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+% SiSU 4.0
+@title: Free Culture
+ :subtitle: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity
+ :author: Lessig, Lawrence
+ :published: 2004-03-25
+ :created: 2004-03-25
+ :issued: 2004-03-25
+ :available: 2004-03-25
+ :valid: 2004-03-25
+ :modified: 2004-03-25
+ :copyright: Copyright (C) Lawrence Lessig, 2004.
+ :license: 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, visit
+ :topic_register: SiSU markup sample:book:discourse;book:discourse:intellectual property|copyright|creative commons|free culture;copyright;free culture;creative commons;intellectual property:copyright|public domain;intellectual property:copyright:creative commons;book:subject:culture|copyright|society|public policy|mass media;culture;society
+ :isbn: 9781594200069
+ :oclc: 53324884
+% :isbn: 1594200068
+ {Free Culture}
+ {Remixes}
+ {@ Wikipedia}
+ {@}
+ {@ Barnes & Noble}
+ :breaks: new=:B; break=1
+ :home_button_image: {freeculture.home.png }
+ :home_button_text: {Free Culture}; {Lawrence Lessig}
+ :footer: {Free Culture}; {Lawrence Lessig}
+ :pot_master: free_culture.lawrence_lessig.sst
+:A~ @title @author
+1~attribution Attribution~#
+To Eric Eldred - whose work first drew me to this cause, and for whom it
+continues still.~#
+1~preface [Preface]-#
+!_ At the end
+of his review of my first book, /{Code: And Other Laws of Cyberspace}/, David
+Pogue, a brilliant writer and author of countless technical and computer-
+related texts, wrote this:
+_1 Unlike actual law, Internet software has no capacity to punish. It doesn't
+affect people who aren't online (and only a tiny minority of the world
+population is). And if you don't like the Internet's system, you can always
+flip off the modem.~{ David Pogue, "Don't Just Chat, Do Something," /{New York
+Times,}/ 30 January 2000. }~
+Pogue was skeptical of the core argument of the book - that software, or
+"code," functioned as a kind of law - and his review suggested the happy
+thought that if life in cyberspace got bad, we could always "drizzle, drazzle,
+druzzle, drome"- like simply flip a switch and be back home. Turn off the
+modem, unplug the computer, and any troubles that exist in /{that}/ space
+wouldn't "affect" us anymore.
+Pogue might have been right in 1999 - I'm skeptical, but maybe. But even if he
+was right then, the point is not right now: /{Free Culture}/ is about the
+troubles the Internet causes even after the modem is turned off. It is an
+argument about how the battles that now rage regarding life on-line have
+fundamentally affected "people who aren't online." There is no switch that will
+insulate us from the Internet's effect.
+But unlike /{Code}/, the argument here is not much about the Internet itself.
+It is instead about the consequence of the Internet to a part of our tradition
+that is much more fundamental, and, as hard as this is for a geek-wanna-be to
+admit, much more important.
+That tradition is the way our culture gets made. As I explain in the pages that
+follow, we come from a tradition of "free culture" - not "free" as in "free
+beer" (to borrow a phrase from the founder of the free-software movement, ~{
+Richard M. Stallman, /{Free Software, Free Societies}/ 57 ( Joshua Gay, ed.
+2002). }~ but "free" as in "free speech," "free markets," "free trade," "free
+enterprise," "free will," and "free elections." A free culture supports and
+protects creators and innovators. It does this directly by granting
+intellectual property rights. But it does so indirectly by limiting the reach
+of those rights, to guarantee that follow-on creators and innovators remain
+/{as free as possible}/ from the control of the past. A free culture is not a
+culture without property, just as a free market is not a market in which
+everything is free. The opposite of a free culture is a "permission culture" -
+a culture in which creators get to create only with the permission of the
+powerful, or of creators from the past.
+If we understood this change, I believe we would resist it. Not "we" on the
+Left or "you" on the Right, but we who have no stake in the particular
+industries of culture that defined the twentieth century. Whether you are on
+the Left or the Right, if you are in this sense disinterested, then the story I
+tell here will trouble you. For the changes I describe affect values that both
+sides of our political culture deem fundamental.
+We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the
+FCC considered changes in media ownership rules that would relax limits on
+media concentration, an extraordinary coalition generated more than 700,000
+letters to the FCC opposing the change. As William Safire described marching
+"uncomfortably alongside CodePink Women for Peace and the National Rifle
+Association, between liberal Olympia Snowe and conservative Ted Stevens," he
+formulated perhaps most simply just what was at stake: the concentration of
+power. And as he asked,
+={ power, concentration of +2 }
+_1 Does that sound unconservative? Not to me. The concentration of power -
+political, corporate, media, cultural - should be anathema to conservatives.
+The diffusion of power through local control, thereby encouraging individual
+participation, is the essence of federalism and the greatest expression of
+democracy."~{ William Safire, "The Great Media Gulp," /{New York Times,}/ 22
+May 2003. }~
+This idea is an element of the argument of /{Free Culture}/, though my focus is
+not just on the concentration of power produced by concentrations in ownership,
+but more importantly, if because less visibly, on the concentration of power
+produced by a radical change in the effective scope of the law. The law is
+changing; that change is altering the way our culture gets made; that change
+should worry you - whether or not you care about the Internet, and whether
+you're on Safire's left or on his right.
+!_ The inspiration
+for the title and for much of the argument of this book comes from the work of
+Richard Stallman and the Free Software Foundation. Indeed, as I reread
+Stallman's own work, especially the essays in /{Free Software, Free Society}/,
+I realize that all of the theoretical insights I develop here are insights
+Stallman described decades ago. One could thus well argue that this work is
+"merely" derivative.
+I accept that criticism, if indeed it is a criticism. The work of a lawyer is
+always derivative, and I mean to do nothing more in this book than to remind a
+culture about a tradition that has always been its own. Like Stallman, I defend
+that tradition on the basis of values. Like Stallman, I believe those are the
+values of freedom. And like Stallman, I believe those are values of our past
+that will need to be defended in our future. A free culture has been our past,
+but it will only be our future if we change the path we are on right now.
+Like Stallman's arguments for free software, an argument for free culture
+stumbles on a confusion that is hard to avoid, and even harder to understand. A
+free culture is not a culture without property; it is not a culture in which
+artists don't get paid. A culture without property, or in which creators can't
+get paid, is anarchy, not freedom. Anarchy is not what I advance here.
+Instead, the free culture that I defend in this book is a balance between
+anarchy and control. A free culture, like a free market, is filled with
+property. It is filled with rules of property and contract that get enforced by
+the state. But just as a free market is perverted if its property becomes
+feudal, so too can a free culture be queered by extremism in the property
+rights that define it. That is what I fear about our culture today. It is
+against that extremism that this book is written.
+1~intro [Intro]-#
+!_ 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.
+={ Wright brothers +1 }
+At the time the Wright brothers invented the airplane, American law held that a
+property owner presumptively owned not just the surface of his land, but all
+the land below, down to the center of the earth, and all the space above, to
+"an indefinite extent, upwards."~{ St. George Tucker, /{Blackstone's
+Commentaries}/ 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18. }~ For
+many years, scholars had puzzled about how best to interpret the idea that
+rights in land ran to the heavens. Did that mean that you owned the stars?
+Could you prosecute geese for their willful and regular trespass?
+={ air traffic, land ownership vs. +8 ;
+ land ownership, air traffic and +8 ;
+ property rights :
+ air traffic vs. +8
+Then came airplanes, and for the first time, this principle of American law -
+deep within the foundations of our tradition, and acknowledged by the most
+important legal thinkers of our past - mattered. If my land reaches to the
+heavens, what happens when United flies over my field? Do I have the right to
+banish it from my property? Am I allowed to enter into an exclusive license
+with Delta Airlines? Could we set up an auction to decide how much these rights
+are worth?
+In 1945, these questions became a federal case. When North Carolina farmers
+Thomas Lee and Tinie Causby started losing chickens because of low-flying
+military aircraft (the terrified chickens apparently flew into the barn walls
+and died), the Causbys filed a lawsuit saying that the government was
+trespassing on their land. The airplanes, of course, never touched the surface
+of the Causbys' land. But if, as Blackstone, Kent, and Coke had said, their
+land reached to "an indefinite extent, upwards," then the government was
+trespassing on their property, and the Causbys wanted it to stop.
+={ Causby, Thomas Lee ;
+ Causby, Tinie
+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,
+={ Douglas, William O. +2 ;
+ Supreme Court, U.S. :
+ on airspace vs. land rights +4
+_1 [The] doctrine has no place in the modern world. The air is a public
+highway, as Congress has declared. Were that not true, every transcontinental
+flight would subject the operator to countless trespass suits. Common sense
+revolts at the idea. To recognize such private claims to the airspace would
+clog these highways, seriously interfere with their control and development in
+the public interest, and transfer into private ownership that to which only the
+public has a just claim."~{ United States v. Causby, U.S. 328 (1946): 256, 261.
+The Court did find that there could be a "taking" if the government's use of
+its land effectively destroyed the value of the Causbys' land. This example was
+suggested to me by Keith Aoki's wonderful piece, "(Intellectual) Property and
+Sovereignty: Notes Toward a Cultural Geography of Authorship," /{Stanford Law
+Review}/ 48 (1996): 1293, 1333. See also Paul Goldstein, /{Real Property}/
+(Mineola, N.Y.: Foundation Press, 1984), 1112-13. }~
+"Common sense revolts at the idea."
+This is how the law usually works. Not often this abruptly or impatiently, but
+eventually, this is how it works. It was Douglas's style not to dither. Other
+justices would have blathered on for pages to reach the conclusion that Douglas
+holds in a single line: "Common sense revolts at the idea." But whether it
+takes pages or a few words, it is the special genius of a common law system, as
+ours is, that the law adjusts to the technologies of the time. And as it
+adjusts, it changes. Ideas that were as solid as rock in one age crumble in
+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.
+={ Causby, Thomas Lee ;
+ Causby, Tinie ;
+ Wright brothers
+!_ 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.
+={ Armstrong, Edwin Howard +14 ;
+ Bell, Alexander Graham ;
+ Edison, Thomas ;
+ Faraday, Michael ;
+ radio :
+ FM spectrum of +12
+On the day after Christmas, 1933, four patents were issued to Armstrong for his
+most significant invention - FM radio. Until then, consumer radio had been
+amplitude-modulated (AM) radio. The theorists of the day had said that
+frequency-modulated (FM) radio could never work. They were right about FM radio
+in a narrow band of spectrum. But Armstrong discovered that frequency-modulated
+radio in a wide band of spectrum would deliver an astonishing fidelity of
+sound, with much less transmitter power and static.
+On November 5, 1935, he demonstrated the technology at a meeting of the
+Institute of Radio Engineers at the Empire State Building in New York City. He
+tuned his radio dial across a range of AM stations, until the radio locked on a
+broadcast that he had arranged from seventeen miles away. The radio fell
+totally silent, as if dead, and then with a clarity no one else in that room
+had ever heard from an electrical device, it produced the sound of an
+announcer's voice: "This is amateur station W2AG at Yonkers, New York,
+operating on frequency modulation at two and a half meters."
+The audience was hearing something no one had thought possible:
+_1 A glass of water was poured before the microphone in Yonkers; it sounded
+like a glass of water being poured. ... A paper was crumpled and torn; it
+sounded like paper and not like a crackling forest fire. ... Sousa marches were
+played from records and a piano solo and guitar number were performed. ... The
+music was projected with a live-ness rarely if ever heard before from a radio
+'music box.' "~{ Lawrence Lessing, /{Man of High Fidelity: Edwin Howard
+Armstrong}/ (Philadelphia: J. B. Lipincott Company, 1956), 209. }~
+As our own common sense tells us, Armstrong had discovered a vastly superior
+radio technology. But at the time of his invention, Armstrong was working for
+RCA. RCA was the dominant player in the then dominant AM radio market. By 1935,
+there were a thousand radio stations across the United States, but the stations
+in large cities were all owned by a handful of networks.
+={ RCA +9 ;
+ media :
+ ownership concentration in +9
+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
+={ Sarnoff, David }
+_1 I thought Armstrong would invent some kind of a filter to remove static from
+our AM radio. I didn't think he'd start a revolution - start up a whole damn
+new industry to compete with RCA."~{ See "Saints: The Heroes and Geniuses of
+the Electronic Era," First Electronic Church of America, at, available at link #1. }~
+Armstrong's invention threatened RCA's AM empire, so the company launched a
+campaign to smother FM radio. While FM may have been a superior technology,
+Sarnoff was a superior tactician. As one author described,
+={ FM radio +5 }
+_1 The forces for FM, largely engineering, could not overcome the weight of
+strategy devised by the sales, patent, and legal offices to subdue this threat
+to corporate position. For FM, if allowed to develop unrestrained, posed ... a
+complete reordering of radio power ... and the eventual overthrow of the
+carefully restricted AM system on which RCA had grown to power."~{ Lessing,
+226. }~
+RCA at first kept the technology in house, insisting that further tests were
+needed. When, after two years of testing, Armstrong grew impatient, RCA began
+to use its power with the government to stall FM radio's deployment generally.
+In 1936, RCA hired the former head of the FCC and assigned him the task of
+assuring that the FCC assign spectrum in a way that would castrate FM -
+principally by moving FM radio to a different band of spectrum. At first, these
+efforts failed. But when Armstrong and the nation were distracted by World War
+II, RCA's work began to be more successful. Soon after the war ended, the FCC
+announced a set of policies that would have one clear effect: FM radio would be
+crippled. As Lawrence Lessing described it,
+={ FCC :
+ on FM radio +2 ;
+ Lessig, Lawrence +1
+_1 The series of body blows that FM radio received right after the war, in a
+series of rulings manipulated through the FCC by the big radio interests, were
+almost incredible in their force and deviousness."~{ Lessing, 256. }~
+To make room in the spectrum for RCA's latest gamble, television, FM radio
+users were to be moved to a totally new spectrum band. The power of FM radio
+stations was also cut, meaning FM could no longer be used to beam programs from
+one part of the country to another. (This change was strongly supported by
+AT&T, because the loss of FM relaying stations would mean radio stations would
+have to buy wired links from AT&T.) The spread of FM radio was thus choked, at
+least temporarily.
+={ AT&T }
+Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's
+patents. After incorporating FM technology into the emerging standard for
+television, RCA declared the patents invalid - baselessly, and almost fifteen
+years after they were issued. It thus refused to pay him royalties. For six
+years, Armstrong fought an expensive war of litigation to defend the patents.
+Finally, just as the patents expired, RCA offered a settlement so low that it
+would not even cover Armstrong's lawyers' fees. Defeated, broken, and now
+broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of
+a thirteenth- story window to his death.
+This is how the law sometimes works. Not often this tragically, and rarely with
+heroic drama, but sometimes, this is how it works. From the beginning,
+government and government agencies have been subject to capture. They are more
+likely captured when a powerful interest is threatened by either a legal or
+technical change. That powerful interest too often exerts its influence within
+the government to get the government to protect it. The rhetoric of this
+protection is of course always public spirited; the reality is something
+different. Ideas that were as solid as rock in one age, but that, left to
+themselves, would crumble in another, are sustained through this subtle
+corruption of our political process. RCA had what the Causbys did not: the
+power to stifle the effect of technological change.
+={ Causby, Thomas Lee ;
+ Causby, Tinie
+!_ There's no
+single inventor of the Internet. Nor is there any good date upon which to mark
+its birth. Yet in a very short time, the Internet has become part of ordinary
+American life. According to the Pew Internet and American Life Project, 58
+percent of Americans had access to the Internet in 2002, up from 49 percent two
+years before.~{ Amanda Lenhart, "The Ever-Shifting Internet Population: A New
+Look at Internet Access and the Digital Divide," Pew Internet and American Life
+Project, 15 April 2003: 6, available at link #2. }~ That number could well
+exceed two thirds of the nation by the end of 2004.
+={ Internet :
+ development of +2
+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
+Instead, this book is about an effect of the Internet beyond the Internet
+itself: an effect upon how culture is made. My claim is that the Internet has
+induced an important and unrecognized change in that process. That change will
+radically transform a tradition that is as old as the Republic itself. Most, if
+they recognized this change, would reject it. Yet most don't even see the
+change that the Internet has introduced.
+We can glimpse a sense of this change by distinguishing between commercial and
+noncommercial culture, and by mapping the law's regulation of each. By
+"commercial culture" I mean that part of our culture that is produced and sold
+or produced to be sold. By "noncommercial culture" I mean all the rest. When
+old men sat around parks or on street corners telling stories that kids and
+others consumed, that was noncommercial culture. When Noah Webster published
+his "Reader," or Joel Barlow his poetry, that was commercial culture.
+={ Barlow, Joel ;
+ culture :
+ commercial vs. noncommercial +6 ;
+ Webster, Noah
+At the beginning of our history, and for just about the whole of our tradition,
+noncommercial culture was essentially unregulated. Of course, if your stories
+were lewd, or if your song disturbed the peace, then the law might intervene.
+But the law was never directly concerned with the creation or spread of this
+form of culture, and it left this culture "free." The ordinary ways in which
+ordinary individuals shared and transformed their culture - telling stories,
+reenacting scenes from plays or TV, participating in fan clubs, sharing music,
+making tapes - were left alone by the law.
+The focus of the law was on commercial creativity. At first slightly, then
+quite extensively, the law protected the incentives of creators by granting
+them exclusive rights to their creative work, so that they could sell those
+exclusive rights in a commercial marketplace.~{ This is not the only purpose of
+copyright, though it is the overwhelmingly primary purpose of the copyright
+established in the federal constitution. State copyright law historically
+protected not just the commercial interest in publication, but also a privacy
+interest. By granting authors the exclusive right to first publication, state
+copyright law gave authors the power to control the spread of facts about them.
+See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," /{Harvard
+Law Review}/ 4 (1890): 193, 198-200. }~ 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.
+={ Copyright infringement lawsuits :
+ commercial creativity as primary purpose of +2
+This rough divide between the free and the controlled has now been erased.~{ 9.
+See Jessica Litman, /{Digital Copyright}/ (New York: Prometheus Books, 2001),
+ch. 13. }~ The Internet has set the stage for this erasure and, pushed by big
+media, the law has now affected it. For the first time in our tradition, the
+ordinary ways in which individuals create and share culture fall within the
+reach of the regulation of the law, which has expanded to draw within its
+control a vast amount of culture and creativity that it never reached before.
+The technology that preserved the balance of our history - between uses of our
+culture that were free and uses of our culture that were only upon permission -
+has been undone. The consequence is that we are less and less a free culture,
+more and more a permission culture.
+={ free culture :
+ permission culture vs. ;
+ permission culture :
+ free culture vs.
+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.
+={ Causby, Thomas Lee ;
+ Causby, Tinie ;
+ protection of artists vs. business interests
+For the Internet has unleashed an extraordinary possibility for many to
+participate in the process of building and cultivating a culture that reaches
+far beyond local boundaries. That power has changed the marketplace for making
+and cultivating culture generally, and that change in turn threatens
+established content industries. The Internet is thus to the industries that
+built and distributed content in the twentieth century what FM radio was to AM
+radio, or what the truck was to the railroad industry of the nineteenth
+century: the beginning of the end, or at least a substantial transformation.
+Digital technologies, tied to the Internet, could produce a vastly more
+competitive and vibrant market for building and cultivating culture; that
+market could include a much wider and more diverse range of creators; those
+creators could produce and distribute a much more vibrant range of creativity;
+and depending upon a few important factors, those creators could earn more on
+average from this system than creators do today - all so long as the RCAs of
+our day don't use the law to protect themselves against this competition.
+Yet, as I argue in the pages that follow, that is precisely what is happening
+in our culture today. These modern-day equivalents of the early
+twentieth-century radio or nineteenth-century railroads are using their power
+to get the law to protect them against this new, more efficient, more vibrant
+technology for building culture. They are succeeding in their plan to remake
+the Internet before the Internet remakes them.
+It doesn't seem this way to many. The battles over copyright and the Internet
+seem remote to most. To the few who follow them, they seem mainly about a much
+simpler brace of questions - whether "piracy" will be permitted, and whether
+"property" will be protected. The "war" that has been waged against the
+technologies of the Internet - what Motion Picture Association of America
+(MPAA) president Jack Valenti calls his "own terrorist war"~{ Amy Harmon,
+"Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the
+Net into an Illicit Video Club," /{New York Times,}/ 17 January 2002. }~ - has
+been framed as a battle about the rule of law and respect for property. To know
+which side to take in this war, most think that we need only decide whether
+we're for property or against it.
+={ Valenti, Jack :
+ on creative property rights
+If those really were the choices, then I would be with Jack Valenti and the
+content industry. I, too, am a believer in property, and especially in the
+importance of what Mr. Valenti nicely calls "creative property." I believe that
+"piracy" is wrong, and that the law, properly tuned, should punish "piracy,"
+whether on or off the Internet.
+But those simple beliefs mask a much more fundamental question and a much more
+dramatic change. My fear is that unless we come to see this change, the war to
+rid the world of Internet "pirates" will also rid our culture of values that
+have been integral to our tradition from the start.
+These values built a tradition that, for at least the first 180 years of our
+Republic, guaranteed creators the right to build freely upon their past, and
+protected creators and innovators from either state or private control. The
+First Amendment protected creators against state control. And as Professor Neil
+Netanel powerfully argues,~{ Neil W. Netanel, "Copyright and a Democratic Civil
+Society," /{Yale Law Journal}/ 106 (1996): 283. }~ copyright law, properly
+balanced, protected creators against private control. Our tradition was thus
+neither Soviet nor the tradition of patrons. It instead carved out a wide berth
+within which creators could cultivate and extend our culture.
+={ Constitution, U.S. :
+ First Amendment to ;
+ Copyright law :
+ as protection of creators ;
+ First Amendment ;
+ Netanel, Neil Weinstock
+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.
+The story that follows is about this war. Is it not about the "centrality of
+technology" to ordinary life. I don't believe in gods, digital or otherwise.
+Nor is it an effort to demonize any individual or group, for neither do I
+believe in a devil, corporate or otherwise. It is not a morality tale. Nor is
+it a call to jihad against an industry.
+It is instead an effort to understand a hopelessly destructive war inspired by
+the technologies of the Internet but reaching far beyond its code. And by
+understanding this battle, it is an effort to map peace. There is no good
+reason for the current struggle around Internet technologies to continue. There
+will be great harm to our tradition and culture if it is allowed to continue
+unchecked. We must come to understand the source of this war. We must resolve
+it soon.
+!_ Like the Causbys'
+battle, this war is, in part, about "property." The property of this war is not
+as tangible as the Causbys', and no innocent chicken has yet to lose its life.
+Yet the ideas surrounding this "property" are as obvious to most as the
+Causbys' claim about the sacredness of their farm was to them. We are the
+Causbys. Most of us take for granted the extraordinarily powerful claims that
+the owners of "intellectual property" now assert. Most of us, like the Causbys,
+treat these claims as obvious. And hence we, like the Causbys, object when a
+new technology interferes with this property. It is as plain to us as it was to
+them that the new technologies of the Internet are "trespassing" upon
+legitimate claims of "property." It is as plain to us as it was to them that
+the law should intervene to stop this trespass.
+={ Causby, Thomas Lee +1 ;
+ Causby, Tinie +1 ;
+ intellectual property rights +8
+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.
+={ Wright brothers }
+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.
+={ power, concentration of }
+The puzzle is, Why?
+Is it because we have come to understand a truth about the value and importance
+of absolute property over ideas and culture? Is it because we have discovered
+that our tradition of rejecting such an absolute claim was wrong?
+Or is it because the idea of absolute property over ideas and culture benefits
+the RCAs of our time and fits our own unreflective intuitions?
+Is the radical shift away from our tradition of free culture an instance of
+America correcting a mistake from its past, as we did after a bloody war with
+slavery, and as we are slowly doing with inequality? Or is the radical shift
+away from our tradition of free culture yet another example of a political
+system captured by a few powerful special interests?
+Does common sense lead to the extremes on this question because common sense
+actually believes in these extremes? Or does common sense stand silent in the
+face of these extremes because, as with Armstrong versus RCA, the more powerful
+side has ensured that it has the more powerful view?
+I don't mean to be mysterious. My own views are resolved. I believe it was
+right for common sense to revolt against the extremism of the Causbys. I
+believe it would be right for common sense to revolt against the extreme claims
+made today on behalf of "intellectual property." What the law demands today is
+increasingly as silly as a sheriff arresting an airplane for trespass. But the
+consequences of this silliness will be much more profound.
+={ Causby, Thomas Lee ;
+ Causby, Tinie
+!_ The struggle
+that rages just now centers on two ideas: "piracy" and "property." My aim in
+this book's next two parts is to explore these two ideas.
+My method is not the usual method of an academic. I don't want to plunge you
+into a complex argument, buttressed with references to obscure French
+theorists' however natural that is for the weird sort we academics have become.
+Instead I begin in each part with a collection of stories that set a context
+within which these apparently simple ideas can be more fully understood.
+The two sections set up the core claim of this book: that while the Internet
+has indeed produced something fantastic and new, our government, pushed by big
+media to respond to this "something new," is destroying something very old.
+Rather than understanding the changes the Internet might permit, and rather
+than taking time to let "common sense" resolve how best to respond, we are
+allowing those most threatened by the changes to use their power to change the
+law - and more importantly, to use their power to change something fundamental
+about who we have always been.
+We allow this, I believe, not because it is right, and not because most of us
+really believe in these changes. We allow it because the interests most
+threatened are among the most powerful players in our depressingly compromised
+process of making law. This book is the story of one more consequence of this
+form of corruption - a consequence to which most of us remain oblivious.
+1~intro_piracy [Intro]-#
+!_ 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,
+={ Copyright law :
+ English ;
+ Mansfield, William Murray, Lord ;
+ music publishing ;
+ sheet music
+_1 A person may use the copy by playing it, but he has no right to rob the
+author of the profit, by multiplying copies and disposing of them for his own
+use."~{ /{Bach v. Longman,}/ 98 Eng. Rep. 1274 (1777) (Mansfield). }~
+Today we are in the middle of another "war" against "piracy." The Internet has
+provoked this war. The Internet makes possible the efficient spread of content.
+Peer-to-peer (p2p) file sharing is among the most efficient of the efficient
+technologies the Internet enables. Using distributed intelligence, p2p systems
+facilitate the easy spread of content in a way unimagined a generation ago.
+={ Internet :
+ efficient content distribution on ;
+ peer-to-peer (p2p) file sharing :
+ efficiency of +1
+_{This}_ efficiency does not respect the traditional lines of copyright. The
+network doesn't discriminate between the sharing of copyrighted and
+uncopyrighted content. Thus has there been a vast amount of sharing of
+copyrighted content. That sharing in turn has excited the war, as copyright
+owners fear the sharing will "rob the author of the profit."
+The warriors have turned to the courts, to the legislatures, and increasingly
+to technology to defend their "property" against this "piracy." A generation of
+Americans, the warriors warn, is being raised to believe that "property" should
+be "free." Forget tattoos, never mind body piercing - our kids are becoming
+There's no doubt that "piracy" is wrong, and that pirates should be punished.
+But before we summon the executioners, we should put this notion of "piracy" in
+some context. For as the concept is increasingly used, at its core is an
+extraordinary idea that is almost certainly wrong.
+The idea goes something like this:
+_1 Creative work has value; whenever I use, or take, or build upon the creative
+work of others, I am taking from them something of value. Whenever I take
+something of value from someone else, I should have their permission. The
+taking of something of value from someone else without permission is wrong. It
+is a form of piracy."
+This view runs deep within the current debates. It is what NYU law professor
+Rochelle Dreyfuss criticizes as the "if value, then right" theory of creative
+property~{ See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as
+Language in the Pepsi Generation," /{Notre Dame Law Review}/ 65 (1990): 397. }~
+- if there is value, then someone must have a right to that value. It is the
+perspective that led a composers' rights organization, ASCAP, to sue the Girl
+Scouts for failing to pay for the songs that girls sang around Girl Scout
+campfires.~{ Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They
+Pay Up," /{Wall Street Journal,}/ 21 August 1996, available at link #3;
+Jonathan Zittrain, "Calling Off the Copyright War: In Battle of Property vs.
+Free Speech, No One Wins," /{Boston Globe,}/ 24 November 2002. }~ There was
+"value" (the songs) so there must have been a "right" - even against the Girl
+={ ASCAP ;
+ Dreyfus, Rochelle ;
+ Girl Scouts ;
+ creative property :
+ "if value, then right" theory of +1 ;
+ if value, then right, theory +1
+% note bad sort: ={"if value, then right" theory}
+This idea is certainly a possible understanding of how creative property should
+work. It might well be a possible design for a system of law protecting
+creative property. But the "if value, then right" theory of creative property
+has never been America's theory of creative property. It has never taken hold
+within our law.
+Instead, in our tradition, intellectual property is an instrument. It sets the
+groundwork for a richly creative society but remains subservient to the value
+of creativity. The current debate has this turned around. We have become so
+concerned with protecting the instrument that we are losing sight of the value.
+={ copyright law :
+ on republishing vs. transformation of original work +1 ;
+ creativity :
+ legal restrictions on +3
+The source of this confusion is a distinction that the law no longer takes care
+to draw - the distinction between republishing someone's work on the one hand
+and building upon or transforming that work on the other. Copyright law at its
+birth had only publishing as its concern; copyright law today regulates both.
+Before the technologies of the Internet, this conflation didn't matter all that
+much. The technologies of publishing were expensive; that meant the vast
+majority of publishing was commercial. Commercial entities could bear the
+burden of the law - even the burden of the Byzantine complexity that copyright
+law has become. It was just one more expense of doing business.
+But with the birth of the Internet, this natural limit to the reach of the law
+has disappeared. The law controls not just the creativity of commercial
+creators but effectively that of anyone. Although that expansion would not
+matter much if copyright law regulated only "copying," when the law regulates
+as broadly and obscurely as it does, the extension matters a lot. The burden of
+this law now vastly outweighs any original benefit - certainly as it affects
+noncommercial creativity, and increasingly as it affects commercial creativity
+as well. Thus, as we'll see more clearly in the chapters below, the law's role
+is less and less to support creativity, and more and more to protect certain
+industries against competition. Just at the time digital technology could
+unleash an extraordinary range of commercial and noncommercial creativity, the
+law burdens this creativity with insanely complex and vague rules and with the
+threat of obscenely severe penalties. We may be seeing, as Richard Florida
+writes, the "Rise of the Creative Class."~{ In /{The Rise of the Creative
+Class}/ (New York: Basic Books, 2002), Richard Florida documents a shift in the
+nature of labor toward a labor of creativity. His work, however, doesn't
+directly address the legal conditions under which that creativity is enabled or
+stifled. I certainly agree with him about the importance and significance of
+this change, but I also believe the conditions under which it will be enabled
+are much more tenuous. }~ Unfortunately, we are also seeing an extraordinary
+rise of regulation of this creative class.
+={ copyright law :
+ creativity impeded by ;
+ Florida, Richard ;
+ Rise of the Creative Class, The (Florida)
+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."
+1~ Chapter One: Creators
+!_ In 1928,
+a cartoon character was born. An early Mickey Mouse made his debut in May of
+that year, in a silent flop called /{Plane Crazy}/. 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.
+={ animated cartoons +15 ;
+ cartoon films +16 ;
+ films :
+ animated +15 ;
+ Steamboat Willie +9 ;
+ Mikey Mouse +9
+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,
+={ Disney, Walt +5 }
+_1 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.
+_1 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.
+_1 The effect on our little audience was nothing less than electric. They
+responded almost instinctively to this union of sound and motion. I thought
+they were kidding me. So they put me in the audience and ran the action again.
+It was terrible, but it was wonderful! And it was something new!"~{ Leonard
+Maltin, /{Of Mice and Magic: A History of American Animated Cartoons}/ (New
+York: Penguin Books, 1987), 34-35. }~
+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."
+={ Iwerks, Ub. }
+Disney had created something very new, based upon something relatively new.
+Synchronized sound brought life to a form of creativity that had rarely -
+except in Disney's hands - been anything more than filler for other films.
+Throughout animation's early history, it was Disney's invention that set the
+standard that others struggled to match. And quite often, Disney's great
+genius, his spark of creativity, was built upon the work of others.
+This much is familiar. What you might not know is that 1928 also marks another
+important transition. In that year, a comic (as opposed to cartoon) genius
+created his last independently produced silent film. That genius was Buster
+Keaton. The film was /{Steamboat Bill, Jr.}/
+={ Keaton, Buster +2 ;
+ Steamboat Bill, Jr. +2
+Keaton was born into a vaudeville family in 1895. In the era of silent film, he
+had mastered using broad physical comedy as a way to spark uncontrollable
+laughter from his audience. Steamboat Bill, Jr. was a classic of this form,
+famous among film buffs for its incredible stunts. The film was classic Keaton
+- wildly popular and among the best of its genre.
+/{Steamboat Bill, Jr.}/ appeared before Disney's cartoon /{Steamboat Willie}/.
+The coincidence of titles is not coincidental. Steamboat Willie is a direct
+cartoon parody of Steamboat Bill,~{ I am grateful to David Gerstein and his
+careful history, described at link #4. According to Dave Smith of the Disney
+Archives, Disney paid royalties to use the music for five songs in /{Steamboat
+Willie:}/ "Steamboat Bill," "The Simpleton" (Delille), "Mischief Makers"
+(Carbonara), "Joyful Hurry No. 1" (Baron), and "Gawky Rube" (Lakay). A sixth
+song, "The Turkey in the Straw," was already in the public domain. Letter from
+David Smith to Harry Surden, 10 July 2003, on file with author. }~ and both are
+built upon a common song as a source. It is not just from the invention of
+synchronized sound in /{The Jazz Singer}/ that we get /{Steamboat Willie}/. It
+is also from Buster Keaton's invention of Steamboat Bill, Jr., itself inspired
+by the song "Steamboat Bill," that we get Steamboat Willie, and then from
+Steamboat Willie, Mickey Mouse.
+={ derivative works :
+ piracy vs. +4 ;
+ piracy :
+ derivative work vs. +4
+This "borrowing" was nothing unique, either for Disney or for the industry.
+Disney was always parroting the feature-length mainstream films of his day.~{
+He was also a fan of the public domain. See Chris Sprigman, "The Mouse that Ate
+the Public Domain," Findlaw, 5 March 2002, at link #5. }~ So did many others.
+Early cartoons are filled with knockoffs - slight variations on winning themes;
+retellings of ancient stories. The key to success was the brilliance of the
+differences. With Disney, it was sound that gave his animation its spark.
+Later, it was the quality of his work relative to the production-line cartoons
+with which he competed. Yet these additions were built upon a base that was
+borrowed. Disney added to the work of others before him, creating something new
+out of something just barely old.
+={ creativity :
+ by transforming previous works +3 ;
+ Disney, Inc. +6
+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.
+={ Grimm fairy tales +1 }
+Disney took these stories and retold them in a way that carried them into a new
+age. He animated the stories, with both characters and light. Without removing
+the elements of fear and danger altogether, he made funny what was dark and
+injected a genuine emotion of compassion where before there was fear. And not
+just with the work of the Brothers Grimm. Indeed, the catalog of Disney work
+drawing upon the work of others is astonishing when set together: /{Snow
+White}/ (1937), /{Fantasia}/ (1940), /{Pinocchio}/ (1940), /{Dumbo}/ (1941),
+/{Bambi}/ (1942), /{Song of the South}/ (1946), /{Cinderella}/ (1950), /{Alice
+in Wonderland}/ (1951), /{Robin Hood}/ (1952), /{Peter Pan}/ (1953), /{Lady and
+the Tramp}/ (1955), /{Mulan}/ (1998), /{Sleeping Beauty}/ (1959), /{101
+Dalmatians}/ (1961), /{The Sword in the Stone}/ (1963), and /{The Jungle Book}/
+(1967) - not to mention a recent example that we should perhaps quickly forget,
+/{Treasure Planet}/ (2003). In all of these cases, Disney (or Disney, Inc.)
+ripped creativity from the culture around him, mixed that creativity with his
+own extraordinary talent, and then burned that mix into the soul of his
+culture. Rip, mix, and burn.
+This is a kind of creativity. It is a creativity that we should remember and
+celebrate. There are some who would say that there is no creativity except this
+kind. We don't need to go that far to recognize its importance. We could call
+this "Disney creativity," though that would be a bit misleading. It is, more
+precisely, "Walt Disney creativity" - a form of expression and genius that
+builds upon the culture around us and makes it something different.
+In 1928, the culture that Disney was free to draw upon was relatively fresh.
+The public domain in 1928 was not very old and was therefore quite vibrant. The
+average term of copyright was just around thirty years - for that minority of
+creative work that was in fact copy-righted.~{ Until 1976, copyright law
+granted an author the possibility of two terms: an initial term and a renewal
+term. I have calculated the "average" term by determining the weighted average
+of total registrations for any particular year, and the proportion renewing.
+Thus, if 100 copyrights are registered in year 1, and only 15 are renewed, and
+the renewal term is 28 years, then the average term is 32.2 years. For the
+renewal data and other relevant data, see the Web site associated with this
+book, available at link #6. }~ That means that for thirty years, on average,
+the authors or copyright holders of a creative work had an "exclusive right" to
+control certain uses of the work. To use this copyrighted work in limited ways
+required the permission of the copyright owner.
+={ copyright :
+ duration of +2 ;
+ public domain :
+ defined +2 | traditional term for conversion to +2
+At the end of a copyright term, a work passes into the public domain. No
+permission is then needed to draw upon or use that work. No permission and,
+hence, no lawyers. The public domain is a "lawyer-free zone." Thus, most of the
+content from the nineteenth century was free for Disney to use and build upon
+in 1928. It was free for anyone - whether connected or not, whether rich or
+not, whether approved or not - to use and build upon.
+This is the ways things always were - until quite recently. For most of our
+history, the public domain was just over the horizon. From 1790 until 1978, the
+average copyright term was never more than thirty-two years, meaning that most
+culture just a generation and a half old was free for anyone to build upon
+without the permission of anyone else. Today's equivalent would be for creative
+work from the 1960s and 1970s to now be free for the next Walt Disney to build
+upon without permission. Yet today, the public domain is presumptive only for
+content from before the Great Depression.
+!_ Of course,
+Walt Disney had no monopoly on "Walt Disney creativity." Nor does America. The
+norm of free culture has, until recently, and except within totalitarian
+nations, been broadly exploited and quite universal.
+={ Disney, Walt }
+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
+={ comics, Japanese +8 ;
+ derivative works :
+ piracy vs. +18 ;
+ Japanese comics +8 ;
+ manga +8 ;
+ piracy :
+ derivative work vs. +18
+Americans tend to look down upon this form of culture. That's an unattractive
+characteristic of ours. We're likely to misunderstand much about manga, because
+few of us have ever read anything close to the stories that these "graphic
+novels" tell. For the Japanese, manga cover every aspect of social life. For
+us, comics are "men in tights." And anyway, it's not as if the New York subways
+are filled with readers of Joyce or even Hemingway. People of different
+cultures distract themselves in different ways, the Japanese in this
+interestingly different way.
+But my purpose here is not to understand manga. It is to describe a variant on
+manga that from a lawyer's perspective is quite odd, but from a Disney
+perspective is quite familiar.
+This is the phenomenon of /{doujinshi}/. Doujinshi are also comics, but they
+are a kind of copycat comic. A rich ethic governs the creation of doujinshi. It
+is not doujinshi if it is /{just}/ a copy; the artist must make a contribution
+to the art he copies, by transforming it either subtly or significantly. A
+doujinshi comic can thus take a mainstream comic and develop it differently -
+with a different story line. Or the comic can keep the character in character
+but change its look slightly. There is no formula for what makes the doujinshi
+sufficiently "different." But they must be different if they are to be
+considered true doujinshi. Indeed, there are committees that review doujinshi
+for inclusion within shows and reject any copycat comic that is merely a copy.
+={ creativity :
+ by transforming previous works +14 ;
+ doujinshi comics +8
+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.
+={ Disney, Walt +1 }
+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
+={ copyright law :
+ Japanese +1 ;
+ Steamboat Bill, Jr.
+Yet this illegal market exists and indeed flourishes in Japan, and in the view
+of many, it is precisely because it exists that Japanese manga flourish. As
+American graphic novelist Judd Winick said to me, "The early days of comics in
+America are very much like what's going on in Japan now. ... American comics
+were born out of copying each other. ... That's how [the artists] learn to draw
+- by going into comic books and not tracing them, but looking at them and
+copying them" and building from them.~{ For an excellent history, see Scott
+McCloud, /{Reinventing Comics}/ (New York: Perennial, 2000). }~
+={ Winick, Judd +1 }
+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."
+={ Superman comics }
+The norm in Japan mitigates this legal difficulty. Some say it is precisely the
+benefit accruing to the Japanese manga market that explains the mitigation.
+Temple University law professor Salil Mehra, for example, hypothesizes that the
+manga market accepts these technical violations because they spur the manga
+market to be more wealthy and productive. Everyone would be worse off if
+doujinshi were banned, so the law does not ban doujinshi.~{ See Salil K. Mehra,
+"Copyright and Comics in Japan: Does Law Explain Why All the Comics My Kid
+Watches Are Japanese Imports?" /{Rutgers Law Review}/ 55 (2002): 155, 182.
+"[T]here might be a collective economic rationality that would lead manga and
+anime artists to forgo bringing legal actions for infringement. One hypothesis
+is that all manga artists may be better off collectively if they set aside
+their individual self-interest and decide not to press their legal rights. This
+is essentially a prisoner's dilemma solved." }~
+={ copyright law :
+ Japanese +1 ;
+ comics, Japanese ;
+ Mehra, Salil +1
+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
+I spent four wonderful months in Japan, and I asked this question as often as I
+could. Perhaps the best account in the end was offered by a friend from a major
+Japanese law firm. "We don't have enough lawyers," he told me one afternoon.
+There "just aren't enough resources to prosecute cases like this."
+This is a theme to which we will return: that regulation by law is a function
+of both the words on the books and the costs of making those words have effect.
+For now, focus on the obvious question that is begged: Would Japan be better
+off with more lawyers? Would manga be richer if doujinshi artists were
+regularly prosecuted? Would the Japanese gain something important if they could
+end this practice of uncompensated sharing? Does piracy here hurt the victims
+of the piracy, or does it help them? Would lawyers fighting this piracy help
+their clients or hurt them?
+!_ Let's pause
+for a moment.
+If you're like I was a decade ago, or like most people are when they first
+start thinking about these issues, then just about now you should be puzzled
+about something you hadn't thought through before.
+We live in a world that celebrates "property." I am one of those celebrants. I
+believe in the value of property in general, and I also believe in the value of
+that weird form of property that lawyers call "intellectual property."~{ The
+term /{intellectual property}/ is of relatively recent origin. See Siva
+Vaidhyanathan, /{Copyrights and Copywrongs,}/ 11 (New York: New York University
+Press, 2001). See also Lawrence Lessig, /{The Future of Ideas}/ (New York:
+Random House, 2001), 293 n. 26. The term accurately describes a set of
+"property" rights - copyright, patents, trademark, and trade-secret - but the
+nature of those rights is very different. }~ A large, diverse society cannot
+survive without property; a large, diverse, and modern society cannot flourish
+without intellectual property.
+But it takes just a second's reflection to realize that there is plenty of
+value out there that "property" doesn't capture. I don't mean "money can't buy
+you love," but rather, value that is plainly part of a process of production,
+including commercial as well as noncommercial production. If Disney animators
+had stolen a set of pencils to draw Steamboat Willie, we'd have no hesitation
+in condemning that taking as wrong - even though trivial, even if unnoticed.
+Yet there was nothing wrong, at least under the law of the day, with Disney's
+taking from Buster Keaton or from the Brothers Grimm. There was nothing wrong
+with the taking from Keaton because Disney's use would have been considered
+"fair." There was nothing wrong with the taking from the Grimms because the
+Grimms' work was in the public domain.
+={ Disney, Walt +5 ;
+ Grimm fairy tales +1 ;
+ Keaton, Buster }
+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.
+={ free culture :
+ derivative works based on +6
+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.
+={ copyright law :
+ Japanese +1 ;
+ comics, Japanese ;
+ doujinshi comics +1 ;
+ Japanese comics +1 ;
+ manga +1
+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
+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
+={ Shakespeare, William }
+Creators here and everywhere are always and at all times building upon the
+creativity that went before and that surrounds them now. That building is
+always and everywhere at least partially done without permission and without
+compensating the original creator. No society, free or controlled, has ever
+demanded that every use be paid for or that permission for Walt Disney
+creativity must always be sought. Instead, every society has left a certain bit
+of its culture free for the taking - free societies more fully than unfree,
+perhaps, but all societies to some degree.
+The hard question is therefore not /{whether}/ a culture is free. All cultures
+are free to some degree. The hard question instead is "/{How}/ free is this
+culture?" How much, and how broadly, is the culture free for others to take and
+build upon? Is that freedom limited to party members? To members of the royal
+family? To the top ten corporations on the New York Stock Exchange? Or is that
+freedom spread broadly? To artists generally, whether affiliated with the Met
+or not? To musicians generally, whether white or not? To filmmakers generally,
+whether affiliated with a studio or not?
+Free cultures are cultures that leave a great deal open for others to build
+upon; unfree, or permission, cultures leave much less. Ours was a free culture.
+It is becoming much less so.
+1~ Chapter Two: "Mere Copyists"
+!_ In 1839,
+Louis Daguerre invented the first practical technology for producing what we
+would call "photographs." Appropriately enough, they were called
+"daguerreotypes." The process was complicated and expensive, and the field was
+thus limited to professionals and a few zealous and wealthy amateurs. (There
+was even an American Daguerre Association that helped regulate the industry, as
+do all such associations, by keeping competition down so as to keep prices up.)
+={ Daguerre, Louis ;
+ photography +13
+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
+={ Talbot, William }
+The technological change that made mass photography possible didn't happen
+until 1888, and was the creation of a single man. George Eastman, himself an
+amateur photographer, was frustrated by the technology of photographs made with
+plates. In a flash of insight (so to speak), Eastman saw that if the film could
+be made to be flexible, it could be held on a single spindle. That roll could
+then be sent to a developer, driving the costs of photography down
+substantially. By lowering the costs, Eastman expected he could dramatically
+broaden the population of photographers.
+={ Eastman, George +12 ;
+ camera technology +6
+Eastman developed flexible, emulsion-coated paper film and placed rolls of it
+in small, simple cameras: the Kodak. The device was marketed on the basis of
+its simplicity. "You press the button and we do the rest."~{ Reese V. Jenkins,
+/{Images and Enterprise}/ (Baltimore: Johns Hopkins University Press, 1975),
+112. }~ As he described in /{The Kodak Primer}/:
+={ Kodak cameras +4 ;
+ Kodak Primer, The (Eastman) +1
+_1 The principle of the Kodak system is the separation of the work that any
+person whomsoever can do in making a photograph, from the work that only an
+expert can do. ... We furnish anybody, man, woman or child, who has sufficient
+intelligence to point a box straight and press a button, with an instrument
+which altogether removes from the practice of photography the necessity for
+exceptional facilities or, in fact, any special knowledge of the art. It can be
+employed without preliminary study, without a darkroom and without
+chemicals."~{ Brian Coe, /{The Birth of Photography}/ (New York: Taplinger
+Publishing, 1977), 53. }~
+={ Coe, Brian }
+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 11
+percent.~{ Jenkins, 177. }~ Eastman Kodak's sales during the same period
+experienced an average annual increase of over 17 percent.~{ Based on a chart
+in Jenkins, p. 178. }~
+The real significance of Eastman's invention, however, was not economic. It was
+social. Professional photography gave individuals a glimpse of places they
+would never otherwise see. Amateur photography gave them the ability to record
+their own lives in a way they had never been able to do before. As author Brian
+Coe notes, "For the first time the snapshot album provided the man on the
+street with a permanent record of his family and its activities. ... For the
+first time in history there exists an authentic visual record of the appearance
+and activities of the common man made without [literary] interpretation or
+bias."~{ Coe, 58. }~
+={ Coe, Brian }
+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.
+={ democracy :
+ in technologies of expression ;
+ expression, technologies of :
+ democratic
+What was required for this technology to flourish? Obviously, Eastman's genius
+was an important part. But also important was the legal environment within
+which Eastman's invention grew. For early in the history of photography, there
+was a series of judicial decisions that could well have changed the course of
+photography substantially. Courts were asked whether the photographer, amateur
+or professional, required permission before he could capture and print whatever
+image he wanted. Their answer was no.~{ For illustrative cases, see, for
+example, /{Pavesich v. N.E. Life Ins. Co.,}/ 50 S.E. 68 (Ga. 1905);
+/{Foster-Milburn Co. v. Chinn,}/ 123090 S.W. 364, 366 (Ky. 1909); /{Corliss v.
+Walker,}/ 64 F. 280 (Mass. Dist. Ct. 1894). }~
+={ permissions :
+ photography exempted from +5
+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.
+={ Disney, Walt +1 ;
+ images, ownership of +4
+On the other side was an argument that should be familiar, as well. Sure, there
+may be something of value being used. But citizens should have the right to
+capture at least those images that stand in public view. (Louis Brandeis, who
+would become a Supreme Court Justice, thought the rule should be different for
+images from private spaces.~{ Samuel D. Warren and Louis D. Brandeis, "The
+Right to Privacy," /{Harvard Law Review}/ 4 (1890): 193. }~) It may be that
+this means that the photographer gets something for nothing. Just as Disney
+could take inspiration from /{Steamboat Bill, Jr.}/ or the Brothers Grimm, the
+photographer should be free to capture an image without compensating the
+={ Brandeis, Louis ;
+ Steamboat Bill, Jr. ;
+ camera technology +2
+Fortunately for Mr. Eastman, and for photography in general, these early
+decisions went in favor of the pirates. In general, no permission would be
+required before an image could be captured and shared with others. Instead,
+permission was presumed. Freedom was the default. (The law would eventually
+craft an exception for famous people: commercial photographers who snap
+pictures of famous people for commercial purposes have more restrictions than
+the rest of us. But in the ordinary case, the image can be captured without
+clearing the rights to do the capturing.~{ See Melville B. Nimmer, "The Right
+of Publicity," /{Law and Contemporary Problems}/ 19 (1954): 203; William L.
+Prosser, "Privacy," /{California Law Review}/ 48 (1960) 398-407; /{White v.
+Samsung Electronics America, Inc.,}/ 971 F. 2d 1395 (9th Cir. 1992), cert.
+denied, 508 U.S. 951 (1993). }~)
+We can only speculate about how photography would have developed had the law
+gone the other way. If the presumption had been against the photographer, then
+the photographer would have had to demonstrate permission. Perhaps Eastman
+Kodak would have had to demonstrate permission, too, before it developed the
+film upon which images were captured. After all, if permission were not
+granted, then Eastman Kodak would be benefiting from the "theft" committed by
+the photographer. Just as Napster benefited from the copyright infringements
+committed by Napster users, Kodak would be benefiting from the "image-right"
+infringement of its photographers. We could imagine the law then requiring that
+some form of permission be demonstrated before a company developed pictures. We
+could imagine a system developing to demonstrate that permission.
+={ Kodak cameras ;
+ Napster
+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.
+={ camera technology +6 ;
+ democracy :
+ in technologies of expression ;
+ expression, technologies of :
+ democratic
+!_ 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.
+={ digital cameras ;
+ Just Think! +2
+These buses are not cheap, but the technology they carry is increasingly so.
+The cost of a high-quality digital video system has fallen dramatically. As one
+analyst puts it, "Five years ago, a good real-time digital video editing system
+cost $25,000. Today you can get professional quality for $595."~{ H. Edward
+Goldberg, "Essential Presentation Tools: Hardware and Software You Need to
+Create Digital Multimedia Presentations," cadalyst, 1 February 2002, available
+at link #7. }~ These buses are filled with technology that would have cost
+hundreds of thousands just ten years ago. And it is now feasible to imagine not
+just buses like this, but classrooms across the country where kids are learning
+more and more of something teachers call "media literacy."
+={ education :
+ in media literacy +19 ;
+ media literacy +19 ;
+ expression, technologies of :
+ media literacy and +19
+"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."
+={ Yanofsky, Dave }
+This may seem like an odd way to think about "literacy." For most people,
+literacy is about reading and writing. Faulkner and Hemingway and noticing
+split infinitives are the things that "literate" people know about.
+Maybe. But in a world where children see on average 390 hours of television
+commercials per year, or between 20,000 and 45,000 commercials generally,~{
+Judith Van Evra, /{Television and Child Development}/ (Hillsdale, N.J.:
+Lawrence Erlbaum Associates, 1990); "Findings on Family and TV Study," /{Denver
+Post,}/ 25 May 1997, B6. }~ it is increasingly important to understand the
+"grammar" of media. For just as there is a grammar for the written word, so,
+too, is there one for media. And just as kids learn how to write by writing
+lots of terrible prose, kids learn how to write media by constructing lots of
+(at least at first) terrible media.
+={ advertising ;
+ commercials ;
+ television :
+ advertising on
+A growing field of academics and activists sees this form of literacy as
+crucial to the next generation of culture. For though anyone who has written
+understands how difficult writing is - how difficult it is to sequence the
+story, to keep a reader's attention, to craft language to be understandable -
+few of us have any real sense of how difficult media is. Or more fundamentally,
+few of us have a sense of how media works, how it holds an audience or leads it
+through a story, how it triggers emotion or builds suspense.
+It took filmmaking a generation before it could do these things well. But even
+then, the knowledge was in the filming, not in writing about the film. The
+skill came from experiencing the making of a film, not from reading a book
+about it. One learns to write by writing and then reflecting upon what one has
+written. One learns to write with images by making them and then reflecting
+upon what one has created.
+This grammar has changed as media has changed. When it was just film, as
+Elizabeth Daley, executive director of the University of Southern California's
+Annenberg Center for Communication and dean of the USC School of Cinema-
+Television, explained to me, the grammar was about "the placement of objects,
+color, ... rhythm, pacing, and texture."~{ Interview with Elizabeth Daley and
+Stephanie Barish, 13 December 2002. }~ But as computers open up an interactive
+space where a story is "played" as well as experienced, that grammar changes.
+The simple control of narrative is lost, and so other techniques are necessary.
+Author Michael Crichton had mastered the narrative of science fiction. But when
+he tried to design a computer game based on one of his works, it was a new
+craft he had to learn. How to lead people through a game without their feeling
+they have been led was not obvious, even to a wildly successful author.~{ See
+Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4 November 2000,
+available at link #8; "Timeline," 22 November 2000, available at link #9. }~
+={ Daley, Elizabeth +6 ;
+ Crichton, Michael ;
+ computer games
+This skill is precisely the craft a filmmaker learns. As Daley describes,
+"people are very surprised about how they are led through a film. [I]t is
+perfectly constructed to keep you from seeing it, so you have no idea. If a
+filmmaker succeeds you do not know how you were led." If you know you were led
+through a film, the film has failed.
+Yet the push for an expanded literacy - one that goes beyond text to include
+audio and visual elements - is not about making better film directors. The aim
+is not to improve the profession of filmmaking at all. Instead, as Daley
+_1 From my perspective, probably the most important digital divide is not
+access to a box. It's the ability to be empowered with the language that that
+box works in. Otherwise only a very few people can write with this language,
+and all the rest of us are reduced to being read-only."
+"Read-only." Passive recipients of culture produced elsewhere. Couch potatoes.
+Consumers. This is the world of media from the twentieth century.
+The twenty-first century could be different. This is the crucial point: It
+could be both read and write. Or at least reading and better understanding the
+craft of writing. Or best, reading and understanding the tools that enable the
+writing to lead or mislead. The aim of any literacy, and this literacy in
+particular, is to "empower people to choose the appropriate language for what
+they need to create or express."~{ Interview with Daley and Barish. }~ It is to
+enable students "to communicate in the language of the twenty-first century."~{
+Ibid. }~
+As with any language, this language comes more easily to some than to others.
+It doesn't necessarily come more easily to those who excel in written language.
+Daley and Stephanie Barish, director of the Institute for Multimedia Literacy
+at the Annenberg Center, describe one particularly poignant example of a
+project they ran in a high school. The high school was a very poor inner-city
+Los Angeles school. In all the traditional measures of success, this school was
+a failure. But Daley and Barish ran a program that gave kids an opportunity to
+use film to express meaning about something the students know something about -
+gun violence.
+={ Barish, Stephanie +2 }
+The class was held on Friday afternoons, and it created a relatively new
+problem for the school. While the challenge in most classes was getting the
+kids to come, the challenge in this class was keeping them away. The "kids were
+showing up at 6 A.M. and leaving at 5 at night," said Barish. They were working
+harder than in any other class to do what education should be about - learning
+how to express themselves.
+Using whatever "free web stuff they could find," and relatively simple tools to
+enable the kids to mix "image, sound, and text," Barish said this class
+produced a series of projects that showed something about gun violence that few
+would otherwise understand. This was an issue close to the lives of these
+students. The project "gave them a tool and empowered them to be able to both
+understand it and talk about it," Barish explained. That tool succeeded in
+creating expression - far more successfully and powerfully than could have been
+created using only text. "If you had said to these students, 'you have to do it
+in text,' they would've just thrown their hands up and gone and done something
+else," Barish described, in part, no doubt, because expressing themselves in
+text is not something these students can do well. Yet neither is text a form in
+which /{these}/ ideas can be expressed well. The power of this message depended
+upon its connection to this form of expression.
+"But isn't education about teaching kids to write?" I asked. In part, of
+course, it is. But why are we teaching kids to write? Education, Daley
+explained, is about giving students a way of "constructing meaning." To say
+that that means just writing is like saying teaching writing is only about
+teaching kids how to spell. Text is one part - and increasingly, not the most
+powerful part - of constructing meaning. As Daley explained in the most moving
+part of our interview,
+={ Daley, Elizabeth +3 }
+_1 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. ...
+_1 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.
+={ Barish, Stephanie }
+_1 Because they needed to. There was a reason for doing it. They needed to say
+something, as opposed to just jumping through your hoops. They actually needed
+to use a language that they didn't speak very well. But they had come to
+understand that they had a lot of power with this language."
+!_ When two planes
+crashed into the World Trade Center, another into the Pentagon, and a fourth
+into a Pennsylvania field, all media around the world shifted to this news.
+Every moment of just about every day for that week, and for weeks after,
+television in particular, and media generally, retold the story of the events
+we had just witnessed. The telling was a retelling, because we had seen the
+events that were described. The genius of this awful act of terrorism was that
+the delayed second attack was perfectly timed to assure that the whole world
+would be watching.
+={ September 11, 2001, terrorist attacks of +2 ;
+ World Trade Center ;
+ news coverage +21
+These retellings had an increasingly familiar feel. There was music scored for
+the intermissions, and fancy graphics that flashed across the screen. There was
+a formula to interviews. There was "balance," and seriousness. This was news
+choreographed in the way we have increasingly come to expect it, "news as
+entertainment," even if the entertainment is tragedy.
+But in addition to this produced news about the "tragedy of September 11,"
+those of us tied to the Internet came to see a very different production as
+well. The Internet was filled with accounts of the same events. Yet these
+Internet accounts had a very different flavor. Some people constructed photo
+pages that captured images from around the world and presented them as slide
+shows with text. Some offered open letters. There were sound recordings. There
+was anger and frustration. There were attempts to provide context. There was,
+in short, an extraordinary worldwide barn raising, in the sense Mike Godwin
+uses the term in his book /{Cyber Rights}/, around a news event that had
+captured the attention of the world. There was ABC and CBS, but there was also
+the Internet.
+={ Cyber Rights (Godwin) ;
+ Godwin, Mike ;
+ Internet :
+ news events on +3
+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.
+={ Just Think! }
+But unlike any technology for simply capturing images, the Internet allows
+these creations to be shared with an extraordinary number of people,
+practically instantaneously. This is something new in our tradition - not just
+that culture can be captured mechanically, and obviously not just that events
+are commented upon critically, but that this mix of captured images, sound, and
+commentary can be widely spread practically instantaneously.
+September 11 was not an aberration. It was a beginning. Around the same time, a
+form of communication that has grown dramatically was just beginning to come
+into public consciousness: the Web-log, or blog. The blog is a kind of public
+diary, and within some cultures, such as in Japan, it functions very much like
+a diary. In those cultures, it records private facts in a public way - it's a
+kind of electronic /{Jerry Springer}/, available anywhere in the world.
+={ September 11, 2001, terrorist attacks of ;
+ blogs (Web-logs) +2 ;
+ Internet :
+ blogs on +2 ;
+ Web-logs (blogs) +2
+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.
+={ political discourse ;
+ Internet :
+ public discourse conducted on +15
+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.
+={ democracy :
+ in technologies of expression +5 ;
+ elections +1 ;
+ expression, technologies of :
+ democratic +5
+But democracy has never just been about elections. Democracy means rule by the
+people, but rule means something more than mere elections. In our tradition, it
+also means control through reasoned discourse. This was the idea that captured
+the imagination of Alexis de Tocqueville, the nineteenth-century French lawyer
+who wrote the most important account of early "Democracy in America." It wasn't
+popular elections that fascinated him - it was the jury, an institution that
+gave ordinary people the right to choose life or death for other citizens. And
+most fascinating for him was that the jury didn't just vote about the outcome
+they would impose. They deliberated. Members argued about the "right" result;
+they tried to persuade each other of the "right" result, and in criminal cases
+at least, they had to agree upon a unanimous result for the process to come to
+an end.~{ See, for example, Alexis de Tocqueville, /{Democracy in America,}/
+bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16. }~
+={ Tocqueville, Alexis de ;
+ democracy :
+ public discourse in +4 ;
+ jury system
+Yet even this institution flags in American life today. And in its place, there
+is no systematic effort to enable citizen deliberation. Some are pushing to
+create just such an institution.~{ Bruce Ackerman and James Fishkin,
+"Deliberation Day," /{Journal of Political Philosophy}/ 10 (2) (2002): 129. }~
+And in some towns in New England, something close to deliberation remains. But
+for most of us for most of the time, there is no time or place for "democratic
+deliberation" to occur.
+More bizarrely, there is generally not even permission for it to occur. We, the
+most powerful democracy in the world, have developed a strong norm against
+talking about politics. It's fine to talk about politics with people you agree
+with. But it is rude to argue about politics with people you disagree with.
+Political discourse becomes isolated, and isolated discourse becomes more
+extreme.~{ Cass Sunstein, /{}/ (Princeton: Princeton University
+Press, 2001), 65-80, 175, 182, 183, 192. }~ We say what our friends want to
+hear, and hear very little beyond what our friends say.
+={ political discourse +11 }
+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.
+={ blogs (Web-logs) +10 ;
+ e-mail ;
+ Internet :
+ blogs on +10 ;
+ Web-logs (blogs) +10
+But beyond architecture, blogs also have solved the problem of norms. There's
+no norm (yet) in blog space not to talk about politics. Indeed, the space is
+filled with political speech, on both the right and the left. Some of the most
+popular sites are conservative or libertarian, but there are many of all
+political stripes. And even blogs that are not political cover political issues
+when the occasion merits.
+The significance of these blogs is tiny now, though not so tiny. The name
+Howard Dean may well have faded from the 2004 presidential race but for blogs.
+Yet even if the number of readers is small, the reading is having an effect.
+={ Dean, Howard }
+One direct effect is on stories that had a different life cycle in the
+mainstream media. The Trent Lott affair is an example. When Lott "misspoke" at
+a party for Senator Strom Thurmond, essentially praising Thurmond's
+segregationist policies, he calculated correctly that this story would
+disappear from the mainstream press within forty-eight hours. It did. But he
+didn't calculate its life cycle in blog space. The bloggers kept researching
+the story. Over time, more and more instances of the same "misspeaking"
+emerged. Finally, the story broke back into the mainstream press. In the end,
+Lott was forced to resign as senate majority leader.~{ Noah Shachtman, "With
+Incessant Postings, a Pundit Stirs the Pot," /{New York Times,}/ 16 January
+2003, G5. }~
+={ Lott, Trent ;
+ Thurmond, Storm ;
+ media :
+ blog pressure on +1 ;
+ Internet :
+ news events on +4
+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.
+={ media :
+ commercial imperatives of +1
+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.
+={ Internet :
+ peer-generated rankings on
+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."
+={ journalism +3 ;
+ Winer, Dave +4
+These conflicts become more important as media becomes more concentrated (more
+on this below). A concentrated media can hide more from the public than an
+unconcentrated media can - as CNN admitted it did after the Iraq war because it
+was afraid of the consequences to its own employees.~{ Telephone interview with
+David Winer, 16 April 2003. }~ It also needs to sustain a more coherent
+account. (In the middle of the Iraq war, I read a post on the Internet from
+someone who was at that time listening to a satellite uplink with a reporter in
+Iraq. The New York headquarters was telling the reporter over and over that her
+account of the war was too bleak: She needed to offer a more optimistic story.
+When she told New York that wasn't warranted, they told her that /{they}/ were
+writing "the story.")
+={ CNN ;
+ media :
+ commercial imperatives of ;
+ democracy :
+ in technologies of expression +3 ;
+ expression, technologies of :
+ democratic +3 ;
+ Iraq war ;
+ media :
+ ownership concentration in
+Blog space gives amateurs a way to enter the debate - "amateur" not in the
+sense of inexperienced, but in the sense of an Olympic athlete, meaning not
+paid by anyone to give their reports. It allows for a much broader range of
+input into a story, as reporting on the Columbia disaster revealed, when
+hundreds from across the southwest United States turned to the Internet to
+retell what they had seen.~{ John Schwartz, "Loss of the Shuttle: The Internet;
+A Wealth of Information Online," /{New York Times,}/ 2 February 2003, A28;
+Staci D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall," Online
+Journalism Review, 2 February 2003, available at link #10. }~ And it drives
+readers to read across the range of accounts and "triangulate," as Winer puts
+it, the truth. Blogs, Winer says, are "communicating directly with our
+constituency, and the middle man is out of it" - with all the benefits, and
+costs, that might entail.
+Winer is optimistic about the future of journalism infected with blogs. "It's
+going to become an essential skill," Winer predicts, for public figures and
+increasingly for private figures as well. It's not clear that "journalism" is
+happy about this - some journalists have been told to curtail their blogging.~{
+See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" /{New York
+Times,}/ 29 September 2003, C4. ("Not all news organizations have been as
+accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq who
+started a blog about his reporting of the war on March 9, stopped posting 12
+days later at his bosses' request. Last year Steve Olafson, a /{Houston
+Chronicle}/ reporter, was fired for keeping a personal Web log, published under
+a pseudonym, that dealt with some of the issues and people he was covering.")
+}~ But it is clear that we are still in transition. "A lot of what we are doing
+now is warm-up exercises," Winer told me. There is a lot that must mature
+before this space has its mature effect. And as the inclusion of content in
+this space is the least infringing use of the Internet (meaning infringing on
+copyright), Winer said, "we will be the last thing that gets shut down."
+This speech affects democracy. Winer thinks that happens because "you don't
+have to work for somebody who controls, [for] a gate-keeper." 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.
+={ democracy :
+ public discourse in
+!_ John Seely Brown
+is the chief scientist of the Xerox Corporation. His work, as his Web site
+describes it, is "human learning and ... the creation of knowledge ecologies
+for creating ... innovation."
+={ Brown, John Seely +13 }
+Brown thus looks at these technologies of digital creativity a bit differently
+from the perspectives I've sketched so far. I'm sure he would be excited about
+any technology that might improve democracy. But his real excitement comes from
+how these technologies affect learning.
+As Brown believes, we learn by tinkering. When "a lot of us grew up," he
+explains, that tinkering was done "on motorcycle engines, lawn-mower 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.
+={ advertising ;
+ Just Think! +5 ;
+ commercials ;
+ education :
+ tinkering as means of +11
+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.
+={ free software/open-source software (FS/OSS) }
+This opportunity creates a "completely new kind of learning platform," as Brown
+describes. "As soon as you start doing that, you ... unleash a free collage on
+the community, so that other people can start looking at your code, tinkering
+with it, trying it out, seeing if they can improve it." Each effort is a kind
+of apprenticeship. "Open source becomes a major apprenticeship platform."
+In this process, "the concrete things you tinker with are abstract. They are
+code." Kids are "shifting to the ability to tinker in the abstract, and this
+tinkering is no longer an isolated activity that you're doing in your garage.
+You are tinkering with a community platform. ... You are tinkering with other
+people's stuff. The more you tinker the more you improve." The more you
+improve, the more you learn.
+This same thing happens with content, too. And it happens in the same
+collaborative way when that content is part of the Web. As Brown puts it, "the
+Web [is] the first medium that truly honors multiple forms of intelligence."
+Earlier technologies, such as the typewriter or word processors, helped amplify
+text. But the Web amplifies much more than text. "The Web ... says if you are
+musical, if you are artistic, if you are visual, if you are interested in film
+... [then] there is a lot you can start to do on this medium. [It] can now
+amplify and honor these multiple forms of intelligence."
+Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think!
+teach: that this tinkering with culture teaches as well as creates. It develops
+talents differently, and it builds a different kind of recognition.
+={ Barish, Stephanie ;
+ Daley, Elizabeth
+Yet the freedom to tinker with these objects is not guaranteed. Indeed, as
+we'll see through the course of this book, that freedom is increasingly highly
+contested. While there's no doubt that your father had the right to tinker with
+the car engine, there's great doubt that your child will have the right to
+tinker with the images she finds all around. The law and, increasingly,
+technology interfere with a freedom that technology, and curiosity, would
+otherwise ensure.
+These restrictions have become the focus of researchers and scholars. Professor
+Ed Felten of Princeton (whom we'll see more of in chapter 10) has developed a
+powerful argument in favor of the "right to tinker" as it applies to computer
+science and to knowledge in general.~{ See, for example, Edward Felten and
+Andrew Appel, "Technological Access Control Interferes with Noninfringing
+Scholarship," /{Communications of the Association for Computer Machinery}/ 43
+(2000): 9. }~ But Brown's concern is earlier, or younger, or more fundamental.
+It is about the learning that kids can do, or can't do, because of the law.
+={ Felten, Ed }
+"This is where education in the twenty-first century is going," Brown explains.
+We need to "understand how kids who grow up digital think and want to learn."
+"Yet," as Brown continued, and as the balance of this book will evince, "we are
+building a legal system that completely suppresses the natural tendencies of
+today's digital kids. ... We're building an architecture that unleashes 60
+percent of the brain [and] a legal system that closes down that part of the
+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
+"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.
+={ Kahle, Brewster }
+1~ Chapter Three: Catalogs
+!_ In the fall of 2002,
+Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer
+Polytechnic Institute, in Troy, New York. His major at RPI was information
+technology. Though he is not a programmer, in October Jesse decided to begin to
+tinker with search engine technology that was available on the RPI network.
+={ Jordan, Jesse ;
+ Rensselaer Polytechnic Institute (RPI) +2 :
+ computer network search engine of +10 ;
+ search engines +10 ;
+ university computer networks, p2p sharing on +20 ;
+ Internet :
+ search engines used on +6
+RPI is one of America's foremost technological research institutions. It offers
+degrees in fields ranging from architecture and engineering to information
+sciences. More than 65 percent of its five thousand undergraduates finished in
+the top 10 percent of their high school class. The school is thus a perfect mix
+of talent and experience to imagine and then build, a generation for the
+network age.
+RPI's computer network links students, faculty, and administration to one
+another. It also links RPI to the Internet. Not everything available on the RPI
+network is available on the Internet. But the network is designed to enable
+students to get access to the Internet, as well as more intimate access to
+other members of the RPI community.
+Search engines are a measure of a network's intimacy. Google brought the
+Internet much closer to all of us by fantastically improving the quality of
+search on the network. Specialty search engines can do this even better. The
+idea of "intranet" search engines, search engines that search within the
+network of a particular institution, is to provide users of that institution
+with better access to material from that institution. Businesses do this all
+the time, enabling employees to have access to material that people outside the
+business can't get. Universities do it as well.
+={ Google +1 }
+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.
+={ Jordan, Jesse +16 ;
+ Microsoft :
+ network file system of +1
+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
+Jesse's engine went on-line in late October. Over the following six months, he
+continued to tweak it to improve its functionality. By March, the system was
+functioning quite well. Jesse had more than one million files in his directory,
+including every type of content that might be on users' computers.
+Thus the index his search engine produced included pictures, which students
+could use to put on their own Web sites; copies of notes or research; copies of
+information pamphlets; movie clips that students might have created; university
+brochures - basically anything that users of the RPI network made available in
+a public folder of their computer.
+But the index also included music files. In fact, one quarter of the files that
+Jesse's search engine listed were music files. But that means, of course, that
+three quarters were not, and - so that this point is absolutely clear - Jesse
+did nothing to induce people to put music files in their public folders. He did
+nothing to target the search engine to these files. He was a kid tinkering with
+a Google-like technology at a university where he was studying information
+science, and hence, tinkering was the aim. Unlike Google, or Microsoft, for
+that matter, he made no money from this tinkering; he was not connected to any
+business that would make any money from this experiment. He was a kid tinkering
+with technology in an environment where tinkering with technology was precisely
+what he was supposed to do.
+={ Google ;
+ education :
+ tinkering as means of
+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.
+={ copyright infringement lawsuits :
+ in recording industry +11 ;
+ copyright infringement lawsuits :
+ against student file sharing +11 ;
+ recording industry :
+ copyright infringement lawsuits of +11 ;
+ Recording Industry Association of America (RIAA) :
+ copyright infringement lawsuits filed by +11
+"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 file-sharing system, which Jesse had not
+himself built, to enable members of the RPI community to get access to content,
+which Jesse had not himself created or posted, and the vast majority of which
+had nothing to do with music.
+But the RIAA branded Jesse a pirate. They claimed he operated a network and had
+therefore "willfully" violated copyright laws. They demanded that he pay them
+the damages for his wrong. For cases of "willful infringement," the Copyright
+Act specifies something lawyers call "statutory damages." These damages permit
+a copyright owner to claim $150,000 per infringement. As the RIAA alleged more
+than one hundred specific copyright infringements, they therefore demanded that
+Jesse pay them at least $15,000,000.
+={ copyright infringement lawsuits :
+ exaggerated claims of | statutory damages of | individual defendants intimidated by +6 ;
+ statutory damages ;
+ Recording Industry Association of America (RIAA) :
+ intimidation tactics of +6
+Similar lawsuits were brought against three other students: one other student
+at RPI, one at Michigan Technical University, and one at Princeton. Their
+situations were similar to Jesse's. Though each case was different in detail,
+the bottom line in each was exactly the same: huge demands for "damages" that
+the RIAA claimed it was entitled to. If you added up the claims, these four
+lawsuits were asking courts in the United States to award the plaintiffs close
+to $100 /{billion}/ - six times the /{total}/ profit of the film industry in
+2001.~{ Tim Goral, "Recording Industry Goes After Campus P-2-P Networks: Suit
+Alleges $97.8 Billion in Damages," /{Professional Media Group LCC}/ 6 (2003):
+5, available at 2003 WL 55179443. }~
+={ Michigan Technical University ;
+ Princeton University
+Jesse called his parents. They were supportive but a bit frightened. An uncle
+was a lawyer. He began negotiations with the RIAA. They demanded to know how
+much money Jesse had. Jesse had saved $12,000 from summer jobs and other
+employment. They demanded $12,000 to dismiss the case.
+The RIAA wanted Jesse to admit to doing something wrong. He refused. They
+wanted him to agree to an injunction that would essentially make it impossible
+for him to work in many fields of technology for the rest of his life. He
+refused. They made him understand that this process of being sued was not going
+to be pleasant. (As Jesse's father recounted to me, the chief lawyer on the
+case, Matt Oppenheimer, told Jesse, "You don't want to pay another visit to a
+dentist like me.") And throughout, the RIAA insisted it would not settle the
+case until it took every penny Jesse had saved.
+={ Oppenheimer, Matt }
+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.
+={ legal system, attorney costs in }
+So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or
+$12,000 and a settlement.
+The recording industry insists this is a matter of law and morality. Let's put
+the law aside for a moment and think about the morality. Where is the morality
+in a lawsuit like this? What is the virtue in scapegoatism? The RIAA is an
+extraordinarily powerful lobby. The president of the RIAA is reported to make
+more than $1 million a year. Artists, on the other hand, are not well paid. The
+average recording artist makes $45,900.~{ Occupational Employment Survey, U.S.
+Dept. of Labor (2001) (27-2042 - Musicians and Singers). See also National
+Endowment for the Arts, /{More Than One in a Blue Moon}/ (2000). }~ There are
+plenty of ways for the RIAA to affect and direct policy. So where is the
+morality in taking money from a student for running a search engine?~{ Douglas
+Lichtman makes a related point in "KaZaA and Punishment," /{Wall Street
+Journal,}/ 10 September 2003, A24. }~
+={ artists :
+ recording industry payments to ;
+ recording industry :
+ artist remuneration in ;
+ Recording Industry Association of America (RIAA) :
+ lobbying power of
+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:
+_1 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
+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."
+1~ Chapter Four: "Pirates"
+={ piracy :
+ in development of content industry +43
+!_ 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.
+={ creative property :
+ "if value, then right" theory of ;
+ if value, then right, theory
+% note bad sort: ={"if value, then right" theory}
+2~ Film
+The film industry of Hollywood was built by fleeing pirates.~{ I am grateful to
+Peter DiMauro for pointing me to this extraordinary history. See also Siva
+Vaidhyanathan, /{Copyrights and Copywrongs,}/ 87-93, which details Edison's
+"adventures" with copyright and patent. }~ Creators and directors migrated from
+the East Coast to California in the early twentieth century in part to escape
+controls that patents granted the inventor of filmmaking, Thomas Edison. These
+controls were exercised through a monopoly "trust," the Motion Pictures Patents
+Company, and were based on Thomas Edison's creative property - patents. Edison
+formed the MPPC to exercise the rights this creative property gave him, and the
+MPPC was serious about the control it demanded. As one commentator tells one
+part of the story,
+={ Film industry :
+ patent piracy at the inception of +4 ;
+ Motion Pictures Patents Company (MPPC) +2 ;
+ Hollywood film industry +3 ;
+ patents :
+ on film technology +4
+_1 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.
+_1 With the country experiencing a tremendous expansion in the number of
+nickelodeons, the Patents Company reacted to the independent movement by
+forming a strong-arm subsidiary known as the General Film Company to block the
+entry of non-licensed independents. With coercive tactics that have become
+legendary, General Film confiscated unlicensed equipment, discontinued product
+supply to theaters which showed unlicensed films, and effectively monopolized
+distribution with the acquisition of all U.S. film exchanges, except for the
+one owned by the independent William Fox who defied the Trust even after his
+license was revoked."~{ J. A. Aberdeen, /{Hollywood Renegades: The Society of
+Independent Motion Picture Producers}/ (Cobblestone Entertainment, 2000) and
+expanded texts posted at "The Edison Movie Monopoly: The Motion Picture Patents
+Company vs. the Independent Outlaws," available at link #11. For a discussion
+of the economic motive behind both these limits and the limits imposed by
+Victor on phonographs, see Randal C. Picker, "From Edison to the Broadcast
+Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright"
+(September 2002), University of Chicago Law School, James M. Olin Program in
+Law and Economics, Working Paper No. 159. }~
+={ Fox, William ;
+ General Film Company
+The Napsters of those days, the "independents," were companies like Fox. And no
+less than today, these independents were vigorously resisted. "Shooting was
+disrupted by machinery stolen, and 'accidents' resulting in loss of negatives,
+equipment, buildings and sometimes life and limb frequently occurred."~{ Marc
+Wanamaker, "The First Studios," /{The Silents Majority,}/ archived at link #12.
+}~ That led the independents to flee the East Coast. California was remote
+enough from Edison's reach that film- makers there could pirate his inventions
+without fear of the law. And the leaders of Hollywood filmmaking, Fox most
+prominently, did just that.
+={ Edison, Thomas +5 }
+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.
+={ patents :
+ duration of
+2~ Recorded Music
+={ composers, copyright protections of +10 ;
+ copyright law :
+ on music recordings +10 ;
+ recording industry :
+ copyright protections in +10 | piracy in +10
+The record industry was born of another kind of piracy, though to see how
+requires a bit of detail about the way the law regulates music.
+At the time that Edison and Henri Fourneaux invented machines for reproducing
+music (Edison the phonograph, Fourneaux the player piano), the law gave
+composers the exclusive right to control copies of their music and the
+exclusive right to control public performances of their music. In other words,
+in 1900, if I wanted a copy of Phil Russel's 1899 hit "Happy Mose," the law
+said I would have to pay for the right to get a copy of the musical score, and
+I would also have to pay for the right to perform it publicly.
+={ Fourneaux, Henri +1 ;
+ phonograph +2 ;
+ player pianos +1 ;
+ Russel, Phil
+But what if I wanted to record "Happy Mose," using Edison's phonograph or
+Fourneaux's player piano? Here the law stumbled. It was clear enough that I
+would have to buy any copy of the musical score that I performed in making this
+recording. And it was clear enough that I would have to pay for any public
+performance of the work I was recording. But it wasn't totally clear that I
+would have to pay for a "public performance" if I recorded the song in my own
+house (even today, you don't owe the Beatles anything if you sing their songs
+in the shower), or if I recorded the song from memory (copies in your brain are
+not - yet - regulated by copyright law). So if I simply sang the song into a
+recording device in the privacy of my own home, it wasn't clear that I owed the
+composer anything. And more importantly, it wasn't clear whether I owed the
+composer anything if I then made copies of those recordings. Because of this
+gap in the law, then, I could effectively pirate someone else's song without
+paying its composer anything.
+The composers (and publishers) were none too happy about this capacity to
+pirate. As South Dakota senator Alfred Kittredge put it,
+={ Kittredge, Alfred +1 ;
+ music publishing +2
+_1 Imagine the injustice of the thing. A composer writes a song or an opera. A
+publisher buys at great expense the rights to the same and copyrights it. Along
+come the phonographic companies and companies who cut music rolls and
+deliberately steal the work of the brain of the composer and publisher without
+any regard for [their] rights.~{ To Amend and Consolidate the Acts Respecting
+Copyright: Hearings on S. 6330 and H.R. 19853 Before the (Joint) Committees on
+Patents, 59th Cong. 59, 1st sess. (1906) (statement of Senator Alfred B.
+Kittredge, of South Dakota, chairman), reprinted in /{Legislative History of
+the 1909 Copyright Act,}/ E. Fulton Brylawski and Abe Goldman, eds. (South
+Hackensack, N.J.: Rothman Reprints, 1976). }~
+={ copyright law :
+ authors vs. composers +7 ;
+ creative property :
+ of authors vs. composers +7 ;
+ recording industry :
+ composers' rights vs. producers' rights in
+The innovators who developed the technology to record other people's works were
+"sponging upon the toil, the work, the talent, and genius of American
+composers,"~{ To Amend and Consolidate the Acts Respecting Copyright, 223
+(statement of Nathan Burkan, attorney for the Music Publishers Association). }~
+and the "music publishing industry" was thereby "at the complete mercy of this
+one pirate."~{ To Amend and Consolidate the Acts Respecting Copyright, 226
+(statement of Nathan Burkan, attorney for the Music Publishers Association). }~
+As John Philip Sousa put it, in as direct a way as possible, "When they make
+money out of my pieces, I want a share of it."~{ To Amend and Consolidate the
+Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). }~
+={ Sousa, John Philip }
+These arguments have familiar echoes in the wars of our day. So, too, do the
+arguments on the other side. The innovators who developed the player piano
+argued that "it is perfectly demonstrable that the introduction of automatic
+music players has not deprived any composer of anything he had before their
+introduction." Rather, the machines increased the sales of sheet music.~{ To
+Amend and Consolidate the Acts Respecting Copyright, 283-84 (statement of
+Albert Walker, representative of the Auto-Music Perforating Company of New
+York). }~ In any case, the innovators argued, the job of Congress was "to
+consider first the interest of [the public], whom they represent, and whose
+servants they are." "All talk about 'theft,'" the general counsel of the
+American Graphophone Company wrote, "is the merest claptrap, for there exists
+no property in ideas musical, literary or artistic, except as defined by
+statute."~{ To Amend and Consolidate the Acts Respecting Copyright, 376
+(prepared memorandum of Philip Mauro, general patent counsel of the American
+Graphophone Company Association). }~
+={ American Graphophone Company ;
+ player pianos ;
+ sheet music ;
+ Congress, U.S. :
+ on copyright laws +4 | on recording industry +4 ;
+ copyright law :
+ statutory licenses in +6 ;
+ recording industry :
+ statutory license system in +6
+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.
+={ cover songs }
+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.
+={ compulsory license +4 ;
+ statutory licenses +4
+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.
+={ Grisham, John +1 }
+But the law governing recordings gives recording artists less. And thus, in
+effect, the law /{subsidizes}/ the recording industry through a kind of piracy
+- by giving recording artists a weaker right than it otherwise gives creative
+authors. The Beatles have less control over their creative work than Grisham
+does. And the beneficiaries of this less control are the recording industry and
+the public. The recording industry gets something of value for less than it
+otherwise would pay; the public gets access to a much wider range of musical
+creativity. Indeed, Congress was quite explicit about its reasons for granting
+this right. Its fear was the monopoly power of rights holders, and that that
+power would stifle follow-on creativity.~{ Copyright Law Revision: Hearings on
+S. 2499, S. 2900, H.R. 243, and H.R. 11794 Before the ( Joint) Committee on
+Patents, 60th Cong., 1st sess., 217 (1908) (statement of Senator Reed Smoot,
+chairman), reprinted in /{Legislative History of the 1909 Copyright Act,}/ E.
+Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman
+Reprints, 1976). }~
+={ Beatles }
+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,
+_1 the record producers argued vigorously that the compulsory license system
+must be retained. They asserted that the record industry is a
+half-billion-dollar business of great economic importance in the United States
+and throughout the world; records today are the principal means of
+disseminating music, and this creates special problems, since performers need
+unhampered access to musical material on nondiscriminatory terms. Historically,
+the record producers pointed out, there were no recording rights before 1909
+and the 1909 statute adopted the compulsory license as a deliberate
+anti-monopoly condition on the grant of these rights. They argue that the
+result has been an outpouring of recorded music, with the public being given
+lower prices, improved quality, and a greater choice."~{ Copyright Law
+Revision: Report to Accompany H.R. 2512, House Committee on the Judiciary, 90th
+Cong., 1st sess., House Document no. 83, 66 (8 March 1967). I am grateful to
+Glenn Brown for drawing my attention to this report. }~
+By limiting the rights musicians have, by partially pirating their creative
+work, the record producers, and the public, benefit.
+2~ Radio
+={ recording industry :
+ radio broadcast and +7
+Radio was also born of piracy.
+When a radio station plays a record on the air, that constitutes a "public
+performance" of the composer's work.~{ See 17 /{United States Code,}/ sections
+106 and 110. At the beginning, record companies printed "Not Licensed for Radio
+Broadcast" and other messages purporting to restrict the ability to play a
+record on a radio station. Judge Learned Hand rejected the argument that a
+warning attached to a record might restrict the rights of the radio station.
+See /{RCA Manufacturing Co. v. Whiteman,}/ 114 F. 2d 86 (2nd Cir. 1940). See
+also Randal C. Picker, "From Edison to the Broadcast Flag: Mechanisms of
+Consent and Refusal and the Propertization of Copyright," /{University of
+Chicago Law Review}/ 70 (2003): 281. }~ As I described above, the law gives the
+composer (or copyright holder) an exclusive right to public performances of his
+work. The radio station thus owes the composer money for that performance.
+But when the radio station plays a record, it is not only performing a copy of
+the /{composer's}/ work. The radio station is also performing a copy of the
+/{recording artist's}/ work. It's one thing to have "Happy Birthday" sung on
+the radio by the local children's choir; it's quite another to have it sung by
+the Rolling Stones or Lyle Lovett. The recording artist is adding to the value
+of the composition performed on the radio station. And if the law were
+perfectly consistent, the radio station would have to pay the recording artist
+for his work, just as it pays the composer of the music for his work.
+={ artists :
+ recording industry payments to +3 ;
+ radio :
+ music recordings played on +3 ;
+ recording industry :
+ artist remuneration in +3
+But it doesn't. Under the law governing radio performances, the radio station
+does not have to pay the recording artist. The radio station need only pay the
+composer. The radio station thus gets a bit of something for nothing. It gets
+to perform the recording artist's work for free, even if it must pay the
+composer something for the privilege of playing the song.
+This difference can be huge. Imagine you compose a piece of music. Imagine it
+is your first. You own the exclusive right to authorize public performances of
+that music. So if Madonna wants to sing your song in public, she has to get
+your permission.
+={ Madonna +1 }
+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
+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.
+2~ Cable TV
+={ cable television +12 }
+Cable TV was also born of a kind of piracy.
+When cable entrepreneurs first started wiring communities with cable television
+in 1948, most refused to pay broadcasters for the content that they echoed to
+their customers. Even when the cable companies started selling access to
+television broadcasts, they refused to pay for what they sold. Cable companies
+were thus Napsterizing broadcasters' content, but more egregiously than
+anything Napster ever did - Napster never charged for the content it enabled
+others to give away.
+={ Napster ;
+ television :
+ cable vs. broadcast +10
+Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde,
+chairman of the FCC, viewed the practice as a kind of "unfair and potentially
+destructive competition."~{ Copyright Law Revision - CATV: Hearing on S. 1006
+Before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate
+Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of
+Rosel H. Hyde, chairman of the Federal Communications Commission). }~ There may
+have been a "public interest" in spreading the reach of cable TV, but as
+Douglas Anello, general counsel to the National Association of Broadcasters,
+asked Senator Quentin Burdick during testimony, "Does public interest dictate
+that you use somebody else's property?"~{ Copyright Law Revision - CATV, 116
+(statement of Douglas A. Anello, general counsel of the National Association of
+Broadcasters). }~ As another broadcaster put it,
+={ Anello, Douglas ;
+ Burdick, Quentin ;
+ Hyde, Rosel ;
+ copyright law :
+ on cable television rebroadcasting +9
+_1 The extraordinary thing about the CATV business is that it is the only
+business I know of where the product that is being sold is not paid for."~{
+Copyright Law Revision - CATV, 126 (statement of Ernest W. Jennes, general
+counsel of the Association of Maximum Service Telecasters, Inc.). }~
+Again, the demand of the copyright holders seemed reasonable enough:
+_1 All we are asking for is a very simple thing, that people who now take our
+property for nothing pay for it. We are trying to stop piracy and I don't think
+there is any lesser word to describe it. I think there are harsher words which
+would fit it."~{ Copyright Law Revision - CATV, 169 (joint statement of Arthur
+B. Krim, president of United Artists Corp., and John Sinn, president of United
+Artists Television, Inc.). }~
+These were "free-ride[rs]," Screen Actor's Guild president Charlton Heston
+said, who were "depriving actors of compensation."~{ Copyright Law Revision -
+CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild).
+={ Screen Actors Guild ;
+ Heston, Charlton
+But again, there was another side to the debate. As Assistant Attorney General
+Edwin Zimmerman put it,
+={ Zimmerman, Edwin +1 }
+_1 Our point here is that unlike the problem of whether you have any copyright
+protection at all, the problem here is whether copyright holders who are
+already compensated, who already have a monopoly, should be permitted to extend
+that monopoly. ... The question here is how much compensation they should have
+and how far back they should carry their right to compensation."~{ Copyright
+Law Revision - CATV, 216 (statement of Edwin M. Zimmerman, acting assistant
+attorney general). }~
+Copyright owners took the cable companies to court. Twice the Supreme Court
+held that the cable companies owed the copyright owners nothing.
+={ Supreme Court, U.S. :
+ on cable television
+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.
+={ Congress, U.S. :
+ on cable television | on copyright laws
+!_ These separate stories
+sing a common theme. If "piracy" means using value from someone else's creative
+property without permission from that creator - as it is increasingly described
+today~{ See, for example, National Music Publisher's Association, /{The Engine
+of Free Expression: Copyright on the Internet - The Myth of Free Information,}/
+available at link #13. "The threat of piracy"the use of someone else's creative
+work without permission or compensation - has grown with the Internet." }~ -
+then /{every}/ industry affected by copyright today is the product and
+beneficiary of a certain kind of piracy. Film, records, radio, cable TV. ...
+The list is long and could well be expanded. Every generation welcomes the
+pirates from the last. Every generation - until now.
+1~ Chapter Five: "Piracy"
+={ piracy :
+ commercial +20
+!_ There is piracy
+of copyrighted material. Lots of it. This piracy comes in many forms. The most
+significant is commercial piracy, the unauthorized taking of other people's
+content within a commercial context. Despite the many justifications that are
+offered in its defense, this taking is wrong. No one should condone it, and the
+law should stop it.
+But as well as copy-shop piracy, there is another kind of "taking" that is more
+directly related to the Internet. That taking, too, seems wrong to many, and it
+is wrong much of the time. Before we paint this taking "piracy," however, we
+should understand its nature a bit more. For the harm of this taking is
+significantly more ambiguous than outright copying, and the law should account
+for that ambiguity, as it has so often done in the past.
+2~ Piracy I
+All across the world, but especially in Asia and Eastern Europe, there are
+businesses that do nothing but take others people's copyrighted content, copy
+it, and sell it - all without the permission of a copyright owner. The
+recording industry estimates that it loses about $4.6 billion every year to
+physical piracy~{ See IFPI (International Federation of the Phonographic
+Industry), /{The Recording Industry Commercial Piracy Report 2003,}/ July 2003,
+available at link #14. See also Ben Hunt, "Companies Warned on Music Piracy
+Risk," /{Financial Times,}/ 14 February 2003, 11. }~ (that works out to one in
+three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually
+worldwide to piracy.
+={ Asia, commercial piracy in +3 ;
+ piracy :
+ in Asia +3 ;
+ CDs :
+ foreign piracy of +3 ;
+ copyright law :
+ international compliance with +6 ;
+ international law +5 ;
+ piracy :
+ international +7 ;
+ recording industry :
+ international piracy in ;
+ Motion Pictures Patents Company (MPPC)
+% check reference, MPAA appears to be indexed to Motion Pictures Patents
+% Company (MPPC) which is referred to elsewhere in text as "Motion Pictures
+% _Patent_ Company"
+This is piracy plain and simple. Nothing in the argument of this book, nor in
+the argument that most people make when talking about the subject of this book,
+should draw into doubt this simple point: This piracy is wrong.
+Which is not to say that excuses and justifications couldn't be made for it. We
+could, for example, remind ourselves that for the first one hundred years of
+the American Republic, America did not honor foreign copyrights. We were born,
+in this sense, a pirate nation. It might therefore seem hypocritical for us to
+insist so strongly that other developing nations treat as wrong what we, for
+the first hundred years of our existence, treated as right.
+={ developing countries, foreign patent costs in +3 }
+That excuse isn't terribly strong. Technically, our law did not ban the taking
+of foreign works. It explicitly limited itself to American works. Thus the
+American publishers who published foreign works without the permission of
+foreign authors were not violating any rule. The copy shops in Asia, by
+contrast, are violating Asian law. Asian law does protect foreign copyrights,
+and the actions of the copy shops violate that law. So the wrong of piracy that
+they engage in is not just a moral wrong, but a legal wrong, and not just an
+internationally legal wrong, but a locally legal wrong as well.
+True, these local rules have, in effect, been imposed upon these countries. No
+country can be part of the world economy and choose not to protect copyright
+internationally. We may have been born a pirate nation, but we will not allow
+any other nation to have a similar childhood.
+If a country is to be treated as a sovereign, however, then its laws are its
+laws regardless of their source. The international law under which these
+nations live gives them some opportunities to escape the burden of intellectual
+property law.~{ See Peter Drahos with John Braithwaite, /{Information
+Feudalism: Who Owns the Knowledge Economy?}/ (New York: The New Press, 2003),
+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. }~ In my view, more developing nations
+should take advantage of that opportunity, but when they don't, then their laws
+should be respected. And under the laws of these nations, this piracy is wrong.
+Alternatively, we could try to excuse this piracy by noting that in any case,
+it does no harm to the industry. The Chinese who get access to American CDs at
+50 cents a copy are not people who would have bought those American CDs at $15
+a copy. So no one really has any less money than they otherwise would have
+had.~{ For an analysis of the economic impact of copying technology, see Stan
+Liebowitz, /{Rethinking the Network Economy}/ (New York: Amacom, 2002), 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. }~
+={ Asia, commercial piracy in ;
+ piracy :
+ in Asia ;
+ CDs :
+ foreign piracy of ;
+ copyright law :
+ statutory licenses in
+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.
+={ DVDs :
+ piracy of ;
+ piracy :
+ of intangible property
+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.
+={ statutory licenses }
+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.
+={ Asia, commercial piracy in ;
+ piracy :
+ in Asia ;
+ free software/open-source software (FS/OSS) ;
+ GNU/Linux operating system ;
+ Linux operating system ;
+ Microsoft :
+ competitive strategies of ;
+ Windows ;
+ Microsoft :
+ international software piracy of | Windows operating system of
+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).
+={ law :
+ databases of case reports in
+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.
+={ Netscape ;
+ Internet Explorer
+Thus, while I understand the pull of these justifications for piracy, and I
+certainly see the motivation, in my view, in the end, these efforts at
+justifying commercial piracy simply don't cut it. This kind of piracy is
+rampant and just plain wrong. It doesn't transform the content it steals; it
+doesn't transform the market it competes in. It merely gives someone access to
+something that the law says he should not have. Nothing has changed to draw
+that law into doubt. This form of piracy is flat out wrong.
+But as the examples from the four chapters that introduced this part suggest,
+even if some piracy is plainly wrong, not all "piracy" is. Or at least, not all
+"piracy" is wrong if that term is understood in the way it is increasingly used
+today. Many kinds of "piracy" are useful and productive, to produce either new
+content or new ways of doing business. Neither our tradition nor any tradition
+has ever banned all "piracy" in that sense of the term.
+This doesn't mean that there are no questions raised by the latest piracy
+concern, peer-to-peer file sharing. But it does mean that we need to understand
+the harm in peer-to-peer sharing a bit more before we condemn it to the gallows
+with the charge of piracy.
+={ peer-to-peer (p2p) file sharing :
+ piracy vs. ;
+ piracy :
+ profit reduction as criterion of | p2p file sharing vs.
+For (1) like the original Hollywood, p2p sharing escapes an overly controlling
+industry; and (2) like the original recording industry, it simply exploits a
+new way to distribute content; but (3) unlike cable TV, no one is selling the
+content that is shared on p2p services.
+These differences distinguish p2p sharing from true piracy. They should push us
+to find a way to protect artists while enabling this sharing to survive.
+2~ Piracy II
+={ peer-to-peer (p2p) file sharing :
+ piracy vs. +53 ;
+ piracy :
+ profit reduction as criterion of +23 | p2p file sharing vs. +53
+The key to the "piracy" that the law aims to quash is a use that "rob[s] the
+author of [his] profit."~{ /{Bach v. Longman,}/ 98 Eng. Rep. 1274 (1777). }~
+This means we must determine whether and how much p2p sharing harms before we
+know how strongly the law should seek to either prevent it or find an
+alternative to assure the author of his profit.
+Peer-to-peer sharing was made famous by Napster. But the inventors of the
+Napster technology had not made any major technological innovations. Like every
+great advance in innovation on the Internet (and, arguably, off the Internet as
+well~{ See Clayton M. Christensen, /{The Innovator's Dilemma: The Revolutionary
+National Bestseller That Changed the Way We Do Business}/ (New York:
+HarperBusiness, 2000). Professor Christensen examines why companies that give
+rise to and dominate a product area are frequently unable to come up with the
+most creative, paradigm-shifting uses for their own products. This job usually
+falls to outside innovators, who reassemble existing technology in inventive
+ways. For a discussion of Christensen's ideas, see Lawrence Lessig, /{Future,}/
+89-92, 139. }~), Shawn Fanning and crew had simply put together components that
+had been developed independently.
+={ Fanning, Shawn ;
+ innovation ;
+ Internet :
+ music files downloaded from +8 ;
+ peer-to-peer (p2p) file sharing :
+ participation levels of ;
+ technology :
+ innovative improvements in ;
+ Napster +1
+The result was spontaneous combustion. Launched in July 1999, Napster amassed
+over 10 million users within nine months. After eighteen months, there were
+close to 80 million registered users of the system.~{ See Carolyn Lochhead,
+"Silicon Valley Dream, Hollywood Nightmare," /{San Francisco Chronicle,}/ 24
+September 2002, A1; "Rock 'n' Roll Suicide," /{New Scientist,}/ 6 July 2002,
+42; Benny Evangelista, "Napster Names CEO, Secures New Financing," /{San
+Francisco Chronicle,}/ 23 May 2003, C1; "Napster's Wake-Up Call,"
+/{Economist,}/ 24 June 2000, 23; John Naughton, "Hollywood at War with the
+Internet" (London) /{Times,}/ 26 July 2002, 18. }~ Courts quickly shut Napster
+down, but other services emerged to take its place. (Kazaa is currently the
+most popular p2p service. It boasts over 100 million members.) These services'
+systems are different architecturally, though not very different in function:
+Each enables users to make content available to any number of other users. With
+a p2p system, you can share your favorite songs with your best friend - or your
+20,000 best friends.
+={ Kazaa ;
+ Napster :
+ number of registrations on | replacement of
+According to a number of estimates, a huge proportion of Americans have tasted
+file-sharing technology. A study by Ipsos-Insight in September 2002 estimated
+that 60 million Americans had downloaded music - 28 percent of Americans older
+than 12.~{ See Ipsos-Insight, /{TEMPO: Keeping Pace with Online Music
+Distribution}/ (September 2002), reporting that 28 percent of Americans aged
+twelve and older have downloaded music off of the Internet and 30 percent have
+listened to digital music files stored on their computers. }~ A survey by the
+NPD group quoted in /{The New York Times}/ estimated that 43 million citizens
+used file-sharing networks to exchange content in May 2003.~{ Amy Harmon,
+"Industry Offers a Carrot in Online Music Fight," /{New York Times,}/ 6 June
+2003, A1. }~ The vast majority of these are not kids. Whatever the actual
+figure, a massive quantity of content is being "taken" on these networks. The
+ease and inexpensiveness of file-sharing networks have inspired millions to
+enjoy music in a way that they hadn't before.
+Some of this enjoying involves copyright infringement. Some of it does not. And
+even among the part that is technically copyright infringement, calculating the
+actual harm to copyright owners is more complicated than one might think. So
+consider - a bit more carefully than the polarized voices around this debate
+usually do - the kinds of sharing that file sharing enables, and the kinds of
+harm it entails.
+File sharers share different kinds of content. We can divide these different
+kinds into four types.
+={ peer-to-peer (p2p) file sharing :
+ four types of +4 ;
+ Napster :
+ range of content on
+_1 A. 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.
+_1 B. 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.
+={ advertising }
+_1 C. 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.
+={ recording industry :
+ out-of-print music of
+_1 D. Finally, there are many who use sharing networks to get access to content
+that is not copyrighted or that the copyright owner wants to give away.
+How do these different types of sharing balance out?
+Let's start with some simple but important points. From the perspective of the
+law, only type D sharing is clearly legal. From the perspective of economics,
+only type A sharing is clearly harmful.~{ See Liebowitz, /{Rethinking the
+Network Economy,}/ 148-49. }~ 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
+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.
+={ Edison, Thomas }
+While the numbers do suggest that sharing is harmful, how harmful is harder to
+reckon. It has long been the recording industry's practice to blame technology
+for any drop in sales. The history of cassette recording is a good example. As
+a study by Cap Gemini Ernst & Young put it, "Rather than exploiting this new,
+popular technology, the labels fought it."~{ See Cap Gemini Ernst & Young,
+/{Technology Evolution and the Music Industry's Business Model Crisis}/ (2003),
+3. This report describes the music industry's effort to stigmatize the budding
+practice of cassette taping in the 1970s, including an advertising campaign
+featuring a cassette-shape skull and the caption "Home taping is killing
+music." \\ At the time digital audio tape became a threat, the Office of
+Technical Assessment conducted a survey of consumer behavior. In 1988, 40
+percent of consumers older than ten had taped music to a cassette format. U.S.
+Congress, Office of Technology Assessment, /{Copyright and Home Copying:
+Technology Challenges the Law,}/ OTA-CIT-422 (Washington, D.C.: U.S. Government
+Printing Office, October 1989), 145-56. }~ The labels claimed that every album
+taped was an album unsold, and when record sales fell by 11.4 percent in 1981,
+the industry claimed that its point was proved. Technology was the problem, and
+banning or regulating technology was the answer.
+={ cassette recording +1 ;
+ recording industry :
+ new technology opposed by +2 ;
+ technology :
+ established industries threatened by changes in +2
+Yet soon thereafter, and before Congress was given an opportunity to enact
+regulation, MTV was launched, and the industry had a record turnaround. "In the
+end," Cap Gemini concludes, "the 'crisis' ... was not the fault of the tapers"
+who did not [stop after MTV came into being] - but had to a large extent
+resulted from stagnation in musical innovation at the major labels."~{ U.S.
+Congress, /{Copyright and Home Copying,}/ 4. }~
+={ MTV }
+But just because the industry was wrong before does not mean it is wrong today.
+To evaluate the real threat that p2p sharing presents to the industry in
+particular, and society in general - or at least the society that inherits the
+tradition that gave us the film industry, the record industry, the radio
+industry, cable TV, and the VCR - the question is not simply whether type A
+sharing is harmful. The question is also /{how}/ harmful type A sharing is, and
+how beneficial the other types of sharing are.
+We start to answer this question by focusing on the net harm, from the
+standpoint of the industry as a whole, that sharing networks cause. The "net
+harm" to the industry as a whole is the amount by which type A sharing exceeds
+type B. If the record companies sold more records through sampling than they
+lost through substitution, then sharing networks would actually benefit music
+companies on balance. They would therefore have little /{static}/ reason to
+resist them.
+Could that be true? Could the industry as a whole be gaining because of file
+sharing? Odd as that might sound, the data about CD sales actually suggest it
+might be close.
+={ CDs :
+ sales levels of +3 ;
+ recording industry :
+ CD sales level in +3 ;
+ Recording Industry Association of America (RIAA) :
+ on CD sales decline +3
+In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882
+million to 803 million units; revenues fell 6.7 percent.~{ See Recording
+Industry Association of America, /{2002 Yearend Statistics,}/ available at link
+#15. A later report indicates even greater losses. See Recording Industry
+Association of America, /{Some Facts About Music Piracy,}/ 25 June 2003,
+available at link #16: "In the past four years, unit shipments of recorded
+music have fallen by 26 percent from 1.16 billion units in 1999 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 1999 to $12.6 billion last
+year (based on U.S. dollar value of shipments). The music industry worldwide
+has gone from a $39 billion industry in 2000 down to a $32 billion industry in
+2002 (based on U.S. dollar value of shipments)." }~ This confirms a trend over
+the past few years. The RIAA blames Internet piracy for the trend, though there
+are many other causes that could account for this drop. SoundScan, for example,
+reports a more than 20 percent drop in the number of CDs released since 1999.
+That no doubt accounts for some of the decrease in sales. Rising prices could
+account for at least some of the loss. "From 1999 to 2001, the average price of
+a CD rose 7.2 percent, from $13.04 to $14.19."~{ Jane Black, "Big Music's
+Broken Record," BusinessWeek online, 13 February 2003, available at link #17.
+}~ Competition from other forms of media could also account for some of the
+decline. As Jane Black of /{BusinessWeek}/ notes, "The soundtrack to the film
+/{High Fidelity}/ has a list price of $18.98. You could get the whole movie [on
+DVD] for $19.99."~{ Ibid. }~
+={ Black, Jane ;
+ CDs :
+ prices of ;
+ DVDs :
+ price of
+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.
+={ piracy :
+ of intangible property +1
+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."
+={ Kazaa }
+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?
+={ peer-to-peer (p2p) file sharing :
+ benefits of +8
+One benefit is type C sharing - making available content that is technically
+still under copyright but is no longer commercially available. This is not a
+small category of content. There are millions of tracks that are no longer
+commercially available.~{ By one estimate, 75 percent of the music released by
+the major labels is no longer in print. See Online Entertainment and Copyright
+Law - Coming Soon to a Digital Device Near You: Hearing Before the Senate
+Committee on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared
+statement of the Future of Music Coalition), available at link #18. }~ And
+while it's conceivable that some of this content is not available because the
+artist producing the content doesn't want it to be made available, the vast
+majority of it is unavailable solely because the publisher or the distributor
+has decided it no longer makes economic sense /{to the company}/ to make it
+={ recording industry :
+ out-of-print music of +3
+In real space - long before the Internet - the market had a simple response to
+this problem: used book and record stores. There are thousands of used book and
+used record stores in America today.~{ While there are not good estimates of
+the number of used record stores in existence, in 2002, there were 7,198 used
+book dealers in the United States, an increase of 20 percent since 1993. See
+Book Hunter Press, /{The Quiet Revolution: The Expansion of the Used Book
+Market}/ (2002), available at link #19. Used records accounted for $260 million
+in sales in 2002. See National Association of Recording Merchandisers, "2002
+Annual Survey Results," available at link #20. }~ These stores buy content from
+owners, then sell the content they buy. And under American copyright law, when
+they buy and sell this content, /{even if the content is still under
+copyright}/, the copyright owner doesn't get a dime. Used book and record
+stores are commercial entities; their owners make money from the content they
+sell; but as with cable companies before statutory licensing, they don't have
+to pay the copyright owner for the content they sell.
+={ books :
+ free on-line releases of +4 ;
+ books :
+ out of print +3 ;
+ books :
+ resales of +2 ;
+ peer-to-peer (p2p) file sharing :
+ of books +4 ;
+ used record sales
+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 1949 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.
+={ Bernstein, Leonard ;
+ Internet :
+ books on +4
+It may well be, all things considered, that it would be better if the copyright
+owner got something from this trade. But just because it may well be better, it
+doesn't follow that it would be good to ban used book stores. Or put
+differently, if you think that type C sharing should be stopped, do you think
+that libraries and used book stores should be shut as well?
+Finally, and perhaps most importantly, file-sharing networks enable type D
+sharing to occur - the sharing of content that copyright owners want to have
+shared or for which there is no continuing copyright. This sharing clearly
+benefits authors and society. Science fiction author Cory Doctorow, for
+example, released his first novel, /{Down and Out in the Magic Kingdom}/, both
+free on-line and in bookstores on the same day. His (and his publisher's)
+thinking was that the on-line distribution would be a great advertisement for
+the "real" book. People would read part on-line, and then decide whether they
+liked the book or not. If they liked it, they would be more likely to buy it.
+Doctorow's content is type D content. If sharing networks enable his work to be
+spread, then both he and society are better off. (Actually, much better off: It
+is a great book!)
+={ Doctorow, Cory ;
+ Down and Out in the Magic Kingdom (Doctorow)
+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.
+={ public domain :
+ p2p sharing of works in
+The point throughout is this: While the recording industry understandably says,
+"This is how much we've lost," we must also ask, "How much has society gained
+from p2p sharing? What are the efficiencies? What is the content that otherwise
+would be unavailable?"
+For unlike the piracy I described in the first section of this chapter, much of
+the "piracy" that file sharing enables is plainly legal and good. And like the
+piracy I described in chapter 4, much of this piracy is motivated by a new way
+of spreading content caused by changes in the technology of distribution. Thus,
+consistent with the tradition that gave us Hollywood, radio, the recording
+industry, and cable TV, the question we should be asking about file sharing is
+how best to preserve its benefits while minimizing (to the extent possible) the
+wrongful harm it causes artists. The question is one of balance. The law should
+seek that balance, and that balance will be found only with time.
+"But isn't the war just a war against illegal sharing? Isn't the target just
+what you call type A sharing?"
+={ piracy :
+ profit reduction as criterion of
+You would think. And we should hope. But so far, it is not. The effect of the
+war purportedly on type A sharing alone has been felt far beyond that one class
+of sharing. That much is obvious from the Napster case itself. When Napster
+told the district court that it had developed a technology to block the
+transfer of 99.4 percent of identified infringing material, the district court
+told counsel for Napster 99.4 percent was not good enough. Napster had to push
+the infringements "down to zero."~{ See Transcript of Proceedings, In Re:
+Napster Copyright Litigation at 34- 35 (N.D. Cal., 11 July 2001), nos.
+MDL-00-1369 MHP, C 99-5183 MHP, available at link #21. For an account of the
+litigation and its toll on Napster, see Joseph Menn, /{All the Rave: The Rise
+and Fall of Shawn Fanning's Napster}/ (New York: Crown Business, 2003), 269-82.
+={ copyright infringement lawsuits :
+ zero tolerance in +2 ;
+ Napster :
+ infringing material blocked by +1 ;
+ peer-to-peer (p2p) file sharing :
+ infringement protections in +1
+If 99.4 percent is not good enough, then this is a war on file-sharing
+technologies, not a war on copyright infringement. There is no way to assure
+that a p2p system is used 100 percent of the time in compliance with the law,
+any more than there is a way to assure that 100 percent of VCRs or 100 percent
+of Xerox machines or 100 percent of handguns are used in compliance with the
+law. Zero tolerance means zero p2p. The court's ruling means that we as a
+society must lose the benefits of p2p, even for the totally legal and
+beneficial uses they serve, simply to assure that there are zero copyright
+infringements caused by p2p.
+Zero tolerance has not been our history. It has not produced the content
+industry that we know today. The history of American law has been a process of
+balance. As new technologies changed the way content was distributed, the law
+adjusted, after some time, to the new technology. In this adjustment, the law
+sought to ensure the legitimate rights of creators while protecting innovation.
+Sometimes this has meant more rights for creators. Sometimes less.
+So, as we've seen, when "mechanical reproduction" threatened the interests of
+composers, Congress balanced the rights of composers against the interests of
+the recording industry. It granted rights to composers, but also to the
+recording artists: Composers were to be paid, but at a price set by Congress.
+But when radio started broadcasting the recordings made by these recording
+artists, and they complained to Congress that their "creative property" was not
+being respected (since the radio station did not have to pay them for the
+creativity it broadcast), Congress rejected their claim. An indirect benefit
+was enough.
+={ artists :
+ recording industry payments to ;
+ composers, copyright protections of ;
+ Congress, U.S. :
+ on copyright laws +3 | on recording industry +1 ;
+ copyright law :
+ on music recordings +2 | statutory licenses in +2 ;
+ radio :
+ music recordings played on ;
+ recording industry :
+ artist remuneration in | copyright protections in | radio broadcast and ;
+ statutory licenses :
+ composer's rights vs. producers' rights in
+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.
+={ cable television +1 ;
+ Congress, U.S. :
+ on cable television +1 ;
+ copyright law :
+ on cable television rebroadcasting +1 ;
+ television :
+ cable vs. broadcast +1
+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
+={ copyright law :
+ innovative freedom balanced with fair compensation in | two central goals of ;
+ innovation :
+ copyright profit balanced with | industry establishment opposed to +7 ;
+ player pianos
+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.
+={ Betamax +2 ;
+ cassette recording :
+ VCRs +2 ;
+ copyright infringement lawsuits :
+ distribution technology targeted in +12 ;
+ Disney, Inc. :
+ Sony Betamax technology opposed by +6 ;
+ film industry :
+ VCR taping facility opposed by +6 ;
+ Sony :
+ Betamax technology developed by +2 ;
+ television :
+ VCR taping of +2 ;
+ VCRs +2 ;
+ Universal Pictures +8
+There was something to Disney's and Universal's claim. Sony did decide to
+design its machine to make it very simple to record television shows. It could
+have built the machine to block or inhibit any direct copying from a television
+broadcast. Or possibly, it could have built the machine to copy only if there
+were a special "copy me" signal on the line. It was clear that there were many
+television shows that did not grant anyone permission to copy. Indeed, if
+anyone had asked, no doubt the majority of shows would not have authorized
+copying. And in the face of this obvious preference, Sony could have designed
+its system to minimize the opportunity for copyright infringement. It did not,
+and for that, Disney and Universal wanted to hold it responsible for the
+architecture it chose.
+MPAA president Jack Valenti became the studios' most vocal champion. Valenti
+called VCRs "tapeworms." He warned, "When there are 20, 30, 40 million of these
+VCRs in the land, we will be invaded by millions of 'tapeworms,' eating away at
+the very heart and essence of the most precious asset the copyright owner has,
+his copyright."~{ Copyright Infringements (Audio and Video Recorders): Hearing
+on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and
+2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture
+Association of America, Inc.). }~ "One does not have to be trained in
+sophisticated marketing and creative judgment," he told Congress, "to
+understand the devastation on the after-theater marketplace caused by the
+hundreds of millions of tapings that will adversely impact on the future of the
+creative community in this country. It is simply a question of basic economics
+and plain common sense."~{ Copyright Infringements (Audio and Video Recorders),
+475. }~ Indeed, as surveys would later show, 45 percent of VCR owners had movie
+libraries of ten videos or more~{ /{Universal City Studios, Inc. v. Sony Corp.
+of America,}/ 480 F. Supp. 429, 438 (C.D. Cal., 1979). }~ - a use the Court
+would later hold was not "fair." By "allowing VCR owners to copy freely by the
+means of an exemption from copyright infringement without creating a mechanism
+to compensate copyright owners," Valenti testified, Congress would "take from
+the owners the very essence of their property: the exclusive right to control
+who may use their work, that is, who may copy it and thereby profit from its
+reproduction."~{ Copyright Infringements (Audio and Video Recorders), 485
+(testimony of Jack Valenti). }~
+={ Congress, U.S. :
+ on copyright laws +3 | on VCR technology ;
+ Valenti, Jack :
+ on VCR technology +1
+It took eight years for this case to be resolved by the Supreme Court. In the
+interim, the Ninth Circuit Court of Appeals, which includes Hollywood in its
+jurisdiction - leading Judge Alex Kozinski, who sits on that court, refers to
+it as the "Hollywood Circuit" - held that Sony would be liable for the
+copyright infringement made possible by its machines. Under the Ninth Circuit's
+rule, this totally familiar technology - which Jack Valenti had called "the
+Boston Strangler of the American film industry" (worse yet, it was a
+/{Japanese}/ Boston Strangler of the American film industry) - was an illegal
+technology.~{ /{Universal City Studios, Inc. v. Sony Corp. of America,}/ 659 F.
+2d 963 (9th Cir. 1981). }~
+={ Court of Appeals :
+ Ninth Circuit ;
+ Ninth Circuit Court of Appeals ;
+ Supreme Court, U.S. :
+ on VCR technology +3 ;
+ Kozinski, Alex
+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,
+={ Supreme Court, U.S. :
+ on balance of interests in copyright law +2
+_1 Sound policy, as well as history, supports our consistent deference to
+Congress when major technological innovations alter the market for copyrighted
+materials. Congress has the constitutional authority and the institutional
+ability to accommodate fully the varied permutations of competing interests
+that are inevitably implicated by such new technology."~{ /{Sony Corp. of
+America v. Universal City Studios, Inc.,}/ 464 U.S. 417, 431 (1984). }~
+={ innovative freedom balanced with fair compensation in +12 ;
+ innovation :
+ copyright profit balanced with +12
+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"
+={ cassette recording :
+ VCRs +3 ;
+ Congress, U.S. :
+ on copyright laws +4 | on VCR technology +3 ;
+ VCRs +3
+If we put these cases together, a pattern is clear:
+table{~h c4; 10; 30; 30; 30;
+No Protection
+Statutory License
+Recording Artists
+Cable TV
+No Protection
+Statutory License
+Film Creators
+No Protection
+In each case throughout our history, a new technology changed the way content
+was distributed.~{ These are the most important instances in our history, but
+there are other cases as well. The technology of digital audio tape (DAT), for
+example, was regulated by Congress to minimize the risk of piracy. The remedy
+Congress imposed did burden DAT producers, by taxing tape sales and controlling
+the technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the
+/{United States Code}/), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17
+U.S.C. §1001. Again, however, this regulation did not eliminate the opportunity
+for free riding in the sense I've described. See Lessig, /{Future,}/ 71. See
+also Picker, "From Edison to the Broadcast Flag," /{University of Chicago Law
+Review}/ 70 (2003): 293-96. }~ In each case, throughout our history, that
+change meant that someone got a "free ride" on someone else's work.
+In /{none}/ of these cases did either the courts or Congress eliminate all free
+riding. In /{none}/ of these cases did the courts or Congress insist that the
+law should assure that the copyright holder get all the value that his
+copyright created. In every case, the copyright owners complained of "piracy."
+In every case, Congress acted to recognize some of the legiti macy in the
+behavior of the "pirates." In each case, Congress allowed some new technology
+to benefit from content made before. It balanced the interests at stake.
+When you think across these examples, and the other examples that make up the
+first four chapters of this section, this balance makes sense. Was Walt Disney
+a pirate? Would doujinshi be better if creators had to ask permission? Should
+tools that enable others to capture and spread images as a way to cultivate or
+criticize our culture be better regulated? Is it really right that building a
+search engine should expose you to $15 million in damages? Would it have been
+better if Edison had controlled film? Should every cover band have to hire a
+lawyer to get permission to record a song?
+={ Disney, Walt ;
+ Edison, Thomas
+We could answer yes to each of these questions, but our tradition has answered
+no. In our tradition, as the Supreme Court has stated, copyright "has never
+accorded the copyright owner complete control over all possible uses of his
+work."~{ /{Sony Corp. of America v. Universal City Studios, Inc.,}/ 464 U.S.
+417, 432 (1984). }~ Instead, the particular uses that the law regulates have
+been defined by balancing the good that comes from granting an exclusive right
+against the burdens such an exclusive right creates. And this balancing has
+historically been done /{after}/ a technology has matured, or settled into the
+mix of technologies that facilitate the distribution of content.
+={ Supreme Court, U.S. :
+ on balance of interests in copyright law
+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
+This is especially true when a new technology enables a vastly superior mode of
+distribution. And this p2p has done. P2p technologies can be ideally efficient
+in moving content across a widely diverse network. Left to develop, they could
+make the network vastly more efficient. Yet these "potential public benefits,"
+as John Schwartz writes in /{The New York Times}/, "could be delayed in the P2P
+fight."~{ John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
+Echoes Past Efforts," /{New York Times,}/ 22 September 2003, C3. }~
+={ peer-to-peer (p2p) file sharing :
+ benefits of +1 ;
+ Schwartz, John
+!_ Yet when anyone
+begins to talk about "balance," the copyright warriors raise a different
+argument. "All this hand waving about balance and incentives," they say,
+"misses a fundamental point. Our content," the warriors insist, "is our
+/{property}/. Why should we wait for Congress to 'rebalance' our property
+rights? Do you have to wait before calling the police when your car has been
+stolen? And why should Congress deliberate at all about the merits of this
+theft? Do we ask whether the car thief had a good use for the car before we
+arrest him?"
+"It is /{our property}/," the warriors insist. "And it should be protected just
+as any other property is protected."
+1~intro_property [Intro]-#
+!_ 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.
+={ copyright :
+ as property +5 ;
+ property rights :
+ copyright vs. +5
+% would have placed index links on heading above, but is an un-numbered heading
+But in ordinary language, to call a copyright a "property" right is a bit
+misleading, for the property of copyright is an odd kind of property. Indeed,
+the very idea of property in any idea or any expression is very odd. I
+understand what I am taking when I take the picnic table you put in your
+backyard. I am taking a thing, the picnic table, and after I take it, you don't
+have it. But what am I taking when I take the good /{idea}/ you had to put a
+picnic table in the backyard - by, for example, going to Sears, buying a table,
+and putting it in my backyard? What is the thing I am taking then?
+The point is not just about the thingness of picnic tables versus ideas, though
+that's an important difference. The point instead is that in the ordinary case
+- indeed, in practically every case except for a narrow range of exceptions -
+ideas released to the world are free. I don't take anything from you when I
+copy the way you dress - though I might seem weird if I did it every day, and
+especially weird if you are a woman. Instead, as Thomas Jefferson said (and as
+is especially true when I copy the way someone else dresses), - He who receives
+an idea from me, receives instruction himself without lessening mine; as he who
+lights his taper at mine, receives light without darkening me."~{ Letter from
+Thomas Jefferson to Isaac McPherson (13 August 1813) in /{The Writings of
+Thomas Jefferson,}/ vol. 6 (Andrew A. Lipscomb and Albert Ellery Bergh, eds.,
+1903), 330, 333-34. }~
+={ Jefferson, Thomas }
+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.
+={ property rights :
+ intangibility of
+But how, and to what extent, and in what form - the details, in other words -
+matter. To get a good sense of how this practice of turning the intangible into
+property emerged, we need to place this "property" in its proper context.~{ As
+the legal realists taught American law, all property rights are intangible. A
+property right is simply a right that an individual has against the world to do
+or not do certain things that may or may not attach to a physical object. The
+right itself is intangible, even if the object to which it is (metaphorically)
+attached is tangible. See Adam Mossoff, "What Is Property? Putting the Pieces
+Back Together," /{Arizona Law Review}/ 45 (2003): 373, 429 n. 241. }~
+My strategy in doing this will be the same as my strategy in the preceding
+part. I offer four stories to help put the idea of "copyright material is
+property" in context. Where did the idea come from? What are its limits? How
+does it function in practice? After these stories, the significance of this
+true statement - "copyright material is property" - will be a bit more clear,
+and its implications will be revealed as quite different from the implications
+that the copyright warriors would have us draw.
+1~ Chapter Six: Founders
+={ books :
+ English copyright law developed for +40 ;
+ copyright law :
+ development of +40 | English +40 ;
+ England, copyright laws developed in +40 ;
+ United Kingdom :
+ history of copyright law in +40
+!_ 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
+={ Branagh, Kenneth ;
+ Henry V. ;
+ Shakespeare, William ;
+ Romeo and Juliet (Shakespeare) +2
+In 1774, almost 180 years after /{Romeo and Juliet}/ was written, the
+"copy-right" for the work was still thought by many to be the exclusive right
+of a single London publisher, Jacob Tonson.~{ Jacob Tonson is typically
+remembered for his associations with prominent eighteenth-century literary
+figures, especially John Dryden, and for his handsome "definitive editions" of
+classic works. In addition to /{Romeo and Juliet,}/ he published an astonishing
+array of works that still remain at the heart of the English canon, including
+collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See
+Keith Walker, "Jacob Tonson, Bookseller," /{American Scholar}/ 61:3 (1992):
+424-31. }~ Tonson was the most prominent of a small group of publishers called
+the Conger~{ Lyman Ray Patterson, /{Copyright in Historical Perspective}/
+(Nashville: Vanderbilt University Press, 1968), 151-52. }~ 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.
+={ Conger ;
+ Tonson, Jacob +1
+Now, there's something puzzling about the year 1774 to anyone who knows a
+little about copyright law. The better-known year in the history of copyright
+is 1710, the year that the British Parliament adopted the first "copyright"
+act. Known as the Statute of Anne, the act stated that all published works
+would get a copyright term of fourteen years, renewable once if the author was
+alive, and that all works already published by 1710 would get a single term of
+twenty-one additional years.~{ As Siva Vaidhyanathan nicely argues, it is
+erroneous to call this a "copyright law." See Vaidhyanathan, /{Copyrights and
+Copywrongs,}/ 40. }~ Under this law, /{Romeo and Juliet}/ should have been free
+in 1731. So why was there any issue about it still being under Tonson's control
+in 1774?
+={ British Parliament ;
+ copyright :
+ duration of +1 | renewability of ;
+ Statute of Anne (1710)
+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
+={ law :
+ common vs. positive +1 ;
+ positive law ;
+ Licensing Act (1662)
+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.
+={ common law }
+This question was important to the publishers, or "booksellers," as they were
+called, because there was growing competition from foreign publishers. The
+Scottish, in particular, were increasingly publishing and exporting books to
+England. That competition reduced the profits of the Conger, which reacted by
+demanding that Parliament pass a law to again give them exclusive control over
+publishing. That demand ultimately resulted in the Statute of Anne.
+={ Conger ;
+ British Parliament +2 ;
+ Scottish publishers ;
+ Statute of Anne (1710) +1
+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.
+={ copyright :
+ as narrow monopoly right +33
+Now, the thing to puzzle about for a moment is this: Why would Parliament limit
+the exclusive right? Not why would they limit it to the particular limit they
+set, but why would they limit the right /{at all?}}/
+For the booksellers, and the authors whom they represented, had a very strong
+claim. Take /{Romeo and Juliet}/ as an example: That play was written by
+Shakespeare. It was his genius that brought it into the world. He didn't take
+anybody's property when he created this play (that's a controversial claim, but
+never mind), and by his creating this play, he didn't make it any harder for
+others to craft a play. So why is it that the law would ever allow someone else
+to come along and take Shakespeare's play without his, or his estate's,
+permission? What reason is there to allow someone else to "steal" Shakespeare's
+={ Shakespeare, William ;
+ Romeo and Juliet (Shakespeare)
+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."
+={ Statute of Anne (1710) }
+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.
+={ usage restrictions attached to }
+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.
+={ Branagh, Kenneth ;
+ Shakespeare, William
+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.
+={ Henry VIII, King of England ;
+ monopoly, copyright as +27 ;
+ Statue of Monopolies (1656)
+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 special-interest favors; they passed a law to stop them.
+Second, about booksellers. It wasn't just that the copyright was a monopoly. It
+was also that it was a monopoly held by the booksellers. Booksellers sound
+quaint and harmless to us. They were not viewed as harmless in
+seventeenth-century England. Members of the Conger were increasingly seen as
+monopolists of the worst kind - tools of the Crown's repression, selling the
+liberty of England to guarantee themselves a monopoly profit. The attacks
+against these monopolists were harsh: Milton described them as "old patentees
+and monopolizers in the trade of book-selling"; they were "men who do not
+therefore labour in an honest profession to which learning is indetted."~{
+Philip Wittenberg, /{The Protection and Marketing of Literary Property}/ (New
+York: J. Messner, Inc., 1937), 31. }~
+={ Milton, John ;
+ booksellers, English +25 ;
+ Conger ;
+ copyright :
+ duration of +25
+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.
+={ Enlightenment ;
+ knowledge, freedom of
+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.
+={ British Parliament +4 }
+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.
+={ Statute of Anne (1710) +2 ;
+ copyright :
+ in perpetuity +2
+Parliament rejected their requests. As one pamphleteer put it, in words that
+echo today,
+_1 I see no Reason for granting a further Term now, which will not hold as well
+for granting it again and again, as often as the Old ones Expire; so that
+should this Bill pass, it will in Effect be establishing a perpetual Monopoly,
+a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to
+Trade, a Discouragement to Learning, no Benefit to the Authors, but a general
+Tax on the Publick; and all this only to increase the private Gain of the
+Booksellers."~{ A Letter to a Member of Parliament concerning the Bill now
+depending in the House of Commons, for making more effectual an Act in the
+Eighth Year of the Reign of Queen Anne, entitled, An Act for the Encouragement
+of Learning, by Vesting the Copies of Printed Books in the Authors or
+Purchasers of such Copies, during the Times therein mentioned (London, 1735),
+in Brief Amici Curiae of Tyler T. Ochoa et al., 8, /{Eldred v. Ashcroft,}/ 537
+U.S. 186 (2003) (No. 01- 618). }~
+Having failed in Parliament, the publishers turned to the courts in a series of
+cases. Their argument was simple and direct: The Statute of Anne gave authors
+certain protections through positive law, but those protections were not
+intended as replacements for the common law. Instead, they were intended simply
+to supplement the common law. Under common law, it was already wrong to take
+another person's creative "property" and use it without his permission. The
+Statute of Anne, the booksellers argued, didn't change that. Therefore, just
+because the protections of the Statute of Anne expired, that didn't mean the
+protections of the common law expired: Under the common law they had the right
+to ban the publication of a book, even if its Statute of Anne copyright had
+expired. This, they argued, was the only way to protect authors.
+={ common law ;
+ law :
+ common vs. positive ;
+ positive law
+This was a clever argument, and one that had the support of some of the leading
+jurists of the day. It also displayed extraordinary chutzpah. Until then, as
+law professor Raymond Patterson has put it, "The publishers ... had as much
+concern for authors as a cattle rancher has for cattle."~{ Lyman Ray Patterson,
+"Free Speech, Copyright, and Fair Use," /{Vanderbilt Law Review}/ 40 (1987):
+28. For a wonderfully compelling account, see Vaidhyanathan, 37-48. }~ The
+bookseller didn't care squat for the rights of the author. His concern was the
+monopoly profit that the author's work gave.
+The booksellers' argument was not accepted without a fight. The hero of this
+fight was a Scottish bookseller named Alexander Donaldson.~{ For a compelling
+account, see David Saunders, /{Authorship and Copyright}/ (London: Routledge,
+1992), 62-69. }~
+={ Donaldson, Alexander +3 ;
+ Patterson, Raymond ;
+ Scottish publishers +3
+Donaldson was an outsider to the London Conger. He began his career in
+Edinburgh in 1750. The focus of his business was inexpensive reprints "of
+standard works whose copyright term had expired," at least under the Statute of
+Anne.~{ Mark Rose, /{Authors and Owners}/ (Cambridge: Harvard University Press,
+1993), 92. }~ Donaldson's publishing house prospered and became "something of a
+center for literary Scotsmen." "[A]mong them," Professor Mark Rose writes, was
+"the young James Boswell who, together with his friend Andrew Erskine,
+published an anthology of contemporary Scottish poems with Donaldson."~{ Ibid.,
+93. }~
+={ Statute of Anne (1710) +8 ;
+ Conger +1 ;
+ Boswell, James ;
+ Erskine, Andrew ;
+ Rose, Mark
+When the London booksellers tried to shut down Donaldson's shop in Scotland, he
+responded by moving his shop to London, where he sold inexpensive editions "of
+the most popular English books, in defiance of the supposed common law right of
+Literary Property."~{ Lyman Ray Patterson, /{Copyright in Historical
+Perspective,}/ 167 (quoting Borwell). }~ His books undercut the Conger prices
+by 30 to 50 percent, and he rested his right to compete upon the ground that,
+under the Statute of Anne, the works he was selling had passed out of
+={ common law +3 }
+The London booksellers quickly brought suit to block "piracy" like Donaldson's.
+A number of actions were successful against the "pirates," the most important
+early victory being /{Millar v. Taylor}/.
+={ Millar v. Taylor +5 }
+Millar was a bookseller who in 1729 had purchased the rights to James Thomson's
+poem "The Seasons." Millar complied with the requirements of the Statute of
+Anne, and therefore received the full protection of the statute. After the term
+of copyright ended, Robert Taylor began printing a competing volume. Millar
+sued, claiming a perpetual common law right, the Statute of Anne
+notwithstanding.~{ Howard B. Abrams, "The Historic Foundation of American
+Copyright Law: Exploding the Myth of Common Law Copyright," /{Wayne Law
+Review}/ 29 (1983): 1152. }~
+={ Thomson, James +1 ;
+ copyright :
+ in perpetuity +1 ;
+ Seasons, The (Thomson) ;
+ Taylor, Robert
+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.
+={ Mansfield, William Murray, Lord +1 }
+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.
+={ British Parliament +2 }
+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.
+={ Donaldson, Alexander +5 ;
+ Scottish publishers +5 ;
+ Statute of Anne (1710) +2
+Millar died soon after his victory, so his case was not appealed. His estate
+sold Thomson's poems to a syndicate of printers that included Thomas Beckett.
+~{ Ibid., 1156. }~ Donaldson then released an unauthorized edition of Thomson's
+works. Beckett, on the strength of the decision in /{Millar}/, got an
+injunction against Donaldson. Donaldson appealed the case to the House of
+Lords, which functioned much like our own Supreme Court. In February of 1774,
+that body had the chance to interpret the meaning of Parliament's limits from
+sixty years before.
+={ Thomson, James ;
+ Becket, Thomas ;
+ House of Lords +5 ;
+ Supreme Court, U.S. :
+ House of Lords vs. +2
+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.
+={ Donaldson v. Beckett +8 ;
+ common law +3
+The House of Lords was an odd institution. Legal questions were presented to
+the House and voted upon first by the "law lords," members of special legal
+distinction who functioned much like the Justices in our Supreme Court. Then,
+after the law lords voted, the House of Lords generally voted.
+The reports about the law lords' votes are mixed. On some counts, it looks as
+if perpetual copyright prevailed. But there is no ambiguity about how the House
+of Lords voted as whole. By a two-to-one majority (22 to 11) they voted to
+reject the idea of perpetual copyrights. Whatever one's understanding of the
+common law, now a copyright was fixed for a limited time, after which the work
+protected by copyright passed into the public domain.
+={ copyright :
+ in perpetuity +1 ;
+ public domain :
+ English legal establishment of +1
+"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.
+={ Bacon, Francis ;
+ Bunyan, John ;
+ Johnson, Samuel ;
+ Milton, John ;
+ Shakespeare, William
+It is hard for us to imagine, but this decision by the House of Lords fueled an
+extraordinarily popular and political reaction. In Scotland, where most of the
+"pirate publishers" did their work, people celebrated the decision in the
+streets. As the /{Edinburgh Advertiser}/ reported, "No private cause has so
+much engrossed the attention of the public, and none has been tried before the
+House of Lords in the decision of which so many individuals were interested."
+"Great rejoicing in Edinburgh upon victory over literary property: bonfires and
+illuminations."~{ Rose, 97. }~
+={ Scottish publishers }
+In London, however, at least among publishers, the reaction was equally strong
+in the opposite direction. The /{Morning Chronicle}/ reported:
+_1 By the above decision ... near 200,000 pounds worth of what was honestly
+purchased at public sale, and which was yesterday thought property is now
+reduced to nothing. The Booksellers of London and Westminster, many of whom
+sold estates and houses to purchase Copy-right, are in a manner ruined, and
+those who after many years industry thought they had acquired a competency to
+provide for their families now find themselves without a shilling to devise to
+their successors."~{ Ibid. }~
+"Ruined" is a bit of an exaggeration. But it is not an exaggeration to say that
+the change was profound. The decision of the House of Lords meant that the
+booksellers could no longer control how culture in England would grow and
+develop. Culture in England was thereafter /{free}/. Not in the sense that
+copyrights would not be respected, for of course, for a limited time after a
+work was published, the bookseller had an exclusive right to control the
+publication of that book. And not in the sense that books could be stolen, for
+even after a copyright expired, you still had to buy the book from someone. But
+/{free}/ in the sense that the culture and its growth would no longer be
+controlled by a small group of publishers. As every free market does, this free
+market of free culture would grow as the consumers and producers chose. English
+culture would develop as the many English readers chose to let it develop -
+chose in the books they bought and wrote; chose in the memes they repeated and
+endorsed. Chose in a /{competitive context}/, not a context in which the
+choices about what culture is available to people and how they get access to it
+are made by the few despite the wishes of the many.
+={ House of Lords ;
+ free culture :
+ English legal establishment of
+At least, this was the rule in a world where the Parliament is anti-monopoly,
+resistant to the protectionist pleas of publishers. In a world where the
+Parliament is more pliant, free culture would be less protected.
+={ British Parliament }
+1~ Chapter Seven: Recorders
+={ copyright law :
+ fair use and +22 ;
+ documentary film +22 ;
+ Else, Jon +22 ;
+ fair use :
+ in documentary film +22 ;
+ films :
+ fair use of copyrighted material in +22
+!_ Jon Else
+is a filmmaker. He is best known for his documentaries and has been very
+successful in spreading his art. He is also a teacher, and as a teacher myself,
+I envy the loyalty and admiration that his students feel for him. (I met, by
+accident, two of his students at a dinner party. He was their god.)
+Else worked on a documentary that I was involved in. At a break, he told me a
+story about the freedom to create with film in America today.
+In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus
+was stagehands at the San Francisco Opera. Stage- hands 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.
+={ Wagner, Richard +1 ;
+ San Francisco Opera
+During one of the performances, Else was shooting some stage- hands 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.
+={ Simpsons, The +16 }
+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.
+={ films :
+ multiple copyrights associated with
+Else called /{Simpsons}/ creator Matt Groening's office to get permission.
+Groening approved the shot. The shot was a four-and-a-half-second image on a
+tiny television set in the corner of the room. How could it hurt? Groening was
+happy to have it in the film, but he told Else to contact Gracie Films, the
+company that produces the program.
+={ Gracie Films +1 ;
+ Groening, Matt +2
+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.
+={ Fox (film company) +1 }
+Then, as Else told me, "two things happened. First we discovered ... that Matt
+Groening doesn't own his own creation - or at least that someone [at Fox]
+believes he doesn't own his own creation." And second, Fox "wanted ten thousand
+dollars as a licensing fee for us to use this four-point-five seconds of ...
+entirely unsolicited /{Simpsons}/ which was in the corner of the shot."
+Else was certain there was a mistake. He worked his way up to someone he
+thought was a vice president for licensing, Rebecca Herrera. He explained to
+her, "There must be some mistake here. ... We're asking for your educational
+rate on this." That was the educational rate, Herrera told Else. A day or so
+later, Else called again to confirm what he had been told.
+={ Herrera, Rebecca +1 }
+"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."
+={ Wagner, Richard }
+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
+={ San Francisco Opera ;
+ Day After Trinity, The
+!_ 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.
+={ Fox (film company) +2 ;
+ Groening, Matt +2
+For example, "public performance" is a use of /{The Simpsons}/ that the
+copyright owner gets to control. If you take a selection of favorite episodes,
+rent a movie theater, and charge for tickets to come see "My Favorite
+/{Simpsons}/," then you need to get permission from the copyright owner. And
+the copyright owner (rightly, in my view) can charge whatever she wants - $10
+or $1,000,000. That's her right, as set by the law.
+But when lawyers hear this story about Jon Else and Fox, their first thought is
+"fair use."~{ For an excellent argument that such use is "fair use," but that
+lawyers don't permit recognition that it is "fair use," see Richard A. Posner
+with William F. Patry, "Fair Use and Statutory Reform in the Wake of
+/{Eldred}/" (draft on file with author), University of Chicago Law School, 5
+August 2003. }~ Else's use of just 4.5 seconds of an indirect shot of a
+/{Simpsons}/ episode is clearly a fair use of /{The Simpsons}/ - and fair use
+does not require the permission of anyone.
+So I asked Else why he didn't just rely upon "fair use." Here's his reply:
+_1 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:
+={ fair use :
+ legal intimidation tactics against +6
+_1 1. Before our films can be broadcast, the network requires that we buy
+Errors and Omissions insurance. The carriers require a detailed "visual cue
+sheet" listing the source and licensing status of each shot in the film. They
+take a dim view of "fair use," and a claim of "fair use" can grind the
+application process to a halt.
+={ Errors and Omissions insurance }
+_1 2. 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.
+={ Fox (film company) +1 ;
+ Groening, Matt ;
+ Lucas, George ;
+ Star Wars
+_1 3. 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.
+_1 4. The question of fair use usually comes up at the end of the project, when
+we are up against a release deadline and out of money."
+In theory, fair use means you need no permission. The theory therefore supports
+free culture and insulates against a permission culture. But in practice, fair
+use functions very differently. The fuzzy lines of the law, tied to the
+extraordinary liability if lines are crossed, means that the effective fair use
+for many types of creators is slight. The law has the right aim; practice has
+defeated the aim.
+This practice shows just how far the law has come from its eighteenth-century
+roots. The law was born as a shield to protect publishers' profits against the
+unfair competition of a pirate. It has matured into a sword that interferes
+with any use, transformative or not.
+1~ Chapter Eight: Transformers
+={ films :
+ clips and collages of +37
+!_ In 1993,
+Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative
+company founded by Microsoft cofounder Paul Allen to develop digital
+entertainment. Long before the Internet became popular, Starwave began
+investing in new technology for delivering entertainment in anticipation of the
+power of networks.
+={ Alben, Alex +27 ;
+ Allen, Paul ;
+ Microsoft ;
+ Starwave +7
+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.
+={ artists :
+ retrospective collections on +21 ;
+ CD-ROMs, film clips used in +21 ;
+ Eastwood, Clint +15
+At that time, Eastwood had made more than fifty films, as an actor and as a
+director. Alben began with a series of interviews with Eastwood, asking him
+about his career. Because Starwave produced those interviews, it was free to
+include them on the CD.
+That alone would not have made a very interesting product, so Starwave wanted
+to add content from the movies in Eastwood's career: posters, scripts, and
+other material relating to the films Eastwood made. Most of his career was
+spent at Warner Brothers, and so it was relatively easy to get permission for
+that content.
+={ permissions :
+ for use of film clips +33 ;
+ Warner Brothers
+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 East-wood'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."
+={ films :
+ multiple copyrights associated with +14
+Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked,
+"Well, what will it take?"
+={ Slade, Michael +2 }
+Alben replied, "Well, we're going to have to clear rights from everyone who
+appears in these films, and the music and everything else that we want to use
+in these film clips." Slade said, "Great! Go for it."~{ Technically, the rights
+that Alben had to clear were mainly those of publicity"rights an artist has to
+control the commercial exploitation of his image. But these rights, too, burden
+"Rip, Mix, Burn" creativity, as this chapter evinces. }~
+The problem was that neither Alben nor Slade had any idea what clearing those
+rights would mean. Every actor in each of the films could have a claim to
+royalties for the reuse of that film. But CD-ROMs had not been specified in the
+contracts for the actors, so there was no clear way to know just what Starwave
+was to do.
+I asked Alben how he dealt with the problem. With an obvious pride in his
+resourcefulness that obscured the obvious bizarreness of his tale, Alben
+recounted just what they did:
+_1 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.
+={ Dirty, Harry }
+_1 We decided that it would be fair if we offered them the day-player 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.
+_1 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
+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.
+={ Sutherland, Donald }
+It was one /{year}/ later - " and even then we weren't sure whether we were
+totally in the clear."
+Alben is proud of his work. The project was the first of its kind and the only
+time he knew of that a team had undertaken such a massive project for the
+purpose of releasing a retrospective.
+_1 Everyone thought it would be too hard. Everyone just threw up their hands
+and said, "Oh, my gosh, a film, it's so many copyrights, there's the music,
+there's the screenplay, there's the director, there's the actors." But we just
+broke it down. We just put it into its constituent parts and said, "Okay,
+there's this many actors, this many directors, ... this many musicians," and we
+just went at it very systematically and cleared the rights."
+And no doubt, the product itself was exceptionally good. Eastwood loved it, and
+it sold very well.
+But I pressed Alben about how weird it seems that it would have to take a
+year's work simply to clear rights. No doubt Alben had done this efficiently,
+but as Peter Drucker has famously quipped, "There is nothing so useless as
+doing efficiently that which should not be done at all."~{ U.S. Department of
+Commerce Office of Acquisition Management, /{Seven Steps to Performance-Based
+Services Acquisition,}/ available at link #22. }~ Did it make sense, I asked
+Alben, that this is the way a new work has to be made?
+={ Drucker, Peter }
+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?
+_1 I don't think so. When an actor renders a performance in a movie, he or she
+gets paid very well. ... And then when 30 seconds of that performance is used
+in a new product that is a retrospective of somebody's career, I don't think
+that that person ... should be compensated for that."
+Or at least, is this /{how}/ the artist should be compensated? Would it make
+sense, I asked, for there to be some kind of statutory license that someone
+could pay and be free to make derivative use of clips like this? Did it really
+make sense that a follow-on creator would have to track down every artist,
+actor, director, musician, and get explicit permission from each? Wouldn't a
+lot more be created if the legal part of the creative process could be made to
+be more clean?
+_1 Absolutely. I think that if there were some fair-licensing mechanism - where
+you weren't subject to hold-ups and you weren't subject to estranged former
+spouses - you'd see a lot more of this work, because it wouldn't be so daunting
+to try to put together a retrospective of someone's career and meaningfully
+illustrate it with lots of media from that person's career. You'd build in a
+cost as the producer of one of these things. You'd build in a cost of paying X
+dollars to the talent that performed. But it would be a known cost. That's the
+thing that trips everybody up and makes this kind of product hard to get off
+the ground. If you knew I have a hundred minutes of film in this product and
+it's going to cost me X, then you build your budget around it, and you can get
+investments and everything else that you need to produce it. But if you say,
+"Oh, I want a hundred minutes of something and I have no idea what it's going
+to cost me, and a certain number of people are going to hold me up for money,"
+then it becomes difficult to put one of these things together."
+Alben worked for a big company. His company was backed by some of the richest
+investors in the world. He therefore had authority and access that the average
+Web designer would not have. So if it took him a year, how long would it take
+someone else? And how much creativity is never made just because the costs of
+clearing the rights are so high?
+These costs are the burdens of a kind of regulation. Put on a Republican hat
+for a moment, and get angry for a bit. The government defines the scope of
+these rights, and the scope defined determines how much it's going to cost to
+negotiate them. (Remember the idea that land runs to the heavens, and imagine
+the pilot purchasing fly- through 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,
+regulation-minimizing Republican should look at the rights and ask, "Does this
+still make sense?"
+={ Republican Party }
+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
+={ Saferstein, Harvey ;
+ Fairbank, Robert
+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.
+={ 60 Minutes }
+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?"
+={ Nimmer, David +1 }
+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.
+={ Alben, Alex ;
+ Boies, David ;
+ Court of Appeals :
+ Ninth Circuit ;
+ Ninth Circuit Court of Appeals ;
+ Napster
+!_ 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.
+={ technology :
+ cut-and-paste culture enabled by +4
+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.
+={ Camp Chaos }
+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
+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.
+={ copyright law :
+ royalty proposal on derivative reuse in ;
+ derivative works :
+ royalty system proposed for
+Who could possibly object to this? And what reason would there be for
+objecting? We're talking about work that is not now being made; which if made,
+under this plan, would produce new income for artists. What reason would anyone
+have to oppose it?
+!_ In February 2003,
+DreamWorks studios announced an agreement with Mike Myers, the comic genius of
+/{Saturday Night Live}/ and Austin Powers. According to the announcement, Myers
+and DreamWorks 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 state- of-the-art
+digital technology - insert Myers and other actors into the film, thereby
+creating an entirely new piece of entertainment."
+={ DreamWorks +2 ;
+ Myers, Mike +2 ;
+ Saturday Night Live
+The announcement called this "film sampling." As Myers explained, "Film
+Sampling is an exciting way to put an original spin on existing films and allow
+audiences to see old movies in a new light. Rap artists have been doing this
+for years with music and now we are able to take that same concept and apply it
+to film." Steven Spielberg is quoted as saying, "If anyone can create a way to
+bring old films to new audiences, it is Mike."
+={ Spielberg, Steven +1 ;
+ film sampling +3 ;
+ rap music
+Spielberg is right. Film sampling by Myers will be brilliant. But if you don't
+think about it, you might miss the truly astonishing point about this
+announcement. As the vast majority of our film heritage remains under
+copyright, the real meaning of the DreamWorks announcement is just this: It is
+Mike Myers and only Mike Myers who is free to sample. Any general freedom to
+build upon the film archive of our culture, a freedom in other contexts
+presumed for us all, is now a privilege reserved for the funny and famous - and
+presumably rich.
+This privilege becomes reserved for two sorts of reasons. The first continues
+the story of the last chapter: the vagueness of "fair use." Much of "sampling"
+should be considered "fair use." But few would rely upon so weak a doctrine to
+create. That leads to the second reason that the privilege is reserved for the
+few: The costs of negotiating the legal rights for the creative reuse of
+content are astronomically high. These costs mirror the costs with fair use:
+You either pay a lawyer to defend your fair use rights or pay a lawyer to track
+down permissions so you don't have to rely upon fair use rights. Either way,
+the creative process is a process of paying lawyers - again a privilege, or
+perhaps a curse, reserved for the few.
+={ copyright law :
+ fair use and ;
+ fair use :
+ in sampling works
+1~ Chapter Nine: Collectors
+={ archives, digital +29 ;
+ culture :
+ archives of +29
+!_ 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.
+={ bots +1 ;
+ spider
+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.
+={ Internet Archive +18 ;
+ Way Back Machine
+This is the thing about the Internet that Orwell would have appreciated. In the
+dystopia described in /{1984}/, old newspapers were constantly updated to
+assure that the current view of the world, approved of by the government, was
+not contradicted by previous news reports. Thousands of workers constantly
+reedited the past, meaning there was no way ever to know whether the story you
+were reading today was the story that was printed on the date published on the
+={ Orwell, George +1 ;
+ 1984 (Orwell)
+It's the same with the Internet. If you go to a Web page today, there's no way
+for you to know whether the content you are reading is the same as the content
+you read before. The page may seem the same, but the content could easily be
+different. The Internet is Orwell's library - constantly updated, without any
+reliable memory.
+Until the Way Back Machine, at least. With the Way Back Machine, and the
+Internet Archive underlying it, you can see what the Internet was. You have the
+power to see what you remember. More importantly, perhaps, you also have the
+power to find what you don't remember and what others might prefer you
+forget.~{ The temptations remain, however. Brewster Kahle reports that the
+White House changes its own press releases without notice. A May 13, 2003,
+press release stated, "Combat Operations in Iraq Have Ended." That was later
+changed, without notice, to "Major Combat Operations in Iraq Have Ended."
+E-mail from Brewster Kahle, 1 December 2003. }~
+={ Way Back Machine }
+!_ 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.
+={ libraries :
+ archival function of +1 ;
+ newspapers :
+ archives of +2
+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 knowledge.
+={ history, records of }
+The Internet was an exception to this presumption. Until the Internet Archive,
+there was no way to go back. The Internet was the quintessentially transitory
+medium. And yet, as it becomes more important in forming and reforming society,
+it becomes more and more important to maintain in some historical form. It's
+just bizarre to think that we have scads of archives of newspapers from tiny
+towns around the world, yet there is but one copy of the Internet - the one
+kept by the Internet Archive.
+Brewster Kahle is the founder of the Internet Archive. He was a very successful
+Internet entrepreneur after he was a successful computer researcher. In the
+1990s, Kahle decided he had had enough business success. It was time to become
+a different kind of success. So he launched a series of projects designed to
+archive human knowledge. The Internet Archive was just the first of the
+projects of this Andrew Carnegie of the Internet. By December of 2002, the
+archive had over 10 billion pages, and it was growing at about a billion pages
+a month.
+={ Kahle, Brewster +20 }
+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,
+={ Library of Congress ;
+ Television Archive ;
+ Vanderbuilt University ;
+ Way Back Machine ;
+ libraries :
+ archival function of ;
+ news coverage +6
+_1 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. ..."
+={ Quayle, Dan ;
+ 60 Minutes
+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 nineteenth-century America will have an
+easier time than researchers trying to understand the effect of media on
+twentieth-century America?
+={ newspapers :
+ archives of
+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.
+={ libraries :
+ archival function of +2
+These rules applied to film as well. But in 1915, the Library of Congress made
+an exception for film. Film could be copyrighted so long as such deposits were
+made. But the filmmaker was then allowed to borrow back the deposits - for an
+unlimited time at no cost. In 1915 alone, there were more than 5,475 films
+deposited and "borrowed back." Thus, when the copyrights to films expire, there
+is no copy held by any library. The copy exists - if it exists at all - in the
+library archive of the film company.~{ Doug Herrick, "Toward a National Film
+Collection: Motion Pictures at the Library of Congress," /{Film Library
+Quarterly}/ 13 nos. 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. }~
+={ Library of Congress ;
+ films :
+ archive of
+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 "copy-righted." 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.
+={ Television Archive +1 }
+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.
+={ September 11, 2001, terrorist attacks of }
+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, and you can
+download the film in a few minutes - for free.
+={ films :
+ archive of ;
+ :
+ see also Internet Archive ;
+ Internet Archive ;
+ Movie Archive ;
+ Duck and Cover film ;
+ ephemeral films ;
+ Prelinger, Rick
+Here again, Kahle is providing access to a part of our culture that we
+otherwise could not get easily, if at all. It is yet another part of what
+defines the twentieth century that we have lost to history. The law doesn't
+require these copies to be kept by anyone, or to be deposited in an archive by
+anyone. Therefore, there is no simple way to find them.
+The key here is access, not price. Kahle wants to enable free access to this
+content, but he also wants to enable others to sell access to it. His aim is to
+ensure competition in access to this important part of our culture. Not during
+the commercial life of a bit of creative property, but during a second life
+that all creative property has - a noncommercial life.
+={ creative property :
+ noncommercial second life of +4
+For here is an idea that we should more clearly recognize. Every bit of
+creative property goes through different "lives." In its first life, if the
+creator is lucky, the content is sold. In such cases the commercial market is
+successful for the creator. The vast majority of creative property doesn't
+enjoy such success, but some clearly does. For that content, commercial life is
+extremely important. Without this commercial market, there would be, many
+argue, much less creativity.
+After the commercial life of creative property has ended, our tradition has
+always supported a second life as well. A newspaper delivers the news every day
+to the doorsteps of America. The very next day, it is used to wrap fish or to
+fill boxes with fragile gifts or to build an archive of knowledge about our
+history. In this second life, the content can continue to inform even if that
+information is no longer sold.
+The same has always been true about books. A book goes out of print very
+quickly (the average today is after about a year~{ Dave Barns, "Fledgling
+Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by
+Adopting Business," /{Chicago Tribune,}/ 5 September 1997, at Metro Lake 1L. Of
+books published between 1927 and 1946, only 2.2 percent were in print in 2002.
+R. Anthony Reese, "The First Sale Doctrine in the Era of Digital Networks,"
+/{Boston College Law Review}/ 44 (2003): 593 n. 51. }~). After it is out of
+print, it can be sold in used book stores without the copyright owner getting
+anything and stored in libraries, where many get to read the book, also for
+free. Used book stores and libraries are thus the second life of a book. That
+second life is extremely important to the spread and stability of culture.
+={ libraries :
+ archival function of +1 ;
+ books :
+ out of print
+Yet increasingly, any assumption about a stable second life for creative
+property does not hold true with the most important components of popular
+culture in the twentieth and twenty-first centuries. For these - television,
+movies, music, radio, the Internet - there is no guarantee of a second life.
+For these sorts of culture, it is as if we've replaced libraries with Barnes &
+Noble superstores. With this culture, what's accessible is nothing but what a
+certain limited market demands. Beyond that, culture disappears.
+!_ For most of
+the twentieth century, it was economics that made this so. It would have been
+insanely expensive to collect and make accessible all television and film and
+music: The cost of analog copies is extraordinarily high. So even though the
+law in principle would have restricted the ability of a Brewster Kahle to copy
+culture generally, the real restriction was economics. The market made it
+impossibly difficult to do anything about this ephemeral culture; the law had
+little practical effect.
+={ technology :
+ archival opportunity offered through +3
+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
+={ libraries :
+ archival function of +4
+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,
+_1 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."
+={ books :
+ total number of ;
+ films :
+ total number of ;
+ music recordings :
+ total number of
+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.
+={ Internet Archive ;
+ creative property :
+ noncommercial second life of ;
+ Disney, Walt ;
+ technology :
+ archival opportunity offered through +1
+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 some-one's "property." And the law
+of property restricts the freedoms that Kahle and others would exercise.
+1~ Chapter Ten: "Property"
+!_ Jack Valenti
+has been the president of the Motion Picture Association of America since 1966.
+He first came to Washington, D.C., with Lyndon Johnson's administration -
+literally. The famous picture of Johnson's swearing-in on Air Force One after
+the assassination of President Kennedy has Valenti in the background. In his
+almost forty years of running the MPAA, Valenti has established himself as
+perhaps the most prominent and effective lobbyist in Washington.
+={ Johnson, Lyndon ;
+ Kennedy, John F. ;
+ Motion Picture Association of America (MPAA) +3 ;
+ film industry :
+ trade association of +3 ;
+ television :
+ industry association of +3 ;
+ Valenti, Jack :
+ background of
+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.
+={ Disney, Inc. ;
+ MGM ;
+ Paramount Pictures ;
+ Twentieth Century Fox ;
+ Sony Pictures Entertainment ;
+ Universal Pictures ;
+ Warner Brothers
+Valenti is only the third president of the MPAA. No president before him has
+had as much influence over that organization, or over Washington. As a Texan,
+Valenti has mastered the single most important political skill of a Southerner
+- the ability to appear simple and slow while hiding a lightning-fast
+intellect. To this day, Valenti plays the simple, humble man. But this Harvard
+MBA, and author of four books, who finished high school at the age of fifteen
+and flew more than fifty combat missions in World War II, is no Mr. Smith. When
+Valenti went to Washington, he mastered the city in a quintessentially
+Washingtonian way.
+={ Valenti, Jack :
+ background of +5
+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."
+={ film industry :
+ rating system of ;
+ speech, freedom of :
+ film-rating system vs.
+In 1982, Valenti's testimony to Congress captured the strategy perfectly:
+={ Valenti, Jack :
+ on creative property rights +11
+_1 No matter the lengthy arguments made, no matter the charges and the
+counter-charges, no matter the tumult and the shouting, reasonable men and
+women will keep returning to the fundamental issue, the central theme which
+animates this entire debate: /{Creative property owners must be accorded the
+same rights and protection resident in all other property owners in the
+nation}/. That is the issue. That is the question. And that is the rostrum on
+which this entire hearing and the debates to follow must rest."~{ Home
+Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808,
+H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on Courts, Civil
+Liberties, and the Administration of Justice of the Committee on the Judiciary
+of the House of Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of
+Jack Valenti). }~
+={ creative property :
+ other property rights vs. +25
+The strategy of this rhetoric, like the strategy of most of Valenti's rhetoric,
+is brilliant and simple and brilliant because simple. The "central theme" to
+which "reasonable men and women" will return is this: "Creative property owners
+must be accorded the same rights and protections resident in all other property
+owners in the nation." There are no second-class citizens, Valenti might have
+continued. There should be no second-class property owners.
+This claim has an obvious and powerful intuitive pull. It is stated with such
+clarity as to make the idea as obvious as the notion that we use elections to
+pick presidents. But in fact, there is no more extreme a claim made by
+/{anyone}/ who is serious in this debate than this claim of Valenti's. Jack
+Valenti, however sweet and however brilliant, is perhaps the nation's foremost
+extremist when it comes to the nature and scope of "creative property." His
+views have /{no}/ reasonable connection to our actual legal tradition, even if
+the subtle pull of his Texan charm has slowly redefined that tradition, at
+least in Washington.
+={ creative property :
+ constitutional tradition on +9
+While "creative property" is certainly "property" in a nerdy and precise sense
+that lawyers are trained to understand,~{ Lawyers speak of "property" not as an
+absolute thing, but as a bundle of rights that are sometimes associated with a
+particular object. Thus, my "property right" to my car gives me the right to
+exclusive use, but not the right to drive at 150 miles an hour. For the best
+effort to connect the ordinary meaning of "property" to "lawyer talk," see
+Bruce Ackerman, /{Private Property and the Constitution}/ (New Haven: Yale
+University Press, 1977), 26-27. }~ it has never been the case, nor should it
+be, that "creative property owners" have been "ac- corded the same rights and
+protection resident in all other property owners." Indeed, if creative property
+owners were given the same rights as all other property owners, that would
+effect a radical, and radically undesirable, change in our tradition.
+Valenti knows this. But he speaks for an industry that cares squat for our
+tradition and the values it represents. He speaks for an industry that is
+instead fighting to restore the tradition that the British overturned in 1710.
+In the world that Valenti's changes would create, a powerful few would exercise
+powerful control over how our creative culture would develop.
+I have two purposes in this chapter. The first is to convince you that,
+historically, Valenti's claim is absolutely wrong. The second is to convince
+you that it would be terribly wrong for us to reject our history. We have
+always treated rights in creative property differently from the rights resident
+in all other property owners. They have never been the same. And they should
+never be the same, because, however counterintuitive this may seem, to make
+them the same would be to fundamentally weaken the opportunity for new creators
+to create. Creativity depends upon the owners of creativity having less than
+perfect control.
+Organizations such as the MPAA, whose board includes the most powerful of the
+old guard, have little interest, their rhetoric notwithstanding, in assuring
+that the new can displace them. No organization does. No person does. (Ask me
+about tenure, for example.) But what's good for the MPAA is not necessarily
+good for America. A society that defends the ideals of free culture must
+preserve precisely the opportunity for new creativity to threaten the old.
+={ Motion Picture Association of America (MPAA) ;
+ film industry :
+ trade association of
+!_ 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.
+={ Constitution, U.S. :
+ on creative property +4
+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.
+={ Constitution, U.S. :
+ Fifth Amendment to | Takings Clause of +1 ;
+ Fifth Amendment ;
+ Takings Clause +1 ;
+ property rights :
+ Takings Clause on +1
+Yet the very same Constitution speaks very differently about what Valenti calls
+"creative property." In the clause granting Congress the power to create
+"creative property," the Constitution /{requires}/ that after a "limited time,"
+Congress take back the rights that it has granted and set the "creative
+property" free to the public domain. Yet when Congress does this, when the
+expiration of a copyright term "takes" your copyright and turns it over to the
+public domain, Congress does not have any obligation to pay "just compensation"
+for this "taking." Instead, the same Constitution that requires compensation
+for your land requires that you lose your "creative property" right without any
+compensation at all.
+The Constitution thus on its face states that these two forms of property are
+not to be accorded the same rights. They are plainly to be treated differently.
+Valenti is therefore not just asking for a change in our tradition when he
+argues that creative-property owners should be accorded the same rights as
+every other property-right owner. He is effectively arguing for a change in our
+Constitution itself.
+Arguing for a change in our Constitution is not necessarily wrong. There was
+much in our original Constitution that was plainly wrong. The Constitution of
+1789 entrenched slavery; it left senators to be appointed rather than elected;
+it made it possible for the electoral college to produce a tie between the
+president and his own vice president (as it did in 1800). The framers were no
+doubt extraordinary, but I would be the first to admit that they made big
+mistakes. We have since rejected some of those mistakes; no doubt there could
+be others that we should reject as well. So my argument is not simply that
+because Jefferson did it, we should, too.
+={ Jefferson, Thomas +1 ;
+ copyright law :
+ innovative freedom balanced with fair compensation in +2 ;
+ electoral college ;
+ Senate, U.S. ;
+ slavery
+Instead, my argument is that because Jefferson did it, we should at least try
+to understand /{why}/. Why did the framers, fanatical property types that they
+were, reject the claim that creative property be given the same rights as all
+other property? Why did they require that for creative property there must be a
+public domain?
+To answer this question, we need to get some perspective on the history of
+these "creative property" rights, and the control that they enabled. Once we
+see clearly how differently these rights have been defined, we will be in a
+better position to ask the question that should be at the core of this war: Not
+/{whether}/ creative property should be protected, but how. Not /{whether}/ we
+will enforce the rights the law gives to creative-property owners, but what the
+particular mix of rights ought to be. Not /{whether}/ artists should be paid,
+but whether institutions designed to assure that artists get paid need also
+control how culture develops.
+To answer these questions, we need a more general way to talk about how
+property is protected. More precisely, we need a more general way than the
+narrow language of the law allows. In /{Code and Other Laws of Cyberspace}/, I
+used a simple model to capture this more general perspective. For any
+particular right or regulation, this model asks how four different modalities
+of regulation interact to support or weaken the right or regulation. I
+represented it with this diagram:
+={ Code (Lessig) ;
+ Lessig, Lawrence ;
+ free culture :
+ four modalities of constraint on +20 ;
+ regulation :
+ four modalities of +20 ;
+ copyright law :
+ as ex post regulation modality +5 ;
+ law :
+ as constraint modality +5
+{freeculture01.png 350x350 }
+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.
+={ Madonna }
+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.
+={ norms, regulatory influence of +1 }
+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.
+={ market constraints +1 }
+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.
+={ architecture, constraint effected through }
+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.
+={ law :
+ as constraint modality +5
+The second point follows directly: If we want to understand the effective
+freedom that anyone has at a given moment to do any particular thing, we have
+to consider how these four modalities interact. Whether or not there are other
+constraints (there may well be; my claim is not about comprehensiveness), these
+four are among the most significant, and any regulator (whether controlling or
+freeing) must consider how these four in particular interact.
+So, for example, consider the "freedom" to drive a car at a high speed. That
+freedom is in part restricted by laws: speed limits that say how fast you can
+drive in particular places at particular times. It is in part restricted by
+architecture: speed bumps, for example, slow most rational drivers; governors
+in buses, as another example, set the maximum rate at which the driver can
+drive. The freedom is in part restricted by the market: Fuel efficiency drops
+as speed increases, thus the price of gasoline indirectly constrains speed. And
+finally, the norms of a community may or may not constrain the freedom to
+speed. Drive at 50 mph by a school in your own neighborhood and you're likely
+to be punished by the neighbors. The same norm wouldn't be as effective in a
+different town, or at night.
+={ architecture, constraint effected through ;
+ market constraints ;
+ norms, regulatory influence of ;
+ driving speed, constraints on +1 ;
+ speeding, constraints on +1
+The final point about this simple model should also be fairly clear: While
+these four modalities are analytically independent, law has a special role in
+affecting the three.~{ By describing the way law affects the other three
+modalities, I don't mean to suggest that the other three don't affect law.
+Obviously, they do. Law's only distinction is that it alone speaks as if it has
+a right self-consciously to change the other three. The right of the other
+three is more timidly expressed. See Lawrence Lessig, /{Code: And Other Laws of
+Cyberspace}/ (New York: Basic Books, 1999): 90-95; Lawrence Lessig, "The New
+Chicago School," /{Journal of Legal Studies,}/ June 1998. }~ The law, in other
+words, sometimes operates to increase or decrease the constraint of a
+particular modality. Thus, the law might be used to increase taxes on gasoline,
+so as to increase the incentives to drive more slowly. The law might be used to
+mandate more speed bumps, so as to increase the difficulty of driving rapidly.
+The law might be used to fund ads that stigmatize reckless driving. Or the law
+might be used to require that other laws be more strict - a federal requirement
+that states decrease the speed limit, for example" so as to decrease the
+attractiveness of fast driving.
+{freeculture02.png 540x350 }
+These constraints can thus change, and they can be changed. To understand the
+effective protection of liberty or protection of property at any particular
+moment, we must track these changes over time. A restriction imposed by one
+modality might be erased by another. A freedom enabled by one modality might be
+displaced by another.~{ Some people object to this way of talking about
+"liberty." They object because their focus when considering the constraints
+that exist at any particular moment are constraints imposed exclusively by the
+government. For instance, if a storm destroys a bridge, these people think it
+is meaningless to say that one's liberty has been restrained. A bridge has
+washed out, and it's harder to get from one place to another. To talk about
+this as a loss of freedom, they say, is to confuse the stuff of politics with
+the vagaries of ordinary life. I don't mean to deny the value in this narrower
+view, which depends upon the context of the inquiry. I do, however, mean to
+argue against any insistence that this narrower view is the only proper view of
+liberty. As I argued in /{Code,}/ we come from a long tradition of political
+thought with a broader focus than the narrow question of what the government
+did when. John Stuart Mill defended freedom of speech, for example, from the
+tyranny of narrow minds, not from the fear of government prosecution; John
+Stuart Mill, /{On Liberty}/ (Indiana: Hackett Publishing Co., 1978), 19. John
+R. Commons famously defended the economic freedom of labor from constraints
+imposed by the market; John R. Commons, "The Right to Work," in Malcom
+Rutherford and Warren J. Samuels, eds., /{John R. Commons: Selected Essays}/
+(London: Routledge: 1997), 62. The Americans with Disabilities Act increases
+the liberty of people with physical disabilities by changing the architecture
+of certain public places, thereby making access to those places easier; 42
+/{United States Code}/, section 12101 (2000). Each of these interventions to
+change existing conditions changes the liberty of a particular group. The
+effect of those interventions should be accounted for in order to understand
+the effective liberty that each of these groups might face. }~
+2~ Why Hollywood Is Right
+The most obvious point that this model reveals is just why, or just how,
+Hollywood is right. The copyright warriors have rallied Congress and the courts
+to defend copyright. This model helps us see why that rallying makes sense.
+={ copyright :
+ four regulatory modalities on +8
+Let's say this is the picture of copyright's regulation before the Internet:
+{freeculture01.png 350x350 }
+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.
+={ architecture, constraint effected through +1 ;
+ law :
+ as constraint modality ;
+ norms, regulatory influence of +1
+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.
+={ Internet :
+ copyright regulatory balance lost with +4 ;
+ peer-to-peer (p2p) file sharing :
+ regulatory balance lost in ;
+ market constraints ;
+ MP3s
+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.
+={ technology :
+ established industries threatened by changes in
+{freeculture03.png 350x350 }
+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.
+={ Commerce, U.S. Department of ;
+ regulation :
+ as establishment protectionism +6
+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.
+={ farming ;
+ steel industry
+Thus, there's nothing wrong or surprising in the content industry's campaign to
+protect itself from the harmful consequences of a technological innovation. And
+I would be the last person to argue that the changing technology of the
+Internet has not had a profound effect on the content industry's way of doing
+business, or as John Seely Brown describes it, its "architecture of revenue."
+={ Brown, John Seely }
+But just because a particular interest asks for government support, it doesn't
+follow that support should be granted. And just because technology has weakened
+a particular way of doing business, it doesn't follow that the government
+should intervene to support that old way of doing business. Kodak, for example,
+has lost perhaps as much as 20 percent of their traditional film market to the
+emerging technologies of digital cameras.~{ See Geoffrey Smith, "Film vs.
+Digital: Can Kodak Build a Bridge?" BusinessWeek online, 2 August 1999,
+available at link #23. For a more recent analysis of Kodak's place in the
+market, see Chana R. Schoenberger, "Can Kodak Make Up for Lost Moments?", 6 October 2003, available at link #24. }~ Does anyone believe the
+government should ban digital cameras just to support Kodak? Highways have
+weakened the freight business for railroads. Does anyone think we should ban
+trucks from roads /{for the purpose of}/ protecting the railroads? Closer to
+the subject of this book, remote channel changers have weakened the
+"stickiness" of television advertising (if a boring commercial comes on the TV,
+the remote makes it easy to surf ), and it may well be that this change has
+weakened the television advertising market. But does anyone believe we should
+regulate remotes to reinforce commercial television? (Maybe by limiting them to
+function only once a second, or to switch to only ten channels within an hour?)
+={ advertising ;
+ television :
+ advertising on ;
+ commercials ;
+ camera technology ;
+ digital cameras ;
+ Kodak cameras ;
+ railroad industry ;
+ remote channel changers
+The obvious answer to these obviously rhetorical questions is no. In a free
+society, with a free market, supported by free enterprise and free trade, the
+government's role is not to support one way of doing business against others.
+Its role is not to pick winners and protect them against loss. If the
+government did this generally, then we would never have any progress. As
+Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software
+patents, "established companies have an interest in excluding future
+competitors."~{ Fred Warshofsky, /{The Patent Wars}/ (New York: Wiley, 1994),
+170-71. }~ 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.
+={ free market, technological changes in +2 ;
+ Brezhnev, Leonid ;
+ FM radio ;
+ radio :
+ FM spectrum of ;
+ Gates, Bill ;
+ market competition ;
+Thus, while it is understandable for industries threatened with new
+technologies that change the way they do business to look to the government for
+protection, it is the special duty of policy makers to guarantee that that
+protection not become a deterrent to progress. It is the duty of policy makers,
+in other words, to assure that the changes they create, in response to the
+request of those hurt by changing technology, are changes that preserve the
+incentives and opportunities for innovation and change.
+In the context of laws regulating speech - which include, obviously, copyright
+law - that duty is even stronger. When the industry complaining about changing
+technologies is asking Congress to respond in a way that burdens speech and
+creativity, policy makers should be especially wary of the request. It is
+always a bad deal for the government to get into the business of regulating
+speech markets. The risks and dangers of that game are precisely why our
+framers created the First Amendment to our Constitution: "Congress shall make
+no law ... abridging the freedom of speech." So when Congress is being asked to
+pass laws that would "abridge" the freedom of speech, it should ask" carefully
+- whether such regulation is justified.
+={ Constitution, U.S. :
+ First Amendment to ;
+ First Amendment ;
+ speech, freedom of :
+ constitutional guarantee of
+My argument just now, however, has nothing to do with whether the changes that
+are being pushed by the copyright warriors are "justified." My argument is
+about their effect. For before we get to the question of justification, a hard
+question that depends a great deal upon your values, we should first ask
+whether we understand the effect of the changes the content industry wants.
+Here's the metaphor that will capture the argument to follow.
+In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul
+Hermann Müller won the Nobel Prize for his work demonstrating the insecticidal
+properties of DDT. By the 1950s, the insecticide was widely used around the
+world to kill disease-carrying pests. It was also used to increase farm
+={ Müller, Paul Hermann +3 ;
+ DDT +6 ;
+ insecticide, environmental consequences of +6 ;
+ farming +4
+No one doubts that killing disease-carrying pests or increasing crop production
+is a good thing. No one doubts that the work of Müller was important and
+valuable and probably saved lives, possibly millions.
+But in 1962, Rachel Carson published /{Silent Spring}/, which argued that DDT,
+whatever its primary benefits, was also having unintended environmental
+consequences. Birds were losing the ability to reproduce. Whole chains of the
+ecology were being destroyed.
+={ Carson, Rachel ;
+ Silent Spring (Carson) ;
+ environmentalism +4
+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
+It is to this image precisely that Duke University law professor James Boyle
+appeals when he argues that we need an "environmentalism" for culture.~{ See,
+for example, James Boyle, "A Politics of Intellectual Property:
+Environmentalism for the Net?" /{Duke Law Journal}/ 47 (1997): 87. }~ His
+point, and the point I want to develop in the balance of this chapter, is not
+that the aims of copyright are flawed. Or that authors should not be paid for
+their work. Or that music should be given away "for free." The point is that
+some of the ways in which we might protect authors will have unintended
+consequences for the cultural environment, much like DDT had for the natural
+environment. And just as criticism of DDT is not an endorsement of malaria or
+an attack on farmers, so, too, is criticism of one particular set of
+regulations protecting copyright not an endorsement of anarchy or an attack on
+authors. It is an environment of creativity that we seek, and we should be
+aware of our actions' effects on the environment.
+={ Boyle, James ;
+ copyright law :
+ innovative freedom balanced with fair compensation in +1
+My argument, in the balance of this chapter, tries to map exactly this effect.
+No doubt the technology of the Internet has had a dramatic effect on the
+ability of copyright owners to protect their content. But there should also be
+little doubt that when you add together the changes in copyright law over time,
+plus the change in technology that the Internet is undergoing just now, the net
+effect of these changes will not be only that copyrighted work is effectively
+protected. Also, and generally missed, the net effect of this massive increase
+in protection will be devastating to the environment for creativity.
+In a line: To kill a gnat, we are spraying DDT with consequences for free
+culture that will be far more devastating than that this gnat will be lost.
+2~ Beginnings
+America copied English copyright law. Actually, we copied and improved English
+copyright law. Our Constitution makes the purpose of "creative property" rights
+clear; its express limitations reinforce the English aim to avoid overly
+powerful publishers.
+={ Constitution, U.S. :
+ on creative property | copyright purpose established in +6 | Progress Clause of +5 ;
+ copyright :
+ constitutional purpose of | duration of ;
+ creative property :
+ constitutional tradition on +6 ;
+ Progress Clause +5 ;
+ copyright :
+ duration of
+The power to establish "creative property" rights is granted to Congress in a
+way that, for our Constitution, at least, is very odd. Article I, section 8,
+clause 8 of our Constitution states that:
+={ Congress, U.S. :
+ in constitutional Progress Clause +2
+_1 Congress has the power to promote the Progress of Science and useful Arts,
+by securing for limited Times to Authors and Inventors the exclusive Right to
+their respective Writings and Discoveries."
+We can call this the "Progress Clause," for notice what this clause does not
+say. It does not say Congress has the power to grant "creative property
+rights." It says that Congress has the power /{to promote progress}/. The grant
+of power is its purpose, and its purpose is a public one, not the purpose of
+enriching publishers, nor even primarily the purpose of rewarding authors.
+The Progress Clause expressly limits the term of copyrights. As we saw in
+chapter 6, the English limited the term of copyright so as to assure that a few
+would not exercise disproportionate control over culture by exercising
+disproportionate control over publishing. We can assume the framers followed
+the English for a similar purpose. Indeed, unlike the English, the framers
+reinforced that objective, by requiring that copyrights extend "to Authors"
+={ copyright law :
+ as protection of creators +2 | history of American +22
+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.
+={ Senate, U.S. ;
+ Constitution, U.S. :
+ structural checks and balances of ;
+ electoral college
+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
+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:
+={ copyright :
+ four regulatory modalities on
+{freeculture01.png 350x350 }
+%% image 05 same as 01, renumber?
+We will end here:
+{freeculture04.png 310x350 }
+Let me explain how.
+2~ Law: Duration
+={ copyright :
+ duration of +14
+When the first Congress enacted laws to protect creative property, it faced the
+same uncertainty about the status of creative property that the English had
+confronted in 1774. Many states had passed laws protecting creative property,
+and some believed that these laws simply supplemented common law rights that
+already protected creative authorship.~{ William W. Crosskey, /{Politics and
+the Constitution in the History of the United States}/ (London: Cambridge
+University Press, 1953), vol. 1, 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). }~
+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.
+={ Congress, U.S. :
+ on copyright laws +2 ;
+ Copyright Act (1790) +3 ;
+ creative property :
+ common law protections of ;
+ public domain :
+ balance of U.S. content in +5
+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.
+={ Statute of Anne (1710) ;
+ law :
+ federal vs. state +2
+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.
+={ copyright :
+ renewability of +11
+While there were many works created in the United States in the first ten years
+of the Republic, only 5 percent of the works were actually registered under the
+federal copyright regime. Of all the work created in the United States both
+before 1790 and from 1790 through 1800, 95 percent immediately passed into the
+public domain; the balance would pass into the pubic domain within twenty-eight
+years at most, and more likely within fourteen years.~{ Although 13,000 titles
+were published in the United States from 1790 to 1799, only 556 copyright
+registrations were filed; John Tebbel, /{A History of Book Publishing in the
+United States,}/ vol. 1, /{The Creation of an Industry, 1630- 1865}/ (New York:
+Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only twelve
+were copyrighted under the 1790 act; William J. Maher, /{Copyright Term,
+Retrospective Extension and the Copyright Law of 1790 in Historical Context,}/
+7-10 (2002), available at link #25. Thus, the overwhelming majority of works
+fell immediately into the public domain. Even those works that were copyrighted
+fell into the public domain quickly, because the term of copyright was short.
+The initial term of copyright was fourteen years, with the option of renewal
+for an additional fourteen years. Copyright Act of May 31, 1790, §1, 1 stat.
+124. }~
+This system of renewal was a crucial part of the American system of copyright.
+It assured that the maximum terms of copyright would be granted only for works
+where they were wanted. After the initial term of fourteen years, if it wasn't
+worth it to an author to renew his copyright, then it wasn't worth it to
+society to insist on the copyright, either.
+Fourteen years may not seem long to us, but for the vast majority of copyright
+owners at that time, it was long enough: Only a small minority of them renewed
+their copyright after fourteen years; the balance allowed their work to pass
+into the public domain.~{ Few copyright holders ever chose to renew their
+copyrights. For instance, of the 25,006 copyrights registered in 1883, only 894
+were renewed in 1910. For a year-by-year analysis of copyright renewal rates,
+see Barbara A. Ringer, "Study No. 31: Renewal of Copyright," /{Studies on
+Copyright,}/ vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more
+recent and comprehensive analysis, see William M. Landes and Richard A. Posner,
+"Indefinitely Renewable Copyright," /{University of Chicago Law Review}/ 70
+(2003): 471, 498-501, and accompanying figures. }~
+Even today, this structure would make sense. Most creative work has an actual
+commercial life of just a couple of years. Most books fall out of print after
+one year.~{ See Ringer, ch. 9, n. 2. }~ When that happens, the used books are
+traded free of copyright regulation. Thus the books are no longer
+/{effectively}/ controlled by copyright. The only practical commercial use of
+the books at that time is to sell the books as used books; that use - because
+it does not involve publication - is effectively free.
+={ books :
+ resales of | out of print
+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.
+={ Congress, U.S. :
+ on copyright laws +6 | copyright terms extended by +6 ;
+ copyright law :
+ term extensions in +6
+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.
+={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) +1 ;
+ public domain :
+ future patents vs. future copyrights in +4
+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.
+={ patents :
+ in public domain
+The effect of these extensions has been exacerbated by another, little-noticed
+change in the copyright law. Remember I said that the framers established a
+two- part copyright regime, requiring a copyright owner to renew his copyright
+after an initial term. The requirement of renewal meant that works that no
+longer needed copyright protection would pass more quickly into the public
+domain. The works remaining under protection would be those that had some
+continuing commercial value.
+The United States abandoned this sensible system in 1976. For all works created
+after 1978, there was only one copyright term - the maximum term. For "natural"
+authors, that term was life plus fifty years. For corporations, the term was
+seventy-five years. Then, in 1992, Congress abandoned the renewal requirement
+for all works created before 1978. All works still under copyright would be
+accorded the maximum term then available. After the Sonny Bono Act, that term
+was ninety-five years.
+={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) ;
+ copyright :
+ of natural authors vs. corporations ;
+ corporations :
+ copyright terms for
+This change meant that American law no longer had an automatic way to assure
+that works that were no longer exploited passed into the public domain. And
+indeed, after these changes, it is unclear whether it is even possible to put
+works into the public domain. The public domain is orphaned by these changes in
+copyright law. Despite the requirement that terms be "limited," we have no
+evidence that anything will limit them.
+The effect of these changes on the average duration of copyright is dramatic.
+In 1973, more than 85 percent of copyright owners failed to renew their
+copyright. That meant that the average term of copyright in 1973 was just 32.2
+years. Because of the elimination of the renewal requirement, the average term
+of copyright is now the maximum term. In thirty years, then, the average term
+has tripled, from 32.2 years to 95 years.~{ These statistics are understated.
+Between the years 1910 and 1962 (the first year the renewal term was extended),
+the average term was never more than thirty-two years, and averaged thirty
+years. See Landes and Posner, "Indefinitely Renewable Copyright," loc. cit. }~
+2~ Law: Scope
+={ copyright :
+ scope of +17
+The "scope" of a copyright is the range of rights granted by the law. The scope
+of American copyright has changed dramatically. Those changes are not
+necessarily bad. But we should understand the extent of the changes if we're to
+keep this debate in context.
+In 1790, that scope was very narrow. Copyright covered only "maps, charts, and
+books." That means it didn't cover, for example, music or architecture. More
+significantly, the right granted by a copyright gave the author the exclusive
+right to "publish" copyrighted works. That means someone else violated the
+copyright only if he republished the work without the copyright owner's
+permission. Finally, the right granted by a copyright was an exclusive right to
+that particular book. The right did not extend to what lawyers call "derivative
+works." It would not, therefore, interfere with the right of someone other than
+the author to translate a copyrighted book, or to adapt the story to a
+different form (such as a drama based on a published book).
+={ copyright law :
+ on republishing vs. transformation of original work ;
+ derivative works :
+ historical shift in copyright coverage of +2
+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
+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.
+={ copyright :
+ marking of +2 ;
+ formalities +2 ;
+ copyright law :
+ registration requirement of +2
+The reason for the registration requirement was the sensible understanding that
+for most works, no copyright was required. Again, in the first ten years of the
+Republic, 95 percent of works eligible for copyright were never copyrighted.
+Thus, the rule reflected the norm: Most works apparently didn't need copyright,
+so registration narrowed the regulation of the law to the few that did. The
+same reasoning justified the requirement that a work be marked as copyrighted -
+that way it was easy to know whether a copyright was being claimed. The
+requirement that works be deposited was to assure that after the copyright
+expired, there would be a copy of the work somewhere so that it could be copied
+by others without locating the original author.
+All of these "formalities" were abolished in the American system when we
+decided to follow European copyright law. There is no requirement that you
+register a work to get a copyright; the copyright now is automatic; the
+copyright exists whether or not you mark your work with a ©; and the copyright
+exists whether or not you actually make a copy available for others to copy.
+={ copyright law :
+ European
+Consider a practical example to understand the scope of these differences.
+If, in 1790, you wrote a book and you were one of the 5 percent who actually
+copyrighted that book, then the copyright law protected you against another
+publisher's taking your book and republishing it without your permission. The
+aim of the act was to regulate publishers so as to prevent that kind of unfair
+competition. In 1790, there were 174 publishers in the United States.~{ See
+Thomas Bender and David Sampliner, "Poets, Pirates, and the Creation of
+American Literature," 29 /{New York University Journal of International Law and
+Politics}/ 255 (1997), and James Gilraeth, ed., Federal Copyright Records,
+1790- 1800 (U.S. G.P.O., 1987). }~ The Copyright Act was thus a tiny regulation
+of a tiny proportion of a tiny part of the creative market in the United States
+- publishers.
+={ Copyright Act (1790) +1 }
+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.
+={ copyright law :
+ on republishing vs. transformation of original work +8 ;
+ derivative works :
+ piracy vs. +3 ;
+ piracy :
+ derivative work vs. +6
+Today the story is very different: If you write a book, your book is
+automatically protected. Indeed, not just your book. Every e-mail, every note
+to your spouse, every doodle, /{every}/ creative act that's reduced to a
+tangible form - all of this is automatically copyrighted. There is no need to
+register or mark your work. The protection follows the creation, not the steps
+you take to protect it.
+That protection gives you the right (subject to a narrow range of fair use
+exceptions) to control how others copy the work, whether they copy it to
+republish it or to share an excerpt.
+That much is the obvious part. Any system of copyright would control competing
+publishing. But there's a second part to the copyright of today that is not at
+all obvious. This is the protection of "derivative rights." If you write a
+book, no one can make a movie out of your book without permission. No one can
+translate it without permission. CliffsNotes can't make an abridgment unless
+permission is granted. All of these derivative uses of your original work are
+controlled by the copyright holder. The copyright, in other words, is now not
+just an exclusive right to your writings, but an exclusive right to your
+writings and a large proportion of the writings inspired by them.
+It is this derivative right that would seem most bizarre to our framers, though
+it has become second nature to us. Initially, this expansion was created to
+deal with obvious evasions of a narrower copyright. If I write a book, can you
+change one word and then claim a copyright in a new and different book?
+Obviously that would make a joke of the copyright, so the law was properly
+expanded to include those slight modifications as well as the verbatim original
+In preventing that joke, the law created an astonishing power within a free
+culture - at least, it's astonishing when you understand that the law applies
+not just to the commercial publisher but to anyone with a computer. I
+understand the wrong in duplicating and selling someone else's work. But
+whatever /{that}/ wrong is, transforming someone else's work is a different
+wrong. Some view transformation as no wrong at all - they believe that our law,
+as the framers penned it, should not protect derivative rights at all.~{
+Jonathan Zittrain, "The Copyright Cage," /{Legal Affairs,}/ July/August 2003,
+available at link #26. }~ Whether or not you go that far, it seems plain that
+whatever wrong is involved is fundamentally different from the wrong of direct
+Yet copyright law treats these two different wrongs in the same way. I can go
+to court and get an injunction against your pirating my book. I can go to court
+and get an injunction against your transformative use of my book.~{ Professor
+Rubenfeld has presented a powerful constitutional argument about the difference
+that copyright law should draw (from the perspective of the First Amendment)
+between mere "copies" and derivative works. See Jed Rubenfeld, "The Freedom of
+Imagination: Copyright's Constitutionality," /{Yale Law Journal}/ 112 (2002):
+1-60 (see especially pp. 53-59). }~ These two different uses of my creative
+work are treated the same.
+This again may seem right to you. If I wrote a book, then why should you be
+able to write a movie that takes my story and makes money from it without
+paying me or crediting me? Or if Disney creates a creature called "Mickey
+Mouse," why should you be able to make Mickey Mouse toys and be the one to
+trade on the value that Disney originally created?
+={ Disney, Walt ;
+ Mickey Mouse
+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.
+2~ Law and Architecture: Reach
+Whereas originally the law regulated only publishers, the change in copyright's
+scope means that the law today regulates publishers, users, and authors. It
+regulates them because all three are capable of making copies, and the core of
+the regulation of copyright law is copies.~{ This is a simplification of the
+law, but not much of one. The law certainly regulates more than "copies" - a
+public performance of a copyrighted song, for example, is regulated even though
+performance per se doesn't make a copy; 17 /{United States Code,}/ section
+106(4). And it certainly sometimes doesn't regulate a "copy"; 17 /{United
+States Code,}/ section 112(a). But the presumption under the existing law
+(which regulates "copies;" 17 /{United States Code,}/ section 102) is that if
+there is a copy, there is a right. }~
+={ copyright law :
+ copies as core issue of +1 | scope of +2
+"Copies." That certainly sounds like the obvious thing for /{copy}/right 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.
+={ Valenti, Jack :
+ on creative property rights ;
+ creative property :
+ other property rights vs. +1
+This is perhaps the central claim of this book, so let me take this very slowly
+so that the point is not easily missed. My claim is that the Internet should at
+least force us to rethink the conditions under which the law of copyright
+automatically applies,~{ Thus, my argument is not that in each place that
+copyright law extends, we should repeal it. It is instead that we should have a
+good argument for its extending where it does, and should not determine its
+reach on the basis of arbitrary and automatic changes caused by technology. }~
+because it is clear that the current reach of copyright was never contemplated,
+much less chosen, by the legislators who enacted copyright law.
+We can see this point abstractly by beginning with this largely empty circle.
+{freeculture05.png 350x350 "uses" }
+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.
+={ books :
+ three types of uses of +9 ;
+ copyright law :
+ copies as core issue of +16 ;
+ Internet :
+ copyright applicability altered by technology of +16 ;
+ technology :
+ copyright intent altered by +16 ;
+ derivative works :
+ piracy vs. +3 ;
+ piracy :
+ derivative work vs. +3
+% piracy derivative work vs. in original index, not found, but included for page indicated
+{freeculture06.png 350x350 "unregulated" }
+Obviously, however, some uses of a copyrighted book are regulated by copyright
+law. Republishing the book, for example, makes a copy. It is therefore
+regulated by copyright law. Indeed, this particular use stands at the core of
+this circle of possible uses of a copyrighted work. It is the paradigmatic use
+properly regulated by copyright regulation (see first diagram on next page).
+Finally, there is a tiny sliver of otherwise regulated copying uses that remain
+unregulated because the law considers these "fair uses."
+={ fair use +6 ;
+ copyright law :
+ fair use and +6
+{freeculture07.png 350x350 }
+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.
+={ Constitution, U.S. :
+ First Amendment to ;
+ First Amendment
+{freeculture08.png 450x350 }
+{freeculture09.png 350x350 }
+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.
+={ copyright :
+ usage restrictions attached to +8
+Enter the Internet - a distributed, digital network where every use of a
+copyrighted work produces a copy.~{ I don't mean "nature" in the sense that it
+couldn't be different, but rather that its present instantiation entails a
+copy. Optical networks need not make copies of content they transmit, and a
+digital network could be designed to delete anything it copies so that the same
+number of copies remain. }~ And because of this single, arbitrary feature of
+the design of a digital network, the scope of category 1 changes dramatically.
+Uses that before were presumptively unregulated are now presumptively
+regulated. No longer is there a set of presumptively unregulated uses that
+define a freedom associated with a copyrighted work. Instead, each use is now
+subject to the copyright, because each use also makes a copy - category 1 gets
+sucked into category 2. And those who would defend the unregulated uses of
+copyrighted work must look exclusively to category 3, fair uses, to bear the
+burden of this shift.
+={ books :
+ on Internet +7 ;
+ Internet :
+ books on +7 ;
+ fair use :
+ Internet burdens on
+So let's be very specific to make this general point clear. Before the
+Internet, if you purchased a book and read it ten times, there would be no
+plausible /{copyright}/-related argument that the copyright owner could make to
+control that use of her book. Copyright law would have nothing to say about
+whether you read the book once, ten times, or every night before you went to
+bed. None of those instances of use - reading - could be regulated by copyright
+law because none of those uses produced a copy.
+But the same book as an e-book is effectively governed by a different set of
+rules. Now if the copyright owner says you may read the book only once or only
+once a month, then /{copyright law}/ would aid the copyright owner in
+exercising this degree of control, because of the accidental feature of
+copyright law that triggers its application upon there being a copy. Now if you
+read the book ten times and the license says you may read it only five times,
+then whenever you read the book (or any portion of it) beyond the fifth time,
+you are making a copy of the book contrary to the copyright owner's wish.
+={ e-books +5 ;
+ derivative works :
+ technological developments and +4
+There are some people who think this makes perfect sense. My aim just now is
+not to argue about whether it makes sense or not. My aim is only to make clear
+the change. Once you see this point, a few other points also become clear:
+First, making category 1 disappear is not anything any policy maker ever
+intended. Congress did not think through the collapse of the presumptively
+unregulated uses of copyrighted works. There is no evidence at all that policy
+makers had this idea in mind when they allowed our policy here to shift.
+Unregulated uses were an important part of free culture before the Internet.
+Second, this shift is especially troubling in the context of transformative
+uses of creative content. Again, we can all understand the wrong in commercial
+piracy. But the law now purports to regulate /{any}/ transformation you make of
+creative work using a machine. "Copy and paste" and "cut and paste" become
+crimes. Tinkering with a story and releasing it to others exposes the tinkerer
+to at least a requirement of justification. However troubling the expansion
+with respect to copying a particular work, it is extraordinarily troubling with
+respect to transformative uses of creative work.
+={ copyright law :
+ on republishing vs. transformation of original work +1
+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
+={ fair use :
+ Internet burdens on +1 ;
+ copyright law :
+ fair use and +1 ;
+ derivative works :
+ fair use vs. +1
+This point about fair use is totally ignored, even by advocates for free
+culture. We have been cornered into arguing that our rights depend upon fair
+use - never even addressing the earlier question about the expansion in
+effective regulation. A thin protection grounded in fair use makes sense when
+the vast majority of uses are /{unregulated}/. But when everything becomes
+presumptively regulated, then the protections of fair use are not enough.
+The case of Video Pipeline is a good example. Video Pipeline was in the
+business of making "trailer" advertisements for movies available to video
+stores. The video stores displayed the trailers as a way to sell videos. Video
+Pipeline got the trailers from the film distributors, put the trailers on tape,
+and sold the tapes to the retail stores.
+={ Video Pipeline +5 ;
+ advertising +2 ;
+ film industry :
+ trailer advertisements of +2
+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.
+={ browsing }
+In 1998, Video Pipeline informed Disney and other film distributors that it
+intended to distribute the trailers through the Internet (rather than sending
+the tapes) to distributors of their videos. Two years later, Disney told Video
+Pipeline to stop. The owner of Video Pipeline asked Disney to talk about the
+matter - he had built a business on distributing this content as a way to help
+sell Disney films; he had customers who depended upon his delivering this
+content. Disney would agree to talk only if Video Pipeline stopped the
+distribution immediately. Video Pipeline thought it was within their "fair use"
+rights to distribute the clips as they had. So they filed a lawsuit to ask the
+court to declare that these rights were in fact their rights.
+={ Disney, Inc. +3 ;
+ copyright law :
+ fair use and ;
+ copyright law :
+ copies as core issue of +3 ;
+ fair use :
+ legal intimidation tactics against +3
+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.
+={ copyright :
+ usage restrictions attached to +2 ;
+ copyright infringement lawsuits :
+ willful infringement findings in +2 ;
+ willful infringement
+Disney has the right to control its property, of course. But the video stores
+that were selling Disney's films also had some sort of right to be able to sell
+the films that they had bought from Disney. Disney's claim in court was that
+the stores were allowed to sell the films and they were permitted to list the
+titles of the films they were selling, but they were not allowed to show clips
+of the films as a way of selling them without Disney's permission.
+Now, you might think this is a close case, and I think the courts would
+consider it a close case. My point here is to map the change that gives Disney
+this power. Before the Internet, Disney couldn't really control how people got
+access to their content. Once a video was in the marketplace, the "first-sale
+doctrine" would free the seller to use the video as he wished, including
+showing portions of it in order to engender sales of the entire movie video.
+But with the Internet, it becomes possible for Disney to centralize control
+over access to this content. Because each use of the Internet produces a copy,
+use on the Internet becomes subject to the copyright owner's control. The
+technology expands the scope of effective control, because the technology
+builds a copy into every transaction.
+={ first-sale doctrine }
+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.
+={ Barnes & Noble ;
+ browsing ;
+ market competition
+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.
+2~ Architecture and Law: Force
+The disappearance of unregulated uses would be change enough, but a second
+important change brought about by the Internet magnifies its significance. This
+second change does not affect the reach of copyright regulation; it affects how
+such regulation is enforced.
+In the world before digital technology, it was generally the law that
+controlled whether and how someone was regulated by copyright law. The law,
+meaning a court, meaning a judge: In the end, it was a human, trained in the
+tradition of the law and cognizant of the balances that tradition embraced, who
+said whether and how the law would restrict your freedom.
+={ copyright law :
+ technology as automatic enforcer of ;
+ technology :
+ copyright enforcement controlled by
+There's a famous story about a battle between the Marx Brothers and Warner
+Brothers. The Marxes intended to make a parody of /{Casablanca}/. Warner
+Brothers objected. They wrote a nasty letter to the Marxes, warning them that
+there would be serious legal consequences if they went forward with their
+plan.~{ See David Lange, "Recognizing the Public Domain," /{Law and
+Contemporary Problems}/ 44 (1981): 172-73. }~
+={ Marx Brothers +3 ;
+ Warner Brothers +2 ;
+ Casablanca +1
+This led the Marx Brothers to respond in kind. They warned Warner Brothers that
+the Marx Brothers "were brothers long before you were."~{ Ibid. See also
+Vaidhyanathan, /{Copyrights and Copywrongs,}/ 1-3. }~ The Marx Brothers
+therefore owned the word /{brothers}/, and if Warner Brothers insisted on
+trying to control /{Casablanca}/, then the Marx Brothers would insist on
+control over /{brothers}/.
+An absurd and hollow threat, of course, because Warner Brothers, like the Marx
+Brothers, knew that no court would ever enforce such a silly claim. This
+extremism was irrelevant to the real freedoms anyone (including Warner
+Brothers) enjoyed.
+On the Internet, however, there is no check on silly rules, because on the
+Internet, increasingly, rules are enforced not by a human but by a machine:
+Increasingly, the rules of copyright law, as interpreted by the copyright
+owner, get built into the technology that delivers copyrighted content. It is
+code, rather than law, that rules. And the problem with code regulations is
+that, unlike law, code has no shame. Code would not get the humor of the Marx
+Brothers. The consequence of that is not at all funny.
+={ books :
+ on Internet +30 ;
+ Internet :
+ books on +28
+Consider the life of my Adobe eBook Reader.
+={ Adobe eBook Reader +2 ;
+ copyright law :
+ technology as automatic enforcer of +68 ;
+ technology :
+ copyright enforcement controlled by +68 ;
+ e-books +27
+An e-book is a book delivered in electronic form. An Adobe eBook is not a book
+that Adobe has published; Adobe simply produces the software that publishers
+use to deliver e-books. It provides the technology, and the publisher delivers
+the content by using the technology.
+On the next page is a picture of an old version of my Adobe eBook Reader.
+As you can see, I have a small collection of e-books within this e-book
+library. Some of these books reproduce content that is in the public domain:
+/{Middlemarch}/, for example, is in the public domain. Some of them reproduce
+content that is not in the public domain: My own book /{The Future of Ideas}/
+is not yet within the public domain.
+={ Future of Ideas, The (Lessig) ;
+ Lessig, Lawrence ;
+ Middlemarch (Eliot) +1 ;
+ public domain :
+ e-book restrictions on +9
+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.
+={ Internet :
+ copyright enforced through +46 ;
+ permissions :
+ coded controls vs. +23
+{freeculture10.png 340x450 }
+If you click on the Permissions button, you'll see a list of the permissions
+that the publisher purports to grant with this book.
+{freeculture11.png 560x250 }
+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.
+={ Middlemarch (Eliot) }
+{freeculture12.png 310x410 }
+Here's the e-book for another work in the public domain (including the
+translation): Aristotle's /{Politics}/.
+={ Aristotle ;
+ Politics (Aristotle)
+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.
+{freeculture13.png 560x220 }
+Finally (and most embarrassingly), here are the permissions for the original e-
+book version of my last book, /{The Future of Ideas}/:
+={ Future of Ideas, The (Lessig) ;
+ Lessig, Lawrence
+{freeculture14.png 560x224 }
+No copying, no printing, and don't you dare try to listen to this book!
+Now, the Adobe eBook Reader calls these controls "permissions" - as if the
+publisher has the power to control how you use these works. For works under
+copyright, the copyright owner certainly does have the power - up to the limits
+of the copyright law. But for work not under copyright, there is no such
+copyright power.~{ In principle, a contract might impose a requirement on me. I
+might, for example, buy a book from you that includes a contract that says I
+will read it only three times, or that I promise to read it three times. But
+that obligation (and the limits for creating that obligation) would come from
+the contract, not from copyright law, and the obligations of contract would not
+necessarily pass to anyone who subsequently acquired the book. }~ When my
+e-book of /{Middlemarch}/ says I have the permission to copy only ten text
+selections into the memory every ten days, what that really means is that the
+eBook Reader has enabled the publisher to control how I use the book on my
+computer, far beyond the control that the law would enable.
+The control comes instead from the code - from the technology within which the
+e- book "lives." Though the e-book says that these are permissions, they are
+not the sort of "permissions" that most of us deal with. When a teenager gets
+"permission" to stay out till midnight, she knows (unless she's Cinderella)
+that she can stay out till 2 A.M., but will suffer a punishment if she's
+caught. But when the Adobe eBook Reader says I have the permission to make ten
+copies of the text into the computer's memory, that means that after I've made
+ten copies, the computer will not make any more. The same with the printing
+restrictions: After ten pages, the eBook Reader will not print any more pages.
+It's the same with the silly restriction that says that you can't use the Read
+Aloud button to read my book aloud - it's not that the company will sue you if
+you do; instead, if you push the Read Aloud button with my book, the machine
+simply won't read aloud.
+These are /{controls}/, not permissions. Imagine a world where the Marx
+Brothers sold word processing software that, when you tried to type "Warner
+Brothers," erased "Brothers" from the sentence.
+={ Marx Brothers ;
+ Warner Brothers
+This is the future of copyright law: not so much copyright /{law}/ as copyright
+/{code}/. The controls over access to content will not be controls that are
+ratified by courts; the controls over access to content will be controls that
+are coded by programmers. And whereas the controls that are built into the law
+are always to be checked by a judge, the controls that are built into the
+technology have no similar built-in check.
+How significant is this? Isn't it always possible to get around the controls
+built into the technology? Software used to be sold with technologies that
+limited the ability of users to copy the software, but those were trivial
+protections to defeat. Why won't it be trivial to defeat these protections as
+We've only scratched the surface of this story. Return to the Adobe eBook
+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:
+={ Alice's Adventures in Wonderland (Caroll) +4 ;
+ public domain :
+ e-book restrictions on +4
+{freeculture15.png 560x310 }
+Here was a public domain children's book that you were not allowed to copy, not
+allowed to lend, not allowed to give, and, as the "permissions" indicated, not
+allowed to "read aloud"!
+The public relations nightmare attached to that final permission. For the text
+did not say that you were not permitted to use the Read Aloud button; it said
+you did not have the permission to read the book aloud. That led some people to
+think that Adobe was restricting the right of parents, for example, to read the
+book to their children, which seemed, to say the least, absurd.
+Adobe responded quickly that it was absurd to think that it was trying to
+restrict the right to read a book aloud. Obviously it was only restricting the
+ability to use the Read Aloud button to have the book read aloud. But the
+question Adobe never did answer is this: Would Adobe thus agree that a consumer
+was free to use software to hack around the restrictions built into the eBook
+Reader? If some company (call it Elcomsoft) developed a program to disable the
+technological protection built into an Adobe eBook so that a blind person, say,
+could use a computer to read the book aloud, would Adobe agree that such a use
+of an eBook Reader was fair? Adobe didn't answer because the answer, however
+absurd it might seem, is no.
+The point is not to blame Adobe. Indeed, Adobe is among the most innovative
+companies developing strategies to balance open access to content with
+incentives for companies to innovate. But Adobe's technology enables control,
+and Adobe has an incentive to defend this control. That incentive is
+understandable, yet what it creates is often crazy.
+To see the point in a particularly absurd context, consider a favorite story of
+mine that makes the same point.
+Consider the robotic dog made by Sony named "Aibo." The Aibo learns tricks,
+cuddles, and follows you around. It eats only electricity and that doesn't
+leave that much of a mess (at least in your house).
+={ Aibo robotic dog +6 ;
+ robotic dog +6 ;
+ Sony :
+ Aibo robotic dog produced by +6
+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 (and,
+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
+={ hacks +4 }
+"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 was giving information about how to teach the dog to do new tricks
+is just to say that was giving information to users of the Aibo pet
+about how to hack their computer "dog" to make it do new tricks (thus,
+If you're not a programmer or don't know many programmers, the word /{hack}/
+has a particularly unfriendly connotation. Nonprogrammers hack bushes or weeds.
+Nonprogrammers in horror movies do even worse. But to programmers, or coders,
+as I call them, /{hack}/ is a much more positive term. /{Hack}/ just means code
+that enables the program to do something it wasn't originally intended or
+enabled to do. If you buy a new printer for an old computer, you might find the
+old computer doesn't run, or "drive," the printer. If you discovered that,
+you'd later be happy to discover a hack on the Net by someone who has written a
+driver to enable the computer to drive the printer you just bought.
+Some hacks are easy. Some are unbelievably hard. Hackers as a community like to
+challenge themselves and others with increasingly difficult tasks. There's a
+certain respect that goes with the talent to hack well. There's a well-deserved
+respect that goes with the talent to hack ethically.
+The Aibo fan was displaying a bit of both when he hacked the program and
+offered to the world a bit of code that would enable the Aibo to dance jazz.
+The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that
+turned the dog into a more talented creature than Sony had built.
+I've told this story in many contexts, both inside and outside the United
+States. Once I was asked by a puzzled member of the audience, is it permissible
+for a dog to dance jazz in the United States? We forget that stories about the
+backcountry still flow across much of the world. So let's just be clear before
+we continue: It's not a crime anywhere (anymore) to dance jazz. Nor is it a
+crime to teach your dog to dance jazz. Nor should it be a crime (though we
+don't have a lot to go on here) to teach your robot dog to dance jazz. Dancing
+jazz is a completely legal activity. One imagines that the owner of
+thought, /{What possible problem could there be with teaching a robot dog to
+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.
+={ Felten, Ed +11 ;
+ Microsoft :
+ government case against
+But Felten's bravery was really tested in April 2001.~{ See Pamela Samuelson,
+"Anticircumvention Rules: Threat to Science," /{Science}/ 293 (2001): 2028;
+Brendan I. Koerner, "Play Dead: Sony Muzzles the Techies Who Teach a Robot Dog
+New Tricks," /{American Prospect,}/ 1 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,}/ 26 May 2001; Janelle Brown, "Is the RIAA Running Scared?", 26 April 2001; Electronic Frontier Foundation, "Frequently Asked
+Questions about /{Felten and USENIX v. RIAA}/ Legal Case," available at link
+#27. }~ He and a group of colleagues were working on a paper to be submitted at
+conference. The paper was intended to describe the weakness in an encryption
+system being developed by the Secure Digital Music Initiative as a technique to
+control the distribution of music.
+={ Secure Digital Music Initiative (SDMI) +5 ;
+ encryption systems +5 ;
+ Internet :
+ encryption systems designed for +5
+The SDMI coalition had as its goal a technology to enable content owners to
+exercise much better control over their content than the Internet, as it
+originally stood, granted them. Using encryption, SDMI hoped to develop a
+standard that would allow the content owner to say "this music cannot be
+copied," and have a computer respect that command. The technology was to be
+part of a "trusted system" of control that would get content owners to trust
+the system of the Internet much more.
+When SDMI thought it was close to a standard, it set up a competition. In
+exchange for providing contestants with the code to an SDMI-encrypted bit of
+content, contestants were to try to crack it and, if they did, report the
+problems to the consortium.
+Felten and his team figured out the encryption system quickly. He and the team
+saw the weakness of this system as a type: Many encryption systems would suffer
+the same weakness, and Felten and his team thought it worthwhile to point this
+out to those who study encryption.
+Let's review just what Felten was doing. Again, this is the United States. We
+have a principle of free speech. We have this principle not just because it is
+the law, but also because it is a really great idea. A strongly protected
+tradition of free speech is likely to encourage a wide range of criticism. That
+criticism is likely, in turn, to improve the systems or people or ideas
+={ speech, freedom of :
+ useful criticism fostered by
+What Felten and his colleagues were doing was publishing a paper describing the
+weakness in a technology. They were not spreading free music, or building and
+deploying this technology. The paper was an academic essay, unintelligible to
+most people. But it clearly showed the weakness in the SDMI system, and why
+SDMI would not, as presently constituted, succeed.
+What links these two, and Felten, is the letters they then
+received. received a letter from Sony about the hack.
+Though a jazz-dancing dog is perfectly legal, Sony wrote:
+={ Aibo robotic dog +1 ;
+ robotic dog +1 ;
+ Sony :
+ Aibo robotic dog produced by +1
+_1 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."
+={ circumvention technologies ;
+ Digital Millennium Copyright Act (DMCA) +7 ;
+ DMCA (Digital Millennium Copyright Act) +7 ;
+ copyright law :
+ circumvention technology banned by +19 ;
+ technology :
+ of circumvention
+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:
+={ Recording Industry Association of America (RIAA) :
+ on encryption system critique +1
+_1 Any disclosure of information gained from participating in the Public
+Challenge would be outside the scope of activities permitted by the Agreement
+and could subject you and your research team to actions under the Digital
+Millennium Copyright Act ("DMCA")."
+In both cases, this weirdly Orwellian law was invoked to control the spread of
+information. The Digital Millennium Copyright Act made spreading such
+information an offense.
+The DMCA was enacted as a response to copyright owners' first fear about
+cyberspace. The fear was that copyright control was effectively dead; the
+response was to find technologies that might compensate. These new technologies
+would be copyright protection technologies - technologies to control the
+replication and distribution of copyrighted material. They were designed as
+/{code}/ to modify the original /{code}/ of the Internet, to reestablish some
+protection for copyright owners.
+The DMCA was a bit of law intended to back up the protection of this code
+designed to protect copyrighted material. It was, we could say, /{legal code}/
+intended to buttress /{software code}/ which itself was intended to support the
+/{legal code of copyright}/.
+But the DMCA was not designed merely to protect copyrighted works to the extent
+copyright law protected them. Its protection, that is, did not end at the line
+that copyright law drew. The DMCA regulated devices that were designed to
+circumvent copyright protection measures. It was designed to ban those devices,
+whether or not the use of the copyrighted material made possible by that
+circumvention would have been a copyright violation.
+={ circumvention technologies +13 ;
+ fair use :
+ circumvention technology ban and +1 ;
+ technology :
+ of circumvention +13
+ 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's site was noncommercial, and the use did not enable subsequent
+copyright infringements, there's no doubt that'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
+={ Felten, Ed +1 ;
+ Aibo robotic dog ;
+ robotic dog ;
+ Sony :
+ Aibo robotic dog produced by ;
+ copyright law :
+ fair use and
+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.
+={ Recording Industry Association of America (RIAA) :
+ on circumvention technology
+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}/.
+={ Conrad, Paul ;
+ Rogers, Fred ;
+ cassette recording :
+ VCRs +10 ;
+ VCRs +10 ;
+ Mr. Rogers' Neighborhood ;
+ television :
+ VCR taping of +8
+_1 Some public stations, as well as commercial stations, program the
+"Neighborhood" at hours when some children cannot use it. I think that it's a
+real service to families to be able to record such programs and show them at
+appropriate times. I have always felt that with the advent of all of this new
+technology that allows people to tape the "Neighborhood" off-the-air, and I'm
+speaking for the "Neighborhood" because that's what I produce, that they then
+become much more active in the programming of their family's television life.
+Very frankly, I am opposed to people being programmed by others. My whole
+approach in broadcasting has always been "You are an important person just the
+way you are. You can make healthy decisions." Maybe I'm going on too long, but
+I just feel that anything that allows a person to be more active in the control
+of his or her life, in a healthy way, is important."~{ /{Sony Corporation of
+America v. Universal City Studios, Inc.,}/ 464 U.S. 417, 455 fn. 27 (1984).
+Rogers never changed his view about the VCR. See James Lardner, /{Fast Forward:
+Hollywood, the Japanese, and the Onslaught of the VCR}/ (New York: W. W.
+Norton, 1987), 270-71. }~
+Even though there were uses that were legal, because there were some uses that
+were illegal, the court held the companies producing the VCR responsible.
+This led Conrad to draw the cartoon below, which we can adopt to the DMCA.
+={ Conrad, Paul ;
+ Digital Millennium Copyright Act (DMCA) +2 ;
+ DMCA (Digital Millennium Copyright Act) +2
+No argument I have can top this picture, but let me try to get close.
+The anticircumvention provisions of the DMCA target copyright circumvention
+technologies. Circumvention technologies can be used for different ends. They
+can be used, for example, to enable massive pirating of copyrighted material -
+a bad end. Or they can be used to enable the use of particular copyrighted
+materials in ways that would be considered fair use - a good end.
+A handgun can be used to shoot a police officer or a child. Most would agree
+such a use is bad. Or a handgun can be used for target practice or to protect
+against an intruder. At least some would say that such a use would be good. It,
+too, is a technology that has both good and bad uses.
+={ guns +1 ;
+ handguns +1
+{freeculture16.png 425x500 }
+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.
+={ Recording Industry Association of America (RIAA) :
+ on circumvention technology +1
+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
+={ Conrad, Paul ;
+ Digital Millennium Copyright Act (DMCA) ;
+ DMCA (Digital Millennium Copyright Act) ;
+ Aibo robotic dog +1 ;
+ robotic dog +1 ;
+ copyright law :
+ fair use and +1 ;
+ fair use :
+ technological restriction of +1
+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 received.
+={ Felten, Ed }
+There is one final aspect of the interaction between architecture and law that
+contributes to the force of copyright's regulation. This is the ease with which
+infringements of the law can be detected. For contrary to the rhetoric common
+at the birth of cyberspace that on the Internet, no one knows you're a dog,
+increasingly, given changing technologies deployed on the Internet, it is easy
+to find the dog who committed a legal wrong. The technologies of the Internet
+are open to snoops as well as sharers, and the snoops are increasingly good at
+tracking down the identity of those who violate the rules.
+For example, imagine you were part of a /{Star Trek}/ fan club. You gathered
+every month to share trivia, and maybe to enact a kind of fan fiction about the
+show. One person would play Spock, another, Captain Kirk. The characters would
+begin with a plot from a real story, then simply continue it.~{ For an early
+and prescient analysis, see Rebecca Tushnet, "Legal Fictions, Copyright, Fan
+Fiction, and a New Common Law," /{Loyola of Los Angeles Entertainment Law
+Journal}/ 17 (1997): 651. }~
+Before the Internet, this was, in effect, a totally unregulated activity. No
+matter what happened inside your club room, you would never be interfered with
+by the copyright police. You were free in that space to do as you wished with
+this part of our culture. You were allowed to build on it as you wished without
+fear of legal control.
+={ Internet :
+ copyright enforced through +1
+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.
+={ bots }
+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.
+2~ Market: Concentration
+So copyright's duration has increased dramatically - tripled in the past thirty
+years. And copyright's scope has increased as well - from regulating only
+publishers to now regulating just about everyone. And copyright's reach has
+changed, as every action becomes a copy and hence presumptively regulated. And
+as technologists find better ways to control the use of content, and as
+copyright is increasingly enforced through technology, copyright's force
+changes, too. Misuse is easier to find and easier to control. This regulation
+of the creative process, which began as a tiny regulation governing a tiny part
+of the market for creative work, has become the single most important regulator
+of creativity there is. It is a massive expansion in the scope of the
+government's control over innovation and creativity; it would be totally
+unrecognizable to those who gave birth to copyright's control.
+Still, in my view, all of these changes would not matter much if it weren't for
+one more change that we must also consider. This is a change that is in some
+sense the most familiar, though its significance and scope are not well
+understood. It is the one that creates precisely the reason to be concerned
+about all the other changes I have described.
+This is the change in the concentration and integration of the media. In the
+past twenty years, the nature of media ownership has undergone a radical
+alteration, caused by changes in legal rules governing the media. Before this
+change happened, the different forms of media were owned by separate media
+companies. Now, the media is increasingly owned by only a few companies.
+Indeed, after the changes that the FCC announced in June 2003, most expect that
+within a few years, we will live in a world where just three companies control
+more than 85 percent of the media.
+={ FCC :
+ media ownership regulated by +2 ;
+ media :
+ ownership concentration in +21
+These changes are of two sorts: the scope of concentration, and its nature.
+Changes in scope are the easier ones to describe. As Senator John McCain
+summarized the data produced in the FCC's review of media ownership, "five
+companies control 85 percent of our media sources."~{ FCC Oversight: Hearing
+Before the Senate Commerce, Science and Transportation Committee, 108th Cong.,
+1st sess. (22 May 2003) (statement of Senator John McCain). }~ The five
+recording labels of Universal Music Group, BMG, Sony Music Entertainment,
+Warner Music Group, and EMI control 84.8 percent of the U.S. music market.~{
+Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to Slide,"
+/{New York Times,}/ 23 December 2002. }~ The "five largest cable companies pipe
+programming to 74 percent of the cable subscribers nationwide."~{ Molly Ivins,
+"Media Consolidation Must Be Stopped," /{Charleston Gazette,}/ 31 May 2003. }~
+={ BMG ;
+ cable television ;
+ EMI ;
+ McCain, John ;
+ recording industry :
+ ownership concentration in ;
+ Sony Music Entertainment ;
+ Universal Music Group ;
+ Warner Music Group ;
+ television :
+ ownership consolidation in
+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.
+={ radio :
+ ownership concentration in
+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.
+={ cable television +2 ;
+ television :
+ ownership consolidation in +2 ;
+ film industry :
+ consolidation of ;
+ newspapers :
+ ownership consolidation of +2
+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,
+={ Fallows, James +1 ;
+ radio :
+ ownership concentration in +2 ;
+ Murdoch, Rupert +1 }
+_1 Murdoch's companies now constitute a production system unmatched in its
+integration. They supply content - Fox movies ... Fox TV shows ...
+Fox-controlled sports broadcasts, plus newspapers and books. They sell the
+content to the public and to advertisers - in newspapers, on the broadcast
+network, on the cable channels. And they operate the physical distribution
+system through which the content reaches the customers. Murdoch's satellite
+systems now distribute News Corp. content in Europe and Asia; if Murdoch
+becomes DirecTV's largest single owner, that system will serve the same
+function in the United States."~{ James Fallows, "The Age of Murdoch,"
+/{Atlantic Monthly}/ (September 2003): 89. }~
+={ DirectTV ;
+ Fox (film company) ;
+ News Corp
+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:
+{freeculture17.png 560x350 }
+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
+={ innovation :
+ media conglomeration as disincentive for +13
+My view was that concentration wouldn't matter. I thought it was nothing more
+than a more efficient financial structure. But now, after reading and listening
+to a barrage of creators try to convince me to the contrary, I am beginning to
+change my mind.
+Here's a representative story that begins to suggest how this integration may
+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
+={ Lear, Norman +2 ;
+ ABC +1 ;
+ All in the Family ;
+ television :
+ independent production for +7
+Rather than comply, Lear simply took the show elsewhere. CBS was happy to have
+the series; ABC could not stop Lear from walking. The copyrights that Lear held
+assured an independence from network control.~{ Leonard Hill, "The Axis of
+Access," remarks before Weidenbaum Center Forum, "Entertainment Economics: The
+Movie Industry," St. Louis, Missouri, 3 April 2003 (transcript of prepared
+remarks available at link #28; for the Lear story, not included in the prepared
+remarks, see link #29). }~
+={ CBS }
+The network did not control those copyrights because the law forbade the
+networks from controlling the content they syndicated. The law required a
+separation between the networks and the content producers; that separation
+would guarantee Lear freedom. And as late as 1992, because of these rules, the
+vast majority of prime time television - 75 percent of it - was "independent"
+of the networks.
+In 1994, the FCC abandoned the rules that required this independence. After
+that change, the networks quickly changed the balance. In 1985, there were
+twenty- five independent television production studios; in 2002, only five
+independent television studios remained. "In 1992, only 15 percent of new
+series were produced for a network by a company it controlled. Last year, the
+percentage of shows produced by controlled companies more than quintupled to 77
+percent." "In 1992, 16 new series were produced independently of conglomerate
+control, last year there was one."~{ NewsCorp./DirecTV Merger and Media
+Consolidation: Hearings on Media Ownership Before the Senate Commerce
+Committee, 108th Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf
+of Consumers Union and the Consumer Federation of America), available at link
+#30. Kimmelman quotes Victoria Riskin, president of Writers Guild of America,
+West, in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
+2003. }~ In 2002, 75 percent of prime time television was owned by the networks
+that ran it. "In the ten-year period between 1992 and 2002, the number of prime
+time television hours per week produced by network studios increased over 200%,
+whereas the number of prime time television hours per week produced by
+independent studios decreased 63%."~{ Ibid. }~
+={ FCC :
+ on television production studios
+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.
+={ Lear, Norman ;
+ All in the Family
+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,
+={ Diller, Barry +1 ;
+ Moyers, Bill
+_1 Well, if you have companies that produce, that finance, that air on their
+channel and then distribute worldwide everything that goes through their
+controlled distribution system, then what you get is fewer and fewer actual
+voices participating in the process. [We u]sed to have dozens and dozens of
+thriving independent production companies producing television programs. Now
+you have less than a handful."~{ "Barry Diller Takes on Media Deregulation,"
+/{Now with Bill Moyers,}/ Bill Moyers, 25 April 2003, edited transcript
+available at link #31. }~
+This narrowing has an effect on what is produced. The product of such large and
+concentrated networks is increasingly homogenous. Increasingly safe.
+Increasingly sterile. The product of news shows from networks like this is
+increasingly tailored to the message the network wants to convey. This is not
+the communist party, though from the inside, it must feel a bit like the
+communist party. No one can question without risk of consequence - not
+necessarily banishment to Siberia, but punishment nonetheless. Independent,
+critical, different views are quashed. This is not the environment for a
+={ democracy :
+ media concentration and
+Economics itself offers a parallel that explains why this integration affects
+creativity. Clay Christensen has written about the "Innovator's Dilemma": the
+fact that large traditional firms find it rational to ignore new, breakthrough
+technologies that compete with their core business. The same analysis could
+help explain why large, traditional media companies would find it rational to
+ignore new cultural trends.~{ Clayton M. Christensen, /{The Innovator's
+Dilemma: The Revolutionary National Bestseller that Changed the Way We Do
+Business}/ (Cambridge: Harvard Business School Press, 1997). Christensen
+acknowledges that the idea was first suggested by Dean Kim Clark. See Kim B.
+Clark, "The Interaction of Design Hierarchies and Market Concepts in
+Technological Evolution," /{Research Policy}/ 14 (1985): 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). }~
+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.
+={ Christensen, Clayton M. ;
+ Innovator's Dilemma, The (Christensen)
+I don't think we know enough about the economics of the media market to say
+with certainty what concentration and integration will do. The efficiencies are
+important, and the effect on culture is hard to measure.
+But there is a quintessentially obvious example that does strongly suggest the
+In addition to the copyright wars, we're in the middle of the drug wars.
+Government policy is strongly directed against the drug cartels; criminal and
+civil courts are filled with the consequences of this battle.
+Let me hereby disqualify myself from any possible appointment to any position
+in government by saying I believe this war is a profound mistake. I am not pro
+drugs. Indeed, I come from a family once wrecked by drugs - though the drugs
+that wrecked my family were all quite legal. I believe this war is a profound
+mistake because the collateral damage from it is so great as to make waging the
+war insane. When you add together the burdens on the criminal justice system,
+the desperation of generations of kids whose only real economic opportunities
+are as drug warriors, the queering of constitutional protections because of the
+constant surveillance this war requires, and, most profoundly, the total
+destruction of the legal systems of many South American nations because of the
+power of the local drug cartels, I find it impossible to believe that the
+marginal benefit in reduced drug consumption by Americans could possibly
+outweigh these costs.
+={ drugs :
+ illegal +2 ;
+ criminal justice system
+You may not be convinced. That's fine. We live in a democracy, and it is
+through votes that we are to choose policy. But to do that, we depend
+fundamentally upon the press to help inform Americans about these issues.
+Beginning in 1998, the Office of National Drug Control Policy launched a media
+campaign as part of the "war on drugs." The campaign produced scores of short
+film clips about issues related to illegal drugs. In one series (the Nick and
+Norm series) two men are in a bar, discussing the idea of legalizing drugs as a
+way to avoid some of the collateral damage from the war. One advances an
+argument in favor of drug legalization. The other responds in a powerful and
+effective way against the argument of the first. In the end, the first guy
+changes his mind (hey, it's television). The plug at the end is a damning
+attack on the pro-legalization campaign.
+={ advertising +4 ;
+ commercials +4 ;
+ television :
+ advertising on +4 ;
+ Nick and Norm anti-drug campaign
+Fair enough. It's a good ad. Not terribly misleading. It delivers its message
+well. It's a fair and reasonable message.
+But let's say you think it is a wrong message, and you'd like to run a
+countercommercial. Say you want to run a series of ads that try to demonstrate
+the extraordinary collateral harm that comes from the drug war. Can you do it?
+Well,obviously, these ads cost lots of money. Assume you raise the money.
+Assume a group of concerned citizens donates all the money in the world to help
+you get your message out. Can you be sure your message will be heard then?
+No.You cannot. Television stations have a general policy of avoiding
+"controversial" ads. Ads sponsored by the government are deemed
+uncontroversial; ads disagreeing with the government are controversial. This
+selectivity might be thought inconsistent with the First Amendment, but the
+Supreme Court has held that stations have the right to choose what they run.
+Thus, the major channels of commercial media will refuse one side of a crucial
+debate the opportunity to present its case. And the courts will defend the
+rights of the stations to be this biased.~{ The Marijuana Policy Project, in
+February 2003, sought to place ads that directly responded to the Nick and Norm
+series on stations within the Washington, D.C., area. Comcast rejected the ads
+as "against [their] policy." The local NBC affiliate, WRC, rejected the ads
+without reviewing them. The local ABC affiliate, WJOA, originally agreed to run
+the ads and accepted payment to do so, but later decided not to run the ads and
+returned the collected fees. Interview with Neal Levine, 15 October 2003. These
+restrictions are, of course, not limited to drug policy. See, for example, Nat
+Ives, "On the Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV
+Networks," /{New York Times,}/ 13 March 2003, C4. Outside of election-related
+air time there is very little that the FCC or the courts are willing to do to
+even the playing field. For a general overview, see Rhonda Brown, "Ad Hoc
+Access: The Regulation of Editorial Advertising on Television and Radio,"
+/{Yale Law and Policy Review}/ 6 (1988): 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,", 16 June 2003, available at link #32. The
+ground was that the criticism was "too controversial." }~
+={ Constitution, U.S. :
+ First Amendment to ;
+ First Amendment ;
+ Supreme Court, U.S. :
+ on television advertising bans ;
+ television :
+ controversy avoided by
+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.
+2~ Together
+={ copyright :
+ scope of +25
+There is something innocent and obvious about the claim of the copyright
+warriors that the government should "protect my property." In the abstract, it
+is obviously true and, ordinarily, totally harmless. No sane sort who is not an
+anarchist could disagree.
+But when we see how dramatically this "property" has changed - when we
+recognize how it might now interact with both technology and markets to mean
+that the effective constraint on the liberty to cultivate our culture is
+dramatically different - the claim begins to seem less innocent and obvious.
+Given (1) the power of technology to supplement the law's control, and (2) the
+power of concentrated markets to weaken the opportunity for dissent, if
+strictly enforcing the massively expanded "property" rights granted by
+copyright fundamentally changes the freedom within this culture to cultivate
+and build upon our past, then we have to ask whether this property should be
+Not starkly. Or absolutely. My point is not that we should abolish copyright or
+go back to the eighteenth century. That would be a total mistake, disastrous
+for the most important creative enterprises within our culture today.
+But there is a space between zero and one, Internet culture notwithstanding.
+And these massive shifts in the effective power of copyright regulation, tied
+to increased concentration of the content industry and resting in the hands of
+technology that will increasingly enable control over the use of culture,
+should drive us to consider whether another adjustment is called for. Not an
+adjustment that increases copyright's power. Not an adjustment that increases
+its term. Rather, an adjustment to restore the balance that has traditionally
+defined copyright's regulation - a weakening of that regulation, to strengthen
+Copyright law has not been a rock of Gibraltar. It's not a set of constant
+commitments that, for some mysterious reason, teenagers and geeks now flout.
+Instead, copyright power has grown dramatically in a short period of time, as
+the technologies of distribution and creation have changed and as lobbyists
+have pushed for more control by copyright holders. Changes in the past in
+response to changes in technology suggest that we may well need similar changes
+in the future. And these changes have to be /{reductions}/ in the scope of
+copyright, in response to the extraordinary increase in control that technology
+and the market enable.
+For the single point that is lost in this war on pirates is a point that we see
+only after surveying the range of these changes. When you add together the
+effect of changing law, concentrated markets, and changing technology, together
+they produce an astonishing conclusion: /{Never in our history have fewer had a
+legal right to control more of the development of our culture than now}/.
+Not when copyrights were perpetual, for when copyrights were perpetual, they
+affected only that precise creative work. Not when only publishers had the
+tools to publish, for the market then was much more diverse. Not when there
+were only three television networks, for even then, newspapers, film studios,
+radio stations, and publishers were independent of the networks. /{Never}/ has
+copyright protected such a wide range of rights, against as broad a range of
+actors, for a term that was remotely as long. This form of regulation - a tiny
+regulation of a tiny part of the creative energy of a nation at the founding -
+is now a massive regulation of the overall creative process. Law plus
+technology plus the market now interact to turn this historically benign
+regulation into the most significant regulation of culture that our free
+society has known.~{ Siva Vaidhyanathan captures a similar point in his "four
+surrenders" of copyright law in the digital age. See Vaidhyanathan, 159-60. }~
+={ copyright :
+ in perpetuity
+!_ This has been
+a long chapter. Its point can now be briefly stated.
+At the start of this book, I distinguished between commercial and noncommercial
+culture. In the course of this chapter, I have distinguished between copying a
+work and transforming it. We can now combine these two distinctions and draw a
+clear map of the changes that copyright law has undergone.
+={ copyright law :
+ history of American +10 | on republishing vs. transformation of original work +16 ;
+ culture :
+ commercial vs. noncommercial +11 ;
+ derivative works :
+ historical shift in copyright coverage of +14 ;
+ public domain :
+ balance of U.S. content in +14
+In 1790, the law looked like this:
+table{~h c3; 33; 33; 33;
+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.
+={ copyright law :
+ registration requirement of ;
+ copyright law :
+ copies as core issue of +7
+By the end of the nineteenth century, the law had changed to this:
+table{~h c3; 33; 33; 33;
+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.
+={ derivative works :
+ technological developments and +5 ;
+ technology :
+ of copying +5
+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:
+={ photocopyring machines
+table{~h c3; 33; 33; 33;
+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:
+table{~h c3; 33; 33; 33;
+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
+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
+={ copyright :
+ duration of +2
+I have no doubt that it does good in regulating commercial copying. But I also
+have no doubt that it does more harm than good when regulating (as it regulates
+just now) noncommercial copying and, especially, noncommercial transformation.
+And increasingly, for the reasons sketched especially in chapters 7 and 8, one
+might well wonder whether it does more harm than good for commercial
+transformation. More commercial transformative work would be created if
+derivative rights were more sharply restricted.
+The issue is therefore not simply whether copyright is property. Of course
+copyright is a kind of "property," and of course, as with any property, the
+state ought to protect it. But first impressions notwithstanding, historically,
+this property right (as with all property rights~{ It was the single most
+important contribution of the legal realist movement to demonstrate that all
+property rights are always crafted to balance public and private interests. See
+Thomas C. Grey, "The Disintegration of Property," in /{Nomos XXII: Property,}/
+J. Roland Pennock and John W. Chapman, eds. (New York: New York University
+Press, 1980). }~) has been crafted to balance the important need to give
+authors and artists incentives with the equally important need to assure access
+to creative work. This balance has always been struck in light of new
+technologies. And for almost half of our tradition, the "copyright" did not
+control /{at all}/ the freedom of others to build upon or transform a creative
+work. American culture was born free, and for almost 180 years our country
+consistently protected a vibrant and rich free culture.
+={ copyright :
+ as property +1 ;
+ copyright law :
+ fair use and +1 | innovative freedom balanced with fair compensation in +2 ;
+ fair use :
+ legal intimidation tactics against +1 ;
+ property rights :
+ as balance of public good vs. private +2 | copyright vs. +2
+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.
+={ archives :
+ digital ;
+ culture :
+ archives of ;
+ culture archives of ;
+ libraries :
+ archival function of
+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.
+={ free culture :
+ permission culture vs. ;
+ permission culture :
+ free culture vs.
+1~ Chapter Eleven: Chimera
+!_ In a well-known
+short story by H. G. Wells, a mountain climber named Nunez trips (literally,
+down an ice slope) into an unknown and isolated valley in the Peruvian Andes.~{
+H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells, /{The
+Country of the Blind and Other Stories,}/ Michael Sherborne, ed. (New York:
+Oxford University Press, 1996). }~ The valley is extraordinarily beautiful,
+with "sweet water, pasture, an even climate, slopes of rich brown soil with
+tangles of a shrub that bore an excellent fruit." But the villagers are all
+blind. Nunez takes this as an opportunity. "In the Country of the Blind," he
+tells himself, "the One-Eyed Man is King." So he resolves to live with the
+villagers to explore life as a king.
+={ Wells, H.G. +8 ;
+ Country of the Blind, The (Wells) +8
+Things don't go quite as he planned. He tries to explain the idea of sight to
+the villagers. They don't understand. He tells them they are "blind." They
+don't have the word /{blind}/. They think he's just thick. Indeed, as they
+increasingly notice the things he can't do (hear the sound of grass being
+stepped on, for example), they increasingly try to control him. He, in turn,
+becomes increasingly frustrated. "'You don't understand,' he cried, in a voice
+that was meant to be great and resolute, and which broke. 'You are blind and I
+can see. Leave me alone!'"
+The villagers don't leave him alone. Nor do they see (so to speak) the virtue
+of his special power. Not even the ultimate target of his affection, a young
+woman who to him seems "the most beautiful thing in the whole of creation,"
+understands the beauty of sight. Nunez's description of what he sees "seemed to
+her the most poetical of fancies, and she listened to his description of the
+stars and the mountains and her own sweet white-lit beauty as though it was a
+guilty indulgence." "She did not believe," Wells tells us, and "she could only
+half understand, but she was mysteriously delighted."
+When Nunez announces his desire to marry his "mysteriously delighted" love, the
+father and the village object. "You see, my dear," her father instructs, "he's
+an idiot. He has delusions. He can't do anything right." They take Nunez to the
+village doctor.
+After a careful examination, the doctor gives his opinion. "His brain is
+affected," he reports.
+"What affects it?" the father asks.
+"Those queer things that are called the eyes ... are diseased ... in such a way
+as to affect his brain."
+The doctor continues: "I think I may say with reasonable certainty that in
+order to cure him completely, all that we need to do is a simple and easy
+surgical operation - namely, to remove these irritant bodies [the eyes]."
+"Thank Heaven for science!" says the father to the doctor. They inform Nunez of
+this condition necessary for him to be allowed his bride. (You'll have to read
+the original to learn what happens in the end. I believe in free culture, but
+never in giving away the end of a story.)
+!_ It sometimes
+happens that the eggs of twins fuse in the mother's womb. That fusion produces
+a "chimera." A chimera is a single creature with two sets of DNA. The DNA in
+the blood, for example, might be different from the DNA of the skin. This
+possibility is an underused plot for murder mysteries. "But the DNA shows with
+100 percent certainty that she was not the person whose blood was at the scene.
+={ chimeras +7 ;
+ twins, as chimera +2
+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
+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.
+={ peer-to-peer (p2p) file sharing :
+ shoplifting vs. +4 ;
+ piracy :
+ of intangible property +6
+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."
+={ peer-to-peer (p2p) file sharing :
+ felony punishments for +4 ;
+ peer-to-peer (p2p) file sharing :
+ total legalization of ;
+ copyright law :
+ felony punishment for infringement of +2 ;
+ Internet :
+ music files downloaded from +12
+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.
+={ Kazaa ;
+ Lovett, Lyle
+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.)
+={ copyright infringement lawsuits :
+ exaggerated claims of +2 | in recording industry +2 | against student file sharing +2 ;
+ recording industry :
+ copyright infringement lawsuits of +2 ;
+ Recording Industry Association of America (RIAA) :
+ copyright infringement lawsuits filed by +2 ;
+ copyright law :
+ felony punishment for infringement of +2
+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?
+={ Kazaa }
+We could respond by simply pretending that it is not a chimera. We could, with
+the RIAA, decide that every act of file sharing should be a felony. We could
+prosecute families for millions of dollars in damages just because file sharing
+occurred on a family computer. And we can get universities to monitor all
+computer traffic to make sure that no computer is used to commit this crime.
+These responses might be extreme, but each of them has either been proposed or
+actually implemented.~{ For an excellent summary, see the report prepared by
+GartnerG2 and the Berkman Center for Internet and Society at Harvard Law
+School, "Copy- right and Digital Media in a Post-Napster World," 27 June 2003,
+available at link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
+(D-Calif.) have introduced a bill that would treat unauthorized on-line copying
+as a felony offense with punishments ranging as high as five years
+imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy," /{Los
+Angeles Times,}/ 17 July 2003, available at link #34. Civil penalties are
+currently set at $150,000 per copied song. For a recent (and unsuccessful)
+legal challenge to the RIAA's demand that an ISP reveal the identity of a user
+accused of sharing more than 600 songs through a family computer, see /{RIAA v.
+Verizon Internet Services (In re. Verizon Internet Services),}/ 240 F. Supp. 2d
+24 (D.D.C. 2003). Such a user could face liability ranging as high as $90
+million. Such astronomical figures furnish the RIAA with a powerful arsenal in
+its prosecution of file sharers. Settlements ranging from $12,000 to $17,500
+for four students accused of heavy file sharing on university networks must
+have seemed a mere pittance next to the $98 billion the RIAA could seek should
+the matter proceed to court. See Elizabeth Young, "Downloading Could Lead to
+Fines,", 26 August 2003, available at link #35. For an example
+of the RIAA's targeting of student file sharing, and of the subpoenas issued to
+universities to reveal student file-sharer identities, see James Collins, "RIAA
+Steps Up Bid to Force BC, MIT to Name Students," /{Boston Globe,}/ 8 August
+2003, D3, available at link #36. }~
+={ university computer networks, p2p sharing on }
+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.
+={ peer-to-peer (p2p) file sharing :
+ total legalization of
+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.
+={ copyright infringement lawsuits :
+ zero tolerance in +1 ;
+ peer-to-peer (p2p) file sharing :
+ zero-tolerance of +7
+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
+={ copyright law :
+ technology as automatic enforcer of +4 ;
+ recording industry :
+ copyright protections in +2 ;
+ technology :
+ copyright enforcement controlled by +3
+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,, put it when criticizing the DMCA's added protection for copyrighted
+={ copyright law :
+ on music recordings +1 ;
+ Digital Millennium Copyright Act (DMCA) ;
+ DMCA (Digital Millennium Copyright Act) ;
+ +4 ;
+ peer-to-peer (p2p) file sharing :
+ infringement protections in +3
+_1 eMusic opposes music piracy. We are a distributor of copyrighted material,
+and we want to protect those rights.
+_1 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
+_1 This is a critical point. The choices that industry sectors make with
+respect to these systems will in many ways directly shape the market for
+digital media and the manner in which digital media are distributed. This in
+turn will directly influence the options that are available to consumers, both
+in terms of the ease with which they will be able to access digital media and
+the equipment that they will require to do so. Poor choices made this early in
+the game will retard the growth of this market, hurting everyone's
+interests."~{ WIPO and the DMCA One Year Later: Assessing Consumer Access to
+Digital Entertainment on the Internet and Other Media: Hearing Before the
+Subcommittee on Telecommunications, Trade, and Consumer Protection, House
+Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, vice
+president, Global Public Policy and Standards,, available in LEXIS,
+Federal Document Clearing House Congressional Testimony File. }~
+In April 2001, was purchased by Vivendi Universal, one of "the major
+labels." Its position on these matters has now changed.
+={ Vivendi Universal }
+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.
+1~ Chapter Twelve: Harms
+!_ To fight
+"piracy," to protect "property," the content industry has launched a war.
+Lobbying and lots of campaign contributions have now brought the government
+into this war. As with any war, this one will have both direct and collateral
+damage. As with any war of prohibition, these damages will be suffered most by
+our own people.
+My aim so far has been to describe the consequences of this war, in particular,
+the consequences for "free culture." But my aim now is to extend this
+description of consequences into an argument. Is this war justified?
+In my view, it is not. There is no good reason why this time, for the first
+time, the law should defend the old against the new, just when the power of the
+property called "intellectual property" is at its greatest in our history.
+Yet "common sense" does not see it this way. Common sense is still on the side
+of the Causbys and the content industry. The extreme claims of control in the
+name of property still resonate; the uncritical rejection of "piracy" still has
+={ piracy :
+ uncritical rejection of +1
+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.
+={ Armstrong, Edwin Howard ;
+2~ Constraining Creators
+={ copyright law :
+ creativity impeded by +14 ;
+ creativity :
+ legal restrictions on +14
+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.
+={ technology :
+ of digital capturing and sharing +2
+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.
+={ democracy :
+ digital sharing within ;
+ Kodak cameras
+Technology has thus given us an opportunity to do something with culture that
+has only ever been possible for individuals in small groups, isolated from
+others. Think about an old man telling a story to a collection of neighbors in
+a small town. Now imagine that same storytelling extended across the globe.
+Yet all this is possible only if the activity is presumptively legal. In the
+current regime of legal regulation, it is not. Forget file sharing for a
+moment. Think about your favorite amazing sites on the Net. Web sites that
+offer plot summaries from forgotten television shows; sites that catalog
+cartoons from the 1960s; sites that mix images and sound to criticize
+politicians or businesses; sites that gather newspaper articles on remote
+topics of science or culture. There is a vast amount of creative work spread
+across the Internet. But as the law is currently crafted, this work is
+presumptively illegal.
+={ Internet :
+ creative Web sites on
+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 WorldCom - which defrauded investors of $11
+billion, resulting in a loss to investors in market capitalization of over $200
+billion - received a fine of a mere $750 million.~{ See Lynne W. Jeter,
+/{Disconnected: Deceit and Betrayal at WorldCom}/ (Hoboken, N.J.: John Wiley &
+Sons, 2003), 176, 204; for details of the settlement, see MCI press release,
+"MCI Wins U.S. District Court Approval for SEC Settlement" (7 July 2003),
+available at link #37. }~ And under legislation being pushed in Congress right
+now, a doctor who negligently removes the wrong leg in an operation would be
+liable for no more than $250,000 in damages for pain and suffering.~{ The bill,
+modeled after California's tort reform model, was passed in the House of
+Representatives but defeated in a Senate vote in July 2003. For an overview,
+see Tanya Albert, "Measure Stalls in Senate: 'We'll Be Back,' Say Tort
+Reformers,", 28 July 2003, available at link #38, and "Senate
+Turns Back Malpractice Caps,", 9 July 2003, available at link #39.
+President Bush has continued to urge tort reform in recent months. }~ Can
+common sense recognize the absurdity in a world where the maximum fine for
+downloading two songs off the Internet is more than the fine for a doctor's
+negligently butchering a patient?
+={ WorldCom ;
+ copyright infringement lawsuits :
+ exaggerated claims of | individual defendants intimidated by +1 | in recording industry ;
+ doctors malpractice claims against ;
+ Jordan, Jesse ;
+ legal system, attorney costs in +1 ;
+ recording industry :
+ copyright infringement lawsuits of ;
+ Recording Industry Association of America (RIAA) :
+ copyright infringement lawsuits filed by
+The consequence of this legal uncertainty, tied to these extremely high
+penalties, is that an extraordinary amount of creativity will either never be
+exercised, or never be exercised in the open. We drive this creative process
+underground by branding the modern-day Walt Disneys "pirates." We make it
+impossible for businesses to rely upon a public domain, because the boundaries
+of the public domain are designed to be unclear. It never pays to do anything
+except pay for the right to create, and hence only those who can pay are
+allowed to create. As was the case in the Soviet Union, though for very
+different reasons, we will begin to see a world of underground art - not
+because the message is necessarily political, or because the subject is
+controversial, but because the very act of creating the art is legally fraught.
+Already, exhibits of "illegal art" tour the United States.~{ See Danit Lidor,
+"Artists Just Wanna Be Free," /{Wired,}/ 7 July 2003, available at link #40.
+For an overview of the exhibition, see link #41. }~ In what does their
+"illegality" consist? In the act of mixing the culture around us with an
+expression that is critical or reflective.
+={ public domain :
+ legal murkiness on ;
+ art, underground
+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.
+={ copyright law :
+ technology as automatic enforcer of +1 ;
+ Internet :
+ user identities released by service providers of ;
+ ISPs (Internet service providers), user identities revealed by ;
+ technology :
+ copyright enforcement controlled by +1
+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.
+={ images, ownership of }
+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.
+={ Else, Jon ;
+ copyright law :
+ fair use and +2 ;
+ fair use :
+ legal intimidation tactics against +2 ;
+ legal system, attorney costs in +5
+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.
+={ copyright infringement lawsuits :
+ exaggerated claims of +4 | individual defendants intimidated by +4
+Judges and lawyers can tell themselves that fair use provides adequate
+"breathing room" between regulation by the law and the access the law should
+allow. But it is a measure of how out of touch our legal system has become that
+anyone actually believes this. The rules that publishers impose upon writers,
+the rules that film distributors impose upon filmmakers, the rules that
+newspapers impose upon journalists - these are the real laws governing
+creativity. And these rules have little relationship to the "law" with which
+judges comfort themselves.
+For in a world that threatens $150,000 for a single willful infringement of a
+copyright, and which demands tens of thousands of dollars to even defend
+against a copyright infringement claim, and which would never return to the
+wrongfully accused defendant anything of the costs she suffered to defend her
+right to speak - in that world, the astonishingly broad regulations that pass
+under the name "copyright" silence speech and creativity. And in that world, it
+takes a studied blindness for people to continue to believe they live in a
+culture that is free.
+As Jed Horovitz, the businessman behind Video Pipeline, said to me,
+={ Horovitz, Jed +1 ;
+ Video Pipeline
+_1 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."
+2~ Constraining Innovators
+={ copyright law :
+ innovation hampered by +48 ;
+ innovation :
+ industry establishment opposed to +48 ;
+ regulation :
+ as establishment protectionism +48
+The story of the last section was a crunchy-lefty story - creativity quashed,
+artists who can't speak, yada yada yada. Maybe that doesn't get you going.
+Maybe you think there's enough weird art out there, and enough expression that
+is critical of what seems to be just about everything. And if you think that,
+you might think there's little in this story to worry you.
+But there's an aspect of this story that is not lefty in any sense. Indeed, it
+is an aspect that could be written by the most extreme pro-market 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.
+={ market constraints +1 }
+The charge I've been making about the regulation of culture is the same charge
+free marketers make about regulating markets. Everyone, of course, concedes
+that some regulation of markets is necessary - at a minimum, we need rules of
+property and contract, and courts to enforce both. Likewise, in this culture
+debate, everyone concedes that at least some framework of copyright is also
+required. But both perspectives vehemently insist that just because some
+regulation is good, it doesn't follow that more regulation is better. And both
+perspectives are constantly attuned to the ways in which regulation simply
+enables the powerful industries of today to protect themselves against the
+competitors of tomorrow.
+This is the single most dramatic effect of the shift in regulatory strategy
+that I described in chapter 10. The consequence of this massive threat of
+liability tied to the murky boundaries of copyright law is that innovators who
+want to innovate in this space can safely innovate only if they have the
+sign-off from last generation's dominant industries. That lesson has been
+taught through a series of cases that were designed and executed to teach
+venture capitalists a lesson. That lesson - what former Napster CEO Hank Barry
+calls a "nuclear pall" that has fallen over the Valley - has been learned.
+={ Barry, Hank ;
+ venture capitalists
+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.
+={ Future of Ideas, The (Lessig) ;
+ Lessig, Lawrence
+In 1997, Michael Roberts launched a company called 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, offered creators a venue to
+distribute their creativity, without demanding an exclusive engagement from the
+={ +8 ;
+ +8 ;
+ Roberts, Michael
+To make this system work, however, 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.
+={ Lovett, Lyle }
+This idea required a simple way to gather data about user preferences.
+came up with an extraordinarily clever way to gather this preference data. In
+January 2000, the company launched a service called Using software
+provided by, 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
+={ CDs :
+ preference data on +2
+No doubt some could use this system to illegally copy content. But that
+opportunity existed with or without The aim of the 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
+To make this system function, however, needed to copy 50,000 CDs to a
+server. (In principle, it could have been the user who uploaded the music, but
+that would have taken a great deal of time, and would have produced a product
+of questionable quality.) It therefore purchased 50,000 CDs from a store, and
+started the process of making copies of those CDs. Again, it would not serve
+the content from those copies to anyone except those who authenticated that
+they had a copy of the CD they wanted to access. So while this was 50,000
+copies, it was 50,000 copies directed at giving customers something they had
+already bought.
+Nine days after launched its service, the five major labels, headed by
+the RIAA, brought a lawsuit against settled with four of the
+five. Nine months later, a federal judge found to have been guilty of
+willful infringement with respect to the fifth. Applying the law as it is, the
+judge imposed a fine against of $118 million. then settled with
+the remaining plaintiff, Vivendi Universal, paying over $54 million. Vivendi
+purchased just about a year later.
+={ Vivendi Universal +2 ;
+ copyright infringement lawsuits :
+ distribution technology targeted in | exaggerated claims of | in recording industry +3 ;
+ recording industry :
+ copyright infringement lawsuits of ;
+ Recording Industry Association of America (RIAA) :
+ copyright infringement lawsuits filed by ;
+ regulation :
+ outsize penalties of
+That part of the story I have told before. Now consider its conclusion.
+After Vivendi purchased, 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.
+={ copyright law :
+ malpractice lawsuits against lawyers advising on +2 ;
+ lawyers :
+ malpractice suits against +2
+The clear purpose of this lawsuit (which was settled for an unspecified amount
+shortly after the story was no longer covered in the press) was to send an
+unequivocal message to lawyers advising clients in this space: It is not just
+your clients who might suffer if the content industry directs its guns against
+them. It is also you. So those of you who believe the law should be less
+restrictive should realize that such a view of the law will cost you and your
+firm dearly.
+This strategy is not just limited to the lawyers. In April 2003, Universal and
+EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC)
+that had funded Napster at a certain stage of its development, its cofounder
+(John Hummer), and general partner (Hank Barry).~{ See Joseph Menn, "Universal,
+EMI Sue Napster Investor," /{Los Angeles Times,}/ 23 April 2003. For a parallel
+argument about the effects on innovation in the distribution of music, see
+Janelle Brown, "The Music Revolution Will Not Be Digitized,", 1 June
+2001, available at link #42. See also Jon Healey, "Online Music Services
+Besieged," /{Los Angeles Times,}/ 28 May 2001. }~ The claim here, as well, was
+that the VC should have recognized the right of the content industry to control
+how the industry should develop. They should be held personally liable for
+funding a company whose business turned out to be beyond the law. Here again,
+the aim of the lawsuit is transparent: Any VC now recognizes that if you fund a
+company whose business is not approved of by the dinosaurs, you are at risk not
+just in the marketplace, but in the courtroom as well. Your investment buys you
+not only a company, it also buys you a lawsuit. So extreme has the environment
+become that even car manufacturers are afraid of technologies that touch
+content. In an article in /{Business 2.0}/, Rafe Needleman describes a
+discussion with BMW:
+={ Barry, Hank ;
+ copyright infringement lawsuits :
+ distribution technology targeted in ;
+ BMW +1 ;
+ cars, MP3 sound systems in +1 ;
+ EMI ;
+ Hummer, John ;
+ Hummer Winblad ;
+ MP3 players ;
+ Napster :
+ venture capital for ;
+ Needleman, Raffe +1 ;
+ Universal Music Group ;
+ venture capitalists
+_1 I asked why, with all the storage capacity and computer power in the car,
+there was no way to play MP3 files. I was told that BMW engineers in Germany
+had rigged a new vehicle to play MP3s via the car's built-in sound system, but
+that the company's marketing and legal departments weren't comfortable with
+pushing this forward for release stateside. Even today, no new cars are sold in
+the United States with bona fide MP3 players. ..."~{ Rafe Needleman, "Driving
+in Cars with MP3s," /{Business 2.0,}/ 16 June 2003, available at link #43. I am
+grateful to Dr. Mohammad Al-Ubaydli for this example. }~
+This is the world of the mafia - filled with "your money or your life" offers,
+governed in the end not by courts but by the threats that the law empowers
+copyright holders to exercise. It is a system that will obviously and
+necessarily stifle new innovation. It is hard enough to start a company. It is
+impossibly hard if that company is constantly threatened by litigation.
+The point is not that businesses should have a right to start illegal
+enterprises. The point is the definition of "illegal." The law is a mess of
+uncertainty. We have no good way to know how it should apply to new
+technologies. Yet by reversing our tradition of judicial deference, and by
+embracing the astonishingly high penalties that copyright law imposes, that
+uncertainty now yields a reality which is far more conservative than is right.
+If the law imposed the death penalty for parking tickets, we'd not only have
+fewer parking tickets, we'd also have much less driving. The same principle
+applies to innovation. If innovation is constantly checked by this uncertain
+and unlimited liability, we will have much less vibrant innovation and much
+less creativity.
+={ market constraints +2 ;
+ permission culture :
+ transaction cost of +2 ;
+ regulation :
+ outsize penalties of ;
+ technology :
+ legal murkiness on
+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
+overregulated-regulated market.
+The building of a permission culture, rather than a free culture, is the first
+important way in which the changes I have described will burden innovation. A
+permission culture means a lawyer's culture - a culture in which the ability to
+create requires a call to your lawyer. Again, I am not antilawyer, at least
+when they're kept in their proper place. I am certainly not antilaw. But our
+profession has lost the sense of its limits. And leaders in our profession have
+lost an appreciation of the high costs that our profession imposes upon others.
+The inefficiency of the law is an embarrassment to our tradition. And while I
+believe our profession should therefore do everything it can to make the law
+more efficient, it should at least do everything it can to limit the reach of
+the law where the law is not doing any good. The transaction costs buried
+within a permission culture are enough to bury a wide range of creativity.
+Someone needs to do a lot of justifying to justify that result.
+!_ The uncertainty
+of the law is one burden on innovation. There is a second burden that operates
+more directly. This is the effort by many in the content industry to use the
+law to directly regulate the technology of the Internet so that it better
+protects their content.
+={ Internet :
+ efficient content distribution on +4
+The motivation for this response is obvious. The Internet enables the efficient
+spread of content. That efficiency is a feature of the Inter-net'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
+The examples of this form of legislation are many. At the urging of the content
+industry, some in Congress have threatened legislation that would require
+computers to determine whether the content they access is protected or not, and
+to disable the spread of protected content.~{ "Copyright and Digital Media in a
+Post-Napster World," GartnerG2 and the Berkman Center for Internet and Society
+at Harvard Law School (2003), 33-35, available at link #44. }~ Congress has
+already launched proceedings to explore a mandatory "broadcast flag" that would
+be required on any device capable of transmitting digital video (i.e., a
+computer), and that would disable the copying of any content that is marked
+with a broadcast flag. Other members of Congress have proposed immunizing
+content providers from liability for technology they might deploy that would
+hunt down copyright violators and disable their machines.~{ GartnerG2, 26-27.
+={ broadcast flag ;
+ Congress, U.S. :
+ on copyright laws
+In one sense, these solutions seem sensible. If the problem is the code, why
+not regulate the code to remove the problem. But any regulation of technical
+infrastructure will always be tuned to the particular technology of the day. It
+will impose significant burdens and costs on the technology, but will likely be
+eclipsed by advances around exactly those requirements.
+In March 2002, a broad coalition of technology companies, led by Intel, tried
+to get Congress to see the harm that such legislation would impose.~{ See David
+McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, 28 February 2002
+(Entertainment). }~ Their argument was obviously not that copyright should not
+be protected. Instead, they argued, any protection should not do more harm than
+={ Congress, U.S. :
+ on copyright laws +5 ;
+ Intel
+!_ There is one
+more obvious way in which this war has harmed innovation - again, a story that
+will be quite familiar to the free market crowd.
+Copyright may be property, but like all property, it is also a form of
+regulation. It is a regulation that benefits some and harms others. When done
+right, it benefits creators and harms leeches. When done wrong, it is
+regulation the powerful use to defeat competitors.
+As I described in chapter 10, despite this feature of copyright as regulation,
+and subject to important qualifications outlined by Jessica Litman in her book
+/{Digital Copyright}/,~{ Jessica Litman, /{Digital Copyright}/ (Amherst, N.Y.:
+Prometheus Books, 2001). }~ overall this history of copyright is not bad. As
+chapter 10 details, when new technologies have come along, Congress has struck
+a balance to assure that the new is protected from the old. Compulsory, or
+statutory, licenses have been one part of that strategy. Free use (as in the
+case of the VCR) has been another.
+={ cassette recording :
+ VCRs ;
+ VCRs ;
+ Digital Copyright (Litman) ;
+ Litman, Jessica ;
+ statutory licenses ;
+ copyright law :
+ statutory licenses in
+But that pattern of deference to new technologies has now changed with the rise
+of the Internet. Rather than striking a balance between the claims of a new
+technology and the legitimate rights of content creators, both the courts and
+Congress have imposed legal restrictions that will have the effect of
+smothering the new to benefit the old.
+The response by the courts has been fairly universal.~{ The only circuit court
+exception is found in /{Recording Industry Association of America (RIAA) v.
+Diamond Multimedia Systems,}/ 180 F. 3d 1072 (9th Cir. 1999). There the court
+of appeals for the Ninth Circuit reasoned that makers of a portable MP3 player
+were not liable for contributory copyright infringement for a device that is
+unable to record or redistribute music (a device whose only copying function is
+to render portable a music file already stored on a user's hard drive). At the
+district court level, the only exception is found in /{Metro-Goldwyn-Mayer
+Studios, Inc. v. Grokster, Ltd.,}/ 259 F. Supp. 2d 1029 (C.D. Cal., 2003),
+where the court found the link between the distributor and any given user's
+conduct too attenuated to make the distributor liable for contributory or
+vicarious infringement liability. }~ It has been mirrored in the responses
+threatened and actually implemented by Congress. I won't catalog all of those
+responses here.~{ For example, in July 2002, Representative Howard Berman
+introduced the Peer- to-Peer Piracy Prevention Act (H.R. 5211), which would
+immunize copyright holders from liability for damage done to computers when the
+copyright holders use technology to stop copyright infringement. In August
+2002, Representative Billy Tauzin introduced a bill to mandate that
+technologies capable of rebroadcasting digital copies of films broadcast on TV
+(i.e., computers) respect a "broadcast flag" that would disable copying of that
+content. And in March of the same year, Senator Fritz Hollings introduced the
+Consumer Broadband and Digital Television Promotion Act, which mandated
+copyright protection technology in all digital media devices. See GartnerG2,
+"Copyright and Digital Media in a Post-Napster World," 27 June 2003, 33-34,
+available at link #44. }~ But there is one example that captures the flavor of
+them all. This is the story of the demise of Internet radio.
+={ Internet :
+ radio on +18 ;
+ radio :
+ on Internet +18
+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.
+={ artists :
+ recording industry payments to +1 ;
+ copyright law :
+ on music recordings +1 ;
+ Kennedy, John F. ;
+ Monroe, Marilyn ;
+ radio :
+ music recordings played on +1 ;
+ recording industry :
+ artist remuneration in +1 ;
+ recording industry :
+ copyright protections in
+The reasoning behind this balance struck by Congress makes some sense. The
+justification was that radio was a kind of advertising. The recording artist
+thus benefited because by playing her music, the radio station was making it
+more likely that her records would be purchased. Thus, the recording artist got
+something, even if only indirectly. Probably this reasoning had less to do with
+the result than with the power of radio stations: Their lobbyists were quite
+good at stopping any efforts to get Congress to require compensation to the
+recording artists.
+Enter Internet radio. Like regular radio, Internet radio is a technology to
+stream content from a broadcaster to a listener. The broadcast travels across
+the Internet, not across the ether of radio spectrum. Thus, I can "tune in" to
+an Internet radio station in Berlin while sitting in San Francisco, even though
+there's no way for me to tune in to a regular radio station much beyond the San
+Francisco metropolitan area.
+This feature of the architecture of Internet radio means that there are
+potentially an unlimited number of radio stations that a user could tune in to
+using her computer, whereas under the existing architecture for broadcast
+radio, there is an obvious limit to the number of broadcasters and clear
+broadcast frequencies. Internet radio could therefore be more competitive than
+regular radio; it could provide a wider range of selections. And because the
+potential audience for Internet radio is the whole world, niche stations could
+easily develop and market their content to a relatively large number of users
+worldwide. According to some estimates, more than eighty million users
+worldwide have tuned in to this new form of radio.
+Internet radio is thus to radio what FM was to AM. It is an improvement
+potentially vastly more significant than the FM improvement over AM, since not
+only is the technology better, so, too, is the competition. Indeed, there is a
+direct parallel between the fight to establish FM radio and the fight to
+protect Internet radio. As one author describes Howard Armstrong's struggle to
+enable FM radio,
+={ Armstrong, Edwin Howard +2 ;
+ FM radio +2 ;
+ radio :
+ FM spectrum of +2
+_1 An almost unlimited number of FM stations was possible in the shortwaves,
+thus ending the unnatural restrictions imposed on radio in the crowded
+longwaves. If FM were freely developed, the number of stations would be limited
+only by economics and competition rather than by technical restrictions. ...
+Armstrong likened the situation that had grown up in radio to that following
+the invention of the printing press, when governments and ruling interests
+attempted to control this new instrument of mass communications by imposing
+restrictive licenses on it. This tyranny was broken only when it became
+possible for men freely to acquire printing presses and freely to run them. FM
+in this sense was as great an invention as the printing presses, for it gave
+radio the opportunity to strike off its shackles.~{ Lessing, 239. }~
+This potential for FM radio was never realized - not because Armstrong was
+wrong about the technology, but because he underestimated the power of "vested
+interests, habits, customs and legislation"~{ Ibid., 229. }~ to retard the
+growth of this competing technology.
+Now the very same claim could be made about Internet radio. For again, there is
+no technical limitation that could restrict the number of Internet radio
+stations. The only restrictions on Internet radio are those imposed by the law.
+Copyright law is one such law. So the first question we should ask is, what
+copyright rules would govern Internet radio?
+But here the power of the lobbyists is reversed. Internet radio is a new
+industry. The recording artists, on the other hand, have a very powerful lobby,
+the RIAA. Thus when Congress considered the phenomenon of Internet radio in
+1995, the lobbyists had primed Congress to adopt a different rule for Internet
+radio than the rule that applies to terrestrial radio. While terrestrial radio
+does not have to pay our hypothetical Marilyn Monroe when it plays her
+hypothetical recording of "Happy Birthday" on the air, /{Internet radio does}/.
+Not only is the law not neutral toward Internet radio - the law actually
+burdens Internet radio more than it burdens terrestrial radio.
+={ artists :
+ recording industry payments to +1 ;
+ Congress, U.S. :
+ on copyright laws ;
+ Congress, U.S. :
+ on radio | on recording industry ;
+ recording industry :
+ artist remuneration in +1 ;
+ recording industry :
+ radio broadcast and +1 | Internet radio hampered by +9 ;
+ Recording Industry Association of America (RIAA) :
+ on Internet radio fees +1 | lobbying power of +1
+This financial burden is not slight. As Harvard law professor William Fisher
+estimates, if an Internet radio station distributed ad-free popular music to
+(on average) ten thousand listeners, twenty-four hours a day, the total artist
+fees that radio station would owe would be over $1 million a year.~{ This
+example was derived from fees set by the original Copyright Arbitration Royalty
+Panel (CARP) proceedings, and is drawn from an example offered by Professor
+William Fisher. Conference Proceedings, iLaw (Stanford), 3 July 2003, on file
+with author. Professors Fisher and Zittrain submitted testimony in the CARP
+proceeding that was ultimately rejected. See Jonathan Zittrain, Digital
+Performance Right in Sound Recordings and Ephemeral Recordings, Docket No.
+2000- 9, CARP DTRA 1 and 2, available at link #45. For an excellent analysis
+making a similar point, see Randal C. Picker, "Copyright as Entry Policy: The
+Case of Digital Distribution," /{Antitrust Bulletin}/ (Summer/Fall 2002): 461:
+"This was not confusion, these are just old- fashioned entry barriers. Analog
+radio stations are protected from digital entrants, reducing entry in radio and
+diversity. Yes, this is done in the name of getting royalties to copyright
+holders, but, absent the play of powerful interests, that could have been done
+in a media-neutral way." }~ A regular radio station broadcasting the same
+content would pay no equivalent fee.
+={ Fisher, William }
+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}/:
+ 1. name of the service;
+ 2. channel of the program (AM/FM stations use station ID);
+ 3. type of program (archived/looped/live);
+ 4. date of transmission;
+ 5. time of transmission;
+ 6. time zone of origination of transmission;
+ 7. numeric designation of the place of the sound recording within the program;
+ 8. duration of transmission (to nearest second);
+ 9. sound recording title;
+ 10. ISRC code of the recording;
+ 11. release year of the album per copyright notice and in the case of compilation albums, the release year of the album and copyright date of the track;
+ 12. featured recording artist;
+ 13. retail album title;
+ 14. recording label;
+ 15. UPC code of the retail album;
+ 16. catalog number;
+ 17. copyright owner information;
+ 18. musical genre of the channel or program (station format);
+ 19. name of the service or entity;
+ 20. channel or program;
+ 21. date and time that the user logged in (in the user's time zone);
+ 22. date and time that the user logged out (in the user's time zone);
+ 23. time zone where the signal was received (user);
+ 24. Unique User identifier;
+ 25. the country in which the user received the transmissions.
+The Librarian of Congress eventually suspended these reporting requirements,
+pending further study. And he also changed the original rates set by the
+arbitration panel charged with setting rates. But the basic difference between
+Internet radio and terrestrial radio remains: Internet radio has to pay a
+/{type of copyright fee}/ that terrestrial radio does not.
+={ Library of Congress }
+Why? What justifies this difference? Was there any study of the economic
+consequences from Internet radio that would justify these differences? Was the
+motive to protect artists against piracy?
+In a rare bit of candor, one RIAA expert admitted what seemed obvious to
+everyone at the time. As Alex Alben, vice president for Public Policy at Real
+Networks, told me,
+={ Alben, Alex +2 ;
+ Recording Industry Association of America (RIAA) :
+ on Internet radio fees +2 ;
+ artists :
+ recording industry payments to +2 ;
+ recording industry :
+ artist remuneration in +2
+_1 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. ..."
+_1 And the RIAA experts said, "Well, we don't really model this as an industry
+with thousands of webcasters, /{we think it should be an industry with, you
+know, five or seven big players who can pay a high rate and it's a stable,
+predictable market.}/" (Emphasis added.)
+Translation: The aim is to use the law to eliminate competition, so that this
+platform of potentially immense competition, which would cause the diversity
+and range of content available to explode, would not cause pain to the
+dinosaurs of old. There is no one, on either the right or the left, who should
+endorse this use of the law. And yet there is practically no one, on either the
+right or the left, who is doing anything effective to prevent it.
+2~ Corrupting Citizens
+={ copyright law :
+ illegal behavior as broad response to +33 ;
+ law :
+ citizen respect for +33 ;
+ prohibition, citizen rebellion against +33 ;
+ regulation :
+ rule of law degraded by excess of +33
+Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a
+veto over the future. It wastes the extraordinary opportunity for a democratic
+creativity that digital technology enables.
+In addition to these important harms, there is one more that was important to
+our forebears, but seems forgotten today. Overregulation corrupts citizens and
+weakens the rule of law.
+The war that is being waged today is a war of prohibition. As with every war of
+prohibition, it is targeted against the behavior of a very large number of
+citizens. According to /{The New York Times}/, 43 million Americans downloaded
+music in May 2002.~{ Mike Graziano and Lee Rainie, "The Music Downloading
+Deluge," Pew Internet and American Life Project (24 April 2001), available at
+link #46. The Pew Internet and American Life Project reported that 37 million
+Americans had downloaded music files from the Internet by early 2001. }~
+According to the RIAA, the behavior of those 43 million Americans is a felony.
+We thus have a set of rules that transform 20 percent of America into
+criminals. As the RIAA launches lawsuits against not only the Napsters and
+Kazaas of the world, but against students building search engines, and
+increasingly against ordinary users downloading content, the technologies for
+sharing will advance to further protect and hide illegal use. It is an arms
+race or a civil war, with the extremes of one side inviting a more extreme
+response by the other.
+={ Internet :
+ music files downloaded from ;
+ copyright infringement lawsuits :
+ individual defendants intimidated by +1 | in recording industry +1 ;
+ recording industry :
+ copyright infringement lawsuits of +1 ;
+ Recording Industry Association of America (RIAA) :
+ copyright infringement lawsuits filed by +1 | intimidation tactics of +1
+The content industry's tactics exploit the failings of the American legal
+system. When the RIAA brought suit against Jesse Jordan, it knew that in Jordan
+it had found a scapegoat, not a defendant. The threat of having to pay either
+all the money in the world in damages ($15,000,000) or almost all the money in
+the world to defend against paying all the money in the world in damages
+($250,000 in legal fees) led Jordan to choose to pay all the money he had in
+the world ($12,000) to make the suit go away. The same strategy animates the
+RIAA's suits against individual users. In September 2003, the RIAA sued 261
+individuals - including a twelve-year-old girl living in public housing and a
+seventy-year-old man who had no idea what file sharing was.~{ Alex Pham, "The
+Labels Strike Back: N.Y. Girl Settles RIAA Case," /{Los Angeles Times,}/ 10
+September 2003, Business. }~ As these scapegoats discovered, it will always
+cost more to defend against these suits than it would cost to simply settle.
+(The twelve year old, for example, like Jesse Jordan, paid her life savings of
+$2,000 to settle the case.) Our law is an awful system for defending rights. It
+is an embarrassment to our tradition. And the consequence of our law as it is,
+is that those with the power can use the law to quash any rights they oppose.
+={ Jordan, Jesse }
+Wars of prohibition are nothing new in America. This one is just something more
+extreme than anything we've seen before. We experimented with alcohol
+prohibition, at a time when the per capita consumption of alcohol was 1.5
+gallons per capita per year. The war against drinking initially reduced that
+consumption to just 30 percent of its preprohibition levels, but by the end of
+prohibition, consumption was up to 70 percent of the preprohibition level.
+Americans were drinking just about as much, but now, a vast number were
+criminals.~{ Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
+Prohibition," /{American Economic Review}/ 81, no. 2 (1991): 242. }~ We have
+launched a war on drugs aimed at reducing the consumption of regulated
+narcotics that 7 percent (or 16 million) Americans now use.~{ National Drug
+Control Policy: Hearing Before the House Government Reform Committee, 108th
+Cong., 1st sess. (5 March 2003) (statement of John P. Walters, director of
+National Drug Control Policy). }~ That is a drop from the high (so to speak) in
+1979 of 14 percent of the population. We regulate automobiles to the point
+where the vast majority of Americans violate the law every day. We run such a
+complex tax system that a majority of cash businesses regularly cheat.~{ See
+James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax Compliance,"
+/{Journal of Economic Literature}/ 36 (1998): 818 (survey of compliance
+literature). }~ We pride ourselves on our "free society," but an endless array
+of ordinary behavior is regulated within our society. And as a result, a huge
+proportion of Americans regularly violate at least some law.
+={ alcohol prohibition +1 ;
+ drugs :
+ illegal +1 ;
+ tax system +1
+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.
+={ ethics ;
+ law schools ;
+ Nesson, Charlie
+The response to this general illegality is either to enforce the law more
+severely or to change the law. We, as a society, have to learn how to make that
+choice more rationally. Whether a law makes sense depends, in part, at least,
+upon whether the costs of the law, both intended and collateral, outweigh the
+benefits. If the costs, intended and collateral, do outweigh the benefits, then
+the law ought to be changed. Alternatively, if the costs of the existing system
+are much greater than the costs of an alternative, then we have a good reason
+to consider the alternative.
+My point is not the idiotic one: Just because people violate a law, we should
+therefore repeal it. Obviously, we could reduce murder statistics dramatically
+by legalizing murder on Wednesdays and Fridays. But that wouldn't make any
+sense, since murder is wrong every day of the week. A society is right to ban
+murder always and everywhere.
+My point is instead one that democracies understood for generations, but that
+we recently have learned to forget. The rule of law depends upon people obeying
+the law. The more often, and more repeatedly, we as citizens experience
+violating the law, the less we respect the law. Obviously, in most cases, the
+important issue is the law, not respect for the law. I don't care whether the
+rapist respects the law or not; I want to catch and incarcerate the rapist. But
+I do care whether my students respect the law. And I do care if the rules of
+law sow increasing disrespect because of the extreme of regulation they impose.
+Twenty million Americans have come of age since the Internet introduced this
+different idea of "sharing." We need to be able to call these twenty million
+Americans "citizens," not "felons."
+When at least forty-three million citizens download content from the Internet,
+and when they use tools to combine that content in ways unauthorized by
+copyright holders, the first question we should be asking is not how best to
+involve the FBI. The first question should be whether this particular
+prohibition is really necessary in order to achieve the proper ends that
+copyright law serves. Is there another way to assure that artists get paid
+without transforming forty-three million Americans into felons? Does it make
+sense if there are other ways to assure that artists get paid without
+transforming America into a nation of felons?
+This abstract point can be made more clear with a particular example.
+We all own CDs. Many of us still own phonograph records. These pieces of
+plastic encode music that in a certain sense we have bought. The law protects
+our right to buy and sell that plastic: It is not a copyright infringement for
+me to sell all my classical records at a used record store and buy jazz records
+to replace them. That "use" of the recordings is free.
+But as the MP3 craze has demonstrated, there is another use of phonograph
+records that is effectively free. Because these recordings were made without
+copy-protection technologies, I am "free" to copy, or "rip," music from my
+records onto a computer hard disk. Indeed, Apple Corporation went so far as to
+suggest that "freedom" was a right: In a series of commercials, Apple endorsed
+the "Rip, Mix, Burn" capacities of digital technologies.
+={ Apple Corporation +1 ;
+ Rip, Mix, Burn technologies +1 ;
+ technology :
+ cut-and-paste culture enabled by
+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.
+={ Andromeda }
+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.
+={ CDs :
+ mix technology and +1 ;
+ technology :
+ copyright enforcement controlled by +1 ;
+ copyright law :
+ technology as automatic enforcer of
+If these technologies took off, then the building of large archives of your own
+music would become quite difficult. You might hang in hacker circles, and get
+technology to disable the technologies that protect the content. Trading in
+those technologies is illegal, but maybe that doesn't bother you much. In any
+case, for the vast majority of people, these protection technologies would
+effectively destroy the archiving use of CDs. The technology, in other words,
+would force us all back to the world where we either listened to music by
+manipulating pieces of plastic or were part of a massively complex "digital
+rights management" system.
+If the only way to assure that artists get paid were the elimination of the
+ability to freely move content, then these technologies to interfere with the
+freedom to move content would be justifiable. But what if there were another
+way to assure that artists are paid, without locking down any content? What if,
+in other words, a different system could assure compensation to artists while
+also preserving the freedom to move content easily?
+My point just now is not to prove that there is such a system. I offer a
+version of such a system in the last chapter of this book. For now, the only
+point is the relatively uncontroversial one: If a different system achieved the
+same legitimate objectives that the existing copyright system achieved, but
+left consumers and creators much more free, then we'd have a very good reason
+to pursue this alternative - namely, freedom. The choice, in other words, would
+not be between property and piracy; the choice would be between different
+property systems and the freedoms each allowed.
+={ copyright law :
+ commercial creativity as primary purpose of +1 | as protection of creators +1
+I believe there is a way to assure that artists are paid without turning
+forty-three million Americans into felons. But the salient feature of this
+alternative is that it would lead to a very different market for producing and
+distributing creativity. The dominant few, who today control the vast majority
+of the distribution of content in the world, would no longer exercise this
+extreme of control. Rather, they would go the way of the horse-drawn buggy.
+Except that this generation's buggy manufacturers have already saddled
+Congress, and are riding the law to protect themselves against this new form of
+competition. For them the choice is between forty-three million Americans as
+criminals and their own survival.
+It is understandable why they choose as they do. It is not understandable why
+we as a democracy continue to choose as we do. Jack Valenti is charming; but
+not so charming as to justify giving up a tradition as deep and important as
+our tradition of free culture.
+={ Valenti, Jack }
+!_ 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.
+={ civil liberties +11 ;
+ Electronic Frontier Foundation ;
+ von Lohmann, Fred +2
+"If you can treat someone as a putative lawbreaker," von Lohmann explains,
+_1 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 "law-breakers."
+={ privacy rights +3 }
+And the consequence of this transformation of the American public into
+criminals is that it becomes trivial, as a matter of due process, to
+effectively erase much of the privacy most would presume.
+Users of the Internet began to see this generally in 2003 as the RIAA launched
+its campaign to force Internet service providers to turn over the names of
+customers who the RIAA believed were violating copyright law. Verizon fought
+that demand and lost. With a simple request to a judge, and without any notice
+to the customer at all, the identity of an Internet user is revealed.
+={ Internet :
+ user identities released by service providers of +4 ;
+ ISPs (Internet service providers), user identities revealed by +4 ;
+ Recording Industry Association of America (RIAA) :
+ ISP user identities sought by +4 ;
+ Verizon Internet Services
+The RIAA then expanded this campaign, by announcing a general strategy to sue
+individual users of the Internet who are alleged to have downloaded copyrighted
+music from file-sharing systems. But as we've seen, the potential damages from
+these suits are astronomical: If a family's computer is used to download a
+single CD's worth of music, the family could be liable for $2 million in
+damages. That didn't stop the RIAA from suing a number of these families, just
+as they had sued Jesse Jordan.~{ See Frank Ahrens, "RIAA's Lawsuits Meet
+Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
+Defendants," /{Washington Post,}/ 10 September 2003, E1; Chris Cobbs, "Worried
+Parents Pull Plug on File 'Stealing'; With the Music Industry Cracking Down on
+File Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued,"
+/{Orlando Sentinel Tribune,}/ 30 August 2003, C1; Jefferson Graham, "Recording
+Industry Sues Parents," /{USA Today,}/ 15 September 2003, 4D; John Schwartz,
+"She Says She's No Music Pirate. No Snoop Fan, Either," /{New York Times,}/ 25
+September 2003, C1; Margo Varadi, "Is Brianna a Criminal?" /{Toronto Star,}/ 18
+September 2003, P7. }~
+={ Jordan, Jesse ;
+ copyright infringement lawsuits :
+ exaggerated claims of +3 ;
+ peer-to-peer (p2p) file sharing :
+ regulatory balance lost in +6 ;
+ Recording Industry Association of America (RIAA) :
+ intimidation tactics of +3
+Even this understates the espionage that is being waged by the RIAA. A report
+from CNN late last summer described a strategy the RIAA had adopted to track
+Napster users.~{ See "Revealed: How RIAA Tracks Downloaders: Music Industry
+Discloses Some Methods Used,", available at link #47. }~ Using a
+sophisticated hashing algorithm, the RIAA took what is in effect a fingerprint
+of every song in the Napster catalog. Any copy of one of those MP3s will have
+the same "fingerprint."
+={ Napster :
+ recording industry tracking users of +2
+So imagine the following not-implausible scenario: Imagine a friend gives a CD
+to your daughter - a collection of songs just like the cassettes you used to
+make as a kid. You don't know, and neither does your daughter, where these
+songs came from. But she copies these songs onto her computer. She then takes
+her computer to college and connects it to a college network, and if the
+college network is "cooperating" with the RIAA's espionage, and she hasn't
+properly protected her content from the network (do you know how to do that
+yourself ?), then the RIAA will be able to identify your daughter as a
+"criminal." And under the rules that universities are beginning to deploy,~{
+See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," /{Boston
+Globe,}/ 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued over
+Music Sites; Industry Group Targets File Sharing at Colleges," /{Washington
+Post,}/ 4 April 2003, E1; Elizabeth Armstrong, "Students 'Rip, Mix, Burn' at
+Their Own Risk," /{Christian Science Monitor,}/ 2 September 2003, 20; Robert
+Becker and Angela Rozas, "Music Pirate Hunt Turns to Loyola; Two Students Names
+Are Handed Over; Lawsuit Possible," /{Chicago Tribune,}/ 16 July 2003, 1C; Beth
+Cox, "RIAA Trains Antipiracy Guns on Universities," /{Internet News,}/ 30
+January 2003, available at link #48; Benny Evangelista, "Download Warning 101:
+Freshman Orientation This Fall to Include Record Industry Warnings Against File
+Sharing," /{San Francisco Chronicle,}/ 11 August 2003, E11; "Raid, Letters Are
+Weapons at Universities," /{USA Today,}/ 26 September 2000, 3D. }~ your
+daughter can lose the right to use the university's computer network. She can,
+in some cases, be expelled.
+={ university computer networks, p2p sharing on +1 }
+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
+Says von Lohmann,
+={ von Lohmann, Fred +1 }
+_1 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."
+={ driving speed, constraints on ;
+ speeding, constraints on ;
+ drugs :
+ illegal
+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?
+1~intro_balances [Intro]-#
+!_ So here's
+the picture: You're standing at the side of the road. Your car is on fire. You
+are angry and upset because in part you helped start the fire. Now you don't
+know how to put it out. Next to you is a bucket, filled with gasoline.
+Obviously, gasoline won't put the fire out.
+As you ponder the mess, someone else comes along. In a panic, she grabs the
+bucket. Before you have a chance to tell her to stop - or before she
+understands just why she should stop - the bucket is in the air. The gasoline
+is about to hit the blazing car. And the fire that gasoline will ignite is
+about to ignite everything around.
+!_ A war
+about copyright rages all around - and we're all focusing on the wrong thing.
+No doubt, current technologies threaten existing businesses. No doubt they may
+threaten artists. But technologies change. The industry and technologists have
+plenty of ways to use technology to protect themselves against the current
+threats of the Internet. This is a fire that if let alone would burn itself
+Yet policy makers are not willing to leave this fire to itself. Primed with
+plenty of lobbyists' money, they are keen to intervene to eliminate the problem
+they perceive. But the problem they perceive is not the real threat this
+culture faces. For while we watch this small fire in the corner, there is a
+massive change in the way culture is made that is happening all around.
+Somehow we have to find a way to turn attention to this more important and
+fundamental issue. Somehow we have to find a way to avoid pouring gasoline onto
+this fire.
+We have not found that way yet. Instead, we seem trapped in a simpler, binary
+view. However much many people push to frame this debate more broadly, it is
+the simple, binary view that remains. We rubberneck to look at the fire when we
+should be keeping our eyes on the road.
+This challenge has been my life these last few years. It has also been my
+failure. In the two chapters that follow, I describe one small brace of
+efforts, so far failed, to find a way to refocus this debate. We must
+understand these failures if we're to understand what success will require.
+1~ Chapter Thirteen: Eldred
+={ Eldred, Eric +10 }
+!_ 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.
+={ Hawthorne, Nathaniel +3 }
+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.
+={ libraries :
+ of public-domain literature +4 ;
+ public domain :
+ library of works derived from +4
+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.
+={ Disney, Walt +1 ;
+ Grimm fairy tales
+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.
+={ Scarlet Letter, The (Hawthorne) }
+The Internet created the possibility of noncommercial publications of public
+domain works. Eldred's is just one example. There are literally thousands of
+others. Hundreds of thousands from across the world have discovered this
+platform of expression and now use it to share works that are, by law, free for
+the taking. This has produced what we might call the "noncommercial publishing
+industry," which before the Internet was limited to people with large egos or
+with political or social causes. But with the Internet, it includes a wide
+range of individuals and groups dedicated to spreading culture generally.~{
+There's a parallel here with pornography that is a bit hard to describe, but
+it's a strong one. One phenomenon that the Internet created was a world of
+noncommercial pornographers - people who were distributing porn but were not
+making money directly or indirectly from that distribution. Such a class didn't
+exist before the Internet came into being because the costs of distributing
+porn were so high. Yet this new class of distributors got special attention in
+the Supreme Court, when the Court struck down the Communications Decency Act of
+1996. It was partly because of the burden on noncommercial speakers that the
+statute was found to exceed Congress's power. The same point could have been
+made about noncommercial publishers after the advent of the Internet. The Eric
+Eldreds of the world before the Internet were extremely few. Yet one would
+think it at least as important to protect the Eldreds of the world as to
+protect noncommercial pornographers. }~
+As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of
+poems /{New Hampshire}/ was slated to pass into the public domain. Eldred
+wanted to post that collection in his free public library. But Congress got in
+the way. As I described in chapter 10, in 1998, for the eleventh time in forty
+years, Congress extended the terms of existing copyrights - this time by twenty
+years. Eldred would not be free to add any works more recent than 1923 to his
+collection until 2019. Indeed, no copyrighted work would pass into the public
+domain until that year (and not even then, if Congress extends the term again).
+By contrast, in the same period, more than 1 million patents will pass into the
+public domain.
+={ Congress, U.S. :
+ copyright terms extended by +23 ;
+ copyright :
+ duration of +23 ;
+ copyright law :
+ term extensions in +23 ;
+ Frost, Robert ;
+ New Hampshire (Frost) ;
+ patents :
+ in public domain | future patents vs. future copyrights in +1
+This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in memory
+of the congressman and former musician Sonny Bono, who, his widow, Mary Bono,
+says, believed that "copyrights should be forever."~{ The full text is: "Sonny
+[Bono] wanted the term of copyright protection to last forever. I am informed
+by staff that such a change would violate the Constitution. I invite all of you
+to work with me to strengthen our copyright laws in all of the ways available
+to us. As you know, there is also Jack Valenti's proposal for a term to last
+forever less one day. Perhaps the Committee may look at that next Congress,"
+144 Cong. Rec. H9946, 9951-2 (October 7, 1998). }~
+={ Bono, Mary ;
+ Bono, Sonny ;
+ copyright :
+ in perpetuity +5 ;
+ Sonny Bono Copyright Term Extension Act (CTEA) (1998) +1
+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.
+={ copyright law :
+ felony punishment for infringement of ;
+ NET (No Electronic Theft) Act (1988) ;
+ No Electronic Theft (NET) Act (1988) ;
+ peer-to-peer (p2p) file sharing :
+ felony punishments for
+It was here that I became involved in Eldred's battle. I was a constitutional
+scholar whose first passion was constitutional interpretation. And though
+constitutional law courses never focus upon the Progress Clause of the
+Constitution, it had always struck me as importantly different. As you know,
+the Constitution says,
+={ Congress :
+ constitutional powers of +3 ;
+ Constitution, U.S. :
+ Progress Clause of +2 ;
+ Progress Clause +2 ;
+ Lessig, Lawrence :
+ Eldred case involvement of +2
+_1 Congress has the power to promote the Progress of Science ... by securing
+for limited Times to Authors ... exclusive Right to their ... Writings. ..."
+As I've described, this clause is unique within the power-granting clause of
+Article I, section 8 of our Constitution. Every other clause granting power to
+Congress simply says Congress has the power to do something - for example, to
+regulate "commerce among the several states" or "declare War." But here, the
+"something" is something quite specific - to "promote ... Progress" - through
+means that are also specific - by "securing" "exclusive Rights" (i.e.,
+copyrights) "for limited Times."
+In the past forty years, Congress has gotten into the practice of extending
+existing terms of copyright protection. What puzzled me about this was, if
+Congress has the power to extend existing terms, then the Constitution's
+requirement that terms be "limited" will have no practical effect. If every
+time a copyright is about to expire, Congress has the power to extend its term,
+then Congress can achieve what the Constitution plainly forbids - perpetual
+terms "on the installment plan," as Professor Peter Jaszi so nicely put it.
+={ Jaszi, Peter }
+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.
+={ Lessig, Lawrence :
+ Eldred case involvement of
+For this is the core of the corruption in our present system of
+government."Corruption" not in the sense that representatives are bribed.
+Rather, "corruption" in the sense that the system induces the beneficiaries of
+Congress's acts to raise and give money to Congress to induce it to act.
+There's only so much time; there's only so much Congress can do. Why not limit
+its actions to those things it must do - and those things that pay? Extending
+copyright terms pays.
+If that's not obvious to you, consider the following: Say you're one of the
+very few lucky copyright owners whose copyright continues to make money one
+hundred years after it was created. The Estate of Robert Frost is a good
+example. Frost died in 1963. His poetry continues to be extraordinarily
+valuable. Thus the Robert Frost estate benefits greatly from any extension of
+copyright, since no publisher would pay the estate any money if the poems Frost
+wrote could be published by anyone for free.
+={ Frost, Robert +12 }
+So imagine the Robert Frost estate is earning $100,000 a year from three of
+Frost's poems. And imagine the copyright for those poems is about to expire.
+You sit on the board of the Robert Frost estate. Your financial adviser comes
+to your board meeting with a very grim report:
+"Next year," the adviser announces, "our copyrights in works A, B, and C will
+expire. That means that after next year, we will no longer be receiving the
+annual royalty check of $100,000 from the publishers of those works.
+"There's a proposal in Congress, however," she continues, "that could change
+this. A few congressmen are floating a bill to extend the terms of copyright by
+twenty years. That bill would be extraordinarily valuable to us. So we should
+hope this bill passes."
+"Hope?" a fellow board member says. "Can't we be doing something about it?"
+"Well, obviously, yes," the adviser responds. "We could contribute to the
+campaigns of a number of representatives to try to assure that they support the
+={ Congress, U.S. :
+ lobbying of +8 }
+You hate politics. You hate contributing to campaigns. So you want to know
+whether this disgusting practice is worth it. "How much would we get if this
+extension were passed?" you ask the adviser. "How much is it worth?"
+"Well," the adviser says, "if you're confident that you will continue to get at
+least $100,000 a year from these copyrights, and you use the 'discount rate'
+that we use to evaluate estate investments (6 percent), then this law would be
+worth $1,146,000 to the estate."
+You're a bit shocked by the number, but you quickly come to the correct
+"So you're saying it would be worth it for us to pay more than $1,000,000 in
+campaign contributions if we were confident those contributions would assure
+that the bill was passed?"
+"Absolutely," the adviser responds. "It is worth it to you to contribute up to
+the 'present value' of the income you expect from these copyrights. Which for
+us means over $1,000,000."
+You quickly get the point - you as the member of the board and, I trust, you
+the reader. Each time copyrights are about to expire, every beneficiary in the
+position of the Robert Frost estate faces the same choice: If they can
+contribute to get a law passed to extend copyrights, they will benefit greatly
+from that extension. And so each time copyrights are about to expire, there is
+a massive amount of lobbying to get the copyright term extended.
+Thus a congressional perpetual motion machine: So long as legislation can be
+bought (albeit indirectly), there will be all the incentive in the world to buy
+further extensions of copyright.
+In the lobbying that led to the passage of the Sonny Bono Copyright Term
+Extension Act, this "theory" about incentives was proved real. Ten of the
+thirteen original sponsors of the act in the House received the maximum
+contribution from Disney's political action committee; in the Senate, eight of
+the twelve sponsors received contributions.~{ Associated Press, "Disney
+Lobbying for Copyright Extension No Mickey Mouse Effort; Congress OKs Bill
+Granting Creators 20 More Years," /{Chicago Tribune,}/ 17 October 1998, 22. }~
+The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in
+the 1998 election cycle. They paid out more than $200,000 in campaign
+contributions.~{ See Nick Brown, "Fair Use No More?: Copyright in the
+Information Age," available at link #49. }~ Disney is estimated to have
+contributed more than $800,000 to reelection campaigns in the 1998 cycle.~{
+Alan K. Ota, "Disney in Washington: The Mouse That Roars," /{Congressional
+Quarterly This Week,}/ 8 August 1990, available at link #50. }~
+={ Disney, Inc. ;
+ film industry :
+ trade association of ;
+ Motion Picture Association of America (MPAA) ;
+ Recording Industry Association of America (RIAA) :
+ lobbying power of ;
+ Sonny Bono Copyright Term Extension Act (CTEA) (1998) ;
+ Congress, U.S. :
+ copyright terms extended by +13
+!_ 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.
+={ Lessig, Lawrence :
+ Eldred case involvement of +1 ;
+ Constitution, U.S. :
+ Progress Clause of ;
+ Eldred, Eric ;
+ copyright law :
+ term extensions in +12
+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.
+={ Congress, U.S. :
+ Supreme Court restraint on +6 ;
+ copyright law :
+ Supreme Court case on term extension of +5 ;
+ Supreme Court, U.S. :
+ congressional actions restrained by +5 | on copyright term extensions ;
+ guns +2 ;
+ schools, gun possession near +2
+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.
+={ commerce, interstate +3 ;
+ Congress, U.S. :
+ constitutional powers of +5 ;
+ interstate commerce +4
+As the economy grew, this standard increasingly meant that there was no limit
+to Congress's power to regulate, since just about every activity, when
+considered on a national scale, affects interstate commerce. A Constitution
+designed to limit Congress's power was instead interpreted to impose no limit.
+The Supreme Court, under Chief Justice Rehnquist's command, changed that in
+/{United States v. Lopez}/. The government had argued that possessing guns near
+schools affected interstate commerce. Guns near schools increase crime, crime
+lowers property values, and so on. In the oral argument, the Chief Justice
+asked the government whether there was any activity that would not affect
+interstate commerce under the reasoning the government advanced. The government
+said there was not; if Congress says an activity affects interstate commerce,
+then that activity affects interstate commerce. The Supreme Court, the
+government said, was not in the position to second-guess Congress.
+={ Rehnquist, William H. +1 ;
+ United States v. Lopez +1
+"We pause to consider the implications of the government's arguments," the
+Chief Justice wrote.~{ /{United States v. Lopez,}/ 514 U.S. 549, 564 (1995). }~
+If anything Congress says is interstate commerce must therefore be considered
+interstate commerce, then there would be no limit to Congress's power. The
+decision in /{Lopez}/ was reaffirmed five years later in /{United States v.
+Morrison}/.~{ /{United States v. Morrison,}/ 529 U.S. 598 (2000). }~
+={ United States v. Morrison }
+If a principle were at work here, then it should apply to the Progress Clause
+as much as the Commerce Clause.~{ If it is a principle about enumerated powers,
+then the principle carries from one enumerated power to another. The animating
+point in the context of the Commerce Clause was that the interpretation offered
+by the government would allow the government unending power to regulate
+commerce - the limitation to interstate commerce notwithstanding. The same
+point is true in the context of the Copyright Clause. Here, too, the
+government's interpretation would allow the government unending power to
+regulate copyrights - the limitation to "limited times" notwithstanding. }~ And
+if it is applied to the Progress Clause, the principle should yield the
+conclusion that Congress can't extend an existing term. If Congress could
+extend an existing term, then there would be no "stopping point" to Congress's
+power over terms, though the Constitution expressly states that there is such a
+limit. Thus, the same principle applied to the power to grant copyrights should
+entail that Congress is not allowed to extend the term of existing copyrights.
+={ Constitution, U.S. :
+ Progress Clause of | Commerce Clause of ;
+ copyright :
+ duration of ;
+ Supreme Court, U.S. :
+ congressional actions restrained by +2
+/{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
+={ Congress, U.S. :
+ Supreme Court restraint on +3 ;
+ United States v. Lopez
+!_ 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.
+={ Constitution, U.S. :
+ copyright purpose established in ;
+ copyright :
+ constitutional purpose of | duration of ;
+ Disney, Walt ;
+ Eldred, Eric +2 ;
+ Frost, Robert ;
+ Mickey Mouse ;
+ public domain :
+ protection of +2
+Some people view the public domain with contempt. In their brief before the
+Supreme Court, the Nashville Songwriters Association wrote that the public
+domain is nothing more than "legal piracy."~{ Brief of the Nashville
+Songwriters Association, /{Eldred v. Ashcroft,}/ 537 U.S. 186 (2003) (No.
+01-618), n.10, available at link #51. }~ But it is not piracy when the law
+allows it; and in our constitutional system, our law requires it. Some may not
+like the Constitution's requirements, but that doesn't make the Constitution a
+pirate's charter.
+={ Eldred v. Ashcroft ;
+ Constitution, U.S. :
+ copyright purpose established in +1 ;
+ copyright :
+ constitutional purpose of +1 ;
+ Nashville Songwriters Association
+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.
+={ Eldred, Eric ;
+ copyright :
+ duration of +2
+!_ 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.
+={ Mickey Mouse ;
+ Rhapsody in Blue (Gershwin) ;
+ Frost, Robert
+% added this Frost index reference
+If you look at the work created in the first twenty years (1923 to 1942)
+affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that work
+has any continuing commercial value. It was the copyright holders for that 2
+percent who pushed the CTEA through. But the law and its effect were not
+limited to that 2 percent. The law extended the terms of copyright generally.~{
+The figure of 2 percent is an extrapolation from the study by the Congressional
+Research Service, in light of the estimated renewal ranges. See Brief of
+Petitioners, /{Eldred v. Ashcroft,}/ 7, available at link #52. }~
+={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) }
+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?
+={ Kahle, Brewster ;
+ archives, digital ;
+ Internet Archive
+Well, first, you'd have to determine which of the 9,873 books were still under
+copyright. That requires going to a library (these data are not on-line) and
+paging through tomes of books, cross-checking the titles and authors of the
+9,873 books with the copyright registration and renewal records for works
+published in 1930. That will produce a list of books still under copyright.
+Then for the books still under copyright, you would need to locate the current
+copyright owners. How would you do that?
+Most people think that there must be a list of these copyright owners
+somewhere. Practical people think this way. How could there be thousands and
+thousands of government monopolies without there being at least a list?
+={ copyright :
+ no registration of works +5
+But there is no list. There may be a name from 1930, and then in 1959, of the
+person who registered the copyright. But just think practically about how
+impossibly difficult it would be to track down thousands of such records -
+especially since the person who registered is not necessarily the current
+owner. And we're just talking about 1930!
+"But there isn't a list of who owns property generally," the apologists for the
+system respond. "Why should there be a list of copyright owners?"
+Well, actually, if you think about it, there /{are}/ plenty of lists of who
+owns what property. Think about deeds on houses, or titles to cars. And where
+there isn't a list, the code of real space is pretty good at suggesting who the
+owner of a bit of property is. (A swing set in your backyard is probably
+yours.) So formally or informally, we have a pretty good way to know who owns
+what tangible property.
+So: You walk down a street and see a house. You can know who owns the house by
+looking it up in the courthouse registry. If you see a car, there is ordinarily
+a license plate that will link the owner to the car. If you see a bunch of
+children's toys sitting on the front lawn of a house, it's fairly easy to
+determine who owns the toys. And if you happen to see a baseball lying in a
+gutter on the side of the road, look around for a second for some kids playing
+ball. If you don't see any kids, then okay: Here's a bit of property whose
+owner we can't easily determine. It is the exception that proves the rule: that
+we ordinarily know quite well who owns what property.
+Compare this story to intangible property. You go into a library. The library
+owns the books. But who owns the copyrights? As I've already described, there's
+no list of copyright owners. There are authors' names, of course, but their
+copyrights could have been assigned, or passed down in an estate like Grandma's
+old jewelry. To know who owns what, you would have to hire a private detective.
+The bottom line: The owner cannot easily be located. And in a regime like ours,
+in which it is a felony to use such property without the property owner's
+permission, the property isn't going to be used.
+={ copyright law :
+ felony for infringement of
+The consequence with respect to old books is that they won't be digitized, and
+hence will simply rot away on shelves. But the consequence for other creative
+works is much more dire.
+Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns
+the copyrights for the Laurel and Hardy films. Agee is a direct beneficiary of
+the Bono Act. The Laurel and Hardy films were made between 1921 and 1951. Only
+one of these films, /{The Lucky Dog}/, is currently out of copyright. But for
+the CTEA, films made after 1923 would have begun entering the public domain.
+Because Agee controls the exclusive rights for these popular films, he makes a
+great deal of money. According to one estimate, "Roach has sold about 60,000
+videocassettes and 50,000 DVDs of the duo's silent films."~{ See David G.
+Savage, "High Court Scene of Showdown on Copyright Law," /{Los Angeles Times,}/
+6 October 2002; David Streitfeld, "Classic Movies, Songs, Books at Stake;
+Supreme Court Hears Arguments Today on Striking Down Copyright Extension,"
+/{Orlando Sentinel Tribune,}/ 9 October 2002. }~
+={ Agee, Michael +2 ;
+ films :
+ in public domain +12 ;
+ Hal Roach Studios ;
+ Laurel and Hardy films ;
+ Lucky Dog, The ;
+ public domain :
+ films in +12
+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.
+={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) }
+His argument is straightforward. A tiny fraction of this work has any
+continuing commercial value. The rest - to the extent it survives at all - sits
+in vaults gathering dust. It may be that some of this work not now commercially
+valuable will be deemed to be valuable by the owners of the vaults. For this to
+occur, however, the commercial benefit from the work must exceed the costs of
+making the work available for distribution.
+We can't know the benefits, but we do know a lot about the costs. For most of
+the history of film, the costs of restoring film were very high; digital
+technology has lowered these costs substantially. While it cost more than
+$10,000 to restore a ninety-minute black-and-white film in 1993, it can now
+cost as little as $100 to digitize one hour of 8 mm film.~{ Brief of Hal Roach
+Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, /{Eldred
+v. Ashcroft,}/ 537 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus
+Curiae filed on behalf of Petitioners by the Internet Archive, /{Eldred v.
+Ashcroft,}/ available at link #53. }~
+={ films :
+ restoration of +4
+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
+={ films :
+ multiple copyrights associated with +1
+Or more accurately, /{owners}/. As we've seen, there isn't only a single
+copyright associated with a film; there are many. There isn't a single person
+whom you can contact about those copyrights; there are as many as can hold the
+rights, which turns out to be an extremely large number. Thus the costs of
+clearing the rights to these films is exceptionally high.
+"But can't you just restore the film, distribute it, and then pay the copyright
+owner when she shows up?" Sure, if you want to commit a felony. And even if
+you're not worried about committing a felony, when she does show up, she'll
+have the right to sue you for all the profits you have made. So, if you're
+successful, you can be fairly confident you'll be getting a call from someone's
+lawyer. And if you're not successful, you won't make enough to cover the costs
+of your own lawyer. Either way, you have to talk to a lawyer. And as is too
+often the case, saying you have to talk to a lawyer is the same as saying you
+won't make any money.
+For some films, the benefit of releasing the film may well exceed these costs.
+But for the vast majority of them, there is no way the benefit would outweigh
+the legal costs. Thus, for the vast majority of old films, Agee argued, the
+film will not be restored and distributed until the copyright expires.
+={ Agee, Michael }
+But by the time the copyright for these films expires, the film will have
+expired. These films were produced on nitrate-based stock, and nitrate stock
+dissolves over time. They will be gone, and the metal canisters in which they
+are now stored will be filled with nothing more than dust.
+!_ Of all the
+creative work produced by humans anywhere, a tiny fraction has continuing
+commercial value. For that tiny fraction, the copyright is a crucially
+important legal device. For that tiny fraction, the copyright creates
+incentives to produce and distribute the creative work. For that tiny fraction,
+the copyright acts as an "engine of free expression."
+But even for that tiny fraction, the actual time during which the creative work
+has a commercial life is extremely short. As I've indicated, most books go out
+of print within one year. The same is true of music and film. Commercial
+culture is sharklike. It must keep moving. And when a creative work falls out
+of favor with the commercial distributors, the commercial life ends.
+={ culture :
+ commercial vs. noncommercial +1
+Yet that doesn't mean the life of the creative work ends. We don't keep
+libraries of books in order to compete with Barnes & Noble, and we don't have
+archives of films because we expect people to choose between spending Friday
+night watching new movies and spending Friday night watching a 1930 news
+documentary. The noncommercial life of culture is important and valuable - for
+entertainment but also, and more importantly, for knowledge. To understand who
+we are, and where we came from, and how we have made the mistakes that we have,
+we need to have access to this history.
+Copyrights in this context do not drive an engine of free expression. In this
+context, there is no need for an exclusive right. Copyrights in this context do
+no good.
+Yet, for most of our history, they also did little harm. For most of our
+history, when a work ended its commercial life, there was no
+/{copyright-related use}/ that would be inhibited by an exclusive right. When a
+book went out of print, you could not buy it from a publisher. But you could
+still buy it from a used book store, and when a used book store sells it, in
+America, at least, there is no need to pay the copyright owner anything. Thus,
+the ordinary use of a book after its commercial life ended was a use that was
+independent of copyright law.
+The same was effectively true of film. Because the costs of restoring a film -
+the real economic costs, not the lawyer costs - were so high, it was never at
+all feasible to preserve or restore film. Like the remains of a great dinner,
+when it's over, it's over. Once a film passed out of its commercial life, it
+may have been archived for a bit, but that was the end of its life so long as
+the market didn't have more to offer.
+={ films :
+ restoration of
+In other words, though copyright has been relatively short for most of our
+history, long copyrights wouldn't have mattered for the works that lost their
+commercial value. Long copyrights for these works would not have interfered
+with anything.
+But this situation has now changed.
+One crucially important consequence of the emergence of digital technologies is
+to enable the archive that Brewster Kahle dreams of. Digital technologies now
+make it possible to preserve and give access to all sorts of knowledge. Once a
+book goes out of print, we can now imagine digitizing it and making it
+available to everyone, forever. Once a film goes out of distribution, we could
+digitize it and make it available to everyone, forever. Digital technologies
+give new life to copyrighted material after it passes out of its commercial
+life. It is now possible to preserve and assure universal access to this
+knowledge and culture, whereas before it was not.
+={ Kahle, Brewster +3 ;
+ archives, digital +4 ;
+ culture :
+ archives of +4
+And now copyright law does get in the way. Every step of producing this digital
+archive of our culture infringes on the exclusive right of copyright. To
+digitize a book is to copy it. To do that requires permission of the copyright
+owner. The same with music, film, or any other aspect of our culture protected
+by copyright. The effort to make these things available to history, or to
+researchers, or to those who just want to explore, is now inhibited by a set of
+rules that were written for a radically different context.
+Here is the core of the harm that comes from extending terms: Now that
+technology enables us to rebuild the library of Alexandria, the law gets in the
+way. And it doesn't get in the way for any useful /{copyright}/ purpose, for
+the purpose of copyright is to enable the commercial market that spreads
+culture. No, we are talking about culture after it has lived its commercial
+life. In this context, copyright is serving no purpose /{at all}/ related to
+the spread of knowledge. In this context, copyright is not an engine of free
+expression. Copyright is a brake.
+={ libraries :
+ archival function of +2
+You may well ask, "But if digital technologies lower the costs for Brewster
+Kahle, then they will lower the costs for Random House, too. So won't Random
+House do as well as Brewster Kahle in spreading culture widely?"
+Maybe. Someday. But there is absolutely no evidence to suggest that publishers
+would be as complete as libraries. If Barnes & Noble offered to lend books from
+its stores for a low price, would that eliminate the need for libraries? Only
+if you think that the only role of a library is to serve what "the market"
+would demand. But if you think the role of a library is bigger than this - if
+you think its role is to archive culture, whether there's a demand for any
+particular bit of that culture or not - then we can't count on the commercial
+market to do our library work for us.
+I would be the first to agree that it should do as much as it can: We should
+rely upon the market as much as possible to spread and enable culture. My
+message is absolutely not antimarket. But where we see the market is not doing
+the job, then we should allow nonmarket forces the freedom to fill the gaps. As
+one researcher calculated for American culture, 94 percent of the films, books,
+and music produced between 1923 and 1946 is not commercially available. However
+much you love the commercial market, if access is a value, then 6 percent is a
+failure to provide that value.~{ Jason Schultz, "The Myth of the 1976 Copyright
+'Chaos' Theory," 20 December 2002, available at link #54. }~
+!_ In January 1999,
+we filed a lawsuit on Eric Eldred's behalf in federal district court in
+Washington, D.C., asking the court to declare the Sonny Bono Copyright Term
+Extension Act unconstitutional. The two central claims that we made were (1)
+that extending existing terms violated the Constitution's "limited Times"
+requirement, and (2) that extending terms by another twenty years violated the
+First Amendment.
+={ Eldred v. Ashcroft +126 ;
+ Lessig, Lawrence :
+ Eldred case involvement of +126 ;
+ Congress, U.S. :
+ copyright terms extended by +2 ;
+ Constitution, U.S. :
+ First Amendment to ;
+ First Amendment :
+ copyright extension as violation of ;
+ Sonny Bono Copyright Term Extension Act (CTEA) (1998) :
+ Supreme Court challenge of +7 ;
+ Supreme Court, U.S. :
+ on copyright term extensions +126 ;
+ copyright law :
+ Supreme Court case on term extension of +126 | term extensions in +126
+The district court dismissed our claims without even hearing an argument. A
+panel of the Court of Appeals for the D.C. Circuit also dismissed our claims,
+though after hearing an extensive argument. But that decision at least had a
+dissent, by one of the most conservative judges on that court. That dissent
+gave our claims life.
+Judge David Sentelle said the CTEA violated the requirement that copyrights be
+for "limited Times" only. His argument was as elegant as it was simple: If
+Congress can extend existing terms, then there is no "stopping point" to
+Congress's power under the Copyright Clause. The power to extend existing terms
+means Congress is not required to grant terms that are "limited." Thus, Judge
+Sentelle argued, the court had to interpret the term "limited Times" to give it
+meaning. And the best interpretation, Judge Sentelle argued, would be to deny
+Congress the power to extend existing terms.
+={ Congress, U.S. :
+ challenge of CTEA legislation of +124 ;
+ Sentelle, David +2
+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.
+={ Court of Appeals :
+ D.C. Circuit +1 ;
+ D.C. Court of Appeals +1
+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 over-stepped its bounds.
+={ Tatel, David }
+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.
+={ Supreme Court, U.S. :
+ annual docket of
+But in February 2002, the Supreme Court surprised the world by granting our
+petition to review the D.C. Circuit opinion. Argument was set for October of
+2002. The summer would be spent writing briefs and preparing for argument.
+!_ It is over
+a year later as I write these words. It is still astonishingly hard. If you
+know anything at all about this story, you know that we lost the appeal. And if
+you know something more than just the minimum, you probably think there was no
+way this case could have been won. After our defeat, I received literally
+thousands of missives by well-wishers and supporters, thanking me for my work
+on behalf of this noble but doomed cause. And none from this pile was more
+significant to me than the e-mail from my client, Eric Eldred.
+={ Eldred, Eric }
+But my client and these friends were wrong. This case could have been won. It
+should have been won. And no matter how hard I try to retell this story to
+myself, I can never escape believing that my own mistake lost it.
+!_ The mistake
+was made early, though it became obvious only at the very end. Our case had
+been supported from the very beginning by an extraordinary lawyer, Geoffrey
+Stewart, and by the law firm he had moved to, Jones, Day, Reavis and Pogue.
+Jones Day took a great deal of heat from its copyright-protectionist clients
+for supporting us. They ignored this pressure (something that few law firms
+today would ever do), and throughout the case, they gave it everything they
+={ Stewart, Gordon +1 ;
+ Jones, Day, Reavis and Pogue (Jones Day) +1
+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."
+={ Ayer, Don ;
+ Bromberg, Dan
+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.
+={ Constitution, U.S. :
+ First Amendment to ;
+ First Amendment :
+ copyright extension as violation of ;
+ Sonny Bono Copyright Term Extension Act (CTEA) (1998) :
+ Supreme Court challenge of
+In any case, I thought, the Court must already see the danger and the harm
+caused by this sort of law. Why else would they grant review? There was no
+reason to hear the case in the Supreme Court if they weren't convinced that
+this regulation was harmful. So in my view, we didn't need to persuade them
+that this law was bad, we needed to show why it was unconstitutional.
+There was one way, however, in which I felt politics would matter and in which
+I thought a response was appropriate. I was convinced that the Court would not
+hear our arguments if it thought these were just the arguments of a group of
+lefty loons. This Supreme Court was not about to launch into a new field of
+judicial review if it seemed that this field of review was simply the
+preference of a small political minority. Although my focus in the case was not
+to demonstrate how bad the Sonny Bono Act was but to demonstrate that it was
+unconstitutional, my hope was to make this argument against a background of
+briefs that covered the full range of political views. To show that this claim
+against the CTEA was grounded in /{law}/ and not politics, then, we tried to
+gather the widest range of credible critics - credible not because they were
+rich and famous, but because they, in the aggregate, demonstrated that this law
+was unconstitutional regardless of one's politics.
+={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) :
+ Supreme Court challenge of
+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.
+={ Disney, Inc. ;
+ Eagle Forum +2 ;
+ Mickey Mouse ;
+ Schlafy, Phyllis
+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.
+={ Court of Appeals :
+ D.C. Circuit ;
+ D.C. Court of Appeals ;
+ Sentelle, David
+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.
+={ Free Software Foundation ;
+ GNU/Linux operating system ;
+ Linux operating system ;
+ Intel ;
+ Constitution, U.S. :
+ Progress Clause of ;
+ Progress Clause
+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.
+={ American Association of Law Libraries ;
+ Internet Archive ;
+ National Writers Union
+But two briefs captured the policy argument best. One made the argument I've
+already described: A brief by Hal Roach Studios argued that unless the law was
+struck, a whole generation of American film would disappear. The other made the
+economic argument absolutely clear.
+={ Hal Roach Studios }
+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.
+={ Akerlof, George ;
+ Arrow, Kenneth ;
+ Buchanan, James ;
+ Coase, Ronald ;
+ Fridman, Milton +2
+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.
+={ Jones, Day, Reavis and Pogue (Jones Day) ;
+ Morrison, Alan ;
+ Sullivan, Kathleen ;
+ Fried, Charles +1 ;
+ Public Citizen
+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.
+={ Reagan, Ronald ;
+ Congress, U.S. :
+ constitutional powers of ;
+ Constitution, U.S. :
+ Commerce Clause of
+The government, in defending the statute, had its collection of friends, as
+well. Significantly, however, none of these "friends" included historians or
+economists. The briefs on the other side of the case were written exclusively
+by major media companies, congressmen, and copyright holders.
+The media companies were not surprising. They had the most to gain from the
+law. The congressmen were not surprising either - they were defending their
+power and, indirectly, the gravy train of contributions such power induced. And
+of course it was not surprising that the copyright holders would defend the
+idea that they should continue to have the right to control who did what with
+content they wanted to control.
+Dr. Seuss's representatives, for example, argued that it was better for the Dr.
+Seuss estate to control what happened to Dr. Seuss's work - better than
+allowing it to fall into the public domain - because if this creativity were in
+the public domain, then people could use it to "glorify drugs or to create
+pornography."~{ Brief of Amici Dr. Seuss Enterprise et al., /{Eldred v.
+Ashcroft,}/ 537 U.S. 186 (2003) (No. 01-618), 19. }~ That was also the motive
+of the Gershwin estate, which defended its "protection" of the work of George
+Gershwin. They refuse, for example, to license /{Porgy and Bess}/ to anyone who
+refuses to use African Americans in the cast.~{ Dinitia Smith, "Immortal Words,
+Immortal Royalties? Even Mickey Mouse Joins the Fray," /{New York Times,}/ 28
+March 1998, B7. }~ That's their view of how this part of American culture
+should be controlled, and they wanted this law to help them effect that
+={ Gershwin, George +1 ;
+ Porgy and Bess ;
+ pornography ;
+ Seuss, Dr. +1
+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.
+={ First Amendment :
+ copyright extension as violation of ;
+ Constitution, U.S. :
+ First Amendment to
+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.
+={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) :
+ Supreme Court challenge of +64 ;
+ Congress, U.S. :
+ constitutional powers of +8
+!_ Between February
+and October, there was little I did beyond preparing for this case. Early on,
+as I said, I set the strategy.
+The Supreme Court was divided into two important camps. One camp we called "the
+Conservatives." The other we called "the Rest." The Conservatives included
+Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and
+Justice Thomas. These five had been the most consistent in limiting Congress's
+power. They were the five who had supported the /{Lopez/Morrison}/ line of
+cases that said that an enumerated power had to be interpreted to assure that
+Congress's powers had limits.
+={ Kennedy, Anthony ;
+ O'Connor, Sandra Day ;
+ Rehnquist, William H. ;
+ Thomas, Clarence ;
+ United States v. Lopez ;
+ United States v. Morrison ;
+ Scalia, Antonin ;
+ Congress, U.S. :
+ Supreme Court restraint on ;
+ Supreme Court, U.S. :
+ congressional actions restrained by | factions of +3
+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.
+={ Breyer, Stephen ;
+ Ginsburg, Ruth Bader ;
+ Stevens, John Paul ;
+ Souter, David
+In particular, the least likely was Justice Ginsburg's. In addition to her
+general view about deference to Congress (except where issues of gender are
+involved), she had been particularly deferential in the context of intellectual
+property protections. She and her daughter (an excellent and well-known
+intellectual property scholar) were cut from the same intellectual property
+cloth. We expected she would agree with the writings of her daughter: that
+Congress had the power in this context to do as it wished, even if what
+Congress wished made little sense.
+Close behind Justice Ginsburg were two justices whom we also viewed as unlikely
+allies, though possible surprises. Justice Souter strongly favored deference to
+Congress, as did Justice Breyer. But both were also very sensitive to free
+speech concerns. And as we strongly believed, there was a very important free
+speech argument against these retrospective extensions.
+={ Breyer, Stephen ;
+ Ginsburg, Ruth Bader ;
+ Souter, David
+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.
+={ Stevens, John Paul }
+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.
+={ Court of Appeals :
+ D.C. Circuit ;
+ D.C. Court of Appeals ;
+ Sentelle, David
+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.
+={ United States v. Lopez ;
+ commerce, interstate ;
+ interstate commerce ;
+ Congress, U.S. :
+ in constitutional Progress Clause ;
+ Progress Clause ;
+ Congress, U.S. :
+ copyright terms extended by +3 ;
+ Constitution, U.S. :
+ Progress Clause of
+!_ 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
+There was some truth to the government's claim, but not much. We certainly
+agreed that Congress had extended existing terms in 1831 and in 1909. And of
+course, in 1962, Congress began extending existing terms regularly - eleven
+times in forty years.
+But this "consistency" should be kept in perspective. Congress extended
+existing terms once in the first hundred years of the Republic. It then
+extended existing terms once again in the next fifty. Those rare extensions are
+in contrast to the now regular practice of extending existing terms. Whatever
+restraint Congress had had in the past, that restraint was now gone. Congress
+was now in a cycle of extensions; there was no reason to expect that cycle
+would end. This Court had not hesitated to intervene where Congress was in a
+similar cycle of extension. There was no reason it couldn't intervene here.
+!_ Oral argument
+was scheduled for the first week in October. I arrived in D.C. two weeks before
+the argument. During those two weeks, I was repeatedly "mooted" by lawyers who
+had volunteered to help in the case. Such "moots" are basically practice
+rounds, where wannabe justices fire questions at wannabe winners.
+I was convinced that to win, I had to keep the Court focused on a single point:
+that if this extension is permitted, then there is no limit to the power to set
+terms. Going with the government would mean that terms would be effectively
+unlimited; going with us would give Congress a clear line to follow: Don't
+extend existing terms. The moots were an effective practice; I found ways to
+take every question back to this central idea.
+One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had
+served in the Reagan Justice Department with Solicitor General Charles Fried.
+He had argued many cases before the Supreme Court. And in his review of the
+moot, he let his concern speak:
+={ Ayer, Don +2 ;
+ Fried, Charles ;
+ Jones, Day, Reavis and Pogue (Jones Day) ;
+ Reagan, Ronald
+"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
+He may have argued many cases before this Court, I thought, but he didn't
+understand its soul. As a clerk, I had seen the Justices do the right thing -
+not because of politics but because it was right. As a law professor, I had
+spent my life teaching my students that this Court does the right thing - not
+because of politics but because it is right. As I listened to Ayer's plea for
+passion in pressing politics, I understood his point, and I rejected it. Our
+argument was right. That was enough. Let the politicians learn to see that it
+was also good.
+!_ The night before
+the argument, a line of people began to form in front of the Supreme Court. The
+case had become a focus of the press and of the movement to free culture.
+Hundreds stood in line for the chance to see the proceedings. Scores spent the
+night on the Supreme Court steps so that they would be assured a seat.
+Not everyone has to wait in line. People who know the Justices can ask for
+seats they control. (I asked Justice Scalia's chambers for seats for my
+parents, for example.) Members of the Supreme Court bar can get a seat in a
+special section reserved for them. And senators and congressmen have a special
+place where they get to sit, too. And finally, of course, the press has a
+gallery, as do clerks working for the Justices on the Court. As we entered that
+morning, there was no place that was not taken. This was an argument about
+intellectual property law, yet the halls were filled. As I walked in to take my
+seat at the front of the Court, I saw my parents sitting on the left. As I sat
+down at the table, I saw Jack Valenti sitting in the special section ordinarily
+reserved for family of the Justices.
+={ Scalia, Antonin ;
+ Valenti, Jack
+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
+={ Congress, U.S. :
+ constitutional powers of +3
+Justice O'Connor stopped me within one minute of my opening. The history was
+bothering her.
+={ O'Connor, Sandra Day +1 }
+_1 JUSTICE O'CONNOR: Congress has extended the term so often through the years,
+and if you are right, don't we run the risk of upsetting previous extensions of
+time? I mean, this seems to be a practice that began with the very first act."
+She was quite willing to concede "that this flies directly in the face of what
+the framers had in mind." But my response again and again was to emphasize
+limits on Congress's power.
+_1 MR. LESSIG: Well, if it flies in the face of what the framers had in mind,
+then the question is, is there a way of interpreting their words that gives
+effect to what they had in mind, and the answer is yes."
+There were two points in this argument when I should have seen where the Court
+was going. The first was a question by Justice Kennedy, who observed,
+={ Kennedy, Anthony +1 }
+_1 JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76 act,
+too, should have been declared void, and that we might leave it alone because
+of the disruption, is that for all these years the act has impeded progress in
+science and the useful arts. I just don't see any empirical evidence for that.
+Here follows my clear mistake. Like a professor correcting a student, I
+_1 MR. LESSIG: Justice, we are not making an empirical claim at all. Nothing in
+our Copyright Clause claim hangs upon the empirical assertion about impeding
+progress. Our only argument is this is a structural limit necessary to assure
+that what would be an effectively perpetual term not be permitted under the
+copyright laws."
+That was a correct answer, but it wasn't the right answer. The right answer was
+instead that there was an obvious and profound harm. Any number of briefs had
+been written about it. He wanted to hear it. And here was the place Don Ayer's
+advice should have mattered. This was a softball; my answer was a swing and a
+={ Ayer, Don }
+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.
+={ United States v. Lopez }
+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:
+_1 CHIEF JUSTICE: Well, but you want more than that. You want the right to copy
+verbatim other people's books, don't you?
+={ Rehnquist, William H. }
+_1 MR. LESSIG: We want the right to copy verbatim works that should be in the
+public domain and would be in the public domain but for a statute that cannot
+be justified under ordinary First Amendment analysis or under a proper reading
+of the limits built into the Copyright Clause."
+Things went better for us when the government gave its argument; for now the
+Court picked up on the core of our claim. As Justice Scalia asked Solicitor
+General Olson,
+={ Olson, Theodore B. +2 ;
+ Scalia, Antonin +1
+_1 JUSTICE SCALIA: You say that the functional equivalent of an unlimited time
+would be a violation [of the Constitution], but that's precisely the argument
+that's being made by petitioners here, that a limited time which is extendable
+is the functional equivalent of an unlimited time."
+When Olson was finished, it was my turn to give a closing rebuttal. Olson's
+flailing had revived my anger. But my anger still was directed to the academic,
+not the practical. The government was arguing as if this were the first case
+ever to consider limits on Congress's Copyright and Patent Clause power. Ever
+the professor and not the advocate, I closed by pointing out the long history
+of the Court imposing limits on Congress's power in the name of the Copyright
+and Patent Clause - indeed, the very first case striking a law of Congress as
+exceeding a specific enumerated power was based upon the Copyright and Patent
+Clause. All true. But it wasn't going to move the Court to my side.
+={ Congress, U.S. :
+ constitutional powers of +2
+!_ As I left
+the court that day, I knew there were a hundred points I wished I could remake.
+There were a hundred questions I wished I had answered differently. But one way
+of thinking about this case left me optimistic.
+The government had been asked over and over again, what is the limit? Over and
+over again, it had answered there is no limit. This was precisely the answer I
+wanted the Court to hear. For I could not imagine how the Court could
+understand that the government believed Congress's power was unlimited under
+the terms of the Copyright Clause, and sustain the government's argument. The
+solicitor general had made my argument for me. No matter how often I tried, I
+could not understand how the Court could find that Congress's power under the
+Commerce Clause was limited, but under the Copyright Clause, unlimited. In
+those rare moments when I let myself believe that we may have prevailed, it was
+because I felt this Court - in particular, the Conservatives - would feel
+itself constrained by the rule of law that it had established elsewhere.
+!_ The morning
+of January 15, 2003, I was five minutes late to the office and missed the 7:00 from the Supreme Court clerk. Listening to the message, I could tell
+in an instant that she had bad news to report.The Supreme Court had affirmed
+the decision of the Court of Appeals. Seven justices had voted in the majority.
+There were two dissents.
+A few seconds later, the opinions arrived by e-mail. I took the phone off the
+hook, posted an announcement to our blog, and sat down to see where I had been
+wrong in my reasoning.
+My /{reasoning}/. Here was a case that pitted all the money in the world
+against /{reasoning}/. And here was the last naïve law professor, scouring the
+pages, looking for reasoning.
+I first scoured the opinion, looking for how the Court would distinguish the
+principle in this case from the principle in /{Lopez}/. The argument was
+nowhere to be found. The case was not even cited. The argument that was the
+core argument of our case did not even appear in the Court's opinion.
+={ United States v. Lopez +3 }
+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.
+={ Ginsburg, Ruth Bader }
+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
+={ Souter, David }
+But as I realized what had happened, I couldn't quite believe what I was
+reading. I had said there was no way this Court could reconcile limited powers
+with the Commerce Clause and unlimited powers with the Progress Clause. It had
+never even occurred to me that they could reconcile the two simply /{by not
+addressing the argument}/. There was no inconsistency because they would not
+talk about the two together. There was therefore no principle that followed
+from the /{Lopez}/ case: In that context, Congress's power would be limited,
+but in this context it would not.
+Yet by what right did they get to choose which of the framers' values they
+would respect? By what right did they - the silent five - get to select the
+part of the Constitution they would enforce based on the values they thought
+important? We were right back to the argument that I said I hated at the start:
+I had failed to convince them that the issue here was important, and I had
+failed to recognize that however much I might hate a system in which the Court
+gets to pick the constitutional values that it will respect, that is the system
+we have.
+Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion was
+crafted internal to the law: He argued that the tradition of intellectual
+property law should not support this unjustified extension of terms. He based
+his argument on a parallel analysis that had governed in the context of patents
+(so had we). But the rest of the Court discounted the parallel - without
+explaining how the very same words in the Progress Clause could come to mean
+totally different things depending upon whether the words were about patents or
+copyrights. The Court let Justice Stevens's charge go unanswered.
+={ Breyer, Stephen +1 ;
+ patents :
+ duration of ;
+ Stevens, John Paul
+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.
+={ copyright :
+ in perpetuity
+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.
+={ Setnelle, David ;
+ United States v. Lopez +2
+!_ Defeat brings depression.
+They say it is a sign of health when depression gives way to anger. My anger
+came quickly, but it didn't cure the depression. This anger was of two sorts.
+It was first anger with the five "Conservatives." It would have been one thing
+for them to have explained why the principle of /{Lopez}/ didn't apply in this
+case. That wouldn't have been a very convincing argument, I don't believe,
+having read it made by others, and having tried to make it myself. But it at
+least would have been an act of integrity. These justices in particular have
+repeatedly said that the proper mode of interpreting the Constitution is
+"originalism" - to first understand the framers' text, interpreted in their
+context, in light of the structure of the Constitution. That method had
+produced /{Lopez}/ and many other "originalist" rulings. Where was their
+"originalism" now?
+={ Constitution, U.S. :
+ originalist interpretation of ;
+ originalism
+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.
+={ Constitution, U.S. :
+ Progress Clause of ;
+ Progress Clause ;
+ Constitution, U.S. :
+ Commerce Clause of
+My anger with the Conservatives quickly yielded to anger with myself. For I had
+let a view of the law that I liked interfere with a view of the law as it is.
+Most lawyers, and most law professors, have little patience for idealism about
+courts in general and this Supreme Court in particular. Most have a much more
+pragmatic view. When Don Ayer said that this case would be won based on whether
+I could convince the Justices that the framers' values were important, I fought
+the idea, because I didn't want to believe that that is how this Court decides.
+I insisted on arguing this case as if it were a simple application of a set of
+principles. I had an argument that followed in logic. I didn't need to waste my
+time showing it should also follow in popularity.
+={ Ayer, Don }
+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.
+={ Souter, David ;
+ Kennedy, Anthony ;
+ Constitution, U.S. :
+ First Amendment to ;
+ First Amendment :
+ copyright extension as violation of
+Would it have been different if I had argued it differently? Would it have been
+different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan?
+My friends huddled around me to insist it would not. The Court was not ready,
+my friends insisted. This was a loss that was destined. It would take a great
+deal more to show our society why our framers were right. And when we do that,
+we will be able to show that Court.
+Maybe, but I doubt it. These Justices have no financial interest in doing
+anything except the right thing. They are not lobbied. They have little reason
+to resist doing right. I can't help but think that if I had stepped down from
+this pretty picture of dispassionate justice, I could have persuaded.
+And even if I couldn't, then that doesn't excuse what happened in January. For
+at the start of this case, one of America's leading intellectual property
+professors stated publicly that my bringing this case was a mistake. "The Court
+is not ready," Peter Jaszi said; this issue should not be raised until it is.
+={ Jaszi, Peter }
+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,
+_1 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
+={ copyright :
+ in perpetuity
+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.
+={ Bolling, Ruben +2 }
+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
+{freeculture18.png 550x720 }
+={ Scalia, Antonin }
+1~ Chapter Fourteen: Eldred II
+!_ The day
+/{Eldred}/ was decided, fate would have it that I was to travel to Washington,
+D.C. (The day the rehearing petition in /{Eldred}/ was denied - meaning the
+case was really finally over - fate would have it that I was giving a speech to
+technologists at Disney World.) This was a particularly long flight to my least
+favorite city. The drive into the city from Dulles was delayed because of
+traffic, so I opened up my computer and wrote an op-ed piece.
+It was an act of contrition. During the whole of the flight from San Francisco
+to Washington, I had heard over and over again in my head the same advice from
+Don Ayer: You need to make them see why it is important. And alternating with
+that command was the question of Justice Kennedy: "For all these years the act
+has impeded progress in science and the useful arts. I just don't see any
+empirical evidence for that." And so, having failed in the argument of
+constitutional principle, finally, I turned to an argument of politics.
+={ Ayer, Don ;
+ Kennedy, Anthony
+/{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.
+={ copyright law :
+ registration requirement of +23
+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.
+={ Eldred, Eric ;
+ Eldred Act +23
+Or another two names. For depending upon your perspective, this is either the
+"Public Domain Enhancement Act" or the "Copyright Term Deregulation Act."
+Either way, the essence of the idea is clear and obvious: Remove copyright
+where it is doing nothing except blocking access and the spread of knowledge.
+Leave it for as long as Congress allows for those works where its worth is at
+least $1. But for everything else, let the content go.
+The reaction to this idea was amazingly strong. Steve Forbes endorsed it in an
+editorial. I received an avalanche of e-mail and letters expressing support.
+When you focus the issue on lost creativity, people can see the copyright
+system makes no sense. As a good Republican might say, here government
+regulation is simply getting in the way of innovation and creativity. And as a
+good Democrat might say, here the government is blocking access and the spread
+of knowledge for no good reason. Indeed, there is no real difference between
+Democrats and Republicans on this issue. Anyone can recognize the stupid harm
+of the present system.
+={ Democratic Party ;
+ Republican Party ;
+ Forbes, Steve
+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.
+={ copyright :
+ no registration of works
+As I described in chapter 10, formalities in copyright law were removed in
+1976, when Congress followed the Europeans by abandoning any formal requirement
+before a copyright is granted.~{ Until the 1908 Berlin Act of the Berne
+Convention, national copyright legislation sometimes made protection depend
+upon compliance with formalities such as registration, deposit, and affixation
+of notice of the author's claim of copyright. However, starting with the 1908
+act, every text of the Convention has provided that "the enjoyment and the
+exercise" of rights guaranteed by the Convention "shall not be subject to any
+formality." The prohibition against formalities is presently embodied in
+Article 5(2) of the Paris Text of the Berne Convention. Many countries continue
+to impose some form of deposit or registration requirement, albeit not as a
+condition of copyright. French law, for example, requires the deposit of copies
+of works in national repositories, principally the National Museum. Copies of
+books published in the United Kingdom must be deposited in the British Library.
+The German Copyright Act provides for a Registrar of Authors where the author's
+true name can be filed in the case of anonymous or pseudonymous works. Paul
+Goldstein, /{International Intellectual Property Law, Cases and Materials}/
+(New York: Foundation Press, 2001), 153-54. }~ 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.
+={ copyright law :
+ European
+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
+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.
+={ Berne Convention (1908) }
+These complaints were real and sensible. And the strictness of the formalities,
+especially in the United States, was absurd. The law should always have ways of
+forgiving innocent mistakes. There is no reason copyright law couldn't, as
+well. Rather than abandoning formalities totally, the response in Berlin should
+have been to embrace a more equitable system of registration.
+Even that would have been resisted, however, because registration in the
+nineteenth and twentieth centuries was still expensive. It was also a hassle.
+The abolishment of formalities promised not only to save the starving widows,
+but also to lighten an unnecessary regulatory burden imposed upon creators.
+In addition to the practical complaint of authors in 1908, there was a moral
+claim as well. There was no reason that creative property should be a
+second-class form of property. If a carpenter builds a table, his rights over
+the table don't depend upon filing a form with the government. He has a
+property right over the table "naturally," and he can assert that right against
+anyone who would steal the table, whether or not he has informed the government
+of his ownership of the table.
+This argument is correct, but its implications are misleading. For the argument
+in favor of formalities does not depend upon creative property being
+second-class property. The argument in favor of formalities turns upon the
+special problems that creative property presents. The law of formalities
+responds to the special physics of creative property, to assure that it can be
+efficiently and fairly spread.
+No one thinks, for example, that land is second-class property just because you
+have to register a deed with a court if your sale of land is to be effective.
+And few would think a car is second-class property just because you must
+register the car with the state and tag it with a license. In both of those
+cases, everyone sees that there is an important reason to secure registration"
+both because it makes the markets more efficient and because it better secures
+the rights of the owner. Without a registration system for land, landowners
+would perpetually have to guard their property. With registration, they can
+simply point the police to a deed. Without a registration system for cars, auto
+theft would be much easier. With a registration system, the thief has a high
+burden to sell a stolen car. A slight burden is placed on the property owner,
+but those burdens produce a much better system of protection for property
+It is similarly special physics that makes formalities important in copyright
+law. Unlike a carpenter's table, there's nothing in nature that makes it
+relatively obvious who might own a particular bit of creative property. A
+recording of Lyle Lovett's latest album can exist in a billion places without
+anything necessarily linking it back to a particular owner. And like a car,
+there's no way to buy and sell creative property with confidence unless there
+is some simple way to authenticate who is the author and what rights he has.
+Simple transactions are destroyed in a world without formalities. Complex,
+expensive, /{lawyer}/ transactions take their place.
+This was the understanding of the problem with the Sonny Bono Act that we tried
+to demonstrate to the Court. This was the part it didn't "get." Because we live
+in a system without formalities, there is no way easily to build upon or use
+culture from our past. If copyright terms were, as Justice Story said they
+would be, "short," then this wouldn't matter much. For fourteen years, under
+the framers' system, a work would be presumptively controlled. After fourteen
+years, it would be presumptively uncontrolled.
+={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) :
+ Supreme Court challenge of ;
+ Story, Joseph
+But now that copyrights can be just about a century long, the inability to know
+what is protected and what is not protected becomes a huge and obvious burden
+on the creative process. If the only way a library can offer an Internet
+exhibit about the New Deal is to hire a lawyer to clear the rights to every
+image and sound, then the copyright system is burdening creativity in a way
+that has never been seen before /{because there are no formalities}/.
+The Eldred Act was designed to respond to exactly this problem. If it is worth
+$1 to you, then register your work and you can get the longer term. Others will
+know how to contact you and, therefore, how to get your permission if they want
+to use your work. And you will get the benefit of an extended copyright term.
+If it isn't worth it to you to register to get the benefit of an extended term,
+then it shouldn't be worth it for the government to defend your monopoly over
+that work either. The work should pass into the public domain where anyone can
+copy it, or build archives with it, or create a movie based on it. It should
+become free if it is not worth $1 to you.
+Some worry about the burden on authors. Won't the burden of registering the
+work mean that the $1 is really misleading? Isn't the hassle worth more than
+$1? Isn't that the real problem with registration?
+It is. The hassle is terrible. The system that exists now is awful. I
+completely agree that the Copyright Office has done a terrible job (no doubt
+because they are terribly funded) in enabling simple and cheap registrations.
+Any real solution to the problem of formalities must address the real problem
+of /{governments}/ standing at the core of any system of formalities. In this
+book, I offer such a solution. That solution essentially remakes the Copyright
+Office. For now, assume it was Amazon that ran the registration system. Assume
+it was one-click registration. The Eldred Act would propose a simple, one-click
+registration fifty years after a work was published. Based upon historical
+data, that system would move up to 98 percent of commercial work, commercial
+work that no longer had a commercial life, into the public domain within fifty
+years. What do you think?
+={ Copyright Office ;
+ public domain :
+ content industry opposition to +15
+!_ 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.
+={ Forbes, Steve }
+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.
+={ Lofgren, Zoe }
+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.
+={ Valenti, Jack :
+ Eldred Act opposed by ;
+ film industry :
+ trade association of +2 ;
+ Motion Picture Association of America (MPAA) +2
+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.
+={ films :
+ in public domain ;
+ public domain :
+ films in
+Finally, the MPAA argued that existing law enabled copyright owners to do this
+if they wanted. But the whole point is that there are thousands of copyright
+owners who don't even know they have a copyright to give. Whether they are free
+to give away their copyright or not - a controversial claim in any case -
+unless they know about a copyright, they're not likely to.
+!_ At the beginning
+of this book, I told two stories about the law reacting to changes in
+technology. In the one, common sense prevailed. In the other, common sense was
+delayed. The difference between the two stories was the power of the opposition
+- the power of the side that fought to defend the status quo. In both cases, a
+new technology threatened old interests. But in only one case did those
+interest's have the power to protect themselves against this new competitive
+I used these two cases as a way to frame the war that this book has been about.
+For here, too, a new technology is forcing the law to react. And here, too, we
+should ask, is the law following or resisting common sense? If common sense
+supports the law, what explains this common sense?
+When the issue is piracy, it is right for the law to back the copyright owners.
+The commercial piracy that I described is wrong and harmful, and the law should
+work to eliminate it. When the issue is p2p sharing, it is easy to understand
+why the law backs the owners still: Much of this sharing is wrong, even if much
+is harmless. When the issue is copyright terms for the Mickey Mouses of the
+world, it is possible still to understand why the law favors Hollywood: Most
+people don't recognize the reasons for limiting copyright terms; it is thus
+still possible to see good faith within the resistance.
+But when the copyright owners oppose a proposal such as the Eldred Act, then,
+finally, there is an example that lays bare the naked self-interest 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:
+={ Eldred Act +3 ;
+ Kelly, Kevin
+What does this industry really want?
+With very little effort, the warriors could protect their content. So the
+effort to block something like the Eldred Act is not really about protecting
+/{their}/ content. The effort to block the Eldred Act is an effort to assure
+that nothing more passes into the public domain. It is another step to assure
+that the public domain will never compete, that there will be no use of content
+that is not commercially controlled, and that there will be no commercial use
+of content that doesn't require /{their}/ permission first.
+The opposition to the Eldred Act reveals how extreme the other side is. The
+most powerful and sexy and well loved of lobbies really has as its aim not the
+protection of "property" but the rejection of a tradition. Their aim is not
+simply to protect what is theirs. /{Their aim is to assure that all there is is
+what is theirs}/.
+It is not hard to understand why the warriors take this view. It is not hard to
+see why it would benefit them if the competition of the public domain tied to
+the Internet could somehow be quashed. Just as RCA feared the competition of
+FM, they fear the competition of a public domain connected to a public that now
+has the means to create with it and to share its own creation.
+={ radio :
+ FM spectrum of ;
+ FM radio ;
+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.
+={ Causby, Thomas Lee ;
+ Causby, Tinie ;
+ film industry :
+ trade association of ;
+ Motion Picture Association of America (MPAA)
+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.
+1~conclusion [Conclusion]-#
+!_ There are more
+than 35 million people with the AIDS virus worldwide. Twenty-five million of
+them live in sub-Saharan Africa. Seventeen million have already died. Seventeen
+million Africans is proportional percentage-wise to seven million Americans.
+More importantly, it is seventeen million Africans.
+={ Africa, medications for HIV patients in +15 ;
+ AIDS medications +15 ;
+ antiretroviral drugs +15 ;
+ developing countries, foreign patent costs in +15 ;
+ drugs :
+ pharmaceutical +15 ;
+ HIV/AIDS therapies +15
+There is no cure for AIDS, but there are drugs to slow its progression. These
+antiretroviral therapies are still experimental, but they have already had a
+dramatic effect. In the United States, AIDS patients who regularly take a
+cocktail of these drugs increase their life expectancy by ten to twenty years.
+For some, the drugs make the disease almost invisible.
+These drugs are expensive. When they were first introduced in the United
+States, they cost between $10,000 and $15,000 per person per year. Today, some
+cost $25,000 per year. At these prices, of course, no African nation can afford
+the drugs for the vast majority of its population: $15,000 is thirty times the
+per capita gross national product of Zimbabwe. At these prices, the drugs are
+totally unavailable.~{ Commission on Intellectual Property Rights, "Final
+Report: Integrating Intellectual Property Rights and Development Policy"
+(London, 2002), available at link #55. According to a World Health Organization
+press release issued 9 July 2002, only 230,000 of the 6 million who need drugs
+in the developing world receive them - and half of them are in Brazuil. }~
+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.
+={ patents :
+ on pharmaceuticals +14 ;
+ pharmaceutical patents +14
+There are many who are skeptical of patents, especially drug patents. I am not.
+Indeed, of all the areas of research that might be supported by patents, drug
+research is, in my view, the clearest case where patents are needed. The patent
+gives the drug company some assurance that if it is successful in inventing a
+new drug to treat a disease, it will be able to earn back its investment and
+more. This is socially an extremely valuable incentive. I am the last person
+who would argue that the law should abolish it, at least without other changes.
+But it is one thing to support patents, even drug patents. It is another thing
+to determine how best to deal with a crisis. And as African leaders began to
+recognize the devastation that AIDS was bringing, they started looking for ways
+to import HIV treatments at costs significantly below the market price.
+In 1997, South Africa tried one tack. It passed a law to allow the importation
+of patented medicines that had been produced or sold in another nation's market
+with the consent of the patent owner. For example, if the drug was sold in
+India, it could be imported into Africa from India. This is called "parallel
+importation," and it is generally permitted under international trade law and
+is specifically permitted within the European Union.~{ See Peter Drahos with
+John Braithwaite, /{Information Feudalism: Who Owns the Knowledge Economy?}/
+(New York: The New Press, 2003), 37. }~
+={ international law +11 ;
+ parallel importation +1 ;
+ South Africa, Republic of, pharmaceutical imports by +5
+However, the United States government opposed the bill. Indeed, more than
+opposed. As the International Intellectual Property Association characterized
+it, "The U.S. government pressured South Africa ... not to permit compulsory
+licensing or parallel imports."~{ International Intellectual Property Institute
+(IIPI), /{Patent Protection and Access to HIV/AIDS Pharmaceuticals in
+Sub-Saharan Africa, a Report Prepared for the World Intellectual Property
+Organization}/ (Washington, D.C., 2000), 14, available at link #56. For a
+firsthand account of the struggle over South Africa, see Hearing Before the
+Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House
+Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July
+1999), 150-57 (statement of James Love). }~ Through the Office of the United
+States Trade Representative, the government asked South Africa to change the
+law - and to add pressure to that request, in 1998, the USTR listed South
+Africa for possible trade sanctions. That same year, more than forty
+pharmaceutical companies began proceedings in the South African courts to
+challenge the govern-ment's actions. The United States was then joined by other
+governments from the EU. Their claim, and the claim of the pharmaceutical
+companies, was that South Africa was violating its obligations under
+international law by discriminating against a particular kind of patent -
+pharmaceutical patents. The demand of these governments, with the United States
+in the lead, was that South Africa respect these patents as it respects any
+other patent, regardless of any effect on the treatment of AIDS within South
+Africa.~{ International Intellectual Property Institute (IIPI), /{Patent
+Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a
+Report Prepared for the World Intellectual Property Organization}/ (Washington,
+D.C., 2000), 15. }~
+={ United States Trade Representative (USTR) }
+We should place the intervention by the United States in context. No doubt
+patents are not the most important reason that Africans don't have access to
+drugs. Poverty and the total absence of an effective health care infrastructure
+matter more. But whether patents are the most important reason or not, the
+price of drugs has an effect on their demand, and patents affect price. And so,
+whether massive or marginal, there was an effect from our government's
+intervention to stop the flow of medications into Africa.
+By stopping the flow of HIV treatment into Africa, the United States government
+was not saving drugs for United States citizens. This is not like wheat (if
+they eat it, we can't); instead, the flow that the United States intervened to
+stop was, in effect, a flow of knowledge: information about how to take
+chemicals that exist within Africa, and turn those chemicals into drugs that
+would save 15 to 30 million lives.
+Nor was the intervention by the United States going to protect the profits of
+United States drug companies - at least, not substantially. It was not as if
+these countries were in the position to buy the drugs for the prices the drug
+companies were charging. Again, the Africans are wildly too poor to afford
+these drugs at the offered prices. Stopping the parallel import of these drugs
+would not substantially increase the sales by U.S. companies.
+Instead, the argument in favor of restricting this flow of information, which
+was needed to save the lives of millions, was an argument about the sanctity of
+property.~{ See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
+Needs at Odds with Firms' Profit Motive," /{San Francisco Chronicle,}/ 24 May
+1999, A1, available at link #57 ("compulsory licenses and gray markets pose a
+threat to the entire system of intellectual property protection"); Robert
+Weissman, "AIDS and Developing Countries: Democratizing Access to Essential
+Medicines," /{Foreign Policy in Focus}/ 4:23 (August 1999), available at link
+#58 (describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical
+Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
+Intellectual Property Rights and Compassion, a Synopsis," /{Widener Law
+Symposium Journal}/ (Spring 2001): 175. }~ It was because "intellectual
+property" would be violated that these drugs should not flow into Africa. It
+was a principle about the importance of "intellectual property" that led these
+government actors to intervene against the South African response to AIDS.
+Now just step back for a moment. There will be a time thirty years from now
+when our children look back at us and ask, how could we have let this happen?
+How could we allow a policy to be pursued whose direct cost would be to speed
+the death of 15 to 30 million Africans, and whose only real benefit would be to
+uphold the "sanctity" of an idea? What possible justification could there ever
+be for a policy that results in so many deaths? What exactly is the insanity
+that would allow so many to die for such an abstraction?
+Some blame the drug companies. I don't. They are corporations. Their managers
+are ordered by law to make money for the corporation. They push a certain
+patent policy not because of ideals, but because it is the policy that makes
+them the most money. And it only makes them the most money because of a certain
+corruption within our political system - a corruption the drug companies are
+certainly not responsible for.
+={ corporations :
+ in pharmaceutical industry +2
+The corruption is our own politicians' failure of integrity. For the drug
+companies would love - they say, and I believe them - to sell their drugs as
+cheaply as they can to countries in Africa and elsewhere. There are issues
+they'd have to resolve to make sure the drugs didn't get back into the United
+States, but those are mere problems of technology. They could be overcome.
+A different problem, however, could not be overcome. This is the fear of the
+grandstanding politician who would call the presidents of the drug companies
+before a Senate or House hearing, and ask, "How is it you can sell this HIV
+drug in Africa for only $1 a pill, but the same drug would cost an American
+$1,500?" Because there is no "sound bite" answer to that question, its effect
+would be to induce regulation of prices in America. The drug companies thus
+avoid this spiral by avoiding the first step. They reinforce the idea that
+property should be sacred. They adopt a rational strategy in an irrational
+context, with the unintended consequence that perhaps millions die. And that
+rational strategy thus becomes framed in terms of this ideal - the sanctity of
+an idea called "intellectual property."
+={ intellectual property rights :
+ of drug patents +3
+So when the common sense of your child confronts you, what will you say? When
+the common sense of a generation finally revolts against what we have done, how
+will we justify what we have done? What is the argument?
+A sensible patent policy could endorse and strongly support the patent system
+without having to reach everyone everywhere in exactly the same way. Just as a
+sensible copyright policy could endorse and strongly support a copyright system
+without having to regulate the spread of culture perfectly and forever, a
+sensible patent policy could endorse and strongly support a patent system
+without having to block the spread of drugs to a country not rich enough to
+afford market prices in any case. A sensible policy, in other words, could be a
+balanced policy. For most of our history, both copyright and patent policies
+were balanced in just this sense.
+But we as a culture have lost this sense of balance. We have lost the critical
+eye that helps us see the difference between truth and extremism. A certain
+property fundamentalism, having no connection to our tradition, now reigns in
+this culture - bizarrely, and with consequences more grave to the spread of
+ideas and culture than almost any other single policy decision that we as a
+democracy will make.
+!_ A simple idea
+blinds us, and under the cover of darkness, much happens that most of us would
+reject if any of us looked. So uncritically do we accept the idea of property
+in ideas that we don't even notice how monstrous it is to deny ideas to a
+people who are dying without them. So uncritically do we accept the idea of
+property in culture that we don't even question when the control of that
+property removes our ability, as a people, to develop our culture
+democratically. Blindness becomes our common sense. And the challenge for
+anyone who would reclaim the right to cultivate our culture is to find a way to
+make this common sense open its eyes.
+So far, common sense sleeps. There is no revolt. Common sense does not yet see
+what there could be to revolt about. The extremism that now dominates this
+debate fits with ideas that seem natural, and that fit is reinforced by the
+RCAs of our day. They wage a frantic war to fight "piracy," and devastate a
+culture for creativity. They defend the idea of "creative property," while
+transforming real creators into modern-day sharecroppers. They are insulted by
+the idea that rights should be balanced, even though each of the major players
+in this content war was itself a beneficiary of a more balanced ideal. The
+hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed.
+Powerful lobbies, complex issues, and MTV attention spans produce the "perfect
+storm" for free culture.
+!_ In August 2003,
+a fight broke out in the United States about a decision by the World
+Intellectual Property Organization to cancel a meeting.~{ Jonathan Krim, "The
+Quiet War over Open-Source," /{Washington Post,}/ 21 August 2003, E1, available
+at link #59; William New, "Global Group's Shift on 'Open Source' Meeting Spurs
+Stir," National Journal's Technology Daily, 19 August 2003, available at link
+#60; William New, "U.S. Official Opposes 'Open Source' Talks at WIPO,"
+/{National Journal's Technology Daily,}/ 19 August 2003, available at link #61.
+}~ At the request of a wide range of interests, WIPO had decided to hold a
+meeting to discuss "open and collaborative projects to create public goods."
+These are projects that have been successful in producing public goods without
+relying exclusively upon a proprietary use of intellectual property. Examples
+include the Internet and the World Wide Web, both of which were developed on
+the basis of protocols in the public domain. It included an emerging trend to
+support open academic journals, including the Public Library of Science project
+that I describe in the Afterword. It included a project to develop single
+nucleotide polymorphisms (SNPs), which are thought to have great significance
+in biomedical research. (That nonprofit project comprised a consortium of the
+Wellcome Trust and pharmaceutical and technological companies, including
+Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb,
+Hoffmann-La Roche, Glaxo- SmithKline, IBM, Motorola, Novartis, Pfizer, and
+Searle.) It included the Global Positioning System, which Ronald Reagan set
+free in the early 1980s. And it included "open source and free software."
+={ academic journals ;
+ biomedical research ;
+ intellectual property rights :
+ international organization on issues of +4 ;
+ Internet :
+ development of ;
+ PLoS (Public Library of Science) ;
+ Public Library of Science (PLoS) ;
+ public domain :
+ public projects in ;
+ single nucleotied polymorphisms (SNPs) ;
+ Wellcome Trust ;
+ World Intellectual Property Organization (WIPO) +4 ;
+ World Wide Web ;
+ Global Positioning System ;
+ Reagan, Ronald
+The aim of the meeting was to consider this wide range of projects from one
+common perspective: that none of these projects relied upon intellectual
+property extremism. Instead, in all of them, intellectual property was balanced
+by agreements to keep access open or to impose limitations on the way in which
+proprietary claims might be used.
+From the perspective of this book, then, the conference was ideal.~{ I should
+disclose that I was one of the people who asked WIPO for the meeting. }~ The
+projects within its scope included both commercial and noncommercial work. They
+primarily involved science, but from many perspectives. And WIPO was an ideal
+venue for this discussion, since WIPO is the preeminent international body
+dealing with intellectual property issues.
+={ Lessig, Lawrence :
+ in international debate on intellectual property +4
+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.
+={ World Summit on the Information Society (WSIS) +1 }
+So whether or not WSIS can discuss balance in intellectual property, I had
+thought it was taken for granted that WIPO could and should. And thus the
+meeting about "open and collaborative projects to create public goods" seemed
+perfectly appropriate within the WIPO agenda.
+But there is one project within that list that is highly controversial, at
+least among lobbyists. That project is "open source and free software."
+Microsoft in particular is wary of discussion of the subject. From its
+perspective, a conference to discuss open source and free software would be
+like a conference to discuss Apple's operating system. Both open source and
+free software compete with Microsoft's software. And internationally, many
+governments have begun to explore requirements that they use open source or
+free software, rather than "proprietary software," for their own internal uses.
+={ free software/open-source software (FS/OSS) +7 ;
+ Apple Corporation ;
+ Microsoft :
+ on free software +4
+I don't mean to enter that debate here. It is important only to make clear that
+the distinction is not between commercial and noncommercial software. There are
+many important companies that depend fundamentally upon open source and free
+software, IBM being the most prominent. IBM is increasingly shifting its focus
+to the GNU/Linux operating system, the most famous bit of "free software" - and
+IBM is emphatically a commercial entity. Thus, to support "open source and free
+software" is not to oppose commercial entities. It is, instead, to support a
+mode of software development that is different from Microsoft's.~{ Microsoft's
+position about free and open source software is more sophisticated. As it has
+repeatedly asserted, it has no problem with "open source" software or software
+in the public domain. Microsoft's principal opposition is to "free software"
+licensed under a "copyleft" license, meaning a license that requires the
+licensee to adopt the same terms on any derivative work. See Bradford L. Smith,
+"The Future of Software: Enabling the Marketplace to Decide," /{Government
+Policy Toward Open Source Software}/ (Washington, D.C.: AEI-Brookings Joint
+Center for Regulatory Studies, American Enterprise Institute for Public Policy
+Research, 2002), 69, available at link #62. See also Craig Mundie, Microsoft
+senior vice president, /{The Commercial Software Model,}/ discussion at New
+York University Stern School of Business (3 May 2001), available at link #63.
+={ GNU/Linux operating system ;
+ Linux operating system ;
+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.
+={ General Public License (GPL) ;
+ GPL (General Public License)
+It is therefore understandable that as a proprietary software developer,
+Microsoft would oppose this WIPO meeting, and understandable that it would use
+its lobbyists to get the United States government to oppose it, as well. And
+indeed, that is just what was reported to have happened. According to Jonathan
+Krim of the /{Washington Post}/, Microsoft's lobbyists succeeded in getting the
+United States government to veto the meeting.~{ Krim, "The Quiet War over
+Open-Source," available at link #64. }~ And without U.S. backing, the meeting
+was canceled.
+={ intellectual property rights :
+ international organization on issues of +11 ;
+ World Intellectual Property Organization (WIPO) +11 ;
+ Krim, Jonathan +2 ;
+ Microsoft :
+ WIPO meeting opposed by
+I don't blame Microsoft for doing what it can to advance its own interests,
+consistent with the law. And lobbying governments is plainly consistent with
+the law. There was nothing surprising about its lobbying here, and nothing
+terribly surprising about the most powerful software producer in the United
+States having succeeded in its lobbying efforts.
+What was surprising was the United States government's reason for opposing the
+meeting. Again, as reported by Krim, Lois Boland, acting director of
+international relations for the U.S. Patent and Trademark Office, explained
+that "open-source software runs counter to the mission of WIPO, which is to
+promote intellectual-property rights." She is quoted as saying, "To hold a
+meeting which has as its purpose to disclaim or waive such rights seems to us
+to be contrary to the goals of WIPO."
+={ Boland, Lois +10 ;
+ Patent and Trademark Office, U.S. +15 ;
+ intellectual property rights :
+ U.S. Patent Office on private control of +15
+% PTO range not properly identified, recheck
+These statements are astonishing on a number of levels.
+First, they are just flat wrong. As I described, most open source and free
+software relies fundamentally upon the intellectual property right called
+"copyright." Without it, restrictions imposed by those licenses wouldn't work.
+Thus, to say it "runs counter" to the mission of promoting intellectual
+property rights reveals an extraordinary gap in under- standing - the sort of
+mistake that is excusable in a first-year law student, but an embarrassment
+from a high government official dealing with intellectual property issues.
+Second, who ever said that WIPO's exclusive aim was to "promote" intellectual
+property maximally? As I had been scolded at the preparatory conference of
+WSIS, WIPO is to consider not only how best to protect intellectual property,
+but also what the best balance of intellectual property is. As every economist
+and lawyer knows, the hard question in intellectual property law is to find
+that balance. But that there should be limits is, I had thought, uncontested.
+One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose
+patent has expired) contrary to the WIPO mission? Does the public domain weaken
+intellectual property? Would it have been better if the protocols of the
+Internet had been patented?
+={ World Summit on the Information Society (WSIS) ;
+ drugs :
+ pharmaceutical ;
+ generic drugs ;
+ patents :
+ on pharmaceuticals
+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.
+={ Gates, Bill }
+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 "dis-claiming" an intellectual property right.
+That the interest of WIPO is not just that intellectual property rights be
+maximized, but that they also should be exercised in the most extreme and
+restrictive way possible.
+There is a history of just such a property system that is well known in the
+Anglo-American tradition. It is called "feudalism." Under feudalism, not only
+was property held by a relatively small number of individuals and entities. And
+not only were the rights that ran with that property powerful and extensive.
+But the feudal system had a strong interest in assuring that property holders
+within that system not weaken feudalism by liberating people or property within
+their control to the free market. Feudalism depended upon maximum control and
+concentration. It fought any freedom that might interfere with that control.
+={ feudal system +1 ;
+ property rights :
+ feudal system of +1
+As Peter Drahos and John Braithwaite relate, this is precisely the choice we
+are now making about intellectual property.~{ See Drahos with Braithwaite,
+/{Information Feudalism,}/ 210-20. }~ 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.
+={ Braithwait, John ;
+ Drahos, Peter
+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,
+={ Lessig, Lawrence :
+ in international debate on intellectual property +5 }
+_1 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."
+I missed the irony the first time I read it. I read it quickly and thought the
+poster was supporting the idea that seeking balance was what our government
+should be doing. (Of course, my criticism of Ms. Boland was not about whether
+she was seeking balance or not; my criticism was that her comments betrayed a
+first-year law student's mistake. I have no illusion about the extremism of our
+government, whether Republican or Democrat. My only illusion apparently is
+about whether our government should speak the truth or not.)
+Obviously, however, the poster was not supporting that idea. Instead, the
+poster was ridiculing the very idea that in the real world, the "goal" of a
+government should be "to promote the right balance" of intellectual property.
+That was obviously silly to him. And it obviously betrayed, he believed, my own
+silly utopianism. "Typical for an academic," the poster might well have
+I understand criticism of academic utopianism. I think utopianism is silly,
+too, and I'd be the first to poke fun at the absurdly unrealistic ideals of
+academics throughout history (and not just in our own country's history).
+But when it has become silly to suppose that the role of our government should
+be to "seek balance," then count me with the silly, for that means that this
+has become quite serious indeed. If it should be obvious to everyone that the
+government does not seek balance, that the government is simply the tool of the
+most powerful lobbyists, that the idea of holding the government to a different
+standard is absurd, that the idea of demanding of the government that it speak
+truth and not lies is just naïve, then who have we, the most powerful democracy
+in the world, become?
+It might be crazy to expect a high government official to speak the truth. It
+might be crazy to believe that government policy will be something more than
+the handmaiden of the most powerful interests. It might be crazy to argue that
+we should preserve a tradition that has been part of our tradition for most of
+our history - free culture.
+If this is crazy, then let there be more crazies. Soon.
+!_ There are moments
+of hope in this struggle. And moments that surprise. When the FCC was
+considering relaxing ownership rules, which would thereby further increase the
+concentration in media ownership, an extraordinary bipartisan coalition formed
+to fight this change. For perhaps the first time in history, interests as
+diverse as the NRA, the ACLU,, 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.
+={ CodePink Women for Peace ;
+ FCC :
+ media ownership regulated by +1 ;
+ media :
+ ownership concentration in +6 ;
+ Safire, William ;
+ Turner, Ted
+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.
+={ Senate, U.S. :
+ FCC media ownership rules reversed by
+But even this movement misses an important piece of the puzzle. Largeness as
+such is not bad. Freedom is not threatened just because some become very rich,
+or because there are only a handful of big players. The poor quality of Big
+Macs or Quarter Pounders does not mean that you can't get a good hamburger from
+somewhere else.
+The danger in media concentration comes not from the concentration, but instead
+from the feudalism that this concentration, tied to the change in copyright,
+produces. It is not just that there are a few powerful companies that control
+an ever expanding slice of the media. It is that this concentration can call
+upon an equally bloated range of rights - property rights of a historically
+extreme form - that makes their bigness bad.
+It is therefore significant that so many would rally to demand competition and
+increased diversity. Still, if the rally is understood as being about bigness
+alone, it is not terribly surprising. We Americans have a long history of
+fighting "big," wisely or not. That we could be motivated to fight "big" again
+is not something new.
+It would be something new, and something very important, if an equal number
+could be rallied to fight the increasing extremism built within the idea of
+"intellectual property." Not because balance is alien to our tradition; indeed,
+as I've argued, balance is our tradition. But because the muscle to think
+critically about the scope of anything called "property" is not well exercised
+within this tradition anymore.
+If we were Achilles, this would be our heel. This would be the place of our
+!_ As I write
+these final words, the news is filled with stories about the RIAA lawsuits
+against almost three hundred individuals.~{ John Borland, "RIAA Sues 261 File
+Swappers," CNET, 8 September 2003, available at link #65; Paul R. La
+Monica, "Music Industry Sues Swappers," CNN/Money, 8 September 2003, available
+at link #66; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a
+Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," /{New York Daily News,}/ 9
+September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets;
+Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
+/{Washington Post,}/ 10 September 2003, E1; Katie Dean, "Schoolgirl Settles
+with RIAA," /{Wired News,}/ 10 September 2003, available at link #67. }~ Eminem
+has just been sued for "sampling" someone else's music.~{ Jon Wiederhorn,
+"Eminem Gets Sued ... by a Little Old Lady,", 17 September 2003,
+available at link #68. }~ The story about Bob Dylan "stealing" from a Japanese
+author has just finished making the rounds.~{ Kenji Hall, Associated Press,
+"Japanese Book May Be Inspiration for Dylan Songs,", 9 July
+2003, available at link #69. }~ An insider from Hollywood - who insists he must
+remain anonymous - reports "an amazing conversation with these studio guys.
+They've got extraordinary [old] content that they'd love to use but can't
+because they can't begin to clear the rights. They've got scores of kids who
+could do amazing things with the content, but it would take scores of lawyers
+to clean it first." Congressmen are talking about deputizing computer viruses
+to bring down computers thought to violate the law. Universities are
+threatening expulsion for kids who use a computer to share content.
+={ Dylan, Bob ;
+ Eminem ;
+ university computer networks, p2p sharing on ;
+ copyright infringement lawsuits :
+ individual defendants intimidated by | in recording industry ;
+ recording industry :
+ copyright infringement lawsuits of ;
+ Recording Industry Association of America (RIAA) :
+ copyright infringement lawsuits filed by
+Yet on the other side of the Atlantic, the BBC has just announced that it will
+build a "Creative Archive," from which British citizens can download BBC
+content, and rip, mix, and burn it.~{ "BBC Plans to Open Up Its Archive to the
+Public," BBC press release, 24 August 2003, available at link #70. }~ And in
+Brazil, the culture minister, Gilberto Gil, himself a folk hero of Brazilian
+music, has joined with Creative Commons to release content and free licenses in
+that Latin American country.~{ "Creative Commons and Brazil," Creative Commons
+Weblog, 6 August 2003, available at link #71. }~
+={ BBC ;
+ Brazil, free culture in ;
+ Creative Commons ;
+ Gil, Gilberto ;
+ United Kingdom :
+ public creative archive in
+I've told a dark story. The truth is more mixed. A technology has given us a
+new freedom. Slowly, some begin to understand that this freedom need not mean
+anarchy. We can carry a free culture into the twenty-first century, without
+artists losing and without the potential of digital technology being destroyed.
+It will take some thought, and more importantly, it will take some will to
+transform the RCAs of our day into the Causbys.
+Common sense must revolt. It must act to free culture. Soon, if this potential
+is ever to be realized.
+1~intro_afterword [Intro]-#
+!_ 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.
+={ copyright :
+ voluntary reform efforts on +3
+I divide this map into two parts: that which anyone can do now, and that which
+requires the help of lawmakers. If there is one lesson that we can draw from
+the history of remaking common sense, it is that it requires remaking how many
+people think about the very same issue.
+That means this movement must begin in the streets. It must recruit a
+significant number of parents, teachers, librarians, creators, authors,
+musicians, filmmakers, scientists - all to tell this story in their own words,
+and to tell their neighbors why this battle is so important.
+Once this movement has its effect in the streets, it has some hope of having an
+effect in Washington. We are still a democracy. What people think matters. Not
+as much as it should, at least when an RCA stands opposed, but still, it
+matters. And thus, in the second part below, I sketch changes that Congress
+could make to better secure a free culture.
+={ RCA }
+1~us US, NOW
+={ copyright :
+ voluntary reform efforts on +45
+!_ Common sense
+is with the copyright warriors because the debate so far has been framed at the
+extremes - as a grand either/or: either property or anarchy, either total
+control or artists won't be paid. If that really is the choice, then the
+warriors should win.
+The mistake here is the error of the excluded middle. There are extremes in
+this debate, but the extremes are not all that there is. There are those who
+believe in maximal copyright - "All Rights Reserved" - and those who reject
+copyright - "No Rights Reserved." The "All Rights Reserved" sorts believe that
+you should ask permission before you "use" a copyrighted work in any way. The
+"No Rights Reserved" sorts believe you should be able to do with content as you
+wish, regardless of whether you have permission or not.
+When the Internet was first born, its initial architecture effectively tilted
+in the "no rights reserved" direction. Content could be copied perfectly and
+cheaply; rights could not easily be controlled. Thus, regardless of anyone's
+desire, the effective regime of copyright under the original design of the
+Internet was "no rights reserved." Content was "taken" regardless of the
+rights. Any rights were effectively unprotected.
+={ Internet :
+ development of +1 | initial free character of +1
+This initial character produced a reaction (opposite, but not quite equal) by
+copyright owners. That reaction has been the topic of this book. Through
+legislation, litigation, and changes to the network's design, copyright holders
+have been able to change the essential character of the environment of the
+original Internet. If the original architecture made the effective default "no
+rights reserved," the future architecture will make the effective default "all
+rights reserved." The architecture and law that surround the Internet's design
+will increasingly produce an environment where all use of content requires
+permission. The "cut and paste" world that defines the Internet today will
+become a "get permission to cut and paste" world that is a creator's nightmare.
+What's needed is a way to say something in the middle - neither "all rights
+reserved" nor "no rights reserved" but "some rights reserved" - and thus a way
+to respect copyrights but enable creators to free content as they see fit. In
+other words, we need a way to restore a set of freedoms that we could just take
+for granted before.
+2~ Rebuilding Freedoms Previously Presumed: Examples
+={ free culture :
+ restoration efforts on previous aspects of +22
+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.
+={ browsing +4 ;
+ privacy rights +5
+What made it assured?
+Well, if we think in terms of the modalities I described in chapter 10, your
+privacy was assured because of an inefficient architecture for gathering data
+and hence a market constraint (cost) on anyone who wanted to gather that data.
+If you were a suspected spy for North Korea, working for the CIA, no doubt your
+privacy would not be assured. But that's because the CIA would (we hope) find
+it valuable enough to spend the thousands required to track you. But for most
+of us (again, we can hope), spying doesn't pay. The highly inefficient
+architecture of real space means we all enjoy a fairly robust amount of
+privacy. That privacy is guaranteed to us by friction. Not by law (there is no
+law protecting "privacy" in public places), and in many places, not by norms
+(snooping and gossip are just fun), but instead, by the costs that friction
+imposes on anyone who would want to spy.
+Enter the Internet, where the cost of tracking browsing in particular has
+become quite tiny. If you're a customer at Amazon, then as you browse the
+pages, Amazon collects the data about what you've looked at. You know this
+because at the side of the page, there's a list of "recently viewed" pages.
+Now, because of the architecture of the Net and the function of cookies on the
+Net, it is easier to collect the data than not. The friction has disappeared,
+and hence any "privacy" protected by the friction disappears, too.
+={ Amazon +1 ;
+ cookies, Internet ;
+ Internet :
+ privacy protection on +2
+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.
+={ libraries :
+ privacy rights in use of
+It is this reality that explains the push of many to define "privacy" on the
+Internet. It is the recognition that technology can remove what friction before
+gave us that leads many to push for laws to do what friction did.~{ See, for
+example, Marc Rotenberg, "Fair Information Practices and the Architecture of
+Privacy (What Larry Doesn't Get)," /{Stanford Technology Law Review}/ 1 (2001):
+par. 6-18, available at link #72 (describing examples in which technology
+defines privacy policy). See also Jeffrey Rosen, /{The Naked Crowd: Reclaiming
+Security and Freedom in an Anxious Age}/ (New York: Random House, 2004)
+(mapping tradeoffs between technology and privacy). }~ And whether you're in
+favor of those laws or not, it is the pattern that is important here. We must
+take affirmative steps to secure a kind of freedom that was passively provided
+before. A change in technology now forces those who believe in privacy to
+affirmatively act where, before, privacy was given by default.
+A similar story could be told about the birth of the free software movement.
+When computers with software were first made available commercially, the
+software - both the source code and the binaries - was free. You couldn't run a
+program written for a Data General machine on an IBM machine, so Data General
+and IBM didn't care much about controlling their software.
+={ Data General ;
+ IBM ;
+ free software/open-source software (FS/OSS) +7
+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.
+={ Stallman, Richard +6 }
+In an academic setting, at least, that's not a terribly radical idea. In a math
+department, anyone would be free to tinker with a proof that someone offered.
+If you thought you had a better way to prove a theorem, you could take what
+someone else did and change it. In a classics department, if you believed a
+colleague's translation of a recently discovered text was flawed, you were free
+to improve it. Thus, to Stallman, it seemed obvious that you should be free to
+tinker with and improve the code that ran a machine. This, too, was knowledge.
+Why shouldn't it be open for criticism like anything else?
+No one answered that question. Instead, the architecture of revenue for
+computing changed. As it became possible to import programs from one system to
+another, it became economically attractive (at least in the view of some) to
+hide the code of your program. So, too, as companies started selling
+peripherals for mainframe systems. If I could just take your printer driver and
+copy it, then that would make it easier for me to sell a printer to the market
+than it was for you.
+={ proprietary code +1 }
+Thus, the practice of proprietary code began to spread, and by the early 1980s,
+Stallman found himself surrounded by proprietary code. The world of free
+software had been erased by a change in the economics of computing. And as he
+believed, if he did nothing about it, then the freedom to change and share
+software would be fundamentally weakened.
+Therefore, in 1984, Stallman began a project to build a free operating system,
+so that at least a strain of free software would survive. That was the birth of
+the GNU project, into which Linus Torvalds's "Linux" kernel was added to
+produce the GNU/Linux operating system.
+={ Torvalds, Linus ;
+ GNU/Linux operating system ;
+ Linux operating system
+Stallman's technique was to use copyright law to build a world of software that
+must be kept free. Software licensed under the Free Software Foundation's GPL
+cannot be modified and distributed unless the source code for that software is
+made available as well. Thus, anyone building upon GPL'd software would have to
+make their buildings free as well. This would assure, Stallman believed, that
+an ecology of code would develop that remained free for others to build upon.
+His fundamental goal was freedom; innovative creative code was a byproduct.
+={ Free Software Foundation ;
+ General Public License (GPL) ;
+ GPL (General Public License)
+Stallman was thus doing for software what privacy advocates now do for privacy.
+He was seeking a way to rebuild a kind of freedom that was taken for granted
+before. Through the affirmative use of licenses that bind copyrighted code,
+Stallman was affirmatively reclaiming a space where free software would
+survive. He was actively protecting what before had been passively guaranteed.
+Finally, consider a very recent example that more directly resonates with the
+story of this book. This is the shift in the way academic and scientific
+journals are produced.
+={ academic journals +7 ;
+ scientific journals +7
+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.
+={ Lexis and Westlaw +1 ;
+ law :
+ databases of case reports in +1 ;
+ libraries :
+ journals in ;
+ Supreme Court, U.S. :
+ access to opinions of
+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.
+={ public domain :
+ access fees for material in | license system for rebuilding of +22
+But what if the only way to get access to social and scientific data was
+through proprietary services? What if no one had the ability to browse this
+data except by paying for a subscription?
+As many are beginning to notice, this is increasingly the reality with
+scientific journals. When these journals were distributed in paper form,
+libraries could make the journals available to anyone who had access to the
+library. Thus, patients with cancer could become cancer experts because the
+library gave them access. Or patients trying to understand the risks of a
+certain treatment could research those risks by reading all available articles
+about that treatment. This freedom was therefore a function of the institution
+of libraries (norms) and the technology of paper journals (architecture) -
+namely, that it was very hard to control access to a paper journal.
+={ libraries :
+ journals in +2
+As journals become electronic, however, the publishers are demanding that
+libraries not give the general public access to the journals. This means that
+the freedoms provided by print journals in public libraries begin to disappear.
+Thus, as with privacy and with software, a changing technology and market
+shrink a freedom taken for granted before.
+This shrinking freedom has led many to take affirmative steps to restore the
+freedom that has been lost. The Public Library of Science (PLoS), for example,
+is a nonprofit corporation dedicated to making scientific research available to
+anyone with a Web connection. Authors of scientific work submit that work to
+the Public Library of Science. That work is then subject to peer review. If
+accepted, the work is then deposited in a public, electronic archive and made
+permanently available for free. PLoS also sells a print version of its work,
+but the copyright for the print journal does not inhibit the right of anyone to
+redistribute the work for free.
+={ PLoS (Public Library of Science) ;
+ Public Library of Science (PLoS)
+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.
+2~ Rebuilding Free Culture: One Idea
+={ free culture :
+ Creative Commons license for recreation of +16 ;
+ copyright :
+ Creative Commons licenses for material in +16 ;
+ Creative Commons +16
+The same strategy could be applied to culture, as a response to the increasing
+control effected through law and technology.
+Enter the Creative Commons. The Creative Commons is a nonprofit corporation
+established in Massachusetts, but with its home at Stanford University. Its aim
+is to build a layer of /{reasonable}/ copyright on top of the extremes that now
+reign. It does this by making it easy for people to build upon other people's
+work, by making it simple for creators to express the freedom for others to
+take and build upon their work. Simple tags, tied to human-readable
+descriptions, tied to bullet-proof licenses, make this possible.
+={ Stanford University }
+/{Simple}/ - which means without a middleman, or without a lawyer. By
+developing a free set of licenses that people can attach to their content,
+Creative Commons aims to mark a range of content that can easily, and reliably,
+be built upon. These tags are then linked to machine-readable versions of the
+license that enable computers automatically to identify content that can easily
+be shared. These three expressions together - a legal license, a human-readable
+description, and machine-readable tags - constitute a Creative Commons license.
+A Creative Commons license constitutes a grant of freedom to anyone who
+accesses the license, and more importantly, an expression of the ideal that the
+person associated with the license believes in something different than the
+"All" or "No" extremes. Content is marked with the CC mark, which does not mean
+that copyright is waived, but that certain freedoms are given.
+These freedoms are beyond the freedoms promised by fair use. Their precise
+contours depend upon the choices the creator makes. The creator can choose a
+license that permits any use, so long as attribution is given. She can choose a
+license that permits only noncommercial use. She can choose a license that
+permits any use so long as the same freedoms are given to other uses ("share
+and share alike"). Or any use so long as no derivative use is made. Or any use
+at all within developing nations. Or any sampling use, so long as full copies
+are not made. Or lastly, any educational use.
+={ copyright law :
+ fair use and +1 ;
+ fair use :
+ creative Commons license vs. +1
+These choices thus establish a range of freedoms beyond the default of
+copyright law. They also enable freedoms that go beyond traditional fair use.
+And most importantly, they express these freedoms in a way that subsequent
+users can use and rely upon without the need to hire a lawyer. Creative Commons
+thus aims to build a layer of content, governed by a layer of reasonable
+copyright law, that others can build upon. Voluntary choice of individuals and
+creators will make this content available. And that content will in turn enable
+us to rebuild a public domain.
+This is just one project among many within the Creative Commons. And of course,
+Creative Commons is not the only organization pursuing such freedoms. But the
+point that distinguishes the Creative Commons from many is that we are not
+interested only in talking about a public domain or in getting legislators to
+help build a public domain. Our aim is to build a movement of consumers and
+producers of content ("content conducers," as attorney Mia Garlick calls them)
+who help build the public domain and, by their work, demonstrate the importance
+of the public domain to other creativity.
+={ Garlick, Mia }
+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.
+={ Jefferson, Thomas }
+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.
+={ Doctorow, Cory ;
+ Down and Out in the Magic Kingdom (Doctorow)
+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
+={ books :
+ free on-line releases of +2 ;
+ Internet :
+ books on +2
+Indeed, the experience of his publisher clearly supports that conclusion. The
+book's first printing was exhausted months before the publisher had expected.
+This first novel of a science fiction author was a total success.
+The idea that free content might increase the value of nonfree content was
+confirmed by the experience of another author. Peter Wayner, who wrote a book
+about the free software movement titled /{Free for All}/, made an electronic
+version of his book free on-line under a Creative Commons license after the
+book went out of print. He then monitored used book store prices for the book.
+As predicted, as the number of downloads increased, the used book price for his
+book increased, as well.
+={ Wayner, Peter ;
+ Free for All (Wayner)
+These are examples of using the Commons to better spread proprietary content. I
+believe that is a wonderful and common use of the Commons. There are others who
+use Creative Commons licenses for other reasons. Many who use the "sampling
+license" do so because anything else would be hypocritical. The sampling
+license says that others are free, for commercial or noncommercial purposes, to
+sample content from the licensed work; they are just not free to make full
+copies of the licensed work available to others. This is consistent with their
+own art - they, too, sample from others. Because the /{legal}/ costs of
+sampling are so high (Walter Leaphart, manager of the rap group Public Enemy,
+which was born sampling the music of others, has stated that he does not
+"allow" Public Enemy to sample anymore, because the legal costs are so high~{
+/{Willful Infringement: A Report from the Front Lines of the Real Culture
+Wars}/ (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat
+Lucre production, available at link #72. }~), these artists release into the
+creative environment content that others can build upon, so that their form of
+creativity might grow.
+={ Leaphart, Walter ;
+ Public Enemy
+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
+In the first six months of the Creative Commons experiment, over 1 million
+objects were licensed with these free-culture licenses. The next step is
+partnerships with middleware content providers to help them build into their
+technologies simple ways for users to mark their content with Creative Commons
+freedoms. Then the next step is to watch and celebrate creators who build
+content based upon content set free.
+These are first steps to rebuilding a public domain. They are not mere
+arguments; they are action. Building a public domain is the first step to
+showing people how important that domain is to creativity and innovation.
+Creative Commons relies upon voluntary steps to achieve this rebuilding. They
+will lead to a world in which more than voluntary steps are possible.
+Creative Commons is just one example of voluntary efforts by individuals and
+creators to change the mix of rights that now govern the creative field. The
+project does not compete with copyright; it complements it. Its aim is not to
+defeat the rights of authors, but to make it easier for authors and creators to
+exercise their rights more flexibly and cheaply. That difference, we believe,
+will enable creativity to spread more easily.
+1~them THEM, SOON
+={ copyright law :
+ government reforms proposed on +102
+!_ We will
+not reclaim a free culture by individual action alone. It will also take
+important reforms of laws. We have a long way to go before the politicians will
+listen to these ideas and implement these reforms. But that also means that we
+have time to build awareness around the changes that we need.
+In this chapter, I outline five kinds of changes: four that are general, and
+one that's specific to the most heated battle of the day, music. Each is a
+step, not an end. But any of these steps would carry us a long way to our end.
+2~1 1. More Formalities
+={ copyright law :
+ formalities reinstated in +13 ;
+ formalities +13
+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.
+={ property rights :
+ formalities associated with +1
+These are all formalities associated with property. They are requirements that
+we all must bear if we want our property to be protected.
+In contrast, under current copyright law, you automatically get a copyright,
+regardless of whether you comply with any formality. You don't have to
+register. You don't even have to mark your content. The default is control, and
+"formalities" are banished.
+={ copyright :
+ marking of +5
+As I suggested in chapter 10, the motivation to abolish formalities was a good
+one. In the world before digital technologies, formalities imposed a burden on
+copyright holders without much benefit. Thus, it was progress when the law
+relaxed the formal requirements that a copyright owner must bear to protect and
+secure his work. Those formalities were getting in the way.
+But the Internet changes all this. Formalities today need not be a burden.
+Rather, the world without formalities is the world that burdens creativity.
+Today, there is no simple way to know who owns what, or with whom one must deal
+in order to use or build upon the creative work of others. There are no
+records, there is no system to trace - there is no simple way to know how to
+get permission. Yet given the massive increase in the scope of copyright's
+rule, getting permission is a necessary step for any work that builds upon our
+past. And thus, the /{lack}/ of formalities forces many into silence where they
+otherwise could speak.
+The law should therefore change this requirement~{ The proposal I am advancing
+here would apply to American works only. Obviously, I believe it would be
+beneficial for the same idea to be adopted by other countries as well. }~ - but
+it should not change it by going back to the old, broken system. We should
+require formalities, but we should establish a system that will create the
+incentives to minimize the burden of these formalities.
+The important formalities are three: marking copyrighted work, registering
+copyrights, and renewing the claim to copyright. Traditionally, the first of
+these three was something the copyright owner did; the second two were
+something the government did. But a revised system of formalities would banish
+the government from the process, except for the sole purpose of approving
+standards developed by others.
+={ copyright law :
+ registration requirement of
+3~ Registration and Renewal
+={ copyright :
+ renewability of +4 ;
+ copyright law :
+ registration requirement of +4
+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 policy- making, 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.
+={ Copyright Office }
+Yet it is always astonishing to me that we, who come from a tradition of
+extraordinary innovation in governmental design, can no longer think
+innovatively about how governmental functions can be designed. Just because
+there is a public purpose to a government role, it doesn't follow that the
+government must actually administer the role. Instead, we should be creating
+incentives for private parties to serve the public, subject to standards that
+the government sets.
+In the context of registration, one obvious model is the Internet. There are at
+least 32 million Web sites registered around the world. Domain name owners for
+these Web sites have to pay a fee to keep their registration alive. In the main
+top-level domains (.com, .org, .net), there is a central registry. The actual
+registrations are, however, performed by many competing registrars. That
+competition drives the cost of registering down, and more importantly, it
+drives the ease with which registration occurs up.
+={ domain names ;
+ Internet :
+ domain name registration on ;
+ Web sites, domain name registration of
+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
+={ Copyright Office }
+3~ Marking
+={ copyright :
+ marking of +9
+It used to be that the failure to include a copyright notice on a creative work
+meant that the copyright was forfeited. That was a harsh punishment for failing
+to comply with a regulatory rule - akin to imposing the death penalty for a
+parking ticket in the world of creative rights. Here again, there is no reason
+that a marking requirement needs to be enforced in this way. And more
+importantly, there is no reason a marking requirement needs to be enforced
+uniformly across all media.
+The aim of marking is to signal to the public that this work is copyrighted and
+that the author wants to enforce his rights. The mark also makes it easy to
+locate a copyright owner to secure permission to use the work.
+One of the problems the copyright system confronted early on was that different
+copyrighted works had to be differently marked. It wasn't clear how or where a
+statue was to be marked, or a record, or a film. A new marking requirement
+could solve these problems by recognizing the differences in media, and by
+allowing the system of marking to evolve as technologies enable it to. The
+system could enable a special signal from the failure to mark - not the loss of
+the copyright, but the loss of the right to punish someone for failing to get
+permission first.
+Let's start with the last point. If a copyright owner allows his work to be
+published without a copyright notice, the consequence of that failure need not
+be that the copyright is lost. The consequence could instead be that anyone has
+the right to use this work, until the copyright owner complains and
+demonstrates that it is his work and he doesn't give permission.~{ There would
+be a complication with derivative works that I have not solved here. In my
+view, the law of derivatives creates a more complicated system than is
+justified by the marginal incentive it creates. }~ The meaning of an unmarked
+work would therefore be "use unless someone complains." If someone does
+complain, then the obligation would be to stop using the work in any new work
+from then on though no penalty would attach for existing uses. This would
+create a strong incentive for copyright owners to mark their work.
+That in turn raises the question about how work should best be marked. Here
+again, the system needs to adjust as the technologies evolve. The best way to
+ensure that the system evolves is to limit the Copyright Office's role to that
+of approving standards for marking content that have been crafted elsewhere.
+={ Copyright Office +1 }
+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.
+={ CDs :
+ copyright marking of ;
+ copyright law :
+ on music recordings | registration requirement of +3 ;
+ recording industry :
+ copyright protections in
+Finally, marking content clearly would simplify registration requirements. If
+photographs were marked by author and year, there would be little reason not to
+allow a photographer to reregister, for example, all photographs taken in a
+particular year in one quick step. The aim of the formality is not to burden
+the creator; the system itself should be kept as simple as possible.
+The objective of formalities is to make things clear. The existing system does
+nothing to make things clear. Indeed, it seems designed to make things unclear.
+If formalities such as registration were reinstated, one of the most difficult
+aspects of relying upon the public domain would be removed. It would be simple
+to identify what content is presumptively free; it would be simple to identify
+who controls the rights for a particular kind of content; it would be simple to
+assert those rights, and to renew that assertion at the appropriate time.
+2~2 2. Shorter Terms
+={ copyright :
+ duration of +9
+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
+In /{The Future of Ideas}/, I proposed a seventy-five-year term, granted in
+five- year increments with a requirement of renewal every five years. That
+seemed radical enough at the time. But after we lost /{Eldred v. Ashcroft}/,
+the proposals became even more radical. /{The Economist}/ endorsed a proposal
+for a fourteen-year copyright term.~{ "A Radical Rethink," /{Economist,}/
+366:8308 (25 January 2003): 15, available at link #74. }~ Others have proposed
+tying the term to the term for patents.
+={ Eldred v. Ashcroft ;
+ Future of Ideas, The (Lessig) ;
+ Lessig, Lawrence +7 ;
+ copyright :
+ renewability of
+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.
+_1 (1) /{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.
+_1 (2) /{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.
+={ copyright law :
+ fair use and | lawyers as detriment to ;
+ lawyers :
+ copyright cultural balance impeded by ;
+ fair use :
+ fuzziness of
+_1 (3) /{Keep it alive:}/ Copyright should have to be renewed. Especially if
+the maximum term is long, the copyright owner should be required to signal
+periodically that he wants the protection continued. This need not be an
+onerous burden, but there is no reason this monopoly protection has to be
+granted for free. On average, it takes ninety minutes for a veteran to apply
+for a pension. ~{ Department of Veterans Affairs, Veteran's Application for
+Compensation and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
+available at link #75. }~ If we make veterans suffer that burden, I don't see
+why we couldn't require authors to spend ten minutes every fifty years to file
+a single form.
+={ veterans' pensions ;
+ copyright :
+ renewability of
+_1 (4) /{Keep it prospective:}/ Whatever the term of copyright should be, the
+clearest lesson that economists teach is that a term once given should not be
+extended. It might have been a mistake in 1923 for the law to offer authors
+only a fifty-six-year term. I don't think so, but it's possible. If it was a
+mistake, then the consequence was that we got fewer authors to create in 1923
+than we otherwise would have. But we can't correct that mistake today by
+increasing the term. No matter what we do today, we will not increase the
+number of authors who wrote in 1923. Of course, we can increase the reward that
+those who write now get (or alternatively, increase the copyright burden that
+smothers many works that are today invisible). But increasing their reward will
+not increase their creativity in 1923. What's not done is not done, and there's
+nothing we can do about that now.
+These changes together should produce an /{average}/ copyright term that is
+much shorter than the current term. Until 1976, the average term was just 32.2
+years. We should be aiming for the same.
+No doubt the extremists will call these ideas "radical." (After all, I call
+them "extremists.") But again, the term I recommended was longer than the term
+under Richard Nixon. How "radical" can it be to ask for a more generous
+copyright law than Richard Nixon presided over?
+={ Nixon, Richard }
+2~3 3. Free Use Vs. Fair Use
+={ copyright law :
+ on republishing vs. transformation of original work +11
+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.
+={ property rights :
+ air traffic vs. ;
+ land ownership, air traffic and
+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."
+={ derivative works :
+ reform copyright term and scope on +8 ;
+ Congress, U.S. :
+ on derivative rights +1 | on copyright laws +1
+Congress granted the beginnings of this right in 1870, when it expanded the
+exclusive right of copyright to include a right to control translations and
+dramatizations of a work.~{ Benjamin Kaplan, /{An Unhurried View of Copyright}/
+(New York: Columbia University Press, 1967), 32. }~ The courts have expanded it
+slowly through judicial interpretation ever since. This expansion has been
+commented upon by one of the law's greatest judges, Judge Benjamin Kaplan.
+={ Kaplan, Benjamin }
+_1 So inured have we become to the extension of the monopoly to a large range
+of so-called derivative works, that we no longer sense the oddity of accepting
+such an enlargement of copyright while yet intoning the abracadabra of idea and
+expression."~{ Ibid., 56. }~
+I think it's time to recognize that there are airplanes in this field and the
+expansiveness of these rights of derivative use no longer make sense. More
+precisely, they don't make sense for the period of time that a copyright runs.
+And they don't make sense as an amorphous grant. Consider each limitation in
+={ property rights :
+ air traffic vs. ;
+ copyright :
+ duration of +1
+/{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.
+={ Grisham, John ;
+ Congress, U.S. :
+ on derivative rights | on copyright laws
+/{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.
+={ copyright :
+ scope of
+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.
+={ Alben, Alex ;
+ Eastwood, Clint ;
+ copyright :
+ statutory licenses in
+In each of these cases, the law should mark the uses that are protected, and
+the presumption should be that other uses are not protected. This is the
+reverse of the recommendation of my colleague Paul Goldstein.~{ Paul Goldstein,
+/{Copyright's Highway: From Gutenberg to the Celestial Jukebox}/ (Stanford:
+Stanford University Press, 2003), 187-216. }~ His view is that the law should
+be written so that expanded protections follow expanded uses.
+={ Goldstein, Paul }
+Goldstein's analysis would make perfect sense if the cost of the legal system
+were small. But as we are currently seeing in the context of the Internet, the
+uncertainty about the scope of protection, and the incentives to protect
+existing architectures of revenue, combined with a strong copyright, weaken the
+process of innovation.
+The law could remedy this problem either by removing protection beyond the part
+explicitly drawn or by granting reuse rights upon certain statutory conditions.
+Either way, the effect would be to free a great deal of culture to others to
+cultivate. And under a statutory rights regime, that reuse would earn artists
+more income.
+={ copyright :
+ statutory licenses in ;
+ statutory licenses
+2~4 4. Liberate the Music - Again
+={ peer-to-peer (p2p) file sharing :
+ reform proposals of copyright restraints on +41
+The battle that got this whole war going was about music, so it wouldn't be
+fair to end this book without addressing the issue that is, to most people,
+most pressing - music. There is no other policy issue that better teaches the
+lessons of this book than the battles around the sharing of music.
+The appeal of file-sharing music was the crack cocaine of the Inter-net's
+growth. It drove demand for access to the Internet more powerfully than any
+other single application. It was the Internet's killer app-possibly in two
+senses of that word. It no doubt was the application that drove demand for
+bandwidth. It may well be the application that drives demand for regulations
+that in the end kill innovation on the network.
+The aim of copyright, with respect to content in general and music in
+particular, is to create the incentives for music to be composed, performed,
+and, most importantly, spread. The law does this by giving an exclusive right
+to a composer to control public performances of his work, and to a performing
+artist to control copies of her performance.
+File-sharing networks complicate this model by enabling the spread of content
+for which the performer has not been paid. But of course, that's not all the
+file-sharing networks do. As I described in chapter 5, they enable four
+different kinds of sharing:
+={ peer-to-peer (p2p) file sharing :
+ four types of +5
+_1 A. There are some who are using sharing networks as substitutes for
+purchasing CDs.
+_1 B. There are also some who are using sharing networks to sample, on the way
+to purchasing CDs.
+_1 C. 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.
+_1 D. There are many who are using file-sharing networks to get access to
+content that is not copyrighted or to get access that the copyright owner
+plainly endorses.
+Any reform of the law needs to keep these different uses in focus. It must
+avoid burdening type D even if it aims to eliminate type A. The eagerness with
+which the law aims to eliminate type A, moreover, should depend upon the
+magnitude of type B. As with VCRs, if the net effect of sharing is actually not
+very harmful, the need for regulation is significantly weakened.
+={ cassette recording :
+ VCRs ;
+ VCRs
+As I said in chapter 5, the actual harm caused by sharing is controversial. For
+the purposes of this chapter, however, I assume the harm is real. I assume, in
+other words, that type A sharing is significantly greater than type B, and is
+the dominant use of sharing networks.
+Nonetheless, there is a crucial fact about the current technological context
+that we must keep in mind if we are to understand how the law should respond.
+Today, file sharing is addictive. In ten years, it won't be. It is addictive
+today because it is the easiest way to gain access to a broad range of content.
+It won't be the easiest way to get access to a broad range of content in ten
+years. Today, access to the Internet is cumbersome and slow - we in the United
+States are lucky to have broadband service at 1.5 MBs, and very rarely do we
+get service at that speed both up and down. Although wireless access is
+growing, most of us still get access across wires. Most only gain access
+through a machine with a keyboard. The idea of the always on, always connected
+Internet is mainly just an idea.
+={ Internet :
+ speed of access +3
+But it will become a reality, and that means the way we get access to the
+Internet today is a technology in transition. Policy makers should not make
+policy on the basis of technology in transition. They should make policy on the
+basis of where the technology is going. The question should not be, how should
+the law regulate sharing in this world? The question should be, what law will
+we require when the network becomes the network it is clearly becoming? That
+network is one in which every machine with electricity is essentially on the
+Net; where everywhere you are - except maybe the desert or the Rockies - you
+can instantaneously be connected to the Internet. Imagine the Internet as
+ubiquitous as the best cell-phone service, where with the flip of a device, you
+are connected.
+In that world, it will be extremely easy to connect to services that give you
+access to content on the fly - such as Internet radio, content that is streamed
+to the user when the user demands. Here, then, is the critical point: When it
+is /{extremely}/ easy to connect to services that give access to content, it
+will be /{easier}/ to connect to services that give you access to content than
+it will be to download and store content /on the many devices you will have for
+playing content/. It will be easier, in other words, to subscribe than it will
+be to be a database manager, as everyone in the download-sharing world of
+Napster-like technologies essentially is. Content services will compete with
+content sharing, even if the services charge money for the content they give
+access to. Already cell-phone services in Japan offer music (for a fee)
+streamed over cell phones (enhanced with plugs for headphones). The Japanese
+are paying for this content even though "free" content is available in the form
+of MP3s across the Web.~{ See, for example, "Music Media Watch," The J@pan Inc.
+Newsletter, 3 April 2002, available at link #76. }~
+={ cell phones, music streamed over }
+This point about the future is meant to suggest a perspective on the present:
+It is emphatically temporary. The "problem" with file sharing - to the extent
+there is a real problem - is a problem that will increasingly disappear as it
+becomes easier to connect to the Internet. And thus it is an extraordinary
+mistake for policy makers today to be "solving" this problem in light of a
+technology that will be gone tomorrow. The question should not be how to
+regulate the Internet to eliminate file sharing (the Net will evolve that
+problem away). The question instead should be how to assure that artists get
+paid, during this transition between twentieth-century models for doing
+business and twenty-first-century technologies.
+The answer begins with recognizing that there are different "problems" here to
+solve. Let's start with type D content - uncopyrighted content or copyrighted
+content that the artist wants shared. The "problem" with this content is to
+make sure that the technology that would enable this kind of sharing is not
+rendered illegal. You can think of it this way: Pay phones are used to deliver
+ransom demands, no doubt. But there are many who need to use pay phones who
+have nothing to do with ransoms. It would be wrong to ban pay phones in order
+to eliminate kidnapping.
+Type C content raises a different "problem." This is content that was, at one
+time, published and is no longer available. It may be unavailable because the
+artist is no longer valuable enough for the record label he signed with to
+carry his work. Or it may be unavailable because the work is forgotten. Either
+way, the aim of the law should be to facilitate the access to this content,
+ideally in a way that returns something to the artist.
+Again, the model here is the used book store. Once a book goes out of print, it
+may still be available in libraries and used book stores. But libraries and
+used book stores don't pay the copyright owner when someone reads or buys an
+out-of- print book. That makes total sense, of course, since any other system
+would be so burdensome as to eliminate the possibility of used book stores'
+existing. But from the author's perspective, this "sharing" of his content
+without his being compensated is less than ideal.
+={ books :
+ out of print | resales of
+The model of used book stores suggests that the law could simply deem
+out-of-print music fair game. If the publisher does not make copies of the
+music available for sale, then commercial and noncommercial providers would be
+free, under this rule, to "share" that content, even though the sharing
+involved making a copy. The copy here would be incidental to the trade; in a
+context where commercial publishing has ended, trading music should be as free
+as trading books.
+Alternatively, the law could create a statutory license that would ensure that
+artists get something from the trade of their work. For example, if the law set
+a low statutory rate for the commercial sharing of content that was not offered
+for sale by a commercial publisher, and if that rate were automatically
+transferred to a trust for the benefit of the artist, then businesses could
+develop around the idea of trading this content, and artists would benefit from
+this trade.
+={ copyright infringement lawsuits :
+ statutory licenses in +1 ;
+ statutory licenses +1
+This system would also create an incentive for publishers to keep works
+available commercially. Works that are available commercially would not be
+subject to this license. Thus, publishers could protect the right to charge
+whatever they want for content if they kept the work commercially available.
+But if they don't keep it available, and instead, the computer hard disks of
+fans around the world keep it alive, then any royalty owed for such copying
+should be much less than the amount owed a commercial publisher.
+The hard case is content of types A and B, and again, this case is hard only
+because the extent of the problem will change over time, as the technologies
+for gaining access to content change. The law's solution should be as flexible
+as the problem is, understanding that we are in the middle of a radical
+transformation in the technology for delivering and accessing content.
+So here's a solution that will at first seem very strange to both sides in this
+war, but which upon reflection, I suggest, should make some sense.
+Stripped of the rhetoric about the sanctity of property, the basic claim of the
+content industry is this: A new technology (the Internet) has harmed a set of
+rights that secure copyright. If those rights are to be protected, then the
+content industry should be compensated for that harm. Just as the technology of
+tobacco harmed the health of millions of Americans, or the technology of
+asbestos caused grave illness to thousands of miners, so, too, has the
+technology of digital networks harmed the interests of the content industry.
+I love the Internet, and so I don't like likening it to tobacco or asbestos.
+But the analogy is a fair one from the perspective of the law. And it suggests
+a fair response: Rather than seeking to destroy the Internet, or the p2p
+technologies that are currently harming content providers on the Internet, we
+should find a relatively simple way to compensate those who are harmed.
+={ recording industry :
+ artist remuneration in +4 ;
+ artists :
+ recording industry payments to
+The idea would be a modification of a proposal that has been floated by Harvard
+law professor William Fisher.~{ William Fisher, /{Digital Music: Problems and
+Possibilities}/ (last revised: 10 October 2000), available at link #77; William
+Fisher, /{Promises to Keep: Technology, Law, and the Future of Entertainment}/
+(forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available at
+link #78. Professor Netanel has proposed a related idea that would exempt
+noncommercial sharing from the reach of copyright and would establish
+compensation to artists to balance any loss. See Neil Weinstock Netanel,
+"Impose a Noncommercial Use Levy to Allow Free P2P File Sharing," available at
+link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back
+Broadband?" /{Washington Post,}/ 8 January 2002, A17; Philip S. Corwin on
+behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman
+of the Senate Foreign Relations Committee, 26 February 2002, available at link
+#80; Serguei Osokine, /{A Quick Case for Intellectual Property Use Fee
+(IPUF),}/ 3 March 2002, available at link #81; Jefferson Graham, "Kazaa,
+Verizon Propose to Pay Artists Directly," /{USA Today,}/ 13 May 2002, available
+at link #82; Steven M. Cherry, "Getting Copyright Right," IEEE Spectrum Online,
+1 July 2002, available at link #83; Declan Mc-Cullagh, "Verizon's Copyright
+Campaign," CNET, 27 August 2002, available at link #84. Fisher's
+proposal is very similar to Richard Stallman's proposal for DAT. Unlike
+Fisher's, Stallman's proposal would not pay artists directly proportionally,
+though more popular artists would get more than the less popular. As is typical
+with Stallman, his proposal predates the current debate by about a decade. See
+link #85. }~ Fisher suggests a very clever way around the current impasse of
+the Internet. Under his plan, all content capable of digital transmission would
+(1) be marked with a digital watermark (don't worry about how easy it is to
+evade these marks; as you'll see, there's no incentive to evade them). Once the
+content is marked, then entrepreneurs would develop (2) systems to monitor how
+many items of each content were distributed. On the basis of those numbers,
+then (3) artists would be compensated. The compensation would be paid for by
+(4) an appropriate tax.
+={ Fisher, William +2 ;
+ Promises to Keep (Fisher) +1
+Fisher's proposal is careful and comprehensive. It raises a million questions,
+most of which he answers well in his upcoming book, /{Promises to Keep}/. The
+modification that I would make is relatively simple: Fisher imagines his
+proposal replacing the existing copyright system. I imagine it complementing
+the existing system. The aim of the proposal would be to facilitate
+compensation to the extent that harm could be shown. This compensation would be
+temporary, aimed at facilitating a transition between regimes. And it would
+require renewal after a period of years. If it continues to make sense to
+facilitate free exchange of content, supported through a taxation system, then
+it can be continued. If this form of protection is no longer necessary, then
+the system could lapse into the old system of controlling access.
+Fisher would balk at the idea of allowing the system to lapse. His aim is not
+just to ensure that artists are paid, but also to ensure that the system
+supports the widest range of "semiotic democracy" possible. But the aims of
+semiotic democracy would be satisfied if the other changes I described were
+accomplished - in particular, the limits on derivative uses. A system that
+simply charges for access would not greatly burden semiotic democracy if there
+were few limitations on what one was allowed to do with the content itself.
+={ semiotic democracy ;
+ democracy :
+ semiotic
+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.
+={ Apple Corporation ;
+ MusicStore ;
+ Real Networks ;
+ CDs :
+ prices of
+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."
+={ cable television ;
+ television :
+ cable vs. broadcast ;
+ Asia, commercial piracy in ;
+ piracy :
+ in Asia ;
+ film industry :
+ luxury theatres vs. video piracy in
+This regime of competition, with a backstop to assure that artists don't lose,
+would facilitate a great deal of innovation in the delivery of content. That
+competition would continue to shrink type A sharing. It would inspire an
+extraordinary range of new innovators - ones who would have a right to the
+content, and would no longer fear the uncertain and barbarically severe
+punishments of the law.
+In summary, then, my proposal is this:
+The Internet is in transition. We should not be regulating a technology in
+transition. We should instead be regulating to minimize the harm to interests
+affected by this technological change, while enabling, and encouraging, the
+most efficient technology we can create.
+We can minimize that harm while maximizing the benefit to innovation by
+_1 1. guaranteeing the right to engage in type D sharing;
+_1 2. permitting noncommercial type C sharing without liability, and commercial
+type C sharing at a low and fixed rate set by statute;
+_1 3. while in this transition, taxing and compensating for type A sharing, to
+the extent actual harm is demonstrated.
+But what if "piracy" doesn't disappear? What if there is a competitive market
+providing content at a low cost, but a significant number of consumers continue
+to "take" content for nothing? Should the law do something then?
+Yes, it should. But, again, what it should do depends upon how the facts
+develop. These changes may not eliminate type A sharing. But the real issue is
+not whether it eliminates sharing in the abstract. The real issue is its effect
+on the market. Is it better (a) to have a technology that is 95 percent secure
+and produces a market of size /{x}/, or (b) to have a technology that is 50
+percent secure but produces a market of five times /{x}/? Less secure might
+produce more unauthorized sharing, but it is likely to also produce a much
+bigger market in authorized sharing. The most important thing is to assure
+artists' compensation without breaking the Internet. Once that's assured, then
+it may well be appropriate to find ways to track down the petty pirates.
+But we're a long way away from whittling the problem down to this subset of
+type A sharers. And our focus until we're there should not be on finding ways
+to break the Internet. Our focus until we're there should be on how to make
+sure the artists are paid, while protecting the space for innovation and
+creativity that the Internet is.
+2~5 5. Fire Lots of Lawyers
+={ copyright law :
+ lawyers as detriment to +12 ;
+ lawyers :
+ copyright cultural balance impeded by +12 ;
+ legal system, attorney costs in +12
+I'm a lawyer. I make lawyers for a living. I believe in the law. I believe in
+the law of copyright. Indeed, I have devoted my life to working in law, not
+because there are big bucks at the end but because there are ideals at the end
+that I would love to live.
+Yet much of this book has been a criticism of lawyers, or the role lawyers have
+played in this debate. The law speaks to ideals, but it is my view that our
+profession has become too attuned to the client. And in a world where the rich
+clients have one strong view, the unwillingness of the profession to question
+or counter that one strong view queers the law.
+The evidence of this bending is compelling. I'm attacked as a "radical" by many
+within the profession, yet the positions that I am advocating are precisely the
+positions of some of the most moderate and significant figures in the history
+of this branch of the law. Many, for example, thought crazy the challenge that
+we brought to the Copyright Term Extension Act. Yet just thirty years ago, the
+dominant scholar and practitioner in the field of copyright, Melville Nimmer,
+thought it obvious.~{ Lawrence Lessig, "Copyright's First Amendment" (Melville
+B. Nimmer Memorial Lecture), /{UCLA Law Review}/ 48 (2001): 1057, 1069-70. }~
+={ Nimmer, Melville ;
+ Sonny Bono Copyright Term Extension Act (CTEA) (1998) :
+ Supreme Court challenge of
+However, my criticism of the role that lawyers have played in this debate is
+not just about a professional bias. It is more importantly about our failure to
+actually reckon the costs of the law.
+Economists are supposed to be good at reckoning costs and benefits. But more
+often than not, economists, with no clue about how the legal system actually
+functions, simply assume that the transaction costs of the legal system are
+slight.~{ A good example is the work of Professor Stan Liebowitz. Liebowitz is
+to be commended for his careful review of data about infringement, leading him
+to question his own publicly stated position - twice. He initially predicted
+that downloading would substantially harm the industry. He then revised his
+view in light of the data, and he has since revised his view again. Compare
+Stan J. Liebowitz, /{Rethinking the Network Economy: The True Forces That Drive
+the Digital Marketplace}/ (New York: Amacom, 2002), 173 (reviewing his original
+view but expressing skepticism) with Stan J. Liebowitz, "Will MP3s Annihilate
+the Record Industry?" working paper, June 2003, available at link #86.
+Liebowitz's careful analysis is extremely valuable in estimating the effect of
+file-sharing technology. In my view, however, he underestimates the costs of
+the legal system. See, for example, /{Rethinking,}/ 174-76. }~ They see a
+system that has been around for hundreds of years, and they assume it works the
+way their elementary school civics class taught them it works.
+But the legal system doesn't work. Or more accurately, it doesn't work for
+anyone except those with the most resources. Not because the system is corrupt.
+I don't think our legal system (at the federal level, at least) is at all
+corrupt. I mean simply because the costs of our legal system are so
+astonishingly high that justice can practically never be done.
+These costs distort free culture in many ways. A lawyer's time is billed at the
+largest firms at more than $400 per hour. How much time should such a lawyer
+spend reading cases carefully, or researching obscure strands of authority? The
+answer is the increasing reality: very little. The law depended upon the
+careful articulation and development of doctrine, but the careful articulation
+and development of legal doctrine depends upon careful work. Yet that careful
+work costs too much, except in the most high-profile and costly cases.
+The costliness and clumsiness and randomness of this system mock our tradition.
+And lawyers, as well as academics, should consider it their duty to change the
+way the law works - or better, to change the law so that it works. It is wrong
+that the system works well only for the top 1 percent of the clients. It could
+be made radically more efficient, and inexpensive, and hence radically more
+But until that reform is complete, we as a society should keep the law away
+from areas that we know it will only harm. And that is precisely what the law
+will too often do if too much of our culture is left to its review.
+Think about the amazing things your kid could do or make with digital
+technology - the film, the music, the Web page, the blog. Or think about the
+amazing things your community could facilitate with digital technology - a
+wiki, a barn raising, activism to change something. Think about all those
+creative things, and then imagine cold molasses poured onto the machines. This
+is what any regime that requires permission produces. Again, this is the
+reality of Brezhnev's Russia.
+The law should regulate in certain areas of culture - but it should regulate
+culture only where that regulation does good. Yet lawyers rarely test their
+power, or the power they promote, against this simple pragmatic question: "Will
+it do good?" When challenged about the expanding reach of the law, the lawyer
+answers, "Why not?"
+We should ask, "Why?" Show me why your regulation of culture is needed. Show me
+how it does good. And until you can show me both, keep your lawyers away.
+1~webnotes Notes~#
+Throughout this text, there are references to links on the World Wide Web. As
+anyone who has tried to use the Web knows, these links can be highly unstable.
+I have tried to remedy the instability by redirecting readers to the original
+source through the Web site associated with this book. For each link below, you
+can go to 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.
+1~acknowledgements [Acknowledgments]-#
+This book is the product of a long and as yet unsuccessful struggle that began
+when I read of Eric Eldred's war to keep books free. Eldred's work helped
+launch a movement, the free culture movement, and it is to him that this book
+is dedicated. I received guidance in various places from friends and academics,
+including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark
+Rose, and Kathleen Sullivan. And I received correction and guidance from many
+amazing students at Stanford Law School and Stanford University. They included
+Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica
+Goldberg, Robert Hall- man, Andrew Harris, Matthew Kahn, Brian Link, Ohad
+Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine
+Crump and Harry Surden, who helped direct their research, and to Laura Lynch,
+who brilliantly managed the army that they assembled, and provided her own
+critical eye on much of this. Yuko Noguchi helped me to understand the laws of
+Japan as well as its culture. I am thankful to her, and to the many in Japan
+who helped me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
+Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I
+am thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University
+Business Law Center, for giving me the chance to spend time in Japan, and to
+Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was
+there. These are the traditional sorts of help that academics regularly draw
+upon. But in addition to them, the Internet has made it possible to receive
+advice and correction from many whom I have never even met. Among those who
+have responded with extremely helpful advice to requests on my blog about the
+book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as well as
+a long list of those who had specific ideas about ways to develop my argument.
+They included Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob
+Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger, Vaughn
+Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt, K. L. Mann, Mark
+Manning, Nora McCauley, Jeffrey McHugh, Evan McMullen, Fred Norton, John
+Pormann, Pedro A. D. Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam
+Shostack, Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina,
+Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da
+Jazz," and Richard Yanco. (I apologize if I have missed anyone; with computers
+come glitches, and a crash of my e-mail system meant I lost a bunch of great
+replies.) Richard Stallman and Michael Carroll each read the whole book in
+draft, and each provided extremely helpful correction and advice. Michael
+helped me to see more clearly the significance of the regulation of derivitive
+works. And Richard corrected an embarrassingly large number of errors. While my
+work is in part inspired by Stallman's, he does not agree with me in important
+places throughout this book. Finally, and forever, I am thankful to Bettina,
+who has always insisted that there would be unending happiness away from these
+battles, and who has always been right. This slow learner is, as ever, grateful
+for her perpetual patience and love.
+{lessig.jpg 151x227 "Lawrence Lessig" }
+LAWRENCE LESSIG ( ), 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 ( ). 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 " 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.
+1~misc Other Works and REVIEWS of FreeCulture
+1~jacket JACKET
+"FREE CULTURE is an entertaining and important look at the past and future of
+the cold war between the media industry and new technologies."
+-- Marc Andreessen, cofounder of Netscape
+"The twenty-first century could be the century of unprecedented creativity, but
+only if we embrace the brilliantly articulated messages in Lawrence Lessig's
+FREE CULTURE. This book is beautifully written, crisply argued, and deeply
+provocative. Please read it!"
+-- John Seely Brown, coauthor of THE SOCIAL LIFE OF INFORMATION and former
+Chief Scientist, Xerox PARC
+"America needs a national conversation about the way in which so-called
+'intellectual property rights' have come to dominate the rights of scholars,
+researchers, and everyday citizens. A copyright cartel, bidding for absolute
+control over digital worlds, music, and movies, now has a veto over
+technological innovation and has halted most contributions to the public domain
+from which so many have benefited. The patent system has spun out of control,
+giving enormous power to entrenched interests, and even trademarks are being
+misused. Lawrence Lessig's latest book is essential reading for anyone who want
+to join this conversation. He explains how technology and the law are robbing
+us of the public domain; but for all his educated pessimism, Professor Lessig
+offers some solutions, too, because he recognizes that technology can be the
+catalyst for freedom. If you care about the future of innovation, read this
+-- Dan Gillmor, author of MAKING THE NEWS, an upcoming book on the collision of
+media and technology
+"FREE CULTURE goes beyond illuminating the catastrophe to our culture of
+increasing regulation to show examples of how we can make a different future.
+These new-style heroes and examples are rooted in the traditions of the
+founding fathers in ways that seem obvious after reading this book. Recommended
+reading to those trying to unravel the shrill hype around 'intellectual
+-- Brewster Kahle, founder of the Internet Archive
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