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diff --git a/data/samples/current/en/free_culture.lawrence_lessig.sst b/data/samples/current/en/free_culture.lawrence_lessig.sst index 536dcf7..e720f9d 100644 --- a/data/samples/current/en/free_culture.lawrence_lessig.sst +++ b/data/samples/current/en/free_culture.lawrence_lessig.sst @@ -54,7 +54,9 @@ To Eric Eldred - whose work first drew me to this cause, and for whom it continu !_ 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. }~ +``` quote +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. @@ -69,7 +71,9 @@ If we understood this change, I believe we would resist it. Not "we" on the Left 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. }~ +``` quote +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. @@ -110,7 +114,9 @@ The Supreme Court agreed to hear the Causbys' case. Congress had declared the ai 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. }~ +``` quote +[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." @@ -138,7 +144,9 @@ On November 5, 1935, he demonstrated the technology at a meeting of the Institut 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. }~ +``` quote +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 ; @@ -149,12 +157,16 @@ As our own common sense tells us, Armstrong had discovered a vastly superior rad RCA's president, David Sarnoff, a friend of Armstrong's, was eager that Armstrong discover a way to remove static from AM radio. So Sarnoff was quite excited when Armstrong told him he had a device that removed static from "radio." But when Armstrong demonstrated his invention, Sarnoff was not pleased. ={ 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 www.webstationone.com/fecha, available at link #1. }~ +``` quote +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 www.webstationone.com/fecha, 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. }~ +``` quote +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 : @@ -162,7 +174,9 @@ RCA at first kept the technology in house, insisting that further tests were nee 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. }~ +``` quote +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 } @@ -289,7 +303,9 @@ of the law regulating creative property, there has been a war against "piracy." 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). }~ +``` quote +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 : @@ -306,7 +322,9 @@ There's no doubt that "piracy" is wrong, and that pirates should be punished. Bu 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." +``` quote +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 Scouts. ={ ASCAP ; @@ -356,11 +374,13 @@ a cartoon character was born. An early Mickey Mouse made his debut in May of tha 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. +``` quote +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. +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. }~ +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. } @@ -515,8 +535,10 @@ Eastman developed flexible, emulsion-coated paper film and placed rolls of it in 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 } +``` quote +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. }~ @@ -601,7 +623,9 @@ This skill is precisely the craft a filmmaker learns. As Daley describes, "peopl Yet the push for an expanded literacy - one that goes beyond text to include audio and visual elements - is not about making better film directors. The aim is not to improve the profession of filmmaking at all. Instead, as Daley explained, -_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." +``` quote +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. @@ -617,12 +641,14 @@ Using whatever "free web stuff they could find," and relatively simple tools to "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. ... +``` quote +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 } +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." +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. @@ -865,7 +891,9 @@ The recording industry insists this is a matter of law and morality. Let's put t 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 done." +``` quote +I was definitely not an activist [before]. I never really meant to be an activist. ... [But] I've been pushed into this. In no way did I ever foresee anything like this, but I think it's just completely absurd what the RIAA has done." +``` Jesse's parents betray a certain pride in their reluctant activist. As his father told me, Jesse "considers himself very conservative, and so do I. ... He's not a tree hugger. . . . I think it's bizarre that they would pick on him. But he wants to let people know that they're sending the wrong message. And he wants to correct the record." @@ -886,20 +914,14 @@ using the creative property of others without their permission - if "if value, t 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 -} +={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. +``` quote +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 -} +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 } @@ -933,7 +955,9 @@ The composers (and publishers) were none too happy about this capacity to pirate 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). }~ +``` quote +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 : @@ -973,7 +997,9 @@ But the law governing recordings gives recording artists less. And thus, in effe 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. }~ +``` quote +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. @@ -1023,11 +1049,15 @@ Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, c 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.). }~ +``` quote +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.). }~ +``` quote +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 ; @@ -1037,7 +1067,9 @@ These were "free-ride[rs]," Screen Actor's Guild president Charlton Heston said, 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). }~ +``` quote +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. : @@ -1386,7 +1418,9 @@ But the Supreme Court reversed the decision of the Ninth Circuit. And in its rev 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). }~ +``` quote +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 @@ -1588,7 +1622,9 @@ When 1731 (1710 + 21) came along, however, the booksellers were getting anxious. 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). }~ +``` quote +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 ; @@ -1674,7 +1710,9 @@ It is hard for us to imagine, but this decision by the House of Lords fueled an 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. }~ +``` quote +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 ; @@ -1747,24 +1785,26 @@ But when lawyers hear this story about Jon Else and Fox, their first thought is 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: +``` quote +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. +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. +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. +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." +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. @@ -1812,12 +1852,14 @@ The problem was that neither Alben nor Slade had any idea what clearing those ri 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. +``` quote +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. +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 people." +So we had to identify the people - some of them were hard to identify because in Eastwood movies you can't tell who's the guy crashing through the glass - is it the actor or is it the stuntman? And then we just, we put together a team, my assistant and some others, and we just started calling people." +``` Some actors were glad to help - Donald Sutherland, for example, followed up himself to be sure that the rights had been cleared. Others were dumbfounded at their good fortune. Alben would ask, "Hey, can I pay you $600 or maybe if you were in two films, you know, $1,200?" And they would say, "Are you for real? Hey, I'd love to get $1,200." And some of course were a bit difficult (estranged ex-wives, in particular). But eventually, Alben and his team had cleared the rights to this retrospective CD-ROM on Clint Eastwood's career. ={ Sutherland, Donald } @@ -1826,7 +1868,9 @@ It was one /{year}/ later - " and even then we weren't sure whether we were tota 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." +``` quote +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. @@ -1835,11 +1879,15 @@ But I pressed Alben about how weird it seems that it would have to take a year's 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." +``` quote +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." +``` quote +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? @@ -1961,7 +2009,9 @@ The Way Back Machine is the largest archive of human knowledge in human history. 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. ..." +``` quote +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 } @@ -2033,7 +2083,9 @@ Perhaps the single most important feature of the digital revolution is that for 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." +``` quote +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 : @@ -2095,7 +2147,9 @@ In 1982, Valenti's testimony to Congress captured the strategy perfectly: 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). }~ +``` quote +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 } @@ -2809,7 +2863,9 @@ What links these two, aibopet.com and Felten, is the letters they then received. 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." +``` quote +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 ; @@ -2824,7 +2880,9 @@ And though an academic paper describing the weakness in a system of encryption s 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")." +``` quote +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. @@ -2866,7 +2924,9 @@ The bizarreness of these arguments is captured in a cartoon drawn in 1981 by Pau 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. }~ +``` quote +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. @@ -2971,7 +3031,9 @@ Concentration in size alone is one thing. The more invidious change is in the na 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. }~ +``` quote +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 @@ -3018,7 +3080,9 @@ While the number of channels has increased dramatically, the ownership of those 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. }~ +``` quote +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. ={ democracy : @@ -3336,11 +3400,13 @@ I'm not talking about the opportunities for kids to "steal" music. My focus inst infringement protections in +3 } -_1 eMusic opposes music piracy. We are a distributor of copyrighted material, and we want to protect those rights. +``` quote +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 model. +But building a technology fortress that locks in the clout of the major labels is by no means the only way to protect copyright interests, nor is it necessarily the best. It is simply too early to answer that question. Market forces operating naturally may very well produce a totally different industry model. -_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, EMusic.com), available in LEXIS, Federal Document Clearing House Congressional Testimony File. }~ +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, EMusic.com), available in LEXIS, Federal Document Clearing House Congressional Testimony File. }~ +``` In April 2001, eMusic.com was purchased by Vivendi Universal, one of "the major labels." Its position on these matters has now changed. ={ Vivendi Universal } @@ -3446,7 +3512,9 @@ As Jed Horovitz, the businessman behind Video Pipeline, said to me, 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." +``` quote +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 : @@ -3532,7 +3600,9 @@ This strategy is not just limited to the lawyers. In April 2003, Universal and E 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. }~ +``` quote +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. @@ -3625,7 +3695,9 @@ Internet radio is thus to radio what FM was to AM. It is an improvement potentia 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. }~ +``` quote +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. @@ -3720,9 +3792,11 @@ In a rare bit of candor, one RIAA expert admitted what seemed obvious to everyon 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. ..." +``` quote +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.) +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. @@ -3823,7 +3897,9 @@ aspect to this corruption that is particularly important to civil liberties, and "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." +``` quote +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. @@ -3860,7 +3936,9 @@ Now, of course, she'll have the right to defend herself. You can hire a lawyer f 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." +``` quote +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 : @@ -3953,7 +4031,9 @@ It was here that I became involved in Eldred's battle. I was a constitutional sc 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. ..." +``` quote +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." @@ -4463,20 +4543,28 @@ When the Chief Justice called me to begin my argument, I began where I intended 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." +``` quote +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." +``` quote +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. +``` quote +JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that. +``` Here follows my clear mistake. Like a professor correcting a student, I answered, -_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." +``` quote +MR. LESSIG: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws." +``` That was a correct answer, but it wasn't the right answer. The right answer was instead that there was an obvious and profound harm. Any number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss. ={ Ayer, Don } @@ -4486,17 +4574,21 @@ The second came from the Chief, for whom the whole case had been crafted. For th 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? +``` quote +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." +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." +``` quote +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. : @@ -4590,7 +4682,9 @@ After the argument and after the decision, Peter said to me, and publicly, that !_ 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 ferment." +``` quote +In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. The public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment." +``` ={ copyright : in perpetuity } @@ -4911,7 +5005,9 @@ When this battle broke, I blogged it. A spirited debate within the comment secti ={ 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." +``` quote +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.) @@ -5325,7 +5421,9 @@ Our Constitution gives Congress the power to give authors "exclusive right" to " 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. }~ +``` quote +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 turn. ={ property rights : |