><indexterm><primary> +#: freeculture.xml:12850 +msgid "Gil, Gilberto" +msgstr "" + +#. f14. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12855 +msgid "" +"\"BBC Plans to Open Up Its Archive to the Public,\" BBC press release, 24 " +"August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#70</ulink>." +msgstr "" + +#. f15. +#. type: Content of: <book><chapter><para><footnote><para> +#: freeculture.xml:12864 +msgid "" +"\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, " +"available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>." +msgstr "" + +#. PAGE BREAK 278 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12852 +msgid "" +"Yet on the other side of the Atlantic, the BBC has just announced that it " +"will build a \"Creative Archive,\" from which British citizens can download " +"BBC content, and rip, mix, and burn it.<placeholder type=\"footnote\" " +"id=\"0\"/> 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.<placeholder " +"type=\"footnote\" id=\"1\"/> I've told a dark story. The truth is more " +"mixed. A technology has given us a new freedom. Slowly, some begin to " +"understand that this freedom need not mean anarchy. We can carry a free " +"culture into the twenty-first century, without artists losing and without " +"the potential of digital technology being destroyed. It will take some " +"thought, and more importantly, it will take some will to transform the RCAs " +"of our day into the Causbys." +msgstr "" + +#. PAGE BREAK 279 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12878 +msgid "" +"Common sense must revolt. It must act to free culture. Soon, if this " +"potential is ever to be realized." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:12886 +msgid "AFTERWORD" +msgstr "" + +#. PAGE BREAK 280 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12890 +msgid "" +"At least some who have read this far will agree with me that something must " +"be done to change where we are heading. The balance of this book maps what " +"might be done." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12895 +msgid "" +"I divide this map into two parts: that which anyone can do now, and that " +"which requires the help of lawmakers. If there is one lesson that we can " +"draw from the history of remaking common sense, it is that it requires " +"remaking how many people think about the very same issue." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12901 +msgid "" +"That means this movement must begin in the streets. It must recruit a " +"significant number of parents, teachers, librarians, creators, authors, " +"musicians, filmmakers, scientists—all to tell this story in their own " +"words, and to tell their neighbors why this battle is so important." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:12908 +msgid "" +"Once this movement has its effect in the streets, it has some hope of having " +"an effect in Washington. We are still a democracy. What people think " +"matters. Not as much as it should, at least when an RCA stands opposed, but " +"still, it matters. And thus, in the second part below, I sketch changes that " +"Congress could make to better secure a free culture." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:12917 +msgid "US, NOW" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12919 +msgid "" +"Common sense is with the copyright warriors because the debate so far has " +"been framed at the extremes—as a grand either/or: either property or " +"anarchy, either total control or artists won't be paid. If that really is " +"the choice, then the warriors should win." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12925 +msgid "" +"The mistake here is the error of the excluded middle. There are extremes in " +"this debate, but the extremes are not all that there is. There are those who " +"believe in maximal copyright—\"All Rights Reserved\"— and those " +"who reject copyright—\"No Rights Reserved.\" The \"All Rights " +"Reserved\" sorts believe that you should ask permission before you \"use\" a " +"copyrighted work in any way. The \"No Rights Reserved\" sorts believe you " +"should be able to do with content as you wish, regardless of whether you " +"have permission or not." +msgstr "" + +#. PAGE BREAK 282 +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12935 +msgid "" +"When the Internet was first born, its initial architecture effectively " +"tilted in the \"no rights reserved\" direction. Content could be copied " +"perfectly and cheaply; rights could not easily be controlled. Thus, " +"regardless of anyone's desire, the effective regime of copyright under the " +"original design of the Internet was \"no rights reserved.\" Content was " +"\"taken\" regardless of the rights. Any rights were effectively unprotected." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12947 +msgid "" +"This initial character produced a reaction (opposite, but not quite equal) " +"by copyright owners. That reaction has been the topic of this book. Through " +"legislation, litigation, and changes to the network's design, copyright " +"holders have been able to change the essential character of the environment " +"of the original Internet. If the original architecture made the effective " +"default \"no rights reserved,\" the future architecture will make the " +"effective default \"all rights reserved.\" The architecture and law that " +"surround the Internet's design will increasingly produce an environment " +"where all use of content requires permission. The \"cut and paste\" world " +"that defines the Internet today will become a \"get permission to cut and " +"paste\" world that is a creator's nightmare." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:12961 +msgid "" +"What's needed is a way to say something in the middle—neither \"all " +"rights reserved\" nor \"no rights reserved\" but \"some rights " +"reserved\"— and thus a way to respect copyrights but enable creators " +"to free content as they see fit. In other words, we need a way to restore a " +"set of freedoms that we could just take for granted before." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:12970 +msgid "Rebuilding Freedoms Previously Presumed: Examples" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:12972 +msgid "" +"If you step back from the battle I've been describing here, you will " +"recognize this problem from other contexts. Think about privacy. Before the " +"Internet, most of us didn't have to worry much about data about our lives " +"that we broadcast to the world. If you walked into a bookstore and browsed " +"through some of the works of Karl Marx, you didn't need to worry about " +"explaining your browsing habits to your neighbors or boss. The \"privacy\" " +"of your browsing habits was assured." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:12982 +msgid "What made it assured?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:12986 +msgid "" +"Well, if we think in terms of the modalities I described in chapter 10, your " +"privacy was assured because of an inefficient architecture for gathering " +"data and hence a market constraint (cost) on anyone who wanted to gather " +"that data. If you were a suspected spy for North Korea, working for the CIA, " +"no doubt your privacy would not be assured. But that's because the CIA " +"would (we hope) find it valuable enough to spend the thousands required to " +"track you. But for most of us (again, we can hope), spying doesn't pay. The " +"highly inefficient architecture of real space means we all enjoy a fairly " +"robust amount of privacy. That privacy is guaranteed to us by friction. Not " +"by law (there is no law protecting \"privacy\" in public places), and in " +"many places, not by norms (snooping and gossip are just fun), but instead, " +"by the costs that friction imposes on anyone who would want to spy." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:13000 +msgid "Amazon" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13002 +msgid "" +"Enter the Internet, where the cost of tracking browsing in particular has " +"become quite tiny. If you're a customer at Amazon, then as you browse the " +"pages, Amazon collects the data about what you've looked at. You know this " +"because at the side of the page, there's a list of \"recently viewed\" " +"pages. Now, because of the architecture of the Net and the function of " +"cookies on the Net, it is easier to collect the data than not. The friction " +"has disappeared, and hence any \"privacy\" protected by the friction " +"disappears, too." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13012 +msgid "" +"Amazon, of course, is not the problem. But we might begin to worry about " +"libraries. If you're one of those crazy lefties who thinks that people " +"should have the \"right\" to browse in a library without the government " +"knowing which books you look at (I'm one of those lefties, too), then this " +"change in the technology of monitoring might concern you. If it becomes " +"simple to gather and sort who does what in electronic spaces, then the " +"friction-induced privacy of yesterday disappears." +msgstr "" + +#. f1. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:13028 +msgid "" +"See, for example, Marc Rotenberg, \"Fair Information Practices and the " +"Architecture of Privacy (What Larry Doesn't Get),\" Stanford Technology Law " +"Review 1 (2001): par. 6–18, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #72</ulink> (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)." +msgstr "" + +#. PAGE BREAK 284 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13022 +msgid "" +"It is this reality that explains the push of many to define \"privacy\" on " +"the Internet. It is the recognition that technology can remove what friction " +"before gave us that leads many to push for laws to do what friction " +"did.<placeholder type=\"footnote\" id=\"0\"/> And whether you're in favor of " +"those laws or not, it is the pattern that is important here. We must take " +"affirmative steps to secure a kind of freedom that was passively provided " +"before. A change in technology now forces those who believe in privacy to " +"affirmatively act where, before, privacy was given by default." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13046 +msgid "" +"A similar story could be told about the birth of the free software " +"movement. When computers with software were first made available " +"commercially, the software—both the source code and the " +"binaries— was free. You couldn't run a program written for a Data " +"General machine on an IBM machine, so Data General and IBM didn't care much " +"about controlling their software." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> +#: freeculture.xml:13053 +msgid "Stallman, Richard" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13055 +msgid "" +"That was the world Richard Stallman was born into, and while he was a " +"researcher at MIT, he grew to love the community that developed when one was " +"free to explore and tinker with the software that ran on machines. Being a " +"smart sort himself, and a talented programmer, Stallman grew to depend upon " +"the freedom to add to or modify other people's work." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13063 +msgid "" +"In an academic setting, at least, that's not a terribly radical idea. In a " +"math department, anyone would be free to tinker with a proof that someone " +"offered. If you thought you had a better way to prove a theorem, you could " +"take what someone else did and change it. In a classics department, if you " +"believed a colleague's translation of a recently discovered text was flawed, " +"you were free to improve it. Thus, to Stallman, it seemed obvious that you " +"should be free to tinker with and improve the code that ran a machine. This, " +"too, was knowledge. Why shouldn't it be open for criticism like anything " +"else?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13075 +msgid "" +"No one answered that question. Instead, the architecture of revenue for " +"computing changed. As it became possible to import programs from one system " +"to another, it became economically attractive (at least in the view of some) " +"to hide the code of your program. So, too, as companies started selling " +"peripherals for mainframe systems. If I could just take your printer driver " +"and copy it, then that would make it easier for me to sell a printer to the " +"market than it was for you." +msgstr "" + +#. PAGE BREAK 285 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13084 +msgid "" +"Thus, the practice of proprietary code began to spread, and by the early " +"1980s, Stallman found himself surrounded by proprietary code. The world of " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13093 +msgid "" +"Therefore, in 1984, Stallman began a project to build a free operating " +"system, so that at least a strain of free software would survive. That was " +"the birth of the GNU project, into which Linus Torvalds's \"Linux\" kernel " +"was added to produce the GNU/Linux operating system." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13099 +msgid "" +"Stallman's technique was to use copyright law to build a world of software " +"that must be kept free. Software licensed under the Free Software " +"Foundation's GPL cannot be modified and distributed unless the source code " +"for that software is made available as well. Thus, anyone building upon " +"GPL'd software would have to make their buildings free as well. This would " +"assure, Stallman believed, that an ecology of code would develop that " +"remained free for others to build upon. His fundamental goal was freedom; " +"innovative creative code was a byproduct." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13110 +msgid "" +"Stallman was thus doing for software what privacy advocates now do for " +"privacy. He was seeking a way to rebuild a kind of freedom that was taken " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13118 +msgid "" +"Finally, consider a very recent example that more directly resonates with " +"the story of this book. This is the shift in the way academic and scientific " +"journals are produced." +msgstr "" + +#. PAGE BREAK 286 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13123 +msgid "" +"As digital technologies develop, it is becoming obvious to many that " +"printing thousands of copies of journals every month and sending them to " +"libraries is perhaps not the most efficient way to distribute " +"knowledge. Instead, journals are increasingly becoming electronic, and " +"libraries and their users are given access to these electronic journals " +"through password-protected sites. Something similar to this has been " +"happening in law for almost thirty years: Lexis and Westlaw have had " +"electronic versions of case reports available to subscribers to their " +"service. Although a Supreme Court opinion is not copyrighted, and anyone is " +"free to go to a library and read it, Lexis and Westlaw are also free to " +"charge users for the privilege of gaining access to that Supreme Court " +"opinion through their respective services." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13139 +msgid "" +"There's nothing wrong in general with this, and indeed, the ability to " +"charge for access to even public domain materials is a good incentive for " +"people to develop new and innovative ways to spread knowledge. The law has " +"agreed, which is why Lexis and Westlaw have been allowed to flourish. And if " +"there's nothing wrong with selling the public domain, then there could be " +"nothing wrong, in principle, with selling access to material that is not in " +"the public domain." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13148 +msgid "" +"But what if the only way to get access to social and scientific data was " +"through proprietary services? What if no one had the ability to browse this " +"data except by paying for a subscription?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13153 +msgid "" +"As many are beginning to notice, this is increasingly the reality with " +"scientific journals. When these journals were distributed in paper form, " +"libraries could make the journals available to anyone who had access to the " +"library. Thus, patients with cancer could become cancer experts because the " +"library gave them access. Or patients trying to understand the risks of a " +"certain treatment could research those risks by reading all available " +"articles about that treatment. This freedom was therefore a function of the " +"institution of libraries (norms) and the technology of paper journals " +"(architecture)—namely, that it was very hard to control access to a " +"paper journal." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13165 +msgid "" +"As journals become electronic, however, the publishers are demanding that " +"libraries not give the general public access to the journals. This means " +"that the freedoms provided by print journals in public libraries begin to " +"disappear. Thus, as with privacy and with software, a changing technology " +"and market shrink a freedom taken for granted before." +msgstr "" + +#. PAGE BREAK 287 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13173 +msgid "" +"This shrinking freedom has led many to take affirmative steps to restore the " +"freedom that has been lost. The Public Library of Science (PLoS), for " +"example, is a nonprofit corporation dedicated to making scientific research " +"available to anyone with a Web connection. Authors of scientific work submit " +"that work to the Public Library of Science. That work is then subject to " +"peer review. If accepted, the work is then deposited in a public, electronic " +"archive and made permanently available for free. PLoS also sells a print " +"version of its work, but the copyright for the print journal does not " +"inhibit the right of anyone to redistribute the work for free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13186 +msgid "" +"This is one of many such efforts to restore a freedom taken for granted " +"before, but now threatened by changing technology and markets. There's no " +"doubt that this alternative competes with the traditional publishers and " +"their efforts to make money from the exclusive distribution of content. But " +"competition in our tradition is presumptively a good—especially when " +"it helps spread knowledge and science." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:13197 +msgid "Rebuilding Free Culture: One Idea" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13202 +msgid "" +"The same strategy could be applied to culture, as a response to the " +"increasing control effected through law and technology." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13206 +msgid "" +"Enter the Creative Commons. The Creative Commons is a nonprofit corporation " +"established in Massachusetts, but with its home at Stanford University. Its " +"aim is to build a layer of reasonable copyright on top of the extremes that " +"now reign. It does this by making it easy for people to build upon other " +"people's work, by making it simple for creators to express the freedom for " +"others to take and build upon their work. Simple tags, tied to " +"human-readable descriptions, tied to bulletproof licenses, make this " +"possible." +msgstr "" + +#. PAGE BREAK 288 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13216 +msgid "" +"Simple—which means without a middleman, or without a lawyer. By " +"developing a free set of licenses that people can attach to their content, " +"Creative Commons aims to mark a range of content that can easily, and " +"reliably, be built upon. These tags are then linked to machine-readable " +"versions of the license that enable computers automatically to identify " +"content that can easily be shared. These three expressions together—a " +"legal license, a human-readable description, and machine-readable " +"tags—constitute a Creative Commons license. A Creative Commons license " +"constitutes a grant of freedom to anyone who accesses the license, and more " +"importantly, an expression of the ideal that the person associated with the " +"license believes in something different than the \"All\" or \"No\" " +"extremes. Content is marked with the CC mark, which does not mean that " +"copyright is waived, but that certain freedoms are given." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13234 +msgid "" +"These freedoms are beyond the freedoms promised by fair use. Their precise " +"contours depend upon the choices the creator makes. The creator can choose a " +"license that permits any use, so long as attribution is given. She can " +"choose a license that permits only noncommercial use. She can choose a " +"license that permits any use so long as the same freedoms are given to other " +"uses (\"share and share alike\"). Or any use so long as no derivative use is " +"made. Or any use at all within developing nations. Or any sampling use, so " +"long as full copies are not made. Or lastly, any educational use." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13245 +msgid "" +"These choices thus establish a range of freedoms beyond the default of " +"copyright law. They also enable freedoms that go beyond traditional fair " +"use. And most importantly, they express these freedoms in a way that " +"subsequent users can use and rely upon without the need to hire a " +"lawyer. Creative Commons thus aims to build a layer of content, governed by " +"a layer of reasonable copyright law, that others can build upon. Voluntary " +"choice of individuals and creators will make this content available. And " +"that content will in turn enable us to rebuild a public domain." +msgstr "" + +#. PAGE BREAK 289 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13256 +msgid "" +"This is just one project among many within the Creative Commons. And of " +"course, Creative Commons is not the only organization pursuing such " +"freedoms. But the point that distinguishes the Creative Commons from many is " +"that we are not interested only in talking about a public domain or in " +"getting legislators to help build a public domain. Our aim is to build a " +"movement of consumers and producers of content (\"content conducers,\" as " +"attorney Mia Garlick calls them) who help build the public domain and, by " +"their work, demonstrate the importance of the public domain to other " +"creativity." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13268 +msgid "" +"The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to " +"complement them. The problems that the law creates for us as a culture are " +"produced by insane and unintended consequences of laws written centuries " +"ago, applied to a technology that only Jefferson could have imagined. The " +"rules may well have made sense against a background of technologies from " +"centuries ago, but they do not make sense against the background of digital " +"technologies. New rules—with different freedoms, expressed in ways so " +"that humans without lawyers can use them—are needed. Creative Commons " +"gives people a way effectively to begin to build those rules." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13280 +msgid "" +"Why would creators participate in giving up total control? Some participate " +"to better spread their content. Cory Doctorow, for example, is a science " +"fiction author. His first novel, Down and Out in the Magic Kingdom, was " +"released on-line and for free, under a Creative Commons license, on the same " +"day that it went on sale in bookstores." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13287 +msgid "" +"Why would a publisher ever agree to this? I suspect his publisher reasoned " +"like this: There are two groups of people out there: (1) those who will buy " +"Cory's book whether or not it's on the Internet, and (2) those who may never " +"hear of Cory's book, if it isn't made available for free on the " +"Internet. Some part of (1) will download Cory's book instead of buying " +"it. Call them bad-(1)s. Some part of (2) will download Cory's book, like " +"it, and then decide to buy it. Call them (2)-goods. If there are more " +"(2)-goods than bad-(1)s, the strategy of releasing Cory's book free on-line " +"will probably increase sales of Cory's book." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13299 +msgid "" +"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." +msgstr "" + +#. PAGE BREAK 290 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13305 +msgid "" +"The idea that free content might increase the value of nonfree content was " +"confirmed by the experience of another author. Peter Wayner, who wrote a " +"book about the free software movement titled Free for All, made an " +"electronic version of his book free on-line under a Creative Commons license " +"after the book went out of print. He then monitored used book store prices " +"for the book. As predicted, as the number of downloads increased, the used " +"book price for his book increased, as well." +msgstr "" + +#. f2. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:13331 +msgid "" +"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 <ulink url=\"http://free-culture.cc/notes/\">link " +"#72</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13316 +msgid "" +"These are examples of using the Commons to better spread proprietary " +"content. I believe that is a wonderful and common use of the Commons. There " +"are others who use Creative Commons licenses for other reasons. Many who use " +"the \"sampling license\" do so because anything else would be " +"hypocritical. The sampling license says that others are free, for commercial " +"or noncommercial purposes, to sample content from the licensed work; they " +"are just not free to make full copies of the licensed work available to " +"others. This is consistent with their own art—they, too, sample from " +"others. Because the legal costs of sampling are so high (Walter Leaphart, " +"manager of the rap group Public Enemy, which was born sampling the music of " +"others, has stated that he does not \"allow\" Public Enemy to sample " +"anymore, because the legal costs are so high<placeholder type=\"footnote\" " +"id=\"0\"/>), these artists release into the creative environment content " +"that others can build upon, so that their form of creativity might grow." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13340 +msgid "" +"Finally, there are many who mark their content with a Creative Commons " +"license just because they want to express to others the importance of " +"balance in this debate. If you just go along with the system as it is, you " +"are effectively saying you believe in the \"All Rights Reserved\" " +"model. Good for you, but many do not. Many believe that however appropriate " +"that rule is for Hollywood and freaks, it is not an appropriate description " +"of how most creators view the rights associated with their content. The " +"Creative Commons license expresses this notion of \"Some Rights Reserved,\" " +"and gives many the chance to say it to others." +msgstr "" + +#. PAGE BREAK 291 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13352 +msgid "" +"In the first six months of the Creative Commons experiment, over 1 million " +"objects were licensed with these free-culture licenses. The next step is " +"partnerships with middleware content providers to help them build into their " +"technologies simple ways for users to mark their content with Creative " +"Commons freedoms. Then the next step is to watch and celebrate creators who " +"build content based upon content set free." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13362 +msgid "" +"These are first steps to rebuilding a public domain. They are not mere " +"arguments; they are action. Building a public domain is the first step to " +"showing people how important that domain is to creativity and " +"innovation. Creative Commons relies upon voluntary steps to achieve this " +"rebuilding. They will lead to a world in which more than voluntary steps are " +"possible." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13370 +msgid "" +"Creative Commons is just one example of voluntary efforts by individuals and " +"creators to change the mix of rights that now govern the creative field. The " +"project does not compete with copyright; it complements it. Its aim is not " +"to defeat the rights of authors, but to make it easier for authors and " +"creators to exercise their rights more flexibly and cheaply. That " +"difference, we believe, will enable creativity to spread more easily." +msgstr "" + +#. type: Content of: <book><chapter><sect1><title> +#: freeculture.xml:13384 +msgid "THEM, SOON" +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:13386 +msgid "" +"We will not reclaim a free culture by individual action alone. It will also " +"take important reforms of laws. We have a long way to go before the " +"politicians will listen to these ideas and implement these reforms. But " +"that also means that we have time to build awareness around the changes that " +"we need." +msgstr "" + +#. type: Content of: <book><chapter><sect1><para> +#: freeculture.xml:13393 +msgid "" +"In this chapter, I outline five kinds of changes: four that are general, and " +"one that's specific to the most heated battle of the day, music. Each is a " +"step, not an end. But any of these steps would carry us a long way to our " +"end." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:13400 +msgid "1. More Formalities" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13402 +msgid "" +"If you buy a house, you have to record the sale in a deed. If you buy land " +"upon which to build a house, you have to record the purchase in a deed. If " +"you buy a car, you get a bill of sale and register the car. If you buy an " +"airplane ticket, it has your name on it." +msgstr "" + +#. PAGE BREAK 293 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13409 +msgid "" +"These are all formalities associated with property. They are requirements " +"that we all must bear if we want our property to be protected." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13414 +msgid "" +"In contrast, under current copyright law, you automatically get a copyright, " +"regardless of whether you comply with any formality. You don't have to " +"register. You don't even have to mark your content. The default is control, " +"and \"formalities\" are banished." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13420 +msgid "Why?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13423 +msgid "" +"As I suggested in chapter 10, the motivation to abolish formalities was a " +"good one. In the world before digital technologies, formalities imposed a " +"burden on copyright holders without much benefit. Thus, it was progress when " +"the law relaxed the formal requirements that a copyright owner must bear to " +"protect and secure his work. Those formalities were getting in the way." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13431 +msgid "" +"But the Internet changes all this. Formalities today need not be a " +"burden. Rather, the world without formalities is the world that burdens " +"creativity. Today, there is no simple way to know who owns what, or with " +"whom one must deal in order to use or build upon the creative work of " +"others. There are no records, there is no system to trace— there is no " +"simple way to know how to get permission. Yet given the massive increase in " +"the scope of copyright's rule, getting permission is a necessary step for " +"any work that builds upon our past. And thus, the lack of formalities forces " +"many into silence where they otherwise could speak." +msgstr "" + +#. f1. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:13445 +msgid "" +"The proposal I am advancing here would apply to American works only. " +"Obviously, I believe it would be beneficial for the same idea to be adopted " +"by other countries as well." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13443 +msgid "" +"The law should therefore change this requirement<placeholder " +"type=\"footnote\" id=\"0\"/>—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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13453 +msgid "" +"The important formalities are three: marking copyrighted work, registering " +"copyrights, and renewing the claim to copyright. Traditionally, the first of " +"these three was something the copyright owner did; the second two were " +"something the government did. But a revised system of formalities would " +"banish the government from the process, except for the sole purpose of " +"approving standards developed by others." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><title> +#: freeculture.xml:13465 +msgid "REGISTRATION AND RENEWAL" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13467 +msgid "" +"Under the old system, a copyright owner had to file a registration with the " +"Copyright Office to register or renew a copyright. When filing that " +"registration, the copyright owner paid a fee. As with most government " +"agencies, the Copyright Office had little incentive to minimize the burden " +"of registration; it also had little incentive to minimize the fee. And as " +"the Copyright Office is not a main target of government policymaking, the " +"office has historically been terribly underfunded. Thus, when people who " +"know something about the process hear this idea about formalities, their " +"first reaction is panic—nothing could be worse than forcing people to " +"deal with the mess that is the Copyright Office." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13480 +msgid "" +"Yet it is always astonishing to me that we, who come from a tradition of " +"extraordinary innovation in governmental design, can no longer think " +"innovatively about how governmental functions can be designed. Just because " +"there is a public purpose to a government role, it doesn't follow that the " +"government must actually administer the role. Instead, we should be creating " +"incentives for private parties to serve the public, subject to standards " +"that the government sets." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13489 +msgid "" +"In the context of registration, one obvious model is the Internet. There " +"are at least 32 million Web sites registered around the world. Domain name " +"owners for these Web sites have to pay a fee to keep their registration " +"alive. In the main top-level domains (.com, .org, .net), there is a central " +"registry. The actual registrations are, however, performed by many competing " +"registrars. That competition drives the cost of registering down, and more " +"importantly, it drives the ease with which registration occurs up." +msgstr "" + +#. PAGE BREAK 295 +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13499 +msgid "" +"We should adopt a similar model for the registration and renewal of " +"copyrights. The Copyright Office may well serve as the central registry, but " +"it should not be in the registrar business. Instead, it should establish a " +"database, and a set of standards for registrars. It should approve " +"registrars that meet its standards. Those registrars would then compete with " +"one another to deliver the cheapest and simplest systems for registering and " +"renewing copyrights. That competition would substantially lower the burden " +"of this formality—while producing a database of registrations that " +"would facilitate the licensing of content." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><title> +#: freeculture.xml:13514 +msgid "MARKING" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13516 +msgid "" +"It used to be that the failure to include a copyright notice on a creative " +"work meant that the copyright was forfeited. That was a harsh punishment for " +"failing to comply with a regulatory rule—akin to imposing the death " +"penalty for a parking ticket in the world of creative rights. Here again, " +"there is no reason that a marking requirement needs to be enforced in this " +"way. And more importantly, there is no reason a marking requirement needs to " +"be enforced uniformly across all media." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13526 +msgid "" +"The aim of marking is to signal to the public that this work is copyrighted " +"and that the author wants to enforce his rights. The mark also makes it easy " +"to locate a copyright owner to secure permission to use the work." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13532 +msgid "" +"One of the problems the copyright system confronted early on was that " +"different copyrighted works had to be differently marked. It wasn't clear " +"how or where a statue was to be marked, or a record, or a film. A new " +"marking requirement could solve these problems by recognizing the " +"differences in media, and by allowing the system of marking to evolve as " +"technologies enable it to. The system could enable a special signal from the " +"failure to mark—not the loss of the copyright, but the loss of the " +"right to punish someone for failing to get permission first." +msgstr "" + +#. f2. +#. type: Content of: <book><chapter><sect1><sect2><sect3><para><footnote><para> +#: freeculture.xml:13549 +msgid "" +"There would be a complication with derivative works that I have not solved " +"here. In my view, the law of derivatives creates a more complicated system " +"than is justified by the marginal incentive it creates." +msgstr "" + +#. PAGE BREAK 296 +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13542 +msgid "" +"Let's start with the last point. If a copyright owner allows his work to be " +"published without a copyright notice, the consequence of that failure need " +"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.<placeholder type=\"footnote\" id=\"0\"/> The meaning of an " +"unmarked work would therefore be \"use unless someone complains.\" If " +"someone does complain, then the obligation would be to stop using the work " +"in any new work from then on though no penalty would attach for existing " +"uses. This would create a strong incentive for copyright owners to mark " +"their work." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13562 +msgid "" +"That in turn raises the question about how work should best be marked. Here " +"again, the system needs to adjust as the technologies evolve. The best way " +"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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13569 +msgid "" +"For example, if a recording industry association devises a method for " +"marking CDs, it would propose that to the Copyright Office. The Copyright " +"Office would hold a hearing, at which other proposals could be made. The " +"Copyright Office would then select the proposal that it judged preferable, " +"and it would base that choice solely upon the consideration of which method " +"could best be integrated into the registration and renewal system. We would " +"not count on the government to innovate; but we would count on the " +"government to keep the product of innovation in line with its other " +"important functions." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13580 +msgid "" +"Finally, marking content clearly would simplify registration requirements. " +"If photographs were marked by author and year, there would be little reason " +"not to allow a photographer to reregister, for example, all photographs " +"taken in a particular year in one quick step. The aim of the formality is " +"not to burden the creator; the system itself should be kept as simple as " +"possible." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13588 +msgid "" +"The objective of formalities is to make things clear. The existing system " +"does nothing to make things clear. Indeed, it seems designed to make things " +"unclear." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><sect3><para> +#: freeculture.xml:13593 +msgid "" +"If formalities such as registration were reinstated, one of the most " +"difficult aspects of relying upon the public domain would be removed. It " +"would be simple to identify what content is presumptively free; it would be " +"simple to identify who controls the rights for a particular kind of content; " +"it would be simple to assert those rights, and to renew that assertion at " +"the appropriate time." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:13605 +msgid "2. Shorter Terms" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13607 +msgid "" +"The term of copyright has gone from fourteen years to ninety-five years for " +"corporate authors, and life of the author plus seventy years for natural " +"authors." +msgstr "" + +#. f3. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:13619 +msgid "" +"\"A Radical Rethink,\" Economist, 366:8308 (25 January 2003): 15, available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #74</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13612 +msgid "" +"In The Future of Ideas, I proposed a seventy-five-year term, granted in " +"five-year increments with a requirement of renewal every five years. That " +"seemed radical enough at the time. But after we lost Eldred v. Ashcroft, " +"the proposals became even more radical. The Economist endorsed a proposal " +"for a fourteen-year copyright term.<placeholder type=\"footnote\" id=\"0\"/> " +"Others have proposed tying the term to the term for patents." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13626 +msgid "" +"I agree with those who believe that we need a radical change in copyright's " +"term. But whether fourteen years or seventy-five, there are four principles " +"that are important to keep in mind about copyright terms." +msgstr "" + +#. (1) +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13634 +msgid "" +"Keep it short: The term should be as long as necessary to give incentives to " +"create, but no longer. If it were tied to very strong protections for " +"authors (so authors were able to reclaim rights from publishers), rights to " +"the same work (not derivative works) might be extended further. The key is " +"not to tie the work up with legal regulations when it no longer benefits an " +"author." +msgstr "" + +#. (2) +#. PAGE BREAK 298 +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13642 +msgid "" +"Keep it simple: The line between the public domain and protected content " +"must be kept clear. Lawyers like the fuzziness of \"fair use,\" and the " +"distinction between \"ideas\" and \"expression.\" That kind of law gives " +"them lots of work. But our framers had a simpler idea in mind: protected " +"versus unprotected. The value of short terms is that there is little need " +"to build exceptions into copyright when the term itself is kept short. A " +"clear and active \"lawyer-free zone\" makes the complexities of \"fair use\" " +"and \"idea/expression\" less necessary to navigate." +msgstr "" + +#. f4. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><footnote><para> +#: freeculture.xml:13662 +msgid "" +"Department of Veterans Affairs, Veteran's Application for Compensation " +"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at " +"<ulink url=\"http://free-culture.cc/notes/\">link #75</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13655 +msgid "" +"Keep it alive: Copyright should have to be renewed. Especially if the " +"maximum term is long, the copyright owner should be required to signal " +"periodically that he wants the protection continued. This need not be an " +"onerous burden, but there is no reason this monopoly protection has to be " +"granted for free. On average, it takes ninety minutes for a veteran to apply " +"for a pension.<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. (4) +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13673 +msgid "" +"Keep it prospective: Whatever the term of copyright should be, the clearest " +"lesson that economists teach is that a term once given should not be " +"extended. It might have been a mistake in 1923 for the law to offer authors " +"only a fifty-six-year term. I don't think so, but it's possible. If it was a " +"mistake, then the consequence was that we got fewer authors to create in " +"1923 than we otherwise would have. But we can't correct that mistake today " +"by increasing the term. No matter what we do today, we will not increase the " +"number of authors who wrote in 1923. Of course, we can increase the reward " +"that those who write now get (or alternatively, increase the copyright " +"burden that smothers many works that are today invisible). But increasing " +"their reward will not increase their creativity in 1923. What's not done is " +"not done, and there's nothing we can do about that now." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13688 +msgid "" +"These changes together should produce an average copyright term that is much " +"shorter than the current term. Until 1976, the average term was just 32.2 " +"years. We should be aiming for the same." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13693 +msgid "" +"No doubt the extremists will call these ideas \"radical.\" (After all, I " +"call them \"extremists.\") But again, the term I recommended was longer than " +"the term under Richard Nixon. How \"radical\" can it be to ask for a more " +"generous copyright law than Richard Nixon presided over?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:13703 +msgid "3. Free Use Vs. Fair Use" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13705 +msgid "" +"As I observed at the beginning of this book, property law originally granted " +"property owners the right to control their property from the ground to the " +"heavens. The airplane came along. The scope of property rights quickly " +"changed. There was no fuss, no constitutional challenge. It made no sense " +"anymore to grant that much control, given the emergence of that new " +"technology." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13713 +msgid "" +"Our Constitution gives Congress the power to give authors \"exclusive " +"right\" to \"their writings.\" Congress has given authors an exclusive right " +"to \"their writings\" plus any derivative writings (made by others) that are " +"sufficiently close to the author's original work. Thus, if I write a book, " +"and you base a movie on that book, I have the power to deny you the right to " +"release that movie, even though that movie is not \"my writing.\"" +msgstr "" + +#. f5. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:13726 +msgid "" +"Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia " +"University Press, 1967), 32." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13722 +msgid "" +"Congress granted the beginnings of this right in 1870, when it expanded the " +"exclusive right of copyright to include a right to control translations and " +"dramatizations of a work.<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. f6. +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> +#: freeculture.xml:13739 +msgid "Ibid., 56." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><blockquote><para> +#: freeculture.xml:13735 +msgid "" +"So inured have we become to the extension of the monopoly to a large range " +"of so-called derivative works, that we no longer sense the oddity of " +"accepting such an enlargement of copyright while yet intoning the " +"abracadabra of idea and expression.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13744 +msgid "" +"I think it's time to recognize that there are airplanes in this field and " +"the expansiveness of these rights of derivative use no longer make " +"sense. More precisely, they don't make sense for the period of time that a " +"copyright runs. And they don't make sense as an amorphous grant. Consider " +"each limitation in turn." +msgstr "" + +#. PAGE BREAK 300 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13751 +msgid "" +"Term: If Congress wants to grant a derivative right, then that right should " +"be for a much shorter term. It makes sense to protect John Grisham's right " +"to sell the movie rights to his latest novel (or at least I'm willing to " +"assume it does); but it does not make sense for that right to run for the " +"same term as the underlying copyright. The derivative right could be " +"important in inducing creativity; it is not important long after the " +"creative work is done." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13762 +msgid "" +"Scope: Likewise should the scope of derivative rights be narrowed. Again, " +"there are some cases in which derivative rights are important. Those should " +"be specified. But the law should draw clear lines around regulated and " +"unregulated uses of copyrighted material. When all \"reuse\" of creative " +"material was within the control of businesses, perhaps it made sense to " +"require lawyers to negotiate the lines. It no longer makes sense for lawyers " +"to negotiate the lines. Think about all the creative possibilities that " +"digital technologies enable; now imagine pouring molasses into the " +"machines. That's what this general requirement of permission does to the " +"creative process. Smothers it." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13774 +msgid "" +"This was the point that Alben made when describing the making of the Clint " +"Eastwood CD. While it makes sense to require negotiation for foreseeable " +"derivative rights—turning a book into a movie, or a poem into a " +"musical score—it doesn't make sense to require negotiation for the " +"unforeseeable. Here, a statutory right would make much more sense." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:13790 +msgid "Goldstein, Paul" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:13788 +msgid "" +"Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox " +"(Stanford: Stanford University Press, 2003), 187–216. <placeholder " +"type=\"indexterm\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13782 +msgid "" +"In each of these cases, the law should mark the uses that are protected, and " +"the presumption should be that other uses are not protected. This is the " +"reverse of the recommendation of my colleague Paul Goldstein.<placeholder " +"type=\"footnote\" id=\"0\"/> His view is that the law should be written so " +"that expanded protections follow expanded uses." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13796 +msgid "" +"Goldstein's analysis would make perfect sense if the cost of the legal " +"system were small. But as we are currently seeing in the context of the " +"Internet, the uncertainty about the scope of protection, and the incentives " +"to protect existing architectures of revenue, combined with a strong " +"copyright, weaken the process of innovation." +msgstr "" + +#. PAGE BREAK 301 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13803 +msgid "" +"The law could remedy this problem either by removing protection beyond the " +"part explicitly drawn or by granting reuse rights upon certain statutory " +"conditions. Either way, the effect would be to free a great deal of culture " +"to others to cultivate. And under a statutory rights regime, that reuse " +"would earn artists more income." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:13813 +msgid "4. Liberate the Music—Again" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13815 +msgid "" +"The battle that got this whole war going was about music, so it wouldn't be " +"fair to end this book without addressing the issue that is, to most people, " +"most pressing—music. There is no other policy issue that better " +"teaches the lessons of this book than the battles around the sharing of " +"music." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13822 +msgid "" +"The appeal of file-sharing music was the crack cocaine of the Internet's " +"growth. It drove demand for access to the Internet more powerfully than any " +"other single application. It was the Internet's killer app—possibly in " +"two senses of that word. It no doubt was the application that drove demand " +"for bandwidth. It may well be the application that drives demand for " +"regulations that in the end kill innovation on the network." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13831 +msgid "" +"The aim of copyright, with respect to content in general and music in " +"particular, is to create the incentives for music to be composed, performed, " +"and, most importantly, spread. The law does this by giving an exclusive " +"right to a composer to control public performances of his work, and to a " +"performing artist to control copies of her performance." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13838 +msgid "" +"File-sharing networks complicate this model by enabling the spread of " +"content for which the performer has not been paid. But of course, that's not " +"all the file-sharing networks do. As I described in chapter 5, they enable " +"four different kinds of sharing:" +msgstr "" + +#. A. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13846 +msgid "" +"There are some who are using sharing networks as substitutes for purchasing " +"CDs." +msgstr "" + +#. B. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13851 +msgid "" +"There are also some who are using sharing networks to sample, on the way to " +"purchasing CDs." +msgstr "" + +#. PAGE BREAK 302 +#. C. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13857 +msgid "" +"There are many who are using file-sharing networks to get access to content " +"that is no longer sold but is still under copyright or that would have been " +"too cumbersome to buy off the Net." +msgstr "" + +#. D. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:13863 +msgid "" +"There are many who are using file-sharing networks to get access to content " +"that is not copyrighted or to get access that the copyright owner plainly " +"endorses." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13869 +msgid "" +"Any reform of the law needs to keep these different uses in focus. It must " +"avoid burdening type D even if it aims to eliminate type A. The eagerness " +"with which the law aims to eliminate type A, moreover, should depend upon " +"the magnitude of type B. As with VCRs, if the net effect of sharing is " +"actually not very harmful, the need for regulation is significantly " +"weakened." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13877 +msgid "" +"As I said in chapter 5, the actual harm caused by sharing is controversial. " +"For the purposes of this chapter, however, I assume the harm is real. I " +"assume, in other words, that type A sharing is significantly greater than " +"type B, and is the dominant use of sharing networks." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13884 +msgid "" +"Nonetheless, there is a crucial fact about the current technological context " +"that we must keep in mind if we are to understand how the law should " +"respond." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13889 +msgid "" +"Today, file sharing is addictive. In ten years, it won't be. It is addictive " +"today because it is the easiest way to gain access to a broad range of " +"content. It won't be the easiest way to get access to a broad range of " +"content in ten years. Today, access to the Internet is cumbersome and " +"slow—we in the United States are lucky to have broadband service at " +"1.5 MBs, and very rarely do we get service at that speed both up and " +"down. Although wireless access is growing, most of us still get access " +"across wires. Most only gain access through a machine with a keyboard. The " +"idea of the always on, always connected Internet is mainly just an idea." +msgstr "" + +#. PAGE BREAK 303 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13901 +msgid "" +"But it will become a reality, and that means the way we get access to the " +"Internet today is a technology in transition. Policy makers should not make " +"policy on the basis of technology in transition. They should make policy on " +"the basis of where the technology is going. The question should not be, how " +"should the law regulate sharing in this world? The question should be, what " +"law will we require when the network becomes the network it is clearly " +"becoming? That network is one in which every machine with electricity is " +"essentially on the Net; where everywhere you are—except maybe the " +"desert or the Rockies—you can instantaneously be connected to the " +"Internet. Imagine the Internet as ubiquitous as the best cell-phone service, " +"where with the flip of a device, you are connected." +msgstr "" + +#. f8. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:13933 +msgid "" +"See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April " +"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#76</ulink>." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13916 +msgid "" +"In that world, it will be extremely easy to connect to services that give " +"you access to content on the fly—such as Internet radio, content that " +"is streamed to the user when the user demands. Here, then, is the critical " +"point: When it is extremely easy to connect to services that give access to " +"content, it will be easier to connect to services that give you access to " +"content than it will be to download and store content on the many devices " +"you will have for playing content. It will be easier, in other words, to " +"subscribe than it will be to be a database manager, as everyone in the " +"download-sharing world of Napster-like technologies essentially is. Content " +"services will compete with content sharing, even if the services charge " +"money for the content they give access to. Already cell-phone services in " +"Japan offer music (for a fee) streamed over cell phones (enhanced with plugs " +"for headphones). The Japanese are paying for this content even though " +"\"free\" content is available in the form of MP3s across the " +"Web.<placeholder type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. PAGE BREAK 304 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13940 +msgid "" +"This point about the future is meant to suggest a perspective on the " +"present: It is emphatically temporary. The \"problem\" with file " +"sharing—to the extent there is a real problem—is a problem that " +"will increasingly disappear as it becomes easier to connect to the " +"Internet. And thus it is an extraordinary mistake for policy makers today " +"to be \"solving\" this problem in light of a technology that will be gone " +"tomorrow. The question should not be how to regulate the Internet to " +"eliminate file sharing (the Net will evolve that problem away). The question " +"instead should be how to assure that artists get paid, during this " +"transition between twentieth-century models for doing business and " +"twenty-first-century technologies." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13956 +msgid "" +"The answer begins with recognizing that there are different \"problems\" " +"here to solve. Let's start with type D content—uncopyrighted content " +"or copyrighted content that the artist wants shared. The \"problem\" with " +"this content is to make sure that the technology that would enable this kind " +"of sharing is not rendered illegal. You can think of it this way: Pay phones " +"are used to deliver ransom demands, no doubt. But there are many who need " +"to use pay phones who have nothing to do with ransoms. It would be wrong to " +"ban pay phones in order to eliminate kidnapping." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13967 +msgid "" +"Type C content raises a different \"problem.\" This is content that was, at " +"one time, published and is no longer available. It may be unavailable " +"because the artist is no longer valuable enough for the record label he " +"signed with to carry his work. Or it may be unavailable because the work is " +"forgotten. Either way, the aim of the law should be to facilitate the access " +"to this content, ideally in a way that returns something to the artist." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13976 +msgid "" +"Again, the model here is the used book store. Once a book goes out of print, " +"it may still be available in libraries and used book stores. But libraries " +"and used book stores don't pay the copyright owner when someone reads or " +"buys an out-of-print book. That makes total sense, of course, since any " +"other system would be so burdensome as to eliminate the possibility of used " +"book stores' existing. But from the author's perspective, this \"sharing\" " +"of his content without his being compensated is less than ideal." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13986 +msgid "" +"The model of used book stores suggests that the law could simply deem " +"out-of-print music fair game. If the publisher does not make copies of the " +"music available for sale, then commercial and noncommercial providers would " +"be free, under this rule, to \"share\" that content, even though the sharing " +"involved making a copy. The copy here would be incidental to the trade; in a " +"context where commercial publishing has ended, trading music should be as " +"free as trading books." +msgstr "" + +#. PAGE BREAK 305 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:13997 +msgid "" +"Alternatively, the law could create a statutory license that would ensure " +"that artists get something from the trade of their work. For example, if the " +"law set a low statutory rate for the commercial sharing of content that was " +"not offered for sale by a commercial publisher, and if that rate were " +"automatically transferred to a trust for the benefit of the artist, then " +"businesses could develop around the idea of trading this content, and " +"artists would benefit from this trade." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14007 +msgid "" +"This system would also create an incentive for publishers to keep works " +"available commercially. Works that are available commercially would not be " +"subject to this license. Thus, publishers could protect the right to charge " +"whatever they want for content if they kept the work commercially " +"available. But if they don't keep it available, and instead, the computer " +"hard disks of fans around the world keep it alive, then any royalty owed for " +"such copying should be much less than the amount owed a commercial " +"publisher." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14017 +msgid "" +"The hard case is content of types A and B, and again, this case is hard only " +"because the extent of the problem will change over time, as the technologies " +"for gaining access to content change. The law's solution should be as " +"flexible as the problem is, understanding that we are in the middle of a " +"radical transformation in the technology for delivering and accessing " +"content." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14025 +msgid "" +"So here's a solution that will at first seem very strange to both sides in " +"this war, but which upon reflection, I suggest, should make some sense." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14029 +msgid "" +"Stripped of the rhetoric about the sanctity of property, the basic claim of " +"the content industry is this: A new technology (the Internet) has harmed a " +"set of rights that secure copyright. If those rights are to be protected, " +"then the content industry should be compensated for that harm. Just as the " +"technology of tobacco harmed the health of millions of Americans, or the " +"technology of asbestos caused grave illness to thousands of miners, so, too, " +"has the technology of digital networks harmed the interests of the content " +"industry." +msgstr "" + +#. PAGE BREAK 306 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14040 +msgid "" +"I love the Internet, and so I don't like likening it to tobacco or " +"asbestos. But the analogy is a fair one from the perspective of the law. " +"And it suggests a fair response: Rather than seeking to destroy the " +"Internet, or the p2p technologies that are currently harming content " +"providers on the Internet, we should find a relatively simple way to " +"compensate those who are harmed." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> +#: freeculture.xml:14084 +msgid "Fisher, William" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:14051 +msgid "" +"William Fisher, Digital Music: Problems and Possibilities (last revised: 10 " +"October 2000), available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #77</ulink>; William Fisher, " +"Promises to Keep: Technology, Law, and the Future of Entertainment " +"(forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #78</ulink>. Professor " +"Netanel has proposed a related idea that would exempt noncommercial sharing " +"from the reach of copyright and would establish compensation to artists to " +"balance any loss. See Neil Weinstock Netanel, \"Impose a Noncommercial Use " +"Levy to Allow Free P2P File Sharing,\" available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals, " +"see Lawrence Lessig, \"Who's Holding Back Broadband?\" Washington Post, 8 " +"January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter " +"to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations " +"Committee, 26 February 2002, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #80</ulink>; Serguei Osokine, A " +"Quick Case for Intellectual Property Use Fee (IPUF), 3 March 2002, available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson " +"Graham, \"Kazaa, Verizon Propose to Pay Artists Directly,\" USA Today, 13 " +"May 2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#82</ulink>; Steven M. Cherry, \"Getting Copyright Right,\" IEEE Spectrum " +"Online, 1 July 2002, available at <ulink " +"url=\"http://free-culture.cc/notes/\">link #83</ulink>; Declan McCullagh, " +"\"Verizon's Copyright Campaign,\" CNET News.com, 27 August 2002, available " +"at <ulink url=\"http://free-culture.cc/notes/\">link #84</ulink>. Fisher's " +"proposal is very similar to Richard Stallman's proposal for DAT. Unlike " +"Fisher's, Stallman's proposal would not pay artists directly proportionally, " +"though more popular artists would get more than the less popular. As is " +"typical with Stallman, his proposal predates the current debate by about a " +"decade. See <ulink url=\"http://free-culture.cc/notes/\">link #85</ulink>. " +"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " +"id=\"1\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14048 +msgid "" +"The idea would be a modification of a proposal that has been floated by " +"Harvard law professor William Fisher.<placeholder type=\"footnote\" " +"id=\"0\"/> Fisher suggests a very clever way around the current impasse of " +"the Internet. Under his plan, all content capable of digital transmission " +"would (1) be marked with a digital watermark (don't worry about how easy it " +"is to evade these marks; as you'll see, there's no incentive to evade " +"them). Once the content is marked, then entrepreneurs would develop (2) " +"systems to monitor how many items of each content were distributed. On the " +"basis of those numbers, then (3) artists would be compensated. The " +"compensation would be paid for by (4) an appropriate tax." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14097 +msgid "" +"Fisher's proposal is careful and comprehensive. It raises a million " +"questions, most of which he answers well in his upcoming book, Promises to " +"Keep. The modification that I would make is relatively simple: Fisher " +"imagines his proposal replacing the existing copyright system. I imagine it " +"complementing the existing system. The aim of the proposal would be to " +"facilitate compensation to the extent that harm could be shown. This " +"compensation would be temporary, aimed at facilitating a transition between " +"regimes. And it would require renewal after a period of years. If it " +"continues to make sense to facilitate free exchange of content, supported " +"through a taxation system, then it can be continued. If this form of " +"protection is no longer necessary, then the system could lapse into the old " +"system of controlling access." +msgstr "" + +#. PAGE BREAK 307 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14112 +msgid "" +"Fisher would balk at the idea of allowing the system to lapse. His aim is " +"not just to ensure that artists are paid, but also to ensure that the system " +"supports the widest range of \"semiotic democracy\" possible. But the aims " +"of semiotic democracy would be satisfied if the other changes I described " +"were accomplished—in particular, the limits on derivative uses. A " +"system that simply charges for access would not greatly burden semiotic " +"democracy if there were few limitations on what one was allowed to do with " +"the content itself." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14125 +msgid "" +"No doubt it would be difficult to calculate the proper measure of \"harm\" " +"to an industry. But the difficulty of making that calculation would be " +"outweighed by the benefit of facilitating innovation. This background system " +"to compensate would also not need to interfere with innovative proposals " +"such as Apple's MusicStore. As experts predicted when Apple launched the " +"MusicStore, it could beat \"free\" by being easier than free is. This has " +"proven correct: Apple has sold millions of songs at even the very high price " +"of 99 cents a song. (At 99 cents, the cost is the equivalent of a per-song " +"CD price, though the labels have none of the costs of a CD to pay.) Apple's " +"move was countered by Real Networks, offering music at just 79 cents a " +"song. And no doubt there will be a great deal of competition to offer and " +"sell music on-line." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14140 +msgid "" +"This competition has already occurred against the background of \"free\" " +"music from p2p systems. As the sellers of cable television have known for " +"thirty years, and the sellers of bottled water for much more than that, " +"there is nothing impossible at all about \"competing with free.\" Indeed, if " +"anything, the competition spurs the competitors to offer new and better " +"products. This is precisely what the competitive market was to be " +"about. Thus in Singapore, though piracy is rampant, movie theaters are often " +"luxurious—with \"first class\" seats, and meals served while you watch " +"a movie—as they struggle and succeed in finding ways to compete with " +"\"free.\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14152 +msgid "" +"This regime of competition, with a backstop to assure that artists don't " +"lose, would facilitate a great deal of innovation in the delivery of " +"content. That competition would continue to shrink type A sharing. It would " +"inspire an extraordinary range of new innovators—ones who would have a " +"right to the content, and would no longer fear the uncertain and " +"barbarically severe punishments of the law." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14161 +msgid "In summary, then, my proposal is this:" +msgstr "" + +#. PAGE BREAK 308 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14166 +msgid "" +"The Internet is in transition. We should not be regulating a technology in " +"transition. We should instead be regulating to minimize the harm to " +"interests affected by this technological change, while enabling, and " +"encouraging, the most efficient technology we can create." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14173 +msgid "We can minimize that harm while maximizing the benefit to innovation by" +msgstr "" + +#. 1. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:14179 +msgid "guaranteeing the right to engage in type D sharing;" +msgstr "" + +#. 2. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:14183 +msgid "" +"permitting noncommercial type C sharing without liability, and commercial " +"type C sharing at a low and fixed rate set by statute;" +msgstr "" + +#. 3. +#. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> +#: freeculture.xml:14189 +msgid "" +"while in this transition, taxing and compensating for type A sharing, to the " +"extent actual harm is demonstrated." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14194 +msgid "" +"But what if \"piracy\" doesn't disappear? What if there is a competitive " +"market providing content at a low cost, but a significant number of " +"consumers continue to \"take\" content for nothing? Should the law do " +"something then?" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14200 +msgid "" +"Yes, it should. But, again, what it should do depends upon how the facts " +"develop. These changes may not eliminate type A sharing. But the real issue " +"is not whether it eliminates sharing in the abstract. The real issue is its " +"effect on the market. Is it better (a) to have a technology that is 95 " +"percent secure and produces a market of size x, or (b) to have a technology " +"that is 50 percent secure but produces a market of five times x? Less secure " +"might produce more unauthorized sharing, but it is likely to also produce a " +"much bigger market in authorized sharing. The most important thing is to " +"assure artists' compensation without breaking the Internet. Once that's " +"assured, then it may well be appropriate to find ways to track down the " +"petty pirates." +msgstr "" + +#. PAGE BREAK 309 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14214 +msgid "" +"But we're a long way away from whittling the problem down to this subset of " +"type A sharers. And our focus until we're there should not be on finding " +"ways to break the Internet. Our focus until we're there should be on how to " +"make sure the artists are paid, while protecting the space for innovation " +"and creativity that the Internet is." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><title> +#: freeculture.xml:14225 +msgid "5. Fire Lots of Lawyers" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14227 +msgid "" +"I'm a lawyer. I make lawyers for a living. I believe in the law. I believe " +"in the law of copyright. Indeed, I have devoted my life to working in law, " +"not because there are big bucks at the end but because there are ideals at " +"the end that I would love to live." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14233 +msgid "" +"Yet much of this book has been a criticism of lawyers, or the role lawyers " +"have played in this debate. The law speaks to ideals, but it is my view that " +"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." +msgstr "" + +#. f10. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:14250 +msgid "" +"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer " +"Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14241 +msgid "" +"The evidence of this bending is compelling. I'm attacked as a \"radical\" by " +"many within the profession, yet the positions that I am advocating are " +"precisely the positions of some of the most moderate and significant figures " +"in the history of this branch of the law. Many, for example, thought crazy " +"the challenge that we brought to the Copyright Term Extension Act. Yet just " +"thirty years ago, the dominant scholar and practitioner in the field of " +"copyright, Melville Nimmer, thought it obvious.<placeholder " +"type=\"footnote\" id=\"0\"/>" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14256 +msgid "" +"However, my criticism of the role that lawyers have played in this debate is " +"not just about a professional bias. It is more importantly about our failure " +"to actually reckon the costs of the law." +msgstr "" + +#. f11. +#. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> +#: freeculture.xml:14266 +msgid "" +"A good example is the work of Professor Stan Liebowitz. Liebowitz is to be " +"commended for his careful review of data about infringement, leading him to " +"question his own publicly stated position—twice. He initially " +"predicted that downloading would substantially harm the industry. He then " +"revised his view in light of the data, and he has since revised his view " +"again. Compare Stan J. Liebowitz, Rethinking the Network Economy: The True " +"Forces That Drive the Digital Marketplace (New York: Amacom, 2002), " +"(reviewing his original view but expressing skepticism) with Stan J. " +"Liebowitz, \"Will MP3s Annihilate the Record Industry?\" working paper, June " +"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " +"#86</ulink>. 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." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14261 +msgid "" +"Economists are supposed to be good at reckoning costs and benefits. But " +"more often than not, economists, with no clue about how the legal system " +"actually functions, simply assume that the transaction costs of the legal " +"system are slight.<placeholder type=\"footnote\" id=\"0\"/> 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." +msgstr "" + +#. PAGE BREAK 310 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14289 +msgid "" +"But the legal system doesn't work. Or more accurately, it doesn't work for " +"anyone except those with the most resources. Not because the system is " +"corrupt. I don't think our legal system (at the federal level, at least) is " +"at all corrupt. I mean simply because the costs of our legal system are so " +"astonishingly high that justice can practically never be done." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14297 +msgid "" +"These costs distort free culture in many ways. A lawyer's time is billed at " +"the largest firms at more than $400 per hour. How much time should such a " +"lawyer spend reading cases carefully, or researching obscure strands of " +"authority? The answer is the increasing reality: very little. The law " +"depended upon the careful articulation and development of doctrine, but the " +"careful articulation and development of legal doctrine depends upon careful " +"work. Yet that careful work costs too much, except in the most high-profile " +"and costly cases." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14307 +msgid "" +"The costliness and clumsiness and randomness of this system mock our " +"tradition. And lawyers, as well as academics, should consider it their duty " +"to change the way the law works—or better, to change the law so that " +"it works. It is wrong that the system works well only for the top 1 percent " +"of the clients. It could be made radically more efficient, and inexpensive, " +"and hence radically more just." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14315 +msgid "" +"But until that reform is complete, we as a society should keep the law away " +"from areas that we know it will only harm. And that is precisely what the " +"law will too often do if too much of our culture is left to its review." +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14321 +msgid "" +"Think about the amazing things your kid could do or make with digital " +"technology—the film, the music, the Web page, the blog. Or think about " +"the amazing things your community could facilitate with digital " +"technology—a wiki, a barn raising, activism to change something. " +"Think about all those creative things, and then imagine cold molasses poured " +"onto the machines. This is what any regime that requires permission " +"produces. Again, this is the reality of Brezhnev's Russia." +msgstr "" + +#. PAGE BREAK 311 +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14330 +msgid "" +"The law should regulate in certain areas of culture—but it should " +"regulate culture only where that regulation does good. Yet lawyers rarely " +"test their power, or the power they promote, against this simple pragmatic " +"question: \"Will it do good?\" When challenged about the expanding reach of " +"the law, the lawyer answers, \"Why not?\"" +msgstr "" + +#. type: Content of: <book><chapter><sect1><sect2><para> +#: freeculture.xml:14339 +msgid "" +"We should ask, \"Why?\" Show me why your regulation of culture is " +"needed. Show me how it does good. And until you can show me both, keep your " +"lawyers away." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:14348 +msgid "NOTES" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:14350 +msgid "" +"Throughout this text, there are references to links on the World Wide " +"Web. As anyone who has tried to use the Web knows, these links can be highly " +"unstable. I have tried to remedy the instability by redirecting readers to " +"the original source through the Web site associated with this book. For each " +"link below, you can go to http://free-culture.cc/notes and locate the " +"original source by clicking on the number after the # sign. If the original " +"link remains alive, you will be redirected to that link. If the original " +"link has disappeared, you will be redirected to an appropriate reference for " +"the material." +msgstr "" + +#. type: Content of: <book><chapter><title> +#: freeculture.xml:14365 +msgid "ACKNOWLEDGMENTS" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:14367 +msgid "" +"This book is the product of a long and as yet unsuccessful struggle that " +"began when I read of Eric Eldred's war to keep books free. Eldred's work " +"helped launch a movement, the free culture movement, and it is to him that " +"this book is dedicated." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:14373 +msgid "" +"I received guidance in various places from friends and academics, including " +"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and " +"Kathleen Sullivan. And I received correction and guidance from many amazing " +"students at Stanford Law School and Stanford University. They included " +"Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica " +"Goldberg, Robert Hallman, Andrew Harris, Matthew Kahn, Brian Link, Ohad " +"Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine " +"Crump and Harry Surden, who helped direct their research, and to Laura " +"Lynch, who brilliantly managed the army that they assembled, and provided " +"her own critical eye on much of this." +msgstr "" + +#. PAGE BREAK 337 +#. type: Content of: <book><chapter><para> +#: freeculture.xml:14386 +msgid "" +"Yuko Noguchi helped me to understand the laws of Japan as well as its " +"culture. I am thankful to her, and to the many in Japan who helped me " +"prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro " +"Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am " +"thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University " +"Business Law Center, for giving me the chance to spend time in Japan, and to " +"Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was " +"there." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:14397 +msgid "" +"These are the traditional sorts of help that academics regularly draw " +"upon. But in addition to them, the Internet has made it possible to receive " +"advice and correction from many whom I have never even met. Among those who " +"have responded with extremely helpful advice to requests on my blog about " +"the book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as " +"well as a long list of those who had specific ideas about ways to develop my " +"argument. They included Richard Bondi, Steven Cherry, David Coe, Nik " +"Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, " +"Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James " +"Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan " +"McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir Safdar, " +"Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, " +"Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko " +"Williams, \"Wink,\" Roger Wood, \"Ximmbo da Jazz,\" and Richard Yanco. (I " +"apologize if I have missed anyone; with computers come glitches, and a crash " +"of my e-mail system meant I lost a bunch of great replies.)" +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:14417 +msgid "" +"Richard Stallman and Michael Carroll each read the whole book in draft, and " +"each provided extremely helpful correction and advice. Michael helped me to " +"see more clearly the significance of the regulation of derivitive works. And " +"Richard corrected an embarrassingly large number of errors. While my work is " +"in part inspired by Stallman's, he does not agree with me in important " +"places throughout this book." +msgstr "" + +#. type: Content of: <book><chapter><para> +#: freeculture.xml:14426 +msgid "" +"Finally, and forever, I am thankful to Bettina, who has always insisted that " +"there would be unending happiness away from these battles, and who has " +"always been right. This slow learner is, as ever, grateful for her perpetual " +"patience and love." +msgstr ""