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diff --git a/data/samples/wrapped/en/free_culture.lawrence_lessig.sst b/data/samples/wrapped/en/free_culture.lawrence_lessig.sst new file mode 100644 index 0000000..32c7c8d --- /dev/null +++ b/data/samples/wrapped/en/free_culture.lawrence_lessig.sst @@ -0,0 +1,12762 @@ +% SiSU 4.0 + +@title: Free Culture + :subtitle: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity + +@creator: + :author: Lessig, Lawrence + +@date: + :published: 2004-03-25 + :created: 2004-03-25 + :issued: 2004-03-25 + :available: 2004-03-25 + :valid: 2004-03-25 + :modified: 2004-03-25 + +@rights: + :copyright: Copyright (C) Lawrence Lessig, 2004. + :license: Free Culture is Licensed under a Creative Commons License. This License permits non-commercial use of this work, so long as attribution is given. For more information about the license, visit http://creativecommons.org/licenses/by-nc/1.0/ + +@classify: + :topic_register: SiSU markup sample:book:discourse;book:discourse:intellectual property|copyright|creative commons|free culture;copyright;free culture;creative commons;intellectual property:copyright|public domain;intellectual property:copyright:creative commons;book:subject:culture|copyright|society|public policy|mass media;culture;society + +@identifier: + :isbn: 9781594200069 + :oclc: 53324884 + +% :isbn: 1594200068 + +@links: + {Free Culture}http://www.free-culture.cc + {Remixes}http://www.free-culture.cc/remixes/ + {@ Wikipedia}http://en.wikipedia.org/wiki/Free_Culture_%28book%29 + {@ Amazon.com}http://www.amazon.com/gp/product/1594200068 + {@ Barnes & Noble}http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=1594200068 + +@make: + :breaks: new=:B; break=1 + :home_button_image: {freeculture.home.png }http://www.free-culture.cc + :home_button_text: {Free Culture}http://www.free-culture.cc; {Lawrence Lessig}http://www.lessig.org + :footer: {Free Culture}http://www.free-culture.cc; {Lawrence Lessig}http://www.lessig.org + :pot_master: free_culture.lawrence_lessig.sst + +:A~ @title @author + +1~attribution Attribution~# + +To Eric Eldred - whose work first drew me to this cause, and for whom it +continues still.~# + +:B~ PREFACE + +1~preface [Preface]-# + +!_ At the end +of his review of my first book, /{Code: And Other Laws of Cyberspace}/, David +Pogue, a brilliant writer and author of countless technical and computer- +related texts, wrote this: + +_1 Unlike actual law, Internet software has no capacity to punish. It doesn't +affect people who aren't online (and only a tiny minority of the world +population is). And if you don't like the Internet's system, you can always +flip off the modem.~{ David Pogue, "Don't Just Chat, Do Something," /{New York +Times,}/ 30 January 2000. }~ + +Pogue was skeptical of the core argument of the book - that software, or +"code," functioned as a kind of law - and his review suggested the happy +thought that if life in cyberspace got bad, we could always "drizzle, drazzle, +druzzle, drome"- like simply flip a switch and be back home. Turn off the +modem, unplug the computer, and any troubles that exist in /{that}/ space +wouldn't "affect" us anymore. + +Pogue might have been right in 1999 - I'm skeptical, but maybe. But even if he +was right then, the point is not right now: /{Free Culture}/ is about the +troubles the Internet causes even after the modem is turned off. It is an +argument about how the battles that now rage regarding life on-line have +fundamentally affected "people who aren't online." There is no switch that will +insulate us from the Internet's effect. + +But unlike /{Code}/, the argument here is not much about the Internet itself. +It is instead about the consequence of the Internet to a part of our tradition +that is much more fundamental, and, as hard as this is for a geek-wanna-be to +admit, much more important. + +That tradition is the way our culture gets made. As I explain in the pages that +follow, we come from a tradition of "free culture" - not "free" as in "free +beer" (to borrow a phrase from the founder of the free-software movement, ~{ +Richard M. Stallman, /{Free Software, Free Societies}/ 57 ( Joshua Gay, ed. +2002). }~ but "free" as in "free speech," "free markets," "free trade," "free +enterprise," "free will," and "free elections." A free culture supports and +protects creators and innovators. It does this directly by granting +intellectual property rights. But it does so indirectly by limiting the reach +of those rights, to guarantee that follow-on creators and innovators remain +/{as free as possible}/ from the control of the past. A free culture is not a +culture without property, just as a free market is not a market in which +everything is free. The opposite of a free culture is a "permission culture" - +a culture in which creators get to create only with the permission of the +powerful, or of creators from the past. + +If we understood this change, I believe we would resist it. Not "we" on the +Left or "you" on the Right, but we who have no stake in the particular +industries of culture that defined the twentieth century. Whether you are on +the Left or the Right, if you are in this sense disinterested, then the story I +tell here will trouble you. For the changes I describe affect values that both +sides of our political culture deem fundamental. + +We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the +FCC considered changes in media ownership rules that would relax limits on +media concentration, an extraordinary coalition generated more than 700,000 +letters to the FCC opposing the change. As William Safire described marching +"uncomfortably alongside CodePink Women for Peace and the National Rifle +Association, between liberal Olympia Snowe and conservative Ted Stevens," he +formulated perhaps most simply just what was at stake: the concentration of +power. And as he asked, +={ power, concentration of +2 } + +_1 Does that sound unconservative? Not to me. The concentration of power - +political, corporate, media, cultural - should be anathema to conservatives. +The diffusion of power through local control, thereby encouraging individual +participation, is the essence of federalism and the greatest expression of +democracy."~{ William Safire, "The Great Media Gulp," /{New York Times,}/ 22 +May 2003. }~ + +This idea is an element of the argument of /{Free Culture}/, though my focus is +not just on the concentration of power produced by concentrations in ownership, +but more importantly, if because less visibly, on the concentration of power +produced by a radical change in the effective scope of the law. The law is +changing; that change is altering the way our culture gets made; that change +should worry you - whether or not you care about the Internet, and whether +you're on Safire's left or on his right. + +!_ The inspiration +for the title and for much of the argument of this book comes from the work of +Richard Stallman and the Free Software Foundation. Indeed, as I reread +Stallman's own work, especially the essays in /{Free Software, Free Society}/, +I realize that all of the theoretical insights I develop here are insights +Stallman described decades ago. One could thus well argue that this work is +"merely" derivative. + +I accept that criticism, if indeed it is a criticism. The work of a lawyer is +always derivative, and I mean to do nothing more in this book than to remind a +culture about a tradition that has always been its own. Like Stallman, I defend +that tradition on the basis of values. Like Stallman, I believe those are the +values of freedom. And like Stallman, I believe those are values of our past +that will need to be defended in our future. A free culture has been our past, +but it will only be our future if we change the path we are on right now. + +Like Stallman's arguments for free software, an argument for free culture +stumbles on a confusion that is hard to avoid, and even harder to understand. A +free culture is not a culture without property; it is not a culture in which +artists don't get paid. A culture without property, or in which creators can't +get paid, is anarchy, not freedom. Anarchy is not what I advance here. + +Instead, the free culture that I defend in this book is a balance between +anarchy and control. A free culture, like a free market, is filled with +property. It is filled with rules of property and contract that get enforced by +the state. But just as a free market is perverted if its property becomes +feudal, so too can a free culture be queered by extremism in the property +rights that define it. That is what I fear about our culture today. It is +against that extremism that this book is written. + +:B~ INTRODUCTION + +1~intro [Intro]-# + +!_ On December 17, 1903, +on a windy North Carolina beach for just shy of one hundred seconds, the Wright +brothers demonstrated that a heavier-than-air, self- propelled vehicle could +fly. The moment was electric and its importance widely understood. Almost +immediately, there was an explosion of interest in this newfound technology of +manned flight, and a gaggle of innovators began to build upon it. +={ Wright brothers +1 } + +At the time the Wright brothers invented the airplane, American law held that a +property owner presumptively owned not just the surface of his land, but all +the land below, down to the center of the earth, and all the space above, to +"an indefinite extent, upwards."~{ St. George Tucker, /{Blackstone's +Commentaries}/ 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18. }~ For +many years, scholars had puzzled about how best to interpret the idea that +rights in land ran to the heavens. Did that mean that you owned the stars? +Could you prosecute geese for their willful and regular trespass? +={ air traffic, land ownership vs. +8 ; + land ownership, air traffic and +8 ; + property rights : + air traffic vs. +8 +} + +Then came airplanes, and for the first time, this principle of American law - +deep within the foundations of our tradition, and acknowledged by the most +important legal thinkers of our past - mattered. If my land reaches to the +heavens, what happens when United flies over my field? Do I have the right to +banish it from my property? Am I allowed to enter into an exclusive license +with Delta Airlines? Could we set up an auction to decide how much these rights +are worth? + +In 1945, these questions became a federal case. When North Carolina farmers +Thomas Lee and Tinie Causby started losing chickens because of low-flying +military aircraft (the terrified chickens apparently flew into the barn walls +and died), the Causbys filed a lawsuit saying that the government was +trespassing on their land. The airplanes, of course, never touched the surface +of the Causbys' land. But if, as Blackstone, Kent, and Coke had said, their +land reached to "an indefinite extent, upwards," then the government was +trespassing on their property, and the Causbys wanted it to stop. +={ Causby, Thomas Lee ; + Causby, Tinie +} + +The Supreme Court agreed to hear the Causbys' case. Congress had declared the +airways public, but if one's property really extended to the heavens, then +Congress's declaration could well have been an unconstitutional "taking" of +property without compensation. The Court acknowledged that "it is ancient +doctrine that common law ownership of the land extended to the periphery of the +universe." But Justice Douglas had no patience for ancient doctrine. In a +single paragraph, hundreds of years of property law were erased. As he wrote +for the Court, +={ Douglas, William O. +2 ; + Supreme Court, U.S. : + on airspace vs. land rights +4 +} + +_1 [The] doctrine has no place in the modern world. The air is a public +highway, as Congress has declared. Were that not true, every transcontinental +flight would subject the operator to countless trespass suits. Common sense +revolts at the idea. To recognize such private claims to the airspace would +clog these highways, seriously interfere with their control and development in +the public interest, and transfer into private ownership that to which only the +public has a just claim."~{ United States v. Causby, U.S. 328 (1946): 256, 261. +The Court did find that there could be a "taking" if the government's use of +its land effectively destroyed the value of the Causbys' land. This example was +suggested to me by Keith Aoki's wonderful piece, "(Intellectual) Property and +Sovereignty: Notes Toward a Cultural Geography of Authorship," /{Stanford Law +Review}/ 48 (1996): 1293, 1333. See also Paul Goldstein, /{Real Property}/ +(Mineola, N.Y.: Foundation Press, 1984), 1112-13. }~ + +"Common sense revolts at the idea." + +This is how the law usually works. Not often this abruptly or impatiently, but +eventually, this is how it works. It was Douglas's style not to dither. Other +justices would have blathered on for pages to reach the conclusion that Douglas +holds in a single line: "Common sense revolts at the idea." But whether it +takes pages or a few words, it is the special genius of a common law system, as +ours is, that the law adjusts to the technologies of the time. And as it +adjusts, it changes. Ideas that were as solid as rock in one age crumble in +another. + +Or at least, this is how things happen when there's no one powerful on the +other side of the change. The Causbys were just farmers. And though there were +no doubt many like them who were upset by the growing traffic in the air +(though one hopes not many chickens flew themselves into walls), the Causbys of +the world would find it very hard to unite and stop the idea, and the +technology, that the Wright brothers had birthed. The Wright brothers spat +airplanes into the technological meme pool; the idea then spread like a virus +in a chicken coop; farmers like the Causbys found themselves surrounded by +"what seemed reasonable" given the technology that the Wrights had produced. +They could stand on their farms, dead chickens in hand, and shake their fists +at these newfangled technologies all they wanted. They could call their +representatives or even file a lawsuit. But in the end, the force of what seems +"obvious" to everyone else - the power of "common sense" - would prevail. Their +"private interest" would not be allowed to defeat an obvious public gain. +={ Causby, Thomas Lee ; + Causby, Tinie ; + Wright brothers +} + +!_ Edwin Howard Armstrong +is one of America's forgotten inventor geniuses. He came to the great American +inventor scene just after the titans Thomas Edison and Alexander Graham Bell. +But his work in the area of radio technology was perhaps the most important of +any single inventor in the first fifty years of radio. He was better educated +than Michael Faraday, who as a bookbinder's apprentice had discovered electric +induction in 1831. But he had the same intuition about how the world of radio +worked, and on at least three occasions, Armstrong invented profoundly +important technologies that advanced our understanding of radio. +={ Armstrong, Edwin Howard +14 ; + Bell, Alexander Graham ; + Edison, Thomas ; + Faraday, Michael ; + radio : + FM spectrum of +12 +} + +On the day after Christmas, 1933, four patents were issued to Armstrong for his +most significant invention - FM radio. Until then, consumer radio had been +amplitude-modulated (AM) radio. The theorists of the day had said that +frequency-modulated (FM) radio could never work. They were right about FM radio +in a narrow band of spectrum. But Armstrong discovered that frequency-modulated +radio in a wide band of spectrum would deliver an astonishing fidelity of +sound, with much less transmitter power and static. + +On November 5, 1935, he demonstrated the technology at a meeting of the +Institute of Radio Engineers at the Empire State Building in New York City. He +tuned his radio dial across a range of AM stations, until the radio locked on a +broadcast that he had arranged from seventeen miles away. The radio fell +totally silent, as if dead, and then with a clarity no one else in that room +had ever heard from an electrical device, it produced the sound of an +announcer's voice: "This is amateur station W2AG at Yonkers, New York, +operating on frequency modulation at two and a half meters." + +The audience was hearing something no one had thought possible: + +_1 A glass of water was poured before the microphone in Yonkers; it sounded +like a glass of water being poured. ... A paper was crumpled and torn; it +sounded like paper and not like a crackling forest fire. ... Sousa marches were +played from records and a piano solo and guitar number were performed. ... The +music was projected with a live-ness rarely if ever heard before from a radio +'music box.' "~{ Lawrence Lessing, /{Man of High Fidelity: Edwin Howard +Armstrong}/ (Philadelphia: J. B. Lipincott Company, 1956), 209. }~ + +As our own common sense tells us, Armstrong had discovered a vastly superior +radio technology. But at the time of his invention, Armstrong was working for +RCA. RCA was the dominant player in the then dominant AM radio market. By 1935, +there were a thousand radio stations across the United States, but the stations +in large cities were all owned by a handful of networks. +={ RCA +9 ; + media : + ownership concentration in +9 +} + +RCA's president, David Sarnoff, a friend of Armstrong's, was eager that +Armstrong discover a way to remove static from AM radio. So Sarnoff was quite +excited when Armstrong told him he had a device that removed static from +"radio." But when Armstrong demonstrated his invention, Sarnoff was not +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. }~ + +Armstrong's invention threatened RCA's AM empire, so the company launched a +campaign to smother FM radio. While FM may have been a superior technology, +Sarnoff was a superior tactician. As one author described, +={ FM radio +5 } + +_1 The forces for FM, largely engineering, could not overcome the weight of +strategy devised by the sales, patent, and legal offices to subdue this threat +to corporate position. For FM, if allowed to develop unrestrained, posed ... a +complete reordering of radio power ... and the eventual overthrow of the +carefully restricted AM system on which RCA had grown to power."~{ Lessing, +226. }~ + +RCA at first kept the technology in house, insisting that further tests were +needed. When, after two years of testing, Armstrong grew impatient, RCA began +to use its power with the government to stall FM radio's deployment generally. +In 1936, RCA hired the former head of the FCC and assigned him the task of +assuring that the FCC assign spectrum in a way that would castrate FM - +principally by moving FM radio to a different band of spectrum. At first, these +efforts failed. But when Armstrong and the nation were distracted by World War +II, RCA's work began to be more successful. Soon after the war ended, the FCC +announced a set of policies that would have one clear effect: FM radio would be +crippled. As Lawrence Lessing described it, +={ FCC : + on FM radio +2 ; + Lessig, Lawrence +1 +} + +_1 The series of body blows that FM radio received right after the war, in a +series of rulings manipulated through the FCC by the big radio interests, were +almost incredible in their force and deviousness."~{ Lessing, 256. }~ + +To make room in the spectrum for RCA's latest gamble, television, FM radio +users were to be moved to a totally new spectrum band. The power of FM radio +stations was also cut, meaning FM could no longer be used to beam programs from +one part of the country to another. (This change was strongly supported by +AT&T, because the loss of FM relaying stations would mean radio stations would +have to buy wired links from AT&T.) The spread of FM radio was thus choked, at +least temporarily. +={ AT&T } + +Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's +patents. After incorporating FM technology into the emerging standard for +television, RCA declared the patents invalid - baselessly, and almost fifteen +years after they were issued. It thus refused to pay him royalties. For six +years, Armstrong fought an expensive war of litigation to defend the patents. +Finally, just as the patents expired, RCA offered a settlement so low that it +would not even cover Armstrong's lawyers' fees. Defeated, broken, and now +broke, in 1954 Armstrong wrote a short note to his wife and then stepped out of +a thirteenth- story window to his death. + +This is how the law sometimes works. Not often this tragically, and rarely with +heroic drama, but sometimes, this is how it works. From the beginning, +government and government agencies have been subject to capture. They are more +likely captured when a powerful interest is threatened by either a legal or +technical change. That powerful interest too often exerts its influence within +the government to get the government to protect it. The rhetoric of this +protection is of course always public spirited; the reality is something +different. Ideas that were as solid as rock in one age, but that, left to +themselves, would crumble in another, are sustained through this subtle +corruption of our political process. RCA had what the Causbys did not: the +power to stifle the effect of technological change. +={ Causby, Thomas Lee ; + Causby, Tinie +} + +!_ There's no +single inventor of the Internet. Nor is there any good date upon which to mark +its birth. Yet in a very short time, the Internet has become part of ordinary +American life. According to the Pew Internet and American Life Project, 58 +percent of Americans had access to the Internet in 2002, up from 49 percent two +years before.~{ Amanda Lenhart, "The Ever-Shifting Internet Population: A New +Look at Internet Access and the Digital Divide," Pew Internet and American Life +Project, 15 April 2003: 6, available at link #2. }~ That number could well +exceed two thirds of the nation by the end of 2004. +={ Internet : + development of +2 +} + +As the Internet has been integrated into ordinary life, it has changed things. +Some of these changes are technical - the Internet has made communication +faster, it has lowered the cost of gathering data, and so on. These technical +changes are not the focus of this book. They are important. They are not well +understood. But they are the sort of thing that would simply go away if we all +just switched the Internet off. They don't affect people who don't use the +Internet, or at least they don't affect them directly. They are the proper +subject of a book about the Internet. But this is not a book about the +Internet. + +Instead, this book is about an effect of the Internet beyond the Internet +itself: an effect upon how culture is made. My claim is that the Internet has +induced an important and unrecognized change in that process. That change will +radically transform a tradition that is as old as the Republic itself. Most, if +they recognized this change, would reject it. Yet most don't even see the +change that the Internet has introduced. + +We can glimpse a sense of this change by distinguishing between commercial and +noncommercial culture, and by mapping the law's regulation of each. By +"commercial culture" I mean that part of our culture that is produced and sold +or produced to be sold. By "noncommercial culture" I mean all the rest. When +old men sat around parks or on street corners telling stories that kids and +others consumed, that was noncommercial culture. When Noah Webster published +his "Reader," or Joel Barlow his poetry, that was commercial culture. +={ Barlow, Joel ; + culture : + commercial vs. noncommercial +6 ; + Webster, Noah +} + +At the beginning of our history, and for just about the whole of our tradition, +noncommercial culture was essentially unregulated. Of course, if your stories +were lewd, or if your song disturbed the peace, then the law might intervene. +But the law was never directly concerned with the creation or spread of this +form of culture, and it left this culture "free." The ordinary ways in which +ordinary individuals shared and transformed their culture - telling stories, +reenacting scenes from plays or TV, participating in fan clubs, sharing music, +making tapes - were left alone by the law. + +The focus of the law was on commercial creativity. At first slightly, then +quite extensively, the law protected the incentives of creators by granting +them exclusive rights to their creative work, so that they could sell those +exclusive rights in a commercial marketplace.~{ This is not the only purpose of +copyright, though it is the overwhelmingly primary purpose of the copyright +established in the federal constitution. State copyright law historically +protected not just the commercial interest in publication, but also a privacy +interest. By granting authors the exclusive right to first publication, state +copyright law gave authors the power to control the spread of facts about them. +See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," /{Harvard +Law Review}/ 4 (1890): 193, 198-200. }~ This is also, of course, an important +part of creativity and culture, and it has become an increasingly important +part in America. But in no sense was it dominant within our tradition. It was +instead just one part, a controlled part, balanced with the free. +={ Copyright infringement lawsuits : + commercial creativity as primary purpose of +2 +} + +This rough divide between the free and the controlled has now been erased.~{ 9. +See Jessica Litman, /{Digital Copyright}/ (New York: Prometheus Books, 2001), +ch. 13. }~ The Internet has set the stage for this erasure and, pushed by big +media, the law has now affected it. For the first time in our tradition, the +ordinary ways in which individuals create and share culture fall within the +reach of the regulation of the law, which has expanded to draw within its +control a vast amount of culture and creativity that it never reached before. +The technology that preserved the balance of our history - between uses of our +culture that were free and uses of our culture that were only upon permission - +has been undone. The consequence is that we are less and less a free culture, +more and more a permission culture. +={ free culture : + permission culture vs. ; + permission culture : + free culture vs. +} + +This change gets justified as necessary to protect commercial creativity. And +indeed, protectionism is precisely its motivation. But the protectionism that +justifies the changes that I will describe below is not the limited and +balanced sort that has defined the law in the past. This is not a protectionism +to protect artists. It is instead a protectionism to protect certain forms of +business. Corporations threatened by the potential of the Internet to change +the way both commercial and noncommercial culture are made and shared have +united to induce lawmakers to use the law to protect them. It is the story of +RCA and Armstrong; it is the dream of the Causbys. +={ Causby, Thomas Lee ; + Causby, Tinie ; + protection of artists vs. business interests +} + +For the Internet has unleashed an extraordinary possibility for many to +participate in the process of building and cultivating a culture that reaches +far beyond local boundaries. That power has changed the marketplace for making +and cultivating culture generally, and that change in turn threatens +established content industries. The Internet is thus to the industries that +built and distributed content in the twentieth century what FM radio was to AM +radio, or what the truck was to the railroad industry of the nineteenth +century: the beginning of the end, or at least a substantial transformation. +Digital technologies, tied to the Internet, could produce a vastly more +competitive and vibrant market for building and cultivating culture; that +market could include a much wider and more diverse range of creators; those +creators could produce and distribute a much more vibrant range of creativity; +and depending upon a few important factors, those creators could earn more on +average from this system than creators do today - all so long as the RCAs of +our day don't use the law to protect themselves against this competition. + +Yet, as I argue in the pages that follow, that is precisely what is happening +in our culture today. These modern-day equivalents of the early +twentieth-century radio or nineteenth-century railroads are using their power +to get the law to protect them against this new, more efficient, more vibrant +technology for building culture. They are succeeding in their plan to remake +the Internet before the Internet remakes them. + +It doesn't seem this way to many. The battles over copyright and the Internet +seem remote to most. To the few who follow them, they seem mainly about a much +simpler brace of questions - whether "piracy" will be permitted, and whether +"property" will be protected. The "war" that has been waged against the +technologies of the Internet - what Motion Picture Association of America +(MPAA) president Jack Valenti calls his "own terrorist war"~{ Amy Harmon, +"Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the +Net into an Illicit Video Club," /{New York Times,}/ 17 January 2002. }~ - has +been framed as a battle about the rule of law and respect for property. To know +which side to take in this war, most think that we need only decide whether +we're for property or against it. +={ Valenti, Jack : + on creative property rights +} + +If those really were the choices, then I would be with Jack Valenti and the +content industry. I, too, am a believer in property, and especially in the +importance of what Mr. Valenti nicely calls "creative property." I believe that +"piracy" is wrong, and that the law, properly tuned, should punish "piracy," +whether on or off the Internet. + +But those simple beliefs mask a much more fundamental question and a much more +dramatic change. My fear is that unless we come to see this change, the war to +rid the world of Internet "pirates" will also rid our culture of values that +have been integral to our tradition from the start. + +These values built a tradition that, for at least the first 180 years of our +Republic, guaranteed creators the right to build freely upon their past, and +protected creators and innovators from either state or private control. The +First Amendment protected creators against state control. And as Professor Neil +Netanel powerfully argues,~{ Neil W. Netanel, "Copyright and a Democratic Civil +Society," /{Yale Law Journal}/ 106 (1996): 283. }~ copyright law, properly +balanced, protected creators against private control. Our tradition was thus +neither Soviet nor the tradition of patrons. It instead carved out a wide berth +within which creators could cultivate and extend our culture. +={ Constitution, U.S. : + First Amendment to ; + Copyright law : + as protection of creators ; + First Amendment ; + Netanel, Neil Weinstock +} + +Yet the law's response to the Internet, when tied to changes in the technology +of the Internet itself, has massively increased the effective regulation of +creativity in America. To build upon or critique the culture around us one must +ask, Oliver Twist - like, for permission first. Permission is, of course, often +granted - but it is not often granted to the critical or the independent. We +have built a kind of cultural nobility; those within the noble class live +easily; those outside it don't. But it is nobility of any form that is alien to +our tradition. + +The story that follows is about this war. Is it not about the "centrality of +technology" to ordinary life. I don't believe in gods, digital or otherwise. +Nor is it an effort to demonize any individual or group, for neither do I +believe in a devil, corporate or otherwise. It is not a morality tale. Nor is +it a call to jihad against an industry. + +It is instead an effort to understand a hopelessly destructive war inspired by +the technologies of the Internet but reaching far beyond its code. And by +understanding this battle, it is an effort to map peace. There is no good +reason for the current struggle around Internet technologies to continue. There +will be great harm to our tradition and culture if it is allowed to continue +unchecked. We must come to understand the source of this war. We must resolve +it soon. + +!_ Like the Causbys' +battle, this war is, in part, about "property." The property of this war is not +as tangible as the Causbys', and no innocent chicken has yet to lose its life. +Yet the ideas surrounding this "property" are as obvious to most as the +Causbys' claim about the sacredness of their farm was to them. We are the +Causbys. Most of us take for granted the extraordinarily powerful claims that +the owners of "intellectual property" now assert. Most of us, like the Causbys, +treat these claims as obvious. And hence we, like the Causbys, object when a +new technology interferes with this property. It is as plain to us as it was to +them that the new technologies of the Internet are "trespassing" upon +legitimate claims of "property." It is as plain to us as it was to them that +the law should intervene to stop this trespass. +={ Causby, Thomas Lee +1 ; + Causby, Tinie +1 ; + intellectual property rights +8 +} + +And thus, when geeks and technologists defend their Armstrong or Wright +brothers technology, most of us are simply unsympathetic. Common sense does not +revolt. Unlike in the case of the unlucky Causbys, common sense is on the side +of the property owners in this war. Unlike the lucky Wright brothers, the +Internet has not inspired a revolution on its side. +={ Wright brothers } + +My hope is to push this common sense along. I have become increasingly amazed +by the power of this idea of intellectual property and, more importantly, its +power to disable critical thought by policy makers and citizens. There has +never been a time in our history when more of our "culture" was as "owned" as +it is now. And yet there has never been a time when the concentration of power +to control the /{uses}/ of culture has been as unquestioningly accepted as it +is now. +={ power, concentration of } + +The puzzle is, Why? + +Is it because we have come to understand a truth about the value and importance +of absolute property over ideas and culture? Is it because we have discovered +that our tradition of rejecting such an absolute claim was wrong? + +Or is it because the idea of absolute property over ideas and culture benefits +the RCAs of our time and fits our own unreflective intuitions? + +Is the radical shift away from our tradition of free culture an instance of +America correcting a mistake from its past, as we did after a bloody war with +slavery, and as we are slowly doing with inequality? Or is the radical shift +away from our tradition of free culture yet another example of a political +system captured by a few powerful special interests? + +Does common sense lead to the extremes on this question because common sense +actually believes in these extremes? Or does common sense stand silent in the +face of these extremes because, as with Armstrong versus RCA, the more powerful +side has ensured that it has the more powerful view? + +I don't mean to be mysterious. My own views are resolved. I believe it was +right for common sense to revolt against the extremism of the Causbys. I +believe it would be right for common sense to revolt against the extreme claims +made today on behalf of "intellectual property." What the law demands today is +increasingly as silly as a sheriff arresting an airplane for trespass. But the +consequences of this silliness will be much more profound. +={ Causby, Thomas Lee ; + Causby, Tinie +} + +!_ The struggle +that rages just now centers on two ideas: "piracy" and "property." My aim in +this book's next two parts is to explore these two ideas. + +My method is not the usual method of an academic. I don't want to plunge you +into a complex argument, buttressed with references to obscure French +theorists' however natural that is for the weird sort we academics have become. +Instead I begin in each part with a collection of stories that set a context +within which these apparently simple ideas can be more fully understood. + +The two sections set up the core claim of this book: that while the Internet +has indeed produced something fantastic and new, our government, pushed by big +media to respond to this "something new," is destroying something very old. +Rather than understanding the changes the Internet might permit, and rather +than taking time to let "common sense" resolve how best to respond, we are +allowing those most threatened by the changes to use their power to change the +law - and more importantly, to use their power to change something fundamental +about who we have always been. + +We allow this, I believe, not because it is right, and not because most of us +really believe in these changes. We allow it because the interests most +threatened are among the most powerful players in our depressingly compromised +process of making law. This book is the story of one more consequence of this +form of corruption - a consequence to which most of us remain oblivious. + +:B~ "PIRACY" + +1~intro_piracy [Intro]-# + +!_ Since the inception +of the law regulating creative property, there has been a war against "piracy." +The precise contours of this concept, "piracy," are hard to sketch, but the +animating injustice is easy to capture. As Lord Mansfield wrote in a case that +extended the reach of English copyright law to include sheet music, +={ Copyright law : + English ; + Mansfield, William Murray, Lord ; + music publishing ; + sheet music +} + +_1 A person may use the copy by playing it, but he has no right to rob the +author of the profit, by multiplying copies and disposing of them for his own +use."~{ /{Bach v. Longman,}/ 98 Eng. Rep. 1274 (1777) (Mansfield). }~ + +Today we are in the middle of another "war" against "piracy." The Internet has +provoked this war. The Internet makes possible the efficient spread of content. +Peer-to-peer (p2p) file sharing is among the most efficient of the efficient +technologies the Internet enables. Using distributed intelligence, p2p systems +facilitate the easy spread of content in a way unimagined a generation ago. +={ Internet : + efficient content distribution on ; + peer-to-peer (p2p) file sharing : + efficiency of +1 +} + +_{This}_ efficiency does not respect the traditional lines of copyright. The +network doesn't discriminate between the sharing of copyrighted and +uncopyrighted content. Thus has there been a vast amount of sharing of +copyrighted content. That sharing in turn has excited the war, as copyright +owners fear the sharing will "rob the author of the profit." + +The warriors have turned to the courts, to the legislatures, and increasingly +to technology to defend their "property" against this "piracy." A generation of +Americans, the warriors warn, is being raised to believe that "property" should +be "free." Forget tattoos, never mind body piercing - our kids are becoming +thieves! + +There's no doubt that "piracy" is wrong, and that pirates should be punished. +But before we summon the executioners, we should put this notion of "piracy" in +some context. For as the concept is increasingly used, at its core is an +extraordinary idea that is almost certainly wrong. + +The idea goes something like this: + +_1 Creative work has value; whenever I use, or take, or build upon the creative +work of others, I am taking from them something of value. Whenever I take +something of value from someone else, I should have their permission. The +taking of something of value from someone else without permission is wrong. It +is a form of piracy." + +This view runs deep within the current debates. It is what NYU law professor +Rochelle Dreyfuss criticizes as the "if value, then right" theory of creative +property~{ See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as +Language in the Pepsi Generation," /{Notre Dame Law Review}/ 65 (1990): 397. }~ +- if there is value, then someone must have a right to that value. It is the +perspective that led a composers' rights organization, ASCAP, to sue the Girl +Scouts for failing to pay for the songs that girls sang around Girl Scout +campfires.~{ Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They +Pay Up," /{Wall Street Journal,}/ 21 August 1996, available at link #3; +Jonathan Zittrain, "Calling Off the Copyright War: In Battle of Property vs. +Free Speech, No One Wins," /{Boston Globe,}/ 24 November 2002. }~ There was +"value" (the songs) so there must have been a "right" - even against the Girl +Scouts. +={ ASCAP ; + Dreyfus, Rochelle ; + Girl Scouts ; + creative property : + "if value, then right" theory of +1 ; + if value, then right, theory +1 +} + +% note bad sort: ={"if value, then right" theory} + +This idea is certainly a possible understanding of how creative property should +work. It might well be a possible design for a system of law protecting +creative property. But the "if value, then right" theory of creative property +has never been America's theory of creative property. It has never taken hold +within our law. + +Instead, in our tradition, intellectual property is an instrument. It sets the +groundwork for a richly creative society but remains subservient to the value +of creativity. The current debate has this turned around. We have become so +concerned with protecting the instrument that we are losing sight of the value. +={ copyright law : + on republishing vs. transformation of original work +1 ; + creativity : + legal restrictions on +3 +} + +The source of this confusion is a distinction that the law no longer takes care +to draw - the distinction between republishing someone's work on the one hand +and building upon or transforming that work on the other. Copyright law at its +birth had only publishing as its concern; copyright law today regulates both. + +Before the technologies of the Internet, this conflation didn't matter all that +much. The technologies of publishing were expensive; that meant the vast +majority of publishing was commercial. Commercial entities could bear the +burden of the law - even the burden of the Byzantine complexity that copyright +law has become. It was just one more expense of doing business. + +But with the birth of the Internet, this natural limit to the reach of the law +has disappeared. The law controls not just the creativity of commercial +creators but effectively that of anyone. Although that expansion would not +matter much if copyright law regulated only "copying," when the law regulates +as broadly and obscurely as it does, the extension matters a lot. The burden of +this law now vastly outweighs any original benefit - certainly as it affects +noncommercial creativity, and increasingly as it affects commercial creativity +as well. Thus, as we'll see more clearly in the chapters below, the law's role +is less and less to support creativity, and more and more to protect certain +industries against competition. Just at the time digital technology could +unleash an extraordinary range of commercial and noncommercial creativity, the +law burdens this creativity with insanely complex and vague rules and with the +threat of obscenely severe penalties. We may be seeing, as Richard Florida +writes, the "Rise of the Creative Class."~{ In /{The Rise of the Creative +Class}/ (New York: Basic Books, 2002), Richard Florida documents a shift in the +nature of labor toward a labor of creativity. His work, however, doesn't +directly address the legal conditions under which that creativity is enabled or +stifled. I certainly agree with him about the importance and significance of +this change, but I also believe the conditions under which it will be enabled +are much more tenuous. }~ Unfortunately, we are also seeing an extraordinary +rise of regulation of this creative class. +={ copyright law : + creativity impeded by ; + Florida, Richard ; + Rise of the Creative Class, The (Florida) +} + +These burdens make no sense in our tradition. We should begin by understanding +that tradition a bit more and by placing in their proper context the current +battles about behavior labeled "piracy." + +1~ Chapter One: Creators + +!_ In 1928, +a cartoon character was born. An early Mickey Mouse made his debut in May of +that year, in a silent flop called /{Plane Crazy}/. In November, in New York +City's Colony Theater, in the first widely distributed cartoon synchronized +with sound, /{Steamboat Willie}/ brought to life the character that would +become Mickey Mouse. +={ animated cartoons +15 ; + cartoon films +16 ; + films : + animated +15 ; + Steamboat Willie +9 ; + Mikey Mouse +9 +} + +Synchronized sound had been introduced to film a year earlier in the movie +/{The Jazz Singer}/. That success led Walt Disney to copy the technique and mix +sound with cartoons. No one knew whether it would work or, if it did work, +whether it would win an audience. But when Disney ran a test in the summer of +1928, the results were unambiguous. As Disney describes that first experiment, +={ Disney, Walt +5 } + +_1 A couple of my boys could read music, and one of them could play a mouth +organ. We put them in a room where they could not see the screen and arranged +to pipe their sound into the room where our wives and friends were going to see +the picture. + +_1 The boys worked from a music and sound-effects score. After several false +starts, sound and action got off with the gun. The mouth organist played the +tune, the rest of us in the sound department bammed tin pans and blew slide +whistles on the beat. The synchronization was pretty close. + +_1 The effect on our little audience was nothing less than electric. They +responded almost instinctively to this union of sound and motion. I thought +they were kidding me. So they put me in the audience and ran the action again. +It was terrible, but it was wonderful! And it was something new!"~{ Leonard +Maltin, /{Of Mice and Magic: A History of American Animated Cartoons}/ (New +York: Penguin Books, 1987), 34-35. }~ + +Disney's then partner, and one of animation's most extraordinary talents, Ub +Iwerks, put it more strongly: "I have never been so thrilled in my life. +Nothing since has ever equaled it." +={ Iwerks, Ub. } + +Disney had created something very new, based upon something relatively new. +Synchronized sound brought life to a form of creativity that had rarely - +except in Disney's hands - been anything more than filler for other films. +Throughout animation's early history, it was Disney's invention that set the +standard that others struggled to match. And quite often, Disney's great +genius, his spark of creativity, was built upon the work of others. + +This much is familiar. What you might not know is that 1928 also marks another +important transition. In that year, a comic (as opposed to cartoon) genius +created his last independently produced silent film. That genius was Buster +Keaton. The film was /{Steamboat Bill, Jr.}/ +={ Keaton, Buster +2 ; + Steamboat Bill, Jr. +2 +} + +Keaton was born into a vaudeville family in 1895. In the era of silent film, he +had mastered using broad physical comedy as a way to spark uncontrollable +laughter from his audience. Steamboat Bill, Jr. was a classic of this form, +famous among film buffs for its incredible stunts. The film was classic Keaton +- wildly popular and among the best of its genre. + +/{Steamboat Bill, Jr.}/ appeared before Disney's cartoon /{Steamboat Willie}/. +The coincidence of titles is not coincidental. Steamboat Willie is a direct +cartoon parody of Steamboat Bill,~{ I am grateful to David Gerstein and his +careful history, described at link #4. According to Dave Smith of the Disney +Archives, Disney paid royalties to use the music for five songs in /{Steamboat +Willie:}/ "Steamboat Bill," "The Simpleton" (Delille), "Mischief Makers" +(Carbonara), "Joyful Hurry No. 1" (Baron), and "Gawky Rube" (Lakay). A sixth +song, "The Turkey in the Straw," was already in the public domain. Letter from +David Smith to Harry Surden, 10 July 2003, on file with author. }~ and both are +built upon a common song as a source. It is not just from the invention of +synchronized sound in /{The Jazz Singer}/ that we get /{Steamboat Willie}/. It +is also from Buster Keaton's invention of Steamboat Bill, Jr., itself inspired +by the song "Steamboat Bill," that we get Steamboat Willie, and then from +Steamboat Willie, Mickey Mouse. +={ derivative works : + piracy vs. +4 ; + piracy : + derivative work vs. +4 +} + +This "borrowing" was nothing unique, either for Disney or for the industry. +Disney was always parroting the feature-length mainstream films of his day.~{ +He was also a fan of the public domain. See Chris Sprigman, "The Mouse that Ate +the Public Domain," Findlaw, 5 March 2002, at link #5. }~ So did many others. +Early cartoons are filled with knockoffs - slight variations on winning themes; +retellings of ancient stories. The key to success was the brilliance of the +differences. With Disney, it was sound that gave his animation its spark. +Later, it was the quality of his work relative to the production-line cartoons +with which he competed. Yet these additions were built upon a base that was +borrowed. Disney added to the work of others before him, creating something new +out of something just barely old. +={ creativity : + by transforming previous works +3 ; + Disney, Inc. +6 +} + +Sometimes this borrowing was slight. Sometimes it was significant. Think about +the fairy tales of the Brothers Grimm. If you're as oblivious as I was, you're +likely to think that these tales are happy, sweet stories, appropriate for any +child at bedtime. In fact, the Grimm fairy tales are, well, for us, grim. It is +a rare and perhaps overly ambitious parent who would dare to read these bloody, +moralistic stories to his or her child, at bedtime or anytime. +={ Grimm fairy tales +1 } + +Disney took these stories and retold them in a way that carried them into a new +age. He animated the stories, with both characters and light. Without removing +the elements of fear and danger altogether, he made funny what was dark and +injected a genuine emotion of compassion where before there was fear. And not +just with the work of the Brothers Grimm. Indeed, the catalog of Disney work +drawing upon the work of others is astonishing when set together: /{Snow +White}/ (1937), /{Fantasia}/ (1940), /{Pinocchio}/ (1940), /{Dumbo}/ (1941), +/{Bambi}/ (1942), /{Song of the South}/ (1946), /{Cinderella}/ (1950), /{Alice +in Wonderland}/ (1951), /{Robin Hood}/ (1952), /{Peter Pan}/ (1953), /{Lady and +the Tramp}/ (1955), /{Mulan}/ (1998), /{Sleeping Beauty}/ (1959), /{101 +Dalmatians}/ (1961), /{The Sword in the Stone}/ (1963), and /{The Jungle Book}/ +(1967) - not to mention a recent example that we should perhaps quickly forget, +/{Treasure Planet}/ (2003). In all of these cases, Disney (or Disney, Inc.) +ripped creativity from the culture around him, mixed that creativity with his +own extraordinary talent, and then burned that mix into the soul of his +culture. Rip, mix, and burn. + +This is a kind of creativity. It is a creativity that we should remember and +celebrate. There are some who would say that there is no creativity except this +kind. We don't need to go that far to recognize its importance. We could call +this "Disney creativity," though that would be a bit misleading. It is, more +precisely, "Walt Disney creativity" - a form of expression and genius that +builds upon the culture around us and makes it something different. + +In 1928, the culture that Disney was free to draw upon was relatively fresh. +The public domain in 1928 was not very old and was therefore quite vibrant. The +average term of copyright was just around thirty years - for that minority of +creative work that was in fact copy-righted.~{ Until 1976, copyright law +granted an author the possibility of two terms: an initial term and a renewal +term. I have calculated the "average" term by determining the weighted average +of total registrations for any particular year, and the proportion renewing. +Thus, if 100 copyrights are registered in year 1, and only 15 are renewed, and +the renewal term is 28 years, then the average term is 32.2 years. For the +renewal data and other relevant data, see the Web site associated with this +book, available at link #6. }~ That means that for thirty years, on average, +the authors or copyright holders of a creative work had an "exclusive right" to +control certain uses of the work. To use this copyrighted work in limited ways +required the permission of the copyright owner. +={ copyright : + duration of +2 ; + public domain : + defined +2 | traditional term for conversion to +2 +} + +At the end of a copyright term, a work passes into the public domain. No +permission is then needed to draw upon or use that work. No permission and, +hence, no lawyers. The public domain is a "lawyer-free zone." Thus, most of the +content from the nineteenth century was free for Disney to use and build upon +in 1928. It was free for anyone - whether connected or not, whether rich or +not, whether approved or not - to use and build upon. + +This is the ways things always were - until quite recently. For most of our +history, the public domain was just over the horizon. From 1790 until 1978, the +average copyright term was never more than thirty-two years, meaning that most +culture just a generation and a half old was free for anyone to build upon +without the permission of anyone else. Today's equivalent would be for creative +work from the 1960s and 1970s to now be free for the next Walt Disney to build +upon without permission. Yet today, the public domain is presumptive only for +content from before the Great Depression. + +!_ Of course, +Walt Disney had no monopoly on "Walt Disney creativity." Nor does America. The +norm of free culture has, until recently, and except within totalitarian +nations, been broadly exploited and quite universal. +={ Disney, Walt } + +Consider, for example, a form of creativity that seems strange to many +Americans but that is inescapable within Japanese culture: /{manga}/, or +comics. The Japanese are fanatics about comics. Some 40 percent of publications +are comics, and 30 percent of publication revenue derives from comics. They are +everywhere in Japanese society, at every magazine stand, carried by a large +proportion of commuters on Japan's extraordinary system of public +transportation. +={ comics, Japanese +8 ; + derivative works : + piracy vs. +18 ; + Japanese comics +8 ; + manga +8 ; + piracy : + derivative work vs. +18 +} + +Americans tend to look down upon this form of culture. That's an unattractive +characteristic of ours. We're likely to misunderstand much about manga, because +few of us have ever read anything close to the stories that these "graphic +novels" tell. For the Japanese, manga cover every aspect of social life. For +us, comics are "men in tights." And anyway, it's not as if the New York subways +are filled with readers of Joyce or even Hemingway. People of different +cultures distract themselves in different ways, the Japanese in this +interestingly different way. + +But my purpose here is not to understand manga. It is to describe a variant on +manga that from a lawyer's perspective is quite odd, but from a Disney +perspective is quite familiar. + +This is the phenomenon of /{doujinshi}/. Doujinshi are also comics, but they +are a kind of copycat comic. A rich ethic governs the creation of doujinshi. It +is not doujinshi if it is /{just}/ a copy; the artist must make a contribution +to the art he copies, by transforming it either subtly or significantly. A +doujinshi comic can thus take a mainstream comic and develop it differently - +with a different story line. Or the comic can keep the character in character +but change its look slightly. There is no formula for what makes the doujinshi +sufficiently "different." But they must be different if they are to be +considered true doujinshi. Indeed, there are committees that review doujinshi +for inclusion within shows and reject any copycat comic that is merely a copy. +={ creativity : + by transforming previous works +14 ; + doujinshi comics +8 +} + +These copycat comics are not a tiny part of the manga market. They are huge. +More than 33,000 "circles" of creators from across Japan produce these bits of +Walt Disney creativity. More than 450,000 Japanese come together twice a year, +in the largest public gathering in the country, to exchange and sell them. This +market exists in parallel to the mainstream commercial manga market. In some +ways, it obviously competes with that market, but there is no sustained effort +by those who control the commercial manga market to shut the doujinshi market +down. It flourishes, despite the competition and despite the law. +={ Disney, Walt +1 } + +The most puzzling feature of the doujinshi market, for those trained in the +law, at least, is that it is allowed to exist at all. Under Japanese copyright +law, which in this respect (on paper) mirrors American copyright law, the +doujinshi market is an illegal one. Doujinshi are plainly "derivative works." +There is no general practice by doujinshi artists of securing the permission of +the manga creators. Instead, the practice is simply to take and modify the +creations of others, as Walt Disney did with /{Steamboat Bill, Jr}/. Under both +Japanese and American law, that "taking" without the permission of the original +copyright owner is illegal. It is an infringement of the original copyright to +make a copy or a derivative work without the original copyright owner's +permission. +={ copyright law : + Japanese +1 ; + Steamboat Bill, Jr. +} + +Yet this illegal market exists and indeed flourishes in Japan, and in the view +of many, it is precisely because it exists that Japanese manga flourish. As +American graphic novelist Judd Winick said to me, "The early days of comics in +America are very much like what's going on in Japan now. ... American comics +were born out of copying each other. ... That's how [the artists] learn to draw +- by going into comic books and not tracing them, but looking at them and +copying them" and building from them.~{ For an excellent history, see Scott +McCloud, /{Reinventing Comics}/ (New York: Perennial, 2000). }~ +={ Winick, Judd +1 } + +American comics now are quite different, Winick explains, in part because of +the legal difficulty of adapting comics the way doujinshi are allowed. Speaking +of Superman, Winick told me, "there are these rules and you have to stick to +them." There are things Superman "cannot" do. "As a creator, it's frustrating +having to stick to some parameters which are fifty years old." +={ Superman comics } + +The norm in Japan mitigates this legal difficulty. Some say it is precisely the +benefit accruing to the Japanese manga market that explains the mitigation. +Temple University law professor Salil Mehra, for example, hypothesizes that the +manga market accepts these technical violations because they spur the manga +market to be more wealthy and productive. Everyone would be worse off if +doujinshi were banned, so the law does not ban doujinshi.~{ See Salil K. Mehra, +"Copyright and Comics in Japan: Does Law Explain Why All the Comics My Kid +Watches Are Japanese Imports?" /{Rutgers Law Review}/ 55 (2002): 155, 182. +"[T]here might be a collective economic rationality that would lead manga and +anime artists to forgo bringing legal actions for infringement. One hypothesis +is that all manga artists may be better off collectively if they set aside +their individual self-interest and decide not to press their legal rights. This +is essentially a prisoner's dilemma solved." }~ +={ copyright law : + Japanese +1 ; + comics, Japanese ; + Mehra, Salil +1 +} + +The problem with this story, however, as Mehra plainly acknowledges, is that +the mechanism producing this laissez faire response is not clear. It may well +be that the market as a whole is better off if doujinshi are permitted rather +than banned, but that doesn't explain why individual copyright owners don't sue +nonetheless. If the law has no general exception for doujinshi, and indeed in +some cases individual manga artists have sued doujinshi artists, why is there +not a more general pattern of blocking this "free taking" by the doujinshi +culture? + +I spent four wonderful months in Japan, and I asked this question as often as I +could. Perhaps the best account in the end was offered by a friend from a major +Japanese law firm. "We don't have enough lawyers," he told me one afternoon. +There "just aren't enough resources to prosecute cases like this." + +This is a theme to which we will return: that regulation by law is a function +of both the words on the books and the costs of making those words have effect. +For now, focus on the obvious question that is begged: Would Japan be better +off with more lawyers? Would manga be richer if doujinshi artists were +regularly prosecuted? Would the Japanese gain something important if they could +end this practice of uncompensated sharing? Does piracy here hurt the victims +of the piracy, or does it help them? Would lawyers fighting this piracy help +their clients or hurt them? + +!_ Let's pause +for a moment. + +If you're like I was a decade ago, or like most people are when they first +start thinking about these issues, then just about now you should be puzzled +about something you hadn't thought through before. + +We live in a world that celebrates "property." I am one of those celebrants. I +believe in the value of property in general, and I also believe in the value of +that weird form of property that lawyers call "intellectual property."~{ The +term /{intellectual property}/ is of relatively recent origin. See Siva +Vaidhyanathan, /{Copyrights and Copywrongs,}/ 11 (New York: New York University +Press, 2001). See also Lawrence Lessig, /{The Future of Ideas}/ (New York: +Random House, 2001), 293 n. 26. The term accurately describes a set of +"property" rights - copyright, patents, trademark, and trade-secret - but the +nature of those rights is very different. }~ A large, diverse society cannot +survive without property; a large, diverse, and modern society cannot flourish +without intellectual property. + +But it takes just a second's reflection to realize that there is plenty of +value out there that "property" doesn't capture. I don't mean "money can't buy +you love," but rather, value that is plainly part of a process of production, +including commercial as well as noncommercial production. If Disney animators +had stolen a set of pencils to draw Steamboat Willie, we'd have no hesitation +in condemning that taking as wrong - even though trivial, even if unnoticed. +Yet there was nothing wrong, at least under the law of the day, with Disney's +taking from Buster Keaton or from the Brothers Grimm. There was nothing wrong +with the taking from Keaton because Disney's use would have been considered +"fair." There was nothing wrong with the taking from the Grimms because the +Grimms' work was in the public domain. +={ Disney, Walt +5 ; + Grimm fairy tales +1 ; + Keaton, Buster } + +Thus, even though the things that Disney took - or more generally, the things +taken by anyone exercising Walt Disney creativity - are valuable, our tradition +does not treat those takings as wrong. Some things remain free for the taking +within a free culture, and that freedom is good. +={ free culture : + derivative works based on +6 +} + +The same with the doujinshi culture. If a doujinshi artist broke into a +publisher's office and ran off with a thousand copies of his latest work - or +even one copy - without paying, we'd have no hesitation in saying the artist +was wrong. In addition to having trespassed, he would have stolen something of +value. The law bans that stealing in whatever form, whether large or small. +={ copyright law : + Japanese +1 ; + comics, Japanese ; + doujinshi comics +1 ; + Japanese comics +1 ; + manga +1 +} + +Yet there is an obvious reluctance, even among Japanese lawyers, to say that +the copycat comic artists are "stealing." This form of Walt Disney creativity +is seen as fair and right, even if lawyers in particular find it hard to say +why. + +It's the same with a thousand examples that appear everywhere once you begin to +look. Scientists build upon the work of other scientists without asking or +paying for the privilege. ("Excuse me, Professor Einstein, but may I have +permission to use your theory of relativity to show that you were wrong about +quantum physics?") Acting companies perform adaptations of the works of +Shakespeare without securing permission from anyone. (Does /{anyone}/ believe +Shakespeare would be better spread within our culture if there were a central +Shakespeare rights clearinghouse that all productions of Shakespeare must +appeal to first?) And Hollywood goes through cycles with a certain kind of +movie: five asteroid films in the late 1990s; two volcano disaster films in +1997. +={ Shakespeare, William } + +Creators here and everywhere are always and at all times building upon the +creativity that went before and that surrounds them now. That building is +always and everywhere at least partially done without permission and without +compensating the original creator. No society, free or controlled, has ever +demanded that every use be paid for or that permission for Walt Disney +creativity must always be sought. Instead, every society has left a certain bit +of its culture free for the taking - free societies more fully than unfree, +perhaps, but all societies to some degree. + +The hard question is therefore not /{whether}/ a culture is free. All cultures +are free to some degree. The hard question instead is "/{How}/ free is this +culture?" How much, and how broadly, is the culture free for others to take and +build upon? Is that freedom limited to party members? To members of the royal +family? To the top ten corporations on the New York Stock Exchange? Or is that +freedom spread broadly? To artists generally, whether affiliated with the Met +or not? To musicians generally, whether white or not? To filmmakers generally, +whether affiliated with a studio or not? + +Free cultures are cultures that leave a great deal open for others to build +upon; unfree, or permission, cultures leave much less. Ours was a free culture. +It is becoming much less so. + +1~ Chapter Two: "Mere Copyists" + +!_ In 1839, +Louis Daguerre invented the first practical technology for producing what we +would call "photographs." Appropriately enough, they were called +"daguerreotypes." The process was complicated and expensive, and the field was +thus limited to professionals and a few zealous and wealthy amateurs. (There +was even an American Daguerre Association that helped regulate the industry, as +do all such associations, by keeping competition down so as to keep prices up.) +={ Daguerre, Louis ; + photography +13 +} + +Yet despite high prices, the demand for daguerreotypes was strong. This pushed +inventors to find simpler and cheaper ways to make "automatic pictures." +William Talbot soon discovered a process for making "negatives." But because +the negatives were glass, and had to be kept wet, the process still remained +expensive and cumbersome. In the 1870s, dry plates were developed, making it +easier to separate the taking of a picture from its developing. These were +still plates of glass, and thus it was still not a process within reach of most +amateurs. +={ Talbot, William } + +The technological change that made mass photography possible didn't happen +until 1888, and was the creation of a single man. George Eastman, himself an +amateur photographer, was frustrated by the technology of photographs made with +plates. In a flash of insight (so to speak), Eastman saw that if the film could +be made to be flexible, it could be held on a single spindle. That roll could +then be sent to a developer, driving the costs of photography down +substantially. By lowering the costs, Eastman expected he could dramatically +broaden the population of photographers. +={ Eastman, George +12 ; + camera technology +6 +} + +Eastman developed flexible, emulsion-coated paper film and placed rolls of it +in small, simple cameras: the Kodak. The device was marketed on the basis of +its simplicity. "You press the button and we do the rest."~{ Reese V. Jenkins, +/{Images and Enterprise}/ (Baltimore: Johns Hopkins University Press, 1975), +112. }~ As he described in /{The Kodak Primer}/: +={ Kodak cameras +4 ; + Kodak Primer, The (Eastman) +1 +} + +_1 The principle of the Kodak system is the separation of the work that any +person whomsoever can do in making a photograph, from the work that only an +expert can do. ... We furnish anybody, man, woman or child, who has sufficient +intelligence to point a box straight and press a button, with an instrument +which altogether removes from the practice of photography the necessity for +exceptional facilities or, in fact, any special knowledge of the art. It can be +employed without preliminary study, without a darkroom and without +chemicals."~{ Brian Coe, /{The Birth of Photography}/ (New York: Taplinger +Publishing, 1977), 53. }~ +={ Coe, Brian } + +For $25, anyone could make pictures. The camera came preloaded with film, and +when it had been used, the camera was returned to an Eastman factory, where the +film was developed. Over time, of course, the cost of the camera and the ease +with which it could be used both improved. Roll film thus became the basis for +the explosive growth of popular photography. Eastman's camera first went on +sale in 1888; one year later, Kodak was printing more than six thousand +negatives a day. From 1888 through 1909, while industrial production was rising +by 4.7 percent, photographic equipment and material sales increased by 11 +percent.~{ Jenkins, 177. }~ Eastman Kodak's sales during the same period +experienced an average annual increase of over 17 percent.~{ Based on a chart +in Jenkins, p. 178. }~ + +The real significance of Eastman's invention, however, was not economic. It was +social. Professional photography gave individuals a glimpse of places they +would never otherwise see. Amateur photography gave them the ability to record +their own lives in a way they had never been able to do before. As author Brian +Coe notes, "For the first time the snapshot album provided the man on the +street with a permanent record of his family and its activities. ... For the +first time in history there exists an authentic visual record of the appearance +and activities of the common man made without [literary] interpretation or +bias."~{ Coe, 58. }~ +={ Coe, Brian } + +In this way, the Kodak camera and film were technologies of expression. The +pencil or paintbrush was also a technology of expression, of course. But it +took years of training before they could be deployed by amateurs in any useful +or effective way. With the Kodak, expression was possible much sooner and more +simply. The barrier to expression was lowered. Snobs would sneer at its +"quality"; professionals would discount it as irrelevant. But watch a child +study how best to frame a picture and you get a sense of the experience of +creativity that the Kodak enabled. Democratic tools gave ordinary people a way +to express themselves more easily than any tools could have before. +={ democracy : + in technologies of expression ; + expression, technologies of : + democratic +} + +What was required for this technology to flourish? Obviously, Eastman's genius +was an important part. But also important was the legal environment within +which Eastman's invention grew. For early in the history of photography, there +was a series of judicial decisions that could well have changed the course of +photography substantially. Courts were asked whether the photographer, amateur +or professional, required permission before he could capture and print whatever +image he wanted. Their answer was no.~{ For illustrative cases, see, for +example, /{Pavesich v. N.E. Life Ins. Co.,}/ 50 S.E. 68 (Ga. 1905); +/{Foster-Milburn Co. v. Chinn,}/ 123090 S.W. 364, 366 (Ky. 1909); /{Corliss v. +Walker,}/ 64 F. 280 (Mass. Dist. Ct. 1894). }~ +={ permissions : + photography exempted from +5 +} + +The arguments in favor of requiring permission will sound surprisingly +familiar. The photographer was "taking" something from the person or building +whose photograph he shot - pirating something of value. Some even thought he +was taking the target's soul. Just as Disney was not free to take the pencils +that his animators used to draw Mickey, so, too, should these photographers not +be free to take images that they thought valuable. +={ Disney, Walt +1 ; + images, ownership of +4 +} + +On the other side was an argument that should be familiar, as well. Sure, there +may be something of value being used. But citizens should have the right to +capture at least those images that stand in public view. (Louis Brandeis, who +would become a Supreme Court Justice, thought the rule should be different for +images from private spaces.~{ Samuel D. Warren and Louis D. Brandeis, "The +Right to Privacy," /{Harvard Law Review}/ 4 (1890): 193. }~) It may be that +this means that the photographer gets something for nothing. Just as Disney +could take inspiration from /{Steamboat Bill, Jr.}/ or the Brothers Grimm, the +photographer should be free to capture an image without compensating the +source. +={ Brandeis, Louis ; + Steamboat Bill, Jr. ; + camera technology +2 +} + +Fortunately for Mr. Eastman, and for photography in general, these early +decisions went in favor of the pirates. In general, no permission would be +required before an image could be captured and shared with others. Instead, +permission was presumed. Freedom was the default. (The law would eventually +craft an exception for famous people: commercial photographers who snap +pictures of famous people for commercial purposes have more restrictions than +the rest of us. But in the ordinary case, the image can be captured without +clearing the rights to do the capturing.~{ See Melville B. Nimmer, "The Right +of Publicity," /{Law and Contemporary Problems}/ 19 (1954): 203; William L. +Prosser, "Privacy," /{California Law Review}/ 48 (1960) 398-407; /{White v. +Samsung Electronics America, Inc.,}/ 971 F. 2d 1395 (9th Cir. 1992), cert. +denied, 508 U.S. 951 (1993). }~) + +We can only speculate about how photography would have developed had the law +gone the other way. If the presumption had been against the photographer, then +the photographer would have had to demonstrate permission. Perhaps Eastman +Kodak would have had to demonstrate permission, too, before it developed the +film upon which images were captured. After all, if permission were not +granted, then Eastman Kodak would be benefiting from the "theft" committed by +the photographer. Just as Napster benefited from the copyright infringements +committed by Napster users, Kodak would be benefiting from the "image-right" +infringement of its photographers. We could imagine the law then requiring that +some form of permission be demonstrated before a company developed pictures. We +could imagine a system developing to demonstrate that permission. +={ Kodak cameras ; + Napster +} + +But though we could imagine this system of permission, it would be very hard to +see how photography could have flourished as it did if the requirement for +permission had been built into the rules that govern it. Photography would have +existed. It would have grown in importance over time. Professionals would have +continued to use the technology as they did - since professionals could have +more easily borne the burdens of the permission system. But the spread of +photography to ordinary people would not have occurred. Nothing like that +growth would have been realized. And certainly, nothing like that growth in a +democratic technology of expression would have been realized. +={ camera technology +6 ; + democracy : + in technologies of expression ; + expression, technologies of : + democratic +} + +!_ If you drive +through San Francisco's Presidio, you might see two gaudy yellow school buses +painted over with colorful and striking images, and the logo "Just Think!" in +place of the name of a school. But there's little that's "just" cerebral in the +projects that these busses enable. These buses are filled with technologies +that teach kids to tinker with film. Not the film of Eastman. Not even the film +of your VCR. Rather the "film" of digital cameras. Just Think! is a project +that enables kids to make films, as a way to understand and critique the filmed +culture that they find all around them. Each year, these busses travel to more +than thirty schools and enable three hundred to five hundred children to learn +something about media by doing something with media. By doing, they think. By +tinkering, they learn. +={ digital cameras ; + Just Think! +2 +} + +These buses are not cheap, but the technology they carry is increasingly so. +The cost of a high-quality digital video system has fallen dramatically. As one +analyst puts it, "Five years ago, a good real-time digital video editing system +cost $25,000. Today you can get professional quality for $595."~{ H. Edward +Goldberg, "Essential Presentation Tools: Hardware and Software You Need to +Create Digital Multimedia Presentations," cadalyst, 1 February 2002, available +at link #7. }~ These buses are filled with technology that would have cost +hundreds of thousands just ten years ago. And it is now feasible to imagine not +just buses like this, but classrooms across the country where kids are learning +more and more of something teachers call "media literacy." +={ education : + in media literacy +19 ; + media literacy +19 ; + expression, technologies of : + media literacy and +19 +} + +"Media literacy," as Dave Yanofsky, the executive director of Just Think!, puts +it, "is the ability ... to understand, analyze, and deconstruct media images. +Its aim is to make [kids] literate about the way media works, the way it's +constructed, the way it's delivered, and the way people access it." +={ Yanofsky, Dave } + +This may seem like an odd way to think about "literacy." For most people, +literacy is about reading and writing. Faulkner and Hemingway and noticing +split infinitives are the things that "literate" people know about. + +Maybe. But in a world where children see on average 390 hours of television +commercials per year, or between 20,000 and 45,000 commercials generally,~{ +Judith Van Evra, /{Television and Child Development}/ (Hillsdale, N.J.: +Lawrence Erlbaum Associates, 1990); "Findings on Family and TV Study," /{Denver +Post,}/ 25 May 1997, B6. }~ it is increasingly important to understand the +"grammar" of media. For just as there is a grammar for the written word, so, +too, is there one for media. And just as kids learn how to write by writing +lots of terrible prose, kids learn how to write media by constructing lots of +(at least at first) terrible media. +={ advertising ; + commercials ; + television : + advertising on +} + +A growing field of academics and activists sees this form of literacy as +crucial to the next generation of culture. For though anyone who has written +understands how difficult writing is - how difficult it is to sequence the +story, to keep a reader's attention, to craft language to be understandable - +few of us have any real sense of how difficult media is. Or more fundamentally, +few of us have a sense of how media works, how it holds an audience or leads it +through a story, how it triggers emotion or builds suspense. + +It took filmmaking a generation before it could do these things well. But even +then, the knowledge was in the filming, not in writing about the film. The +skill came from experiencing the making of a film, not from reading a book +about it. One learns to write by writing and then reflecting upon what one has +written. One learns to write with images by making them and then reflecting +upon what one has created. + +This grammar has changed as media has changed. When it was just film, as +Elizabeth Daley, executive director of the University of Southern California's +Annenberg Center for Communication and dean of the USC School of Cinema- +Television, explained to me, the grammar was about "the placement of objects, +color, ... rhythm, pacing, and texture."~{ Interview with Elizabeth Daley and +Stephanie Barish, 13 December 2002. }~ But as computers open up an interactive +space where a story is "played" as well as experienced, that grammar changes. +The simple control of narrative is lost, and so other techniques are necessary. +Author Michael Crichton had mastered the narrative of science fiction. But when +he tried to design a computer game based on one of his works, it was a new +craft he had to learn. How to lead people through a game without their feeling +they have been led was not obvious, even to a wildly successful author.~{ See +Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4 November 2000, +available at link #8; "Timeline," 22 November 2000, available at link #9. }~ +={ Daley, Elizabeth +6 ; + Crichton, Michael ; + computer games +} + +This skill is precisely the craft a filmmaker learns. As Daley describes, +"people are very surprised about how they are led through a film. [I]t is +perfectly constructed to keep you from seeing it, so you have no idea. If a +filmmaker succeeds you do not know how you were led." If you know you were led +through a film, the film has failed. + +Yet the push for an expanded literacy - one that goes beyond text to include +audio and visual elements - is not about making better film directors. The aim +is not to improve the profession of filmmaking at all. Instead, as Daley +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." + +"Read-only." Passive recipients of culture produced elsewhere. Couch potatoes. +Consumers. This is the world of media from the twentieth century. + +The twenty-first century could be different. This is the crucial point: It +could be both read and write. Or at least reading and better understanding the +craft of writing. Or best, reading and understanding the tools that enable the +writing to lead or mislead. The aim of any literacy, and this literacy in +particular, is to "empower people to choose the appropriate language for what +they need to create or express."~{ Interview with Daley and Barish. }~ It is to +enable students "to communicate in the language of the twenty-first century."~{ +Ibid. }~ + +As with any language, this language comes more easily to some than to others. +It doesn't necessarily come more easily to those who excel in written language. +Daley and Stephanie Barish, director of the Institute for Multimedia Literacy +at the Annenberg Center, describe one particularly poignant example of a +project they ran in a high school. The high school was a very poor inner-city +Los Angeles school. In all the traditional measures of success, this school was +a failure. But Daley and Barish ran a program that gave kids an opportunity to +use film to express meaning about something the students know something about - +gun violence. +={ Barish, Stephanie +2 } + +The class was held on Friday afternoons, and it created a relatively new +problem for the school. While the challenge in most classes was getting the +kids to come, the challenge in this class was keeping them away. The "kids were +showing up at 6 A.M. and leaving at 5 at night," said Barish. They were working +harder than in any other class to do what education should be about - learning +how to express themselves. + +Using whatever "free web stuff they could find," and relatively simple tools to +enable the kids to mix "image, sound, and text," Barish said this class +produced a series of projects that showed something about gun violence that few +would otherwise understand. This was an issue close to the lives of these +students. The project "gave them a tool and empowered them to be able to both +understand it and talk about it," Barish explained. That tool succeeded in +creating expression - far more successfully and powerfully than could have been +created using only text. "If you had said to these students, 'you have to do it +in text,' they would've just thrown their hands up and gone and done something +else," Barish described, in part, no doubt, because expressing themselves in +text is not something these students can do well. Yet neither is text a form in +which /{these}/ ideas can be expressed well. The power of this message depended +upon its connection to this form of expression. + +"But isn't education about teaching kids to write?" I asked. In part, of +course, it is. But why are we teaching kids to write? Education, Daley +explained, is about giving students a way of "constructing meaning." To say +that that means just writing is like saying teaching writing is only about +teaching kids how to spell. Text is one part - and increasingly, not the most +powerful part - of constructing meaning. As Daley explained in the most moving +part of our interview, +={ Daley, Elizabeth +3 } + +_1 What you want is to give these students ways of constructing meaning. If all +you give them is text, they're not going to do it. Because they can't. You +know, you've got Johnny who can look at a video, he can play a video game, he +can do graffiti all over your walls, he can take your car apart, and he can do +all sorts of other things. He just can't read your text. So Johnny comes to +school and you say, "Johnny, you're illiterate. Nothing you can do matters." +Well, Johnny then has two choices: He can dismiss you or he [can] dismiss +himself. If his ego is healthy at all, he's going to dismiss you. [But +i]nstead, if you say, "Well, with all these things that you can do, let's talk +about this issue. Play for me music that you think reflects that, or show me +images that you think reflect that, or draw for me something that reflects +that." Not by giving a kid a video camera and ... saying, "Let's go have fun +with the video camera and make a little movie." But instead, really help you +take these elements that you understand, that are your language, and construct +meaning about the topic. ... + +_1 That empowers enormously. And then what happens, of course, is eventually, +as it has happened in all these classes, they bump up against the fact, "I need +to explain this and I really need to write something." And as one of the +teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 times, till +they got it right. +={ Barish, Stephanie } + +_1 Because they needed to. There was a reason for doing it. They needed to say +something, as opposed to just jumping through your hoops. They actually needed +to use a language that they didn't speak very well. But they had come to +understand that they had a lot of power with this language." + +!_ When two planes +crashed into the World Trade Center, another into the Pentagon, and a fourth +into a Pennsylvania field, all media around the world shifted to this news. +Every moment of just about every day for that week, and for weeks after, +television in particular, and media generally, retold the story of the events +we had just witnessed. The telling was a retelling, because we had seen the +events that were described. The genius of this awful act of terrorism was that +the delayed second attack was perfectly timed to assure that the whole world +would be watching. +={ September 11, 2001, terrorist attacks of +2 ; + World Trade Center ; + news coverage +21 +} + +These retellings had an increasingly familiar feel. There was music scored for +the intermissions, and fancy graphics that flashed across the screen. There was +a formula to interviews. There was "balance," and seriousness. This was news +choreographed in the way we have increasingly come to expect it, "news as +entertainment," even if the entertainment is tragedy. + +But in addition to this produced news about the "tragedy of September 11," +those of us tied to the Internet came to see a very different production as +well. The Internet was filled with accounts of the same events. Yet these +Internet accounts had a very different flavor. Some people constructed photo +pages that captured images from around the world and presented them as slide +shows with text. Some offered open letters. There were sound recordings. There +was anger and frustration. There were attempts to provide context. There was, +in short, an extraordinary worldwide barn raising, in the sense Mike Godwin +uses the term in his book /{Cyber Rights}/, around a news event that had +captured the attention of the world. There was ABC and CBS, but there was also +the Internet. +={ Cyber Rights (Godwin) ; + Godwin, Mike ; + Internet : + news events on +3 +} + +I don't mean simply to praise the Internet - though I do think the people who +supported this form of speech should be praised. I mean instead to point to a +significance in this form of speech. For like a Kodak, the Internet enables +people to capture images. And like in a movie by a student on the "Just Think!" +bus, the visual images could be mixed with sound or text. +={ Just Think! } + +But unlike any technology for simply capturing images, the Internet allows +these creations to be shared with an extraordinary number of people, +practically instantaneously. This is something new in our tradition - not just +that culture can be captured mechanically, and obviously not just that events +are commented upon critically, but that this mix of captured images, sound, and +commentary can be widely spread practically instantaneously. + +September 11 was not an aberration. It was a beginning. Around the same time, a +form of communication that has grown dramatically was just beginning to come +into public consciousness: the Web-log, or blog. The blog is a kind of public +diary, and within some cultures, such as in Japan, it functions very much like +a diary. In those cultures, it records private facts in a public way - it's a +kind of electronic /{Jerry Springer}/, available anywhere in the world. +={ September 11, 2001, terrorist attacks of ; + blogs (Web-logs) +2 ; + Internet : + blogs on +2 ; + Web-logs (blogs) +2 +} + +But in the United States, blogs have taken on a very different character. There +are some who use the space simply to talk about their private life. But there +are many who use the space to engage in public discourse. Discussing matters of +public import, criticizing others who are mistaken in their views, criticizing +politicians about the decisions they make, offering solutions to problems we +all see: blogs create the sense of a virtual public meeting, but one in which +we don't all hope to be there at the same time and in which conversations are +not necessarily linked. The best of the blog entries are relatively short; they +point directly to words used by others, criticizing with or adding to them. +They are arguably the most important form of unchoreographed public discourse +that we have. +={ political discourse ; + Internet : + public discourse conducted on +15 +} + +That's a strong statement. Yet it says as much about our democracy as it does +about blogs. This is the part of America that is most difficult for those of us +who love America to accept: Our democracy has atrophied. Of course we have +elections, and most of the time the courts allow those elections to count. A +relatively small number of people vote in those elections. The cycle of these +elections has become totally professionalized and routinized. Most of us think +this is democracy. +={ democracy : + in technologies of expression +5 ; + elections +1 ; + expression, technologies of : + democratic +5 +} + +But democracy has never just been about elections. Democracy means rule by the +people, but rule means something more than mere elections. In our tradition, it +also means control through reasoned discourse. This was the idea that captured +the imagination of Alexis de Tocqueville, the nineteenth-century French lawyer +who wrote the most important account of early "Democracy in America." It wasn't +popular elections that fascinated him - it was the jury, an institution that +gave ordinary people the right to choose life or death for other citizens. And +most fascinating for him was that the jury didn't just vote about the outcome +they would impose. They deliberated. Members argued about the "right" result; +they tried to persuade each other of the "right" result, and in criminal cases +at least, they had to agree upon a unanimous result for the process to come to +an end.~{ See, for example, Alexis de Tocqueville, /{Democracy in America,}/ +bk. 1, trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16. }~ +={ Tocqueville, Alexis de ; + democracy : + public discourse in +4 ; + jury system +} + +Yet even this institution flags in American life today. And in its place, there +is no systematic effort to enable citizen deliberation. Some are pushing to +create just such an institution.~{ Bruce Ackerman and James Fishkin, +"Deliberation Day," /{Journal of Political Philosophy}/ 10 (2) (2002): 129. }~ +And in some towns in New England, something close to deliberation remains. But +for most of us for most of the time, there is no time or place for "democratic +deliberation" to occur. + +More bizarrely, there is generally not even permission for it to occur. We, the +most powerful democracy in the world, have developed a strong norm against +talking about politics. It's fine to talk about politics with people you agree +with. But it is rude to argue about politics with people you disagree with. +Political discourse becomes isolated, and isolated discourse becomes more +extreme.~{ Cass Sunstein, /{Republic.com}/ (Princeton: Princeton University +Press, 2001), 65-80, 175, 182, 183, 192. }~ We say what our friends want to +hear, and hear very little beyond what our friends say. +={ political discourse +11 } + +Enter the blog. The blog's very architecture solves one part of this problem. +People post when they want to post, and people read when they want to read. The +most difficult time is synchronous time. Technologies that enable asynchronous +communication, such as e-mail, increase the opportunity for communication. +Blogs allow for public discourse without the public ever needing to gather in a +single public place. +={ blogs (Web-logs) +10 ; + e-mail ; + Internet : + blogs on +10 ; + Web-logs (blogs) +10 +} + +But beyond architecture, blogs also have solved the problem of norms. There's +no norm (yet) in blog space not to talk about politics. Indeed, the space is +filled with political speech, on both the right and the left. Some of the most +popular sites are conservative or libertarian, but there are many of all +political stripes. And even blogs that are not political cover political issues +when the occasion merits. + +The significance of these blogs is tiny now, though not so tiny. The name +Howard Dean may well have faded from the 2004 presidential race but for blogs. +Yet even if the number of readers is small, the reading is having an effect. +={ Dean, Howard } + +One direct effect is on stories that had a different life cycle in the +mainstream media. The Trent Lott affair is an example. When Lott "misspoke" at +a party for Senator Strom Thurmond, essentially praising Thurmond's +segregationist policies, he calculated correctly that this story would +disappear from the mainstream press within forty-eight hours. It did. But he +didn't calculate its life cycle in blog space. The bloggers kept researching +the story. Over time, more and more instances of the same "misspeaking" +emerged. Finally, the story broke back into the mainstream press. In the end, +Lott was forced to resign as senate majority leader.~{ Noah Shachtman, "With +Incessant Postings, a Pundit Stirs the Pot," /{New York Times,}/ 16 January +2003, G5. }~ +={ Lott, Trent ; + Thurmond, Storm ; + media : + blog pressure on +1 ; + Internet : + news events on +4 +} + +This different cycle is possible because the same commercial pressures don't +exist with blogs as with other ventures. Television and newspapers are +commercial entities. They must work to keep attention. If they lose readers, +they lose revenue. Like sharks, they must move on. +={ media : + commercial imperatives of +1 +} + +But bloggers don't have a similar constraint. They can obsess, they can focus, +they can get serious. If a particular blogger writes a particularly interesting +story, more and more people link to that story. And as the number of links to a +particular story increases, it rises in the ranks of stories. People read what +is popular; what is popular has been selected by a very democratic process of +peer-generated rankings. +={ Internet : + peer-generated rankings on +} + +There's a second way, as well, in which blogs have a different cycle from the +mainstream press. As Dave Winer, one of the fathers of this movement and a +software author for many decades, told me, another difference is the absence of +a financial "conflict of interest." "I think you have to take the conflict of +interest" out of journalism, Winer told me. "An amateur journalist simply +doesn't have a conflict of interest, or the conflict of interest is so easily +disclosed that you know you can sort of get it out of the way." +={ journalism +3 ; + Winer, Dave +4 +} + +These conflicts become more important as media becomes more concentrated (more +on this below). A concentrated media can hide more from the public than an +unconcentrated media can - as CNN admitted it did after the Iraq war because it +was afraid of the consequences to its own employees.~{ Telephone interview with +David Winer, 16 April 2003. }~ It also needs to sustain a more coherent +account. (In the middle of the Iraq war, I read a post on the Internet from +someone who was at that time listening to a satellite uplink with a reporter in +Iraq. The New York headquarters was telling the reporter over and over that her +account of the war was too bleak: She needed to offer a more optimistic story. +When she told New York that wasn't warranted, they told her that /{they}/ were +writing "the story.") +={ CNN ; + media : + commercial imperatives of ; + democracy : + in technologies of expression +3 ; + expression, technologies of : + democratic +3 ; + Iraq war ; + media : + ownership concentration in +} + +Blog space gives amateurs a way to enter the debate - "amateur" not in the +sense of inexperienced, but in the sense of an Olympic athlete, meaning not +paid by anyone to give their reports. It allows for a much broader range of +input into a story, as reporting on the Columbia disaster revealed, when +hundreds from across the southwest United States turned to the Internet to +retell what they had seen.~{ John Schwartz, "Loss of the Shuttle: The Internet; +A Wealth of Information Online," /{New York Times,}/ 2 February 2003, A28; +Staci D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall," Online +Journalism Review, 2 February 2003, available at link #10. }~ And it drives +readers to read across the range of accounts and "triangulate," as Winer puts +it, the truth. Blogs, Winer says, are "communicating directly with our +constituency, and the middle man is out of it" - with all the benefits, and +costs, that might entail. + +Winer is optimistic about the future of journalism infected with blogs. "It's +going to become an essential skill," Winer predicts, for public figures and +increasingly for private figures as well. It's not clear that "journalism" is +happy about this - some journalists have been told to curtail their blogging.~{ +See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" /{New York +Times,}/ 29 September 2003, C4. ("Not all news organizations have been as +accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq who +started a blog about his reporting of the war on March 9, stopped posting 12 +days later at his bosses' request. Last year Steve Olafson, a /{Houston +Chronicle}/ reporter, was fired for keeping a personal Web log, published under +a pseudonym, that dealt with some of the issues and people he was covering.") +}~ But it is clear that we are still in transition. "A lot of what we are doing +now is warm-up exercises," Winer told me. There is a lot that must mature +before this space has its mature effect. And as the inclusion of content in +this space is the least infringing use of the Internet (meaning infringing on +copyright), Winer said, "we will be the last thing that gets shut down." + +This speech affects democracy. Winer thinks that happens because "you don't +have to work for somebody who controls, [for] a gate-keeper." That is true. But +it affects democracy in another way as well. As more and more citizens express +what they think, and defend it in writing, that will change the way people +understand public issues. It is easy to be wrong and misguided in your head. It +is harder when the product of your mind can be criticized by others. Of course, +it is a rare human who admits that he has been persuaded that he is wrong. But +it is even rarer for a human to ignore when he has been proven wrong. The +writing of ideas, arguments, and criticism improves democracy. Today there are +probably a couple of million blogs where such writing happens. When there are +ten million, there will be something extraordinary to report. +={ democracy : + public discourse in +} + +!_ John Seely Brown +is the chief scientist of the Xerox Corporation. His work, as his Web site +describes it, is "human learning and ... the creation of knowledge ecologies +for creating ... innovation." +={ Brown, John Seely +13 } + +Brown thus looks at these technologies of digital creativity a bit differently +from the perspectives I've sketched so far. I'm sure he would be excited about +any technology that might improve democracy. But his real excitement comes from +how these technologies affect learning. + +As Brown believes, we learn by tinkering. When "a lot of us grew up," he +explains, that tinkering was done "on motorcycle engines, lawn-mower engines, +automobiles, radios, and so on." But digital technologies enable a different +kind of tinkering - with abstract ideas though in concrete form. The kids at +Just Think! not only think about how a commercial portrays a politician; using +digital technology, they can take the commercial apart and manipulate it, +tinker with it to see how it does what it does. Digital technologies launch a +kind of bricolage, or "free collage," as Brown calls it. Many get to add to or +transform the tinkering of many others. +={ advertising ; + Just Think! +5 ; + commercials ; + education : + tinkering as means of +11 +} + +The best large-scale example of this kind of tinkering so far is free software +or open-source software (FS/{OSS). FS}/OSS is software whose source code is +shared. Anyone can download the technology that makes a FS/OSS program run. And +anyone eager to learn how a particular bit of FS/OSS technology works can +tinker with the code. +={ free software/open-source software (FS/OSS) } + +This opportunity creates a "completely new kind of learning platform," as Brown +describes. "As soon as you start doing that, you ... unleash a free collage on +the community, so that other people can start looking at your code, tinkering +with it, trying it out, seeing if they can improve it." Each effort is a kind +of apprenticeship. "Open source becomes a major apprenticeship platform." + +In this process, "the concrete things you tinker with are abstract. They are +code." Kids are "shifting to the ability to tinker in the abstract, and this +tinkering is no longer an isolated activity that you're doing in your garage. +You are tinkering with a community platform. ... You are tinkering with other +people's stuff. The more you tinker the more you improve." The more you +improve, the more you learn. + +This same thing happens with content, too. And it happens in the same +collaborative way when that content is part of the Web. As Brown puts it, "the +Web [is] the first medium that truly honors multiple forms of intelligence." +Earlier technologies, such as the typewriter or word processors, helped amplify +text. But the Web amplifies much more than text. "The Web ... says if you are +musical, if you are artistic, if you are visual, if you are interested in film +... [then] there is a lot you can start to do on this medium. [It] can now +amplify and honor these multiple forms of intelligence." + +Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just Think! +teach: that this tinkering with culture teaches as well as creates. It develops +talents differently, and it builds a different kind of recognition. +={ Barish, Stephanie ; + Daley, Elizabeth +} + +Yet the freedom to tinker with these objects is not guaranteed. Indeed, as +we'll see through the course of this book, that freedom is increasingly highly +contested. While there's no doubt that your father had the right to tinker with +the car engine, there's great doubt that your child will have the right to +tinker with the images she finds all around. The law and, increasingly, +technology interfere with a freedom that technology, and curiosity, would +otherwise ensure. + +These restrictions have become the focus of researchers and scholars. Professor +Ed Felten of Princeton (whom we'll see more of in chapter 10) has developed a +powerful argument in favor of the "right to tinker" as it applies to computer +science and to knowledge in general.~{ See, for example, Edward Felten and +Andrew Appel, "Technological Access Control Interferes with Noninfringing +Scholarship," /{Communications of the Association for Computer Machinery}/ 43 +(2000): 9. }~ But Brown's concern is earlier, or younger, or more fundamental. +It is about the learning that kids can do, or can't do, because of the law. +={ Felten, Ed } + +"This is where education in the twenty-first century is going," Brown explains. +We need to "understand how kids who grow up digital think and want to learn." + +"Yet," as Brown continued, and as the balance of this book will evince, "we are +building a legal system that completely suppresses the natural tendencies of +today's digital kids. ... We're building an architecture that unleashes 60 +percent of the brain [and] a legal system that closes down that part of the +brain." + +We're building a technology that takes the magic of Kodak, mixes moving images +and sound, and adds a space for commentary and an opportunity to spread that +creativity everywhere. But we're building the law to close down that +technology. + +"No way to run a culture," as Brewster Kahle, whom we'll meet in chapter 9, +quipped to me in a rare moment of despondence. +={ Kahle, Brewster } + +1~ Chapter Three: Catalogs + +!_ In the fall of 2002, +Jesse Jordan of Oceanside, New York, enrolled as a freshman at Rensselaer +Polytechnic Institute, in Troy, New York. His major at RPI was information +technology. Though he is not a programmer, in October Jesse decided to begin to +tinker with search engine technology that was available on the RPI network. +={ Jordan, Jesse ; + Rensselaer Polytechnic Institute (RPI) +2 : + computer network search engine of +10 ; + search engines +10 ; + university computer networks, p2p sharing on +20 ; + Internet : + search engines used on +6 +} + +RPI is one of America's foremost technological research institutions. It offers +degrees in fields ranging from architecture and engineering to information +sciences. More than 65 percent of its five thousand undergraduates finished in +the top 10 percent of their high school class. The school is thus a perfect mix +of talent and experience to imagine and then build, a generation for the +network age. + +RPI's computer network links students, faculty, and administration to one +another. It also links RPI to the Internet. Not everything available on the RPI +network is available on the Internet. But the network is designed to enable +students to get access to the Internet, as well as more intimate access to +other members of the RPI community. + +Search engines are a measure of a network's intimacy. Google brought the +Internet much closer to all of us by fantastically improving the quality of +search on the network. Specialty search engines can do this even better. The +idea of "intranet" search engines, search engines that search within the +network of a particular institution, is to provide users of that institution +with better access to material from that institution. Businesses do this all +the time, enabling employees to have access to material that people outside the +business can't get. Universities do it as well. +={ Google +1 } + +These engines are enabled by the network technology itself. Microsoft, for +example, has a network file system that makes it very easy for search engines +tuned to that network to query the system for information about the publicly +(within that network) available content. Jesse's search engine was built to +take advantage of this technology. It used Microsoft's network file system to +build an index of all the files available within the RPI network. +={ Jordan, Jesse +16 ; + Microsoft : + network file system of +1 +} + +Jesse's wasn't the first search engine built for the RPI network. Indeed, his +engine was a simple modification of engines that others had built. His single +most important improvement over those engines was to fix a bug within the +Microsoft file-sharing system that could cause a user's computer to crash. With +the engines that existed before, if you tried to access a file through a +Windows browser that was on a computer that was off-line, your computer could +crash. Jesse modified the system a bit to fix that problem, by adding a button +that a user could click to see if the machine holding the file was still +on-line. + +Jesse's engine went on-line in late October. Over the following six months, he +continued to tweak it to improve its functionality. By March, the system was +functioning quite well. Jesse had more than one million files in his directory, +including every type of content that might be on users' computers. + +Thus the index his search engine produced included pictures, which students +could use to put on their own Web sites; copies of notes or research; copies of +information pamphlets; movie clips that students might have created; university +brochures - basically anything that users of the RPI network made available in +a public folder of their computer. + +But the index also included music files. In fact, one quarter of the files that +Jesse's search engine listed were music files. But that means, of course, that +three quarters were not, and - so that this point is absolutely clear - Jesse +did nothing to induce people to put music files in their public folders. He did +nothing to target the search engine to these files. He was a kid tinkering with +a Google-like technology at a university where he was studying information +science, and hence, tinkering was the aim. Unlike Google, or Microsoft, for +that matter, he made no money from this tinkering; he was not connected to any +business that would make any money from this experiment. He was a kid tinkering +with technology in an environment where tinkering with technology was precisely +what he was supposed to do. +={ Google ; + education : + tinkering as means of +} + +On April 3, 2003, Jesse was contacted by the dean of students at RPI. The dean +informed Jesse that the Recording Industry Association of America, the RIAA, +would be filing a lawsuit against him and three other students whom he didn't +even know, two of them at other universities. A few hours later, Jesse was +served with papers from the suit. As he read these papers and watched the news +reports about them, he was increasingly astonished. +={ copyright infringement lawsuits : + in recording industry +11 ; + copyright infringement lawsuits : + against student file sharing +11 ; + recording industry : + copyright infringement lawsuits of +11 ; + Recording Industry Association of America (RIAA) : + copyright infringement lawsuits filed by +11 +} + +"It was absurd," he told me. "I don't think I did anything wrong. ... I don't +think there's anything wrong with the search engine that I ran or ... what I +had done to it. I mean, I hadn't modified it in any way that promoted or +enhanced the work of pirates. I just modified the search engine in a way that +would make it easier to use" - again, a /{search engine}/, which Jesse had not +himself built, using the Windows file-sharing system, which Jesse had not +himself built, to enable members of the RPI community to get access to content, +which Jesse had not himself created or posted, and the vast majority of which +had nothing to do with music. + +But the RIAA branded Jesse a pirate. They claimed he operated a network and had +therefore "willfully" violated copyright laws. They demanded that he pay them +the damages for his wrong. For cases of "willful infringement," the Copyright +Act specifies something lawyers call "statutory damages." These damages permit +a copyright owner to claim $150,000 per infringement. As the RIAA alleged more +than one hundred specific copyright infringements, they therefore demanded that +Jesse pay them at least $15,000,000. +={ copyright infringement lawsuits : + exaggerated claims of | statutory damages of | individual defendants intimidated by +6 ; + statutory damages ; + Recording Industry Association of America (RIAA) : + intimidation tactics of +6 +} + +Similar lawsuits were brought against three other students: one other student +at RPI, one at Michigan Technical University, and one at Princeton. Their +situations were similar to Jesse's. Though each case was different in detail, +the bottom line in each was exactly the same: huge demands for "damages" that +the RIAA claimed it was entitled to. If you added up the claims, these four +lawsuits were asking courts in the United States to award the plaintiffs close +to $100 /{billion}/ - six times the /{total}/ profit of the film industry in +2001.~{ Tim Goral, "Recording Industry Goes After Campus P-2-P Networks: Suit +Alleges $97.8 Billion in Damages," /{Professional Media Group LCC}/ 6 (2003): +5, available at 2003 WL 55179443. }~ +={ Michigan Technical University ; + Princeton University +} + +Jesse called his parents. They were supportive but a bit frightened. An uncle +was a lawyer. He began negotiations with the RIAA. They demanded to know how +much money Jesse had. Jesse had saved $12,000 from summer jobs and other +employment. They demanded $12,000 to dismiss the case. + +The RIAA wanted Jesse to admit to doing something wrong. He refused. They +wanted him to agree to an injunction that would essentially make it impossible +for him to work in many fields of technology for the rest of his life. He +refused. They made him understand that this process of being sued was not going +to be pleasant. (As Jesse's father recounted to me, the chief lawyer on the +case, Matt Oppenheimer, told Jesse, "You don't want to pay another visit to a +dentist like me.") And throughout, the RIAA insisted it would not settle the +case until it took every penny Jesse had saved. +={ Oppenheimer, Matt } + +Jesse's family was outraged at these claims. They wanted to fight. But Jesse's +uncle worked to educate the family about the nature of the American legal +system. Jesse could fight the RIAA. He might even win. But the cost of fighting +a lawsuit like this, Jesse was told, would be at least $250,000. If he won, he +would not recover that money. If he won, he would have a piece of paper saying +he had won, and a piece of paper saying he and his family were bankrupt. +={ legal system, attorney costs in } + +So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or +$12,000 and a settlement. + +The recording industry insists this is a matter of law and morality. Let's put +the law aside for a moment and think about the morality. Where is the morality +in a lawsuit like this? What is the virtue in scapegoatism? The RIAA is an +extraordinarily powerful lobby. The president of the RIAA is reported to make +more than $1 million a year. Artists, on the other hand, are not well paid. The +average recording artist makes $45,900.~{ Occupational Employment Survey, U.S. +Dept. of Labor (2001) (27-2042 - Musicians and Singers). See also National +Endowment for the Arts, /{More Than One in a Blue Moon}/ (2000). }~ There are +plenty of ways for the RIAA to affect and direct policy. So where is the +morality in taking money from a student for running a search engine?~{ Douglas +Lichtman makes a related point in "KaZaA and Punishment," /{Wall Street +Journal,}/ 10 September 2003, A24. }~ +={ artists : + recording industry payments to ; + recording industry : + artist remuneration in ; + Recording Industry Association of America (RIAA) : + lobbying power of +} + +On June 23, Jesse wired his savings to the lawyer working for the RIAA. The +case against him was then dismissed. And with this, this kid who had tinkered a +computer into a $15 million lawsuit became an activist: + +_1 I was definitely not an activist [before]. I never really meant to be an +activist. ... [But] I've been pushed into this. In no way did I ever foresee +anything like this, but I think it's just completely absurd what the RIAA has +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." + +1~ Chapter Four: "Pirates" +={ piracy : + in development of content industry +43 +} + +!_ If "piracy" means +using the creative property of others without their permission - if "if value, +then right" is true - then the history of the content industry is a history of +piracy. Every important sector of "big media" today - film, records, radio, and +cable TV - was born of a kind of piracy so defined. The consistent story is how +last generation's pirates join this generation's country club - until now. +={ creative property : + "if value, then right" theory of ; + if value, then right, theory +} + +% note bad sort: ={"if value, then right" theory} + +2~ Film + +The film industry of Hollywood was built by fleeing pirates.~{ I am grateful to +Peter DiMauro for pointing me to this extraordinary history. See also Siva +Vaidhyanathan, /{Copyrights and Copywrongs,}/ 87-93, which details Edison's +"adventures" with copyright and patent. }~ Creators and directors migrated from +the East Coast to California in the early twentieth century in part to escape +controls that patents granted the inventor of filmmaking, Thomas Edison. These +controls were exercised through a monopoly "trust," the Motion Pictures Patents +Company, and were based on Thomas Edison's creative property - patents. Edison +formed the MPPC to exercise the rights this creative property gave him, and the +MPPC was serious about the control it demanded. As one commentator tells one +part of the story, +={ Film industry : + patent piracy at the inception of +4 ; + Motion Pictures Patents Company (MPPC) +2 ; + Hollywood film industry +3 ; + patents : + on film technology +4 +} + +_1 A January 1909 deadline was set for all companies to comply with the +license. By February, unlicensed outlaws, who referred to themselves as +independents protested the trust and carried on business without submitting to +the Edison monopoly. In the summer of 1909 the independent movement was in +full-swing, with producers and theater owners using illegal equipment and +imported film stock to create their own underground market. + +_1 With the country experiencing a tremendous expansion in the number of +nickelodeons, the Patents Company reacted to the independent movement by +forming a strong-arm subsidiary known as the General Film Company to block the +entry of non-licensed independents. With coercive tactics that have become +legendary, General Film confiscated unlicensed equipment, discontinued product +supply to theaters which showed unlicensed films, and effectively monopolized +distribution with the acquisition of all U.S. film exchanges, except for the +one owned by the independent William Fox who defied the Trust even after his +license was revoked."~{ J. A. Aberdeen, /{Hollywood Renegades: The Society of +Independent Motion Picture Producers}/ (Cobblestone Entertainment, 2000) and +expanded texts posted at "The Edison Movie Monopoly: The Motion Picture Patents +Company vs. the Independent Outlaws," available at link #11. For a discussion +of the economic motive behind both these limits and the limits imposed by +Victor on phonographs, see Randal C. Picker, "From Edison to the Broadcast +Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright" +(September 2002), University of Chicago Law School, James M. Olin Program in +Law and Economics, Working Paper No. 159. }~ +={ Fox, William ; + General Film Company +} + +The Napsters of those days, the "independents," were companies like Fox. And no +less than today, these independents were vigorously resisted. "Shooting was +disrupted by machinery stolen, and 'accidents' resulting in loss of negatives, +equipment, buildings and sometimes life and limb frequently occurred."~{ Marc +Wanamaker, "The First Studios," /{The Silents Majority,}/ archived at link #12. +}~ That led the independents to flee the East Coast. California was remote +enough from Edison's reach that film- makers there could pirate his inventions +without fear of the law. And the leaders of Hollywood filmmaking, Fox most +prominently, did just that. +={ Edison, Thomas +5 } + +Of course, California grew quickly, and the effective enforcement of federal +law eventually spread west. But because patents grant the patent holder a truly +"limited" monopoly (just seventeen years at that time), by the time enough +federal marshals appeared, the patents had expired. A new industry had been +born, in part from the piracy of Edison's creative property. +={ patents : + duration of +} + +2~ Recorded Music +={ composers, copyright protections of +10 ; + copyright law : + on music recordings +10 ; + recording industry : + copyright protections in +10 | piracy in +10 +} + +The record industry was born of another kind of piracy, though to see how +requires a bit of detail about the way the law regulates music. + +At the time that Edison and Henri Fourneaux invented machines for reproducing +music (Edison the phonograph, Fourneaux the player piano), the law gave +composers the exclusive right to control copies of their music and the +exclusive right to control public performances of their music. In other words, +in 1900, if I wanted a copy of Phil Russel's 1899 hit "Happy Mose," the law +said I would have to pay for the right to get a copy of the musical score, and +I would also have to pay for the right to perform it publicly. +={ Fourneaux, Henri +1 ; + phonograph +2 ; + player pianos +1 ; + Russel, Phil +} + +But what if I wanted to record "Happy Mose," using Edison's phonograph or +Fourneaux's player piano? Here the law stumbled. It was clear enough that I +would have to buy any copy of the musical score that I performed in making this +recording. And it was clear enough that I would have to pay for any public +performance of the work I was recording. But it wasn't totally clear that I +would have to pay for a "public performance" if I recorded the song in my own +house (even today, you don't owe the Beatles anything if you sing their songs +in the shower), or if I recorded the song from memory (copies in your brain are +not - yet - regulated by copyright law). So if I simply sang the song into a +recording device in the privacy of my own home, it wasn't clear that I owed the +composer anything. And more importantly, it wasn't clear whether I owed the +composer anything if I then made copies of those recordings. Because of this +gap in the law, then, I could effectively pirate someone else's song without +paying its composer anything. + +The composers (and publishers) were none too happy about this capacity to +pirate. As South Dakota senator Alfred Kittredge put it, +={ Kittredge, Alfred +1 ; + music publishing +2 +} + +_1 Imagine the injustice of the thing. A composer writes a song or an opera. A +publisher buys at great expense the rights to the same and copyrights it. Along +come the phonographic companies and companies who cut music rolls and +deliberately steal the work of the brain of the composer and publisher without +any regard for [their] rights.~{ To Amend and Consolidate the Acts Respecting +Copyright: Hearings on S. 6330 and H.R. 19853 Before the (Joint) Committees on +Patents, 59th Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. +Kittredge, of South Dakota, chairman), reprinted in /{Legislative History of +the 1909 Copyright Act,}/ E. Fulton Brylawski and Abe Goldman, eds. (South +Hackensack, N.J.: Rothman Reprints, 1976). }~ +={ copyright law : + authors vs. composers +7 ; + creative property : + of authors vs. composers +7 ; + recording industry : + composers' rights vs. producers' rights in +} + +The innovators who developed the technology to record other people's works were +"sponging upon the toil, the work, the talent, and genius of American +composers,"~{ To Amend and Consolidate the Acts Respecting Copyright, 223 +(statement of Nathan Burkan, attorney for the Music Publishers Association). }~ +and the "music publishing industry" was thereby "at the complete mercy of this +one pirate."~{ To Amend and Consolidate the Acts Respecting Copyright, 226 +(statement of Nathan Burkan, attorney for the Music Publishers Association). }~ +As John Philip Sousa put it, in as direct a way as possible, "When they make +money out of my pieces, I want a share of it."~{ To Amend and Consolidate the +Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer). }~ +={ Sousa, John Philip } + +These arguments have familiar echoes in the wars of our day. So, too, do the +arguments on the other side. The innovators who developed the player piano +argued that "it is perfectly demonstrable that the introduction of automatic +music players has not deprived any composer of anything he had before their +introduction." Rather, the machines increased the sales of sheet music.~{ To +Amend and Consolidate the Acts Respecting Copyright, 283-84 (statement of +Albert Walker, representative of the Auto-Music Perforating Company of New +York). }~ In any case, the innovators argued, the job of Congress was "to +consider first the interest of [the public], whom they represent, and whose +servants they are." "All talk about 'theft,'" the general counsel of the +American Graphophone Company wrote, "is the merest claptrap, for there exists +no property in ideas musical, literary or artistic, except as defined by +statute."~{ To Amend and Consolidate the Acts Respecting Copyright, 376 +(prepared memorandum of Philip Mauro, general patent counsel of the American +Graphophone Company Association). }~ +={ American Graphophone Company ; + player pianos ; + sheet music ; + Congress, U.S. : + on copyright laws +4 | on recording industry +4 ; + copyright law : + statutory licenses in +6 ; + recording industry : + statutory license system in +6 +} + +The law soon resolved this battle in favor of the composer /{and}/ the +recording artist. Congress amended the law to make sure that composers would be +paid for the "mechanical reproductions" of their music. But rather than simply +granting the composer complete control over the right to make mechanical +reproductions, Congress gave recording artists a right to record the music, at +a price set by Congress, once the composer allowed it to be recorded once. This +is the part of copyright law that makes cover songs possible. Once a composer +authorizes a recording of his song, others are free to record the same song, so +long as they pay the original composer a fee set by the law. +={ cover songs } + +American law ordinarily calls this a "compulsory license," but I will refer to +it as a "statutory license." A statutory license is a license whose key terms +are set by law. After Congress's amendment of the Copyright Act in 1909, record +companies were free to distribute copies of recordings so long as they paid the +composer (or copyright holder) the fee set by the statute. +={ compulsory license +4 ; + statutory licenses +4 +} + +This is an exception within the law of copyright. When John Grisham writes a +novel, a publisher is free to publish that novel only if Grisham gives the +publisher permission. Grisham, in turn, is free to charge whatever he wants for +that permission. The price to publish Grisham is thus set by Grisham, and +copyright law ordinarily says you have no permission to use Grisham's work +except with permission of Grisham. +={ Grisham, John +1 } + +But the law governing recordings gives recording artists less. And thus, in +effect, the law /{subsidizes}/ the recording industry through a kind of piracy +- by giving recording artists a weaker right than it otherwise gives creative +authors. The Beatles have less control over their creative work than Grisham +does. And the beneficiaries of this less control are the recording industry and +the public. The recording industry gets something of value for less than it +otherwise would pay; the public gets access to a much wider range of musical +creativity. Indeed, Congress was quite explicit about its reasons for granting +this right. Its fear was the monopoly power of rights holders, and that that +power would stifle follow-on creativity.~{ Copyright Law Revision: Hearings on +S. 2499, S. 2900, H.R. 243, and H.R. 11794 Before the ( Joint) Committee on +Patents, 60th Cong., 1st sess., 217 (1908) (statement of Senator Reed Smoot, +chairman), reprinted in /{Legislative History of the 1909 Copyright Act,}/ E. +Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman +Reprints, 1976). }~ +={ Beatles } + +While the recording industry has been quite coy about this recently, +historically it has been quite a supporter of the statutory license for +records. As a 1967 report from the House Committee on the Judiciary relates, + +_1 the record producers argued vigorously that the compulsory license system +must be retained. They asserted that the record industry is a +half-billion-dollar business of great economic importance in the United States +and throughout the world; records today are the principal means of +disseminating music, and this creates special problems, since performers need +unhampered access to musical material on nondiscriminatory terms. Historically, +the record producers pointed out, there were no recording rights before 1909 +and the 1909 statute adopted the compulsory license as a deliberate +anti-monopoly condition on the grant of these rights. They argue that the +result has been an outpouring of recorded music, with the public being given +lower prices, improved quality, and a greater choice."~{ Copyright Law +Revision: Report to Accompany H.R. 2512, House Committee on the Judiciary, 90th +Cong., 1st sess., House Document no. 83, 66 (8 March 1967). I am grateful to +Glenn Brown for drawing my attention to this report. }~ + +By limiting the rights musicians have, by partially pirating their creative +work, the record producers, and the public, benefit. + +2~ Radio +={ recording industry : + radio broadcast and +7 +} + +Radio was also born of piracy. + +When a radio station plays a record on the air, that constitutes a "public +performance" of the composer's work.~{ See 17 /{United States Code,}/ sections +106 and 110. At the beginning, record companies printed "Not Licensed for Radio +Broadcast" and other messages purporting to restrict the ability to play a +record on a radio station. Judge Learned Hand rejected the argument that a +warning attached to a record might restrict the rights of the radio station. +See /{RCA Manufacturing Co. v. Whiteman,}/ 114 F. 2d 86 (2nd Cir. 1940). See +also Randal C. Picker, "From Edison to the Broadcast Flag: Mechanisms of +Consent and Refusal and the Propertization of Copyright," /{University of +Chicago Law Review}/ 70 (2003): 281. }~ As I described above, the law gives the +composer (or copyright holder) an exclusive right to public performances of his +work. The radio station thus owes the composer money for that performance. + +But when the radio station plays a record, it is not only performing a copy of +the /{composer's}/ work. The radio station is also performing a copy of the +/{recording artist's}/ work. It's one thing to have "Happy Birthday" sung on +the radio by the local children's choir; it's quite another to have it sung by +the Rolling Stones or Lyle Lovett. The recording artist is adding to the value +of the composition performed on the radio station. And if the law were +perfectly consistent, the radio station would have to pay the recording artist +for his work, just as it pays the composer of the music for his work. +={ artists : + recording industry payments to +3 ; + radio : + music recordings played on +3 ; + recording industry : + artist remuneration in +3 +} + +But it doesn't. Under the law governing radio performances, the radio station +does not have to pay the recording artist. The radio station need only pay the +composer. The radio station thus gets a bit of something for nothing. It gets +to perform the recording artist's work for free, even if it must pay the +composer something for the privilege of playing the song. + +This difference can be huge. Imagine you compose a piece of music. Imagine it +is your first. You own the exclusive right to authorize public performances of +that music. So if Madonna wants to sing your song in public, she has to get +your permission. +={ Madonna +1 } + +Imagine she does sing your song, and imagine she likes it a lot. She then +decides to make a recording of your song, and it becomes a top hit. Under our +law, every time a radio station plays your song, you get some money. But +Madonna gets nothing, save the indirect effect on the sale of her CDs. The +public performance of her recording is not a "protected" right. The radio +station thus gets to /{pirate}/ the value of Madonna's work without paying her +anything. + +No doubt, one might argue that, on balance, the recording artists benefit. On +average, the promotion they get is worth more than the performance rights they +give up. Maybe. But even if so, the law ordinarily gives the creator the right +to make this choice. By making the choice for him or her, the law gives the +radio station the right to take something for nothing. + +2~ Cable TV +={ cable television +12 } + +Cable TV was also born of a kind of piracy. + +When cable entrepreneurs first started wiring communities with cable television +in 1948, most refused to pay broadcasters for the content that they echoed to +their customers. Even when the cable companies started selling access to +television broadcasts, they refused to pay for what they sold. Cable companies +were thus Napsterizing broadcasters' content, but more egregiously than +anything Napster ever did - Napster never charged for the content it enabled +others to give away. +={ Napster ; + television : + cable vs. broadcast +10 +} + +Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, +chairman of the FCC, viewed the practice as a kind of "unfair and potentially +destructive competition."~{ Copyright Law Revision - CATV: Hearing on S. 1006 +Before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate +Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of +Rosel H. Hyde, chairman of the Federal Communications Commission). }~ There may +have been a "public interest" in spreading the reach of cable TV, but as +Douglas Anello, general counsel to the National Association of Broadcasters, +asked Senator Quentin Burdick during testimony, "Does public interest dictate +that you use somebody else's property?"~{ Copyright Law Revision - CATV, 116 +(statement of Douglas A. Anello, general counsel of the National Association of +Broadcasters). }~ As another broadcaster put it, +={ Anello, Douglas ; + Burdick, Quentin ; + Hyde, Rosel ; + copyright law : + on cable television rebroadcasting +9 +} + +_1 The extraordinary thing about the CATV business is that it is the only +business I know of where the product that is being sold is not paid for."~{ +Copyright Law Revision - CATV, 126 (statement of Ernest W. Jennes, general +counsel of the Association of Maximum Service Telecasters, Inc.). }~ + +Again, the demand of the copyright holders seemed reasonable enough: + +_1 All we are asking for is a very simple thing, that people who now take our +property for nothing pay for it. We are trying to stop piracy and I don't think +there is any lesser word to describe it. I think there are harsher words which +would fit it."~{ Copyright Law Revision - CATV, 169 (joint statement of Arthur +B. Krim, president of United Artists Corp., and John Sinn, president of United +Artists Television, Inc.). }~ + +These were "free-ride[rs]," Screen Actor's Guild president Charlton Heston +said, who were "depriving actors of compensation."~{ Copyright Law Revision - +CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild). +}~ +={ Screen Actors Guild ; + Heston, Charlton +} + +But again, there was another side to the debate. As Assistant Attorney General +Edwin Zimmerman put it, +={ Zimmerman, Edwin +1 } + +_1 Our point here is that unlike the problem of whether you have any copyright +protection at all, the problem here is whether copyright holders who are +already compensated, who already have a monopoly, should be permitted to extend +that monopoly. ... The question here is how much compensation they should have +and how far back they should carry their right to compensation."~{ Copyright +Law Revision - CATV, 216 (statement of Edwin M. Zimmerman, acting assistant +attorney general). }~ + +Copyright owners took the cable companies to court. Twice the Supreme Court +held that the cable companies owed the copyright owners nothing. +={ Supreme Court, U.S. : + on cable television +} + +It took Congress almost thirty years before it resolved the question of whether +cable companies had to pay for the content they "pirated." In the end, Congress +resolved this question in the same way that it resolved the question about +record players and player pianos. Yes, cable companies would have to pay for +the content that they broadcast; but the price they would have to pay was not +set by the copyright owner. The price was set by law, so that the broadcasters +couldn't exercise veto power over the emerging technologies of cable. Cable +companies thus built their empire in part upon a "piracy" of the value created +by broadcasters' content. +={ Congress, U.S. : + on cable television | on copyright laws +} + +!_ These separate stories +sing a common theme. If "piracy" means using value from someone else's creative +property without permission from that creator - as it is increasingly described +today~{ See, for example, National Music Publisher's Association, /{The Engine +of Free Expression: Copyright on the Internet - The Myth of Free Information,}/ +available at link #13. "The threat of piracy"the use of someone else's creative +work without permission or compensation - has grown with the Internet." }~ - +then /{every}/ industry affected by copyright today is the product and +beneficiary of a certain kind of piracy. Film, records, radio, cable TV. ... +The list is long and could well be expanded. Every generation welcomes the +pirates from the last. Every generation - until now. + +1~ Chapter Five: "Piracy" +={ piracy : + commercial +20 +} + +!_ There is piracy +of copyrighted material. Lots of it. This piracy comes in many forms. The most +significant is commercial piracy, the unauthorized taking of other people's +content within a commercial context. Despite the many justifications that are +offered in its defense, this taking is wrong. No one should condone it, and the +law should stop it. + +But as well as copy-shop piracy, there is another kind of "taking" that is more +directly related to the Internet. That taking, too, seems wrong to many, and it +is wrong much of the time. Before we paint this taking "piracy," however, we +should understand its nature a bit more. For the harm of this taking is +significantly more ambiguous than outright copying, and the law should account +for that ambiguity, as it has so often done in the past. + +2~ Piracy I + +All across the world, but especially in Asia and Eastern Europe, there are +businesses that do nothing but take others people's copyrighted content, copy +it, and sell it - all without the permission of a copyright owner. The +recording industry estimates that it loses about $4.6 billion every year to +physical piracy~{ See IFPI (International Federation of the Phonographic +Industry), /{The Recording Industry Commercial Piracy Report 2003,}/ July 2003, +available at link #14. See also Ben Hunt, "Companies Warned on Music Piracy +Risk," /{Financial Times,}/ 14 February 2003, 11. }~ (that works out to one in +three CDs sold worldwide). The MPAA estimates that it loses $3 billion annually +worldwide to piracy. +={ Asia, commercial piracy in +3 ; + piracy : + in Asia +3 ; + CDs : + foreign piracy of +3 ; + copyright law : + international compliance with +6 ; + international law +5 ; + piracy : + international +7 ; + recording industry : + international piracy in ; + Motion Pictures Patents Company (MPPC) +} + +% check reference, MPAA appears to be indexed to Motion Pictures Patents +% Company (MPPC) which is referred to elsewhere in text as "Motion Pictures +% _Patent_ Company" + +This is piracy plain and simple. Nothing in the argument of this book, nor in +the argument that most people make when talking about the subject of this book, +should draw into doubt this simple point: This piracy is wrong. + +Which is not to say that excuses and justifications couldn't be made for it. We +could, for example, remind ourselves that for the first one hundred years of +the American Republic, America did not honor foreign copyrights. We were born, +in this sense, a pirate nation. It might therefore seem hypocritical for us to +insist so strongly that other developing nations treat as wrong what we, for +the first hundred years of our existence, treated as right. +={ developing countries, foreign patent costs in +3 } + +That excuse isn't terribly strong. Technically, our law did not ban the taking +of foreign works. It explicitly limited itself to American works. Thus the +American publishers who published foreign works without the permission of +foreign authors were not violating any rule. The copy shops in Asia, by +contrast, are violating Asian law. Asian law does protect foreign copyrights, +and the actions of the copy shops violate that law. So the wrong of piracy that +they engage in is not just a moral wrong, but a legal wrong, and not just an +internationally legal wrong, but a locally legal wrong as well. + +True, these local rules have, in effect, been imposed upon these countries. No +country can be part of the world economy and choose not to protect copyright +internationally. We may have been born a pirate nation, but we will not allow +any other nation to have a similar childhood. + +If a country is to be treated as a sovereign, however, then its laws are its +laws regardless of their source. The international law under which these +nations live gives them some opportunities to escape the burden of intellectual +property law.~{ See Peter Drahos with John Braithwaite, /{Information +Feudalism: Who Owns the Knowledge Economy?}/ (New York: The New Press, 2003), +10-13, 209. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) +agreement obligates member nations to create administrative and enforcement +mechanisms for intellectual property rights, a costly proposition for +developing countries. Additionally, patent rights may lead to higher prices for +staple industries such as agriculture. Critics of TRIPS question the disparity +between burdens imposed upon developing countries and benefits conferred to +industrialized nations. TRIPS does permit governments to use patents for +public, noncommercial uses without first obtaining the patent holder's +permission. Developing nations may be able to use this to gain the benefits of +foreign patents at lower prices. This is a promising strategy for developing +nations within the TRIPS framework. }~ In my view, more developing nations +should take advantage of that opportunity, but when they don't, then their laws +should be respected. And under the laws of these nations, this piracy is wrong. + +Alternatively, we could try to excuse this piracy by noting that in any case, +it does no harm to the industry. The Chinese who get access to American CDs at +50 cents a copy are not people who would have bought those American CDs at $15 +a copy. So no one really has any less money than they otherwise would have +had.~{ For an analysis of the economic impact of copying technology, see Stan +Liebowitz, /{Rethinking the Network Economy}/ (New York: Amacom, 2002), 144-90. +"In some instances ... the impact of piracy on the copyright holder's ability +to appropriate the value of the work will be negligible. One obvious instance +is the case where the individual engaging in pirating would not have purchased +an original even if pirating were not an option." Ibid., 149. }~ +={ Asia, commercial piracy in ; + piracy : + in Asia ; + CDs : + foreign piracy of ; + copyright law : + statutory licenses in +} + +This is often true (though I have friends who have purchased many thousands of +pirated DVDs who certainly have enough money to pay for the content they have +taken), and it does mitigate to some degree the harm caused by such taking. +Extremists in this debate love to say, "You wouldn't go into Barnes & Noble and +take a book off of the shelf without paying; why should it be any different +with on-line music?" The difference is, of course, that when you take a book +from Barnes & Noble, it has one less book to sell. By contrast, when you take +an MP3 from a computer network, there is not one less CD that can be sold. The +physics of piracy of the intangible are different from the physics of piracy of +the tangible. +={ DVDs : + piracy of ; + piracy : + of intangible property +} + +This argument is still very weak. However, although copyright is a property +right of a very special sort, it /{is}/ a property right. Like all property +rights, the copyright gives the owner the right to decide the terms under which +content is shared. If the copyright owner doesn't want to sell, she doesn't +have to. There are exceptions: important statutory licenses that apply to +copyrighted content regardless of the wish of the copyright owner. Those +licenses give people the right to "take" copyrighted content whether or not the +copyright owner wants to sell. But where the law does not give people the right +to take content, it is wrong to take that content even if the wrong does no +harm. If we have a property system, and that system is properly balanced to the +technology of a time, then it is wrong to take property without the permission +of a property owner. That is exactly what "property" means. +={ statutory licenses } + +Finally, we could try to excuse this piracy with the argument that the piracy +actually helps the copyright owner. When the Chinese "steal" Windows, that +makes the Chinese dependent on Microsoft. Microsoft loses the value of the +software that was taken. But it gains users who are used to life in the +Microsoft world. Over time, as the nation grows more wealthy, more and more +people will buy software rather than steal it. And hence over time, because +that buying will benefit Microsoft, Microsoft benefits from the piracy. If +instead of pirating Microsoft Windows, the Chinese used the free GNU/Linux +operating system, then these Chinese users would not eventually be buying +Microsoft. Without piracy, then, Microsoft would lose. +={ Asia, commercial piracy in ; + piracy : + in Asia ; + free software/open-source software (FS/OSS) ; + GNU/Linux operating system ; + Linux operating system ; + Microsoft : + competitive strategies of ; + Windows ; + Microsoft : + international software piracy of | Windows operating system of +} + +This argument, too, is somewhat true. The addiction strategy is a good one. +Many businesses practice it. Some thrive because of it. Law students, for +example, are given free access to the two largest legal databases. The +companies marketing both hope the students will become so used to their service +that they will want to use it and not the other when they become lawyers (and +must pay high subscription fees). +={ law : + databases of case reports in +} + +Still, the argument is not terribly persuasive. We don't give the alcoholic a +defense when he steals his first beer, merely because that will make it more +likely that he will buy the next three. Instead, we ordinarily allow businesses +to decide for themselves when it is best to give their product away. If +Microsoft fears the competition of GNU/Linux, then Microsoft can give its +product away, as it did, for example, with Internet Explorer to fight Netscape. +A property right means giving the property owner the right to say who gets +access to what - at least ordinarily. And if the law properly balances the +rights of the copyright owner with the rights of access, then violating the law +is still wrong. +={ Netscape ; + Internet Explorer +} + +Thus, while I understand the pull of these justifications for piracy, and I +certainly see the motivation, in my view, in the end, these efforts at +justifying commercial piracy simply don't cut it. This kind of piracy is +rampant and just plain wrong. It doesn't transform the content it steals; it +doesn't transform the market it competes in. It merely gives someone access to +something that the law says he should not have. Nothing has changed to draw +that law into doubt. This form of piracy is flat out wrong. + +But as the examples from the four chapters that introduced this part suggest, +even if some piracy is plainly wrong, not all "piracy" is. Or at least, not all +"piracy" is wrong if that term is understood in the way it is increasingly used +today. Many kinds of "piracy" are useful and productive, to produce either new +content or new ways of doing business. Neither our tradition nor any tradition +has ever banned all "piracy" in that sense of the term. + +This doesn't mean that there are no questions raised by the latest piracy +concern, peer-to-peer file sharing. But it does mean that we need to understand +the harm in peer-to-peer sharing a bit more before we condemn it to the gallows +with the charge of piracy. +={ peer-to-peer (p2p) file sharing : + piracy vs. ; + piracy : + profit reduction as criterion of | p2p file sharing vs. +} + +For (1) like the original Hollywood, p2p sharing escapes an overly controlling +industry; and (2) like the original recording industry, it simply exploits a +new way to distribute content; but (3) unlike cable TV, no one is selling the +content that is shared on p2p services. + +These differences distinguish p2p sharing from true piracy. They should push us +to find a way to protect artists while enabling this sharing to survive. + +2~ Piracy II +={ peer-to-peer (p2p) file sharing : + piracy vs. +53 ; + piracy : + profit reduction as criterion of +23 | p2p file sharing vs. +53 +} + +The key to the "piracy" that the law aims to quash is a use that "rob[s] the +author of [his] profit."~{ /{Bach v. Longman,}/ 98 Eng. Rep. 1274 (1777). }~ +This means we must determine whether and how much p2p sharing harms before we +know how strongly the law should seek to either prevent it or find an +alternative to assure the author of his profit. + +Peer-to-peer sharing was made famous by Napster. But the inventors of the +Napster technology had not made any major technological innovations. Like every +great advance in innovation on the Internet (and, arguably, off the Internet as +well~{ See Clayton M. Christensen, /{The Innovator's Dilemma: The Revolutionary +National Bestseller That Changed the Way We Do Business}/ (New York: +HarperBusiness, 2000). Professor Christensen examines why companies that give +rise to and dominate a product area are frequently unable to come up with the +most creative, paradigm-shifting uses for their own products. This job usually +falls to outside innovators, who reassemble existing technology in inventive +ways. For a discussion of Christensen's ideas, see Lawrence Lessig, /{Future,}/ +89-92, 139. }~), Shawn Fanning and crew had simply put together components that +had been developed independently. +={ Fanning, Shawn ; + innovation ; + Internet : + music files downloaded from +8 ; + peer-to-peer (p2p) file sharing : + participation levels of ; + technology : + innovative improvements in ; + Napster +1 +} + +The result was spontaneous combustion. Launched in July 1999, Napster amassed +over 10 million users within nine months. After eighteen months, there were +close to 80 million registered users of the system.~{ See Carolyn Lochhead, +"Silicon Valley Dream, Hollywood Nightmare," /{San Francisco Chronicle,}/ 24 +September 2002, A1; "Rock 'n' Roll Suicide," /{New Scientist,}/ 6 July 2002, +42; Benny Evangelista, "Napster Names CEO, Secures New Financing," /{San +Francisco Chronicle,}/ 23 May 2003, C1; "Napster's Wake-Up Call," +/{Economist,}/ 24 June 2000, 23; John Naughton, "Hollywood at War with the +Internet" (London) /{Times,}/ 26 July 2002, 18. }~ Courts quickly shut Napster +down, but other services emerged to take its place. (Kazaa is currently the +most popular p2p service. It boasts over 100 million members.) These services' +systems are different architecturally, though not very different in function: +Each enables users to make content available to any number of other users. With +a p2p system, you can share your favorite songs with your best friend - or your +20,000 best friends. +={ Kazaa ; + Napster : + number of registrations on | replacement of +} + +According to a number of estimates, a huge proportion of Americans have tasted +file-sharing technology. A study by Ipsos-Insight in September 2002 estimated +that 60 million Americans had downloaded music - 28 percent of Americans older +than 12.~{ See Ipsos-Insight, /{TEMPO: Keeping Pace with Online Music +Distribution}/ (September 2002), reporting that 28 percent of Americans aged +twelve and older have downloaded music off of the Internet and 30 percent have +listened to digital music files stored on their computers. }~ A survey by the +NPD group quoted in /{The New York Times}/ estimated that 43 million citizens +used file-sharing networks to exchange content in May 2003.~{ Amy Harmon, +"Industry Offers a Carrot in Online Music Fight," /{New York Times,}/ 6 June +2003, A1. }~ The vast majority of these are not kids. Whatever the actual +figure, a massive quantity of content is being "taken" on these networks. The +ease and inexpensiveness of file-sharing networks have inspired millions to +enjoy music in a way that they hadn't before. + +Some of this enjoying involves copyright infringement. Some of it does not. And +even among the part that is technically copyright infringement, calculating the +actual harm to copyright owners is more complicated than one might think. So +consider - a bit more carefully than the polarized voices around this debate +usually do - the kinds of sharing that file sharing enables, and the kinds of +harm it entails. + +File sharers share different kinds of content. We can divide these different +kinds into four types. +={ peer-to-peer (p2p) file sharing : + four types of +4 ; + Napster : + range of content on +} + +_1 A. There are some who use sharing networks as substitutes for purchasing +content. Thus, when a new Madonna CD is released, rather than buying the CD, +these users simply take it. We might quibble about whether everyone who takes +it would actually have bought it if sharing didn't make it available for free. +Most probably wouldn't have, but clearly there are some who would. The latter +are the target of category A: users who download instead of purchasing. + +_1 B. There are some who use sharing networks to sample music before purchasing +it. Thus, a friend sends another friend an MP3 of an artist he's not heard of. +The other friend then buys CDs by that artist. This is a kind of targeted +advertising, quite likely to succeed. If the friend recommending the album +gains nothing from a bad recommendation, then one could expect that the +recommendations will actually be quite good. The net effect of this sharing +could increase the quantity of music purchased. +={ advertising } + +_1 C. There are many who use sharing networks to get access to copyrighted +content that is no longer sold or that they would not have purchased because +the transaction costs off the Net are too high. This use of sharing networks is +among the most rewarding for many. Songs that were part of your childhood but +have long vanished from the marketplace magically appear again on the network. +(One friend told me that when she discovered Napster, she spent a solid weekend +"recalling" old songs. She was astonished at the range and mix of content that +was available.) For content not sold, this is still technically a violation of +copyright, though because the copyright owner is not selling the content +anymore, the economic harm is zero - the same harm that occurs when I sell my +collection of 1960s 45-rpm records to a local collector. +={ recording industry : + out-of-print music of +} + +_1 D. Finally, there are many who use sharing networks to get access to content +that is not copyrighted or that the copyright owner wants to give away. + +How do these different types of sharing balance out? + +Let's start with some simple but important points. From the perspective of the +law, only type D sharing is clearly legal. From the perspective of economics, +only type A sharing is clearly harmful.~{ See Liebowitz, /{Rethinking the +Network Economy,}/ 148-49. }~ Type B sharing is illegal but plainly beneficial. +Type C sharing is illegal, yet good for society (since more exposure to music +is good) and harmless to the artist (since the work is not otherwise +available). So how sharing matters on balance is a hard question to answer - +and certainly much more difficult than the current rhetoric around the issue +suggests. + +Whether on balance sharing is harmful depends importantly on how harmful type A +sharing is. Just as Edison complained about Hollywood, composers complained +about piano rolls, recording artists complained about radio, and broadcasters +complained about cable TV, the music industry complains that type A sharing is +a kind of "theft" that is "devastating" the industry. +={ Edison, Thomas } + +While the numbers do suggest that sharing is harmful, how harmful is harder to +reckon. It has long been the recording industry's practice to blame technology +for any drop in sales. The history of cassette recording is a good example. As +a study by Cap Gemini Ernst & Young put it, "Rather than exploiting this new, +popular technology, the labels fought it."~{ See Cap Gemini Ernst & Young, +/{Technology Evolution and the Music Industry's Business Model Crisis}/ (2003), +3. This report describes the music industry's effort to stigmatize the budding +practice of cassette taping in the 1970s, including an advertising campaign +featuring a cassette-shape skull and the caption "Home taping is killing +music." \\ At the time digital audio tape became a threat, the Office of +Technical Assessment conducted a survey of consumer behavior. In 1988, 40 +percent of consumers older than ten had taped music to a cassette format. U.S. +Congress, Office of Technology Assessment, /{Copyright and Home Copying: +Technology Challenges the Law,}/ OTA-CIT-422 (Washington, D.C.: U.S. Government +Printing Office, October 1989), 145-56. }~ The labels claimed that every album +taped was an album unsold, and when record sales fell by 11.4 percent in 1981, +the industry claimed that its point was proved. Technology was the problem, and +banning or regulating technology was the answer. +={ cassette recording +1 ; + recording industry : + new technology opposed by +2 ; + technology : + established industries threatened by changes in +2 +} + +Yet soon thereafter, and before Congress was given an opportunity to enact +regulation, MTV was launched, and the industry had a record turnaround. "In the +end," Cap Gemini concludes, "the 'crisis' ... was not the fault of the tapers" +who did not [stop after MTV came into being] - but had to a large extent +resulted from stagnation in musical innovation at the major labels."~{ U.S. +Congress, /{Copyright and Home Copying,}/ 4. }~ +={ MTV } + +But just because the industry was wrong before does not mean it is wrong today. +To evaluate the real threat that p2p sharing presents to the industry in +particular, and society in general - or at least the society that inherits the +tradition that gave us the film industry, the record industry, the radio +industry, cable TV, and the VCR - the question is not simply whether type A +sharing is harmful. The question is also /{how}/ harmful type A sharing is, and +how beneficial the other types of sharing are. + +We start to answer this question by focusing on the net harm, from the +standpoint of the industry as a whole, that sharing networks cause. The "net +harm" to the industry as a whole is the amount by which type A sharing exceeds +type B. If the record companies sold more records through sampling than they +lost through substitution, then sharing networks would actually benefit music +companies on balance. They would therefore have little /{static}/ reason to +resist them. + +Could that be true? Could the industry as a whole be gaining because of file +sharing? Odd as that might sound, the data about CD sales actually suggest it +might be close. +={ CDs : + sales levels of +3 ; + recording industry : + CD sales level in +3 ; + Recording Industry Association of America (RIAA) : + on CD sales decline +3 +} + +In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 +million to 803 million units; revenues fell 6.7 percent.~{ See Recording +Industry Association of America, /{2002 Yearend Statistics,}/ available at link +#15. A later report indicates even greater losses. See Recording Industry +Association of America, /{Some Facts About Music Piracy,}/ 25 June 2003, +available at link #16: "In the past four years, unit shipments of recorded +music have fallen by 26 percent from 1.16 billion units in 1999 to 860 million +units in 2002 in the United States (based on units shipped). In terms of sales, +revenues are down 14 percent, from $14.6 billion in 1999 to $12.6 billion last +year (based on U.S. dollar value of shipments). The music industry worldwide +has gone from a $39 billion industry in 2000 down to a $32 billion industry in +2002 (based on U.S. dollar value of shipments)." }~ This confirms a trend over +the past few years. The RIAA blames Internet piracy for the trend, though there +are many other causes that could account for this drop. SoundScan, for example, +reports a more than 20 percent drop in the number of CDs released since 1999. +That no doubt accounts for some of the decrease in sales. Rising prices could +account for at least some of the loss. "From 1999 to 2001, the average price of +a CD rose 7.2 percent, from $13.04 to $14.19."~{ Jane Black, "Big Music's +Broken Record," BusinessWeek online, 13 February 2003, available at link #17. +}~ Competition from other forms of media could also account for some of the +decline. As Jane Black of /{BusinessWeek}/ notes, "The soundtrack to the film +/{High Fidelity}/ has a list price of $18.98. You could get the whole movie [on +DVD] for $19.99."~{ Ibid. }~ +={ Black, Jane ; + CDs : + prices of ; + DVDs : + price of +} + +But let's assume the RIAA is right, and all of the decline in CD sales is +because of Internet sharing. Here's the rub: In the same period that the RIAA +estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion +CDs were downloaded for free. Thus, although 2.6 times the total number of CDs +sold were downloaded for free, sales revenue fell by just 6.7 percent. +={ piracy : + of intangible property +1 +} + +There are too many different things happening at the same time to explain these +numbers definitively, but one conclusion is unavoidable: The recording industry +constantly asks, "What's the difference between downloading a song and stealing +a CD?" - but their own numbers reveal the difference. If I steal a CD, then +there is one less CD to sell. Every taking is a lost sale. But on the basis of +the numbers the RIAA provides, it is absolutely clear that the same is not true +of downloads. If every download were a lost sale - if every use of Kazaa +"rob[bed] the author of [his] profit" - then the industry would have suffered a +100 percent drop in sales last year, not a 7 percent drop. If 2.6 times the +number of CDs sold were downloaded for free, and yet sales revenue dropped by +just 6.7 percent, then there is a huge difference between "downloading a song +and stealing a CD." +={ Kazaa } + +These are the harms - alleged and perhaps exaggerated but, let's assume, real. +What of the benefits? File sharing may impose costs on the recording industry. +What value does it produce in addition to these costs? +={ peer-to-peer (p2p) file sharing : + benefits of +8 +} + +One benefit is type C sharing - making available content that is technically +still under copyright but is no longer commercially available. This is not a +small category of content. There are millions of tracks that are no longer +commercially available.~{ By one estimate, 75 percent of the music released by +the major labels is no longer in print. See Online Entertainment and Copyright +Law - Coming Soon to a Digital Device Near You: Hearing Before the Senate +Committee on the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared +statement of the Future of Music Coalition), available at link #18. }~ And +while it's conceivable that some of this content is not available because the +artist producing the content doesn't want it to be made available, the vast +majority of it is unavailable solely because the publisher or the distributor +has decided it no longer makes economic sense /{to the company}/ to make it +available. +={ recording industry : + out-of-print music of +3 +} + +In real space - long before the Internet - the market had a simple response to +this problem: used book and record stores. There are thousands of used book and +used record stores in America today.~{ While there are not good estimates of +the number of used record stores in existence, in 2002, there were 7,198 used +book dealers in the United States, an increase of 20 percent since 1993. See +Book Hunter Press, /{The Quiet Revolution: The Expansion of the Used Book +Market}/ (2002), available at link #19. Used records accounted for $260 million +in sales in 2002. See National Association of Recording Merchandisers, "2002 +Annual Survey Results," available at link #20. }~ These stores buy content from +owners, then sell the content they buy. And under American copyright law, when +they buy and sell this content, /{even if the content is still under +copyright}/, the copyright owner doesn't get a dime. Used book and record +stores are commercial entities; their owners make money from the content they +sell; but as with cable companies before statutory licensing, they don't have +to pay the copyright owner for the content they sell. +={ books : + free on-line releases of +4 ; + books : + out of print +3 ; + books : + resales of +2 ; + peer-to-peer (p2p) file sharing : + of books +4 ; + used record sales +} + +Type C sharing, then, is very much like used book stores or used record stores. +It is different, of course, because the person making the content available +isn't making money from making the content available. It is also different, of +course, because in real space, when I sell a record, I don't have it anymore, +while in cyberspace, when someone shares my 1949 recording of Bernstein's "Two +Love Songs," I still have it. That difference would matter economically if the +owner of the 1949 copyright were selling the record in competition to my +sharing. But we're talking about the class of content that is not currently +commercially available. The Internet is making it available, through +cooperative sharing, without competing with the market. +={ Bernstein, Leonard ; + Internet : + books on +4 +} + +It may well be, all things considered, that it would be better if the copyright +owner got something from this trade. But just because it may well be better, it +doesn't follow that it would be good to ban used book stores. Or put +differently, if you think that type C sharing should be stopped, do you think +that libraries and used book stores should be shut as well? + +Finally, and perhaps most importantly, file-sharing networks enable type D +sharing to occur - the sharing of content that copyright owners want to have +shared or for which there is no continuing copyright. This sharing clearly +benefits authors and society. Science fiction author Cory Doctorow, for +example, released his first novel, /{Down and Out in the Magic Kingdom}/, both +free on-line and in bookstores on the same day. His (and his publisher's) +thinking was that the on-line distribution would be a great advertisement for +the "real" book. People would read part on-line, and then decide whether they +liked the book or not. If they liked it, they would be more likely to buy it. +Doctorow's content is type D content. If sharing networks enable his work to be +spread, then both he and society are better off. (Actually, much better off: It +is a great book!) +={ Doctorow, Cory ; + Down and Out in the Magic Kingdom (Doctorow) +} + +Likewise for work in the public domain: This sharing benefits society with no +legal harm to authors at all. If efforts to solve the problem of type A sharing +destroy the opportunity for type D sharing, then we lose something important in +order to protect type A content. +={ public domain : + p2p sharing of works in +} + +The point throughout is this: While the recording industry understandably says, +"This is how much we've lost," we must also ask, "How much has society gained +from p2p sharing? What are the efficiencies? What is the content that otherwise +would be unavailable?" + +For unlike the piracy I described in the first section of this chapter, much of +the "piracy" that file sharing enables is plainly legal and good. And like the +piracy I described in chapter 4, much of this piracy is motivated by a new way +of spreading content caused by changes in the technology of distribution. Thus, +consistent with the tradition that gave us Hollywood, radio, the recording +industry, and cable TV, the question we should be asking about file sharing is +how best to preserve its benefits while minimizing (to the extent possible) the +wrongful harm it causes artists. The question is one of balance. The law should +seek that balance, and that balance will be found only with time. + +"But isn't the war just a war against illegal sharing? Isn't the target just +what you call type A sharing?" +={ piracy : + profit reduction as criterion of +} + +You would think. And we should hope. But so far, it is not. The effect of the +war purportedly on type A sharing alone has been felt far beyond that one class +of sharing. That much is obvious from the Napster case itself. When Napster +told the district court that it had developed a technology to block the +transfer of 99.4 percent of identified infringing material, the district court +told counsel for Napster 99.4 percent was not good enough. Napster had to push +the infringements "down to zero."~{ See Transcript of Proceedings, In Re: +Napster Copyright Litigation at 34- 35 (N.D. Cal., 11 July 2001), nos. +MDL-00-1369 MHP, C 99-5183 MHP, available at link #21. For an account of the +litigation and its toll on Napster, see Joseph Menn, /{All the Rave: The Rise +and Fall of Shawn Fanning's Napster}/ (New York: Crown Business, 2003), 269-82. +}~ +={ copyright infringement lawsuits : + zero tolerance in +2 ; + Napster : + infringing material blocked by +1 ; + peer-to-peer (p2p) file sharing : + infringement protections in +1 +} + +If 99.4 percent is not good enough, then this is a war on file-sharing +technologies, not a war on copyright infringement. There is no way to assure +that a p2p system is used 100 percent of the time in compliance with the law, +any more than there is a way to assure that 100 percent of VCRs or 100 percent +of Xerox machines or 100 percent of handguns are used in compliance with the +law. Zero tolerance means zero p2p. The court's ruling means that we as a +society must lose the benefits of p2p, even for the totally legal and +beneficial uses they serve, simply to assure that there are zero copyright +infringements caused by p2p. + +Zero tolerance has not been our history. It has not produced the content +industry that we know today. The history of American law has been a process of +balance. As new technologies changed the way content was distributed, the law +adjusted, after some time, to the new technology. In this adjustment, the law +sought to ensure the legitimate rights of creators while protecting innovation. +Sometimes this has meant more rights for creators. Sometimes less. + +So, as we've seen, when "mechanical reproduction" threatened the interests of +composers, Congress balanced the rights of composers against the interests of +the recording industry. It granted rights to composers, but also to the +recording artists: Composers were to be paid, but at a price set by Congress. +But when radio started broadcasting the recordings made by these recording +artists, and they complained to Congress that their "creative property" was not +being respected (since the radio station did not have to pay them for the +creativity it broadcast), Congress rejected their claim. An indirect benefit +was enough. +={ artists : + recording industry payments to ; + composers, copyright protections of ; + Congress, U.S. : + on copyright laws +3 | on recording industry +1 ; + copyright law : + on music recordings +2 | statutory licenses in +2 ; + radio : + music recordings played on ; + recording industry : + artist remuneration in | copyright protections in | radio broadcast and ; + statutory licenses : + composer's rights vs. producers' rights in +} + +Cable TV followed the pattern of record albums. When the courts rejected the +claim that cable broadcasters had to pay for the content they rebroadcast, +Congress responded by giving broadcasters a right to compensation, but at a +level set by the law. It likewise gave cable companies the right to the +content, so long as they paid the statutory price. +={ cable television +1 ; + Congress, U.S. : + on cable television +1 ; + copyright law : + on cable television rebroadcasting +1 ; + television : + cable vs. broadcast +1 +} + +This compromise, like the compromise affecting records and player pianos, +served two important goals - indeed, the two central goals of any copyright +legislation. First, the law assured that new innovators would have the freedom +to develop new ways to deliver content. Second, the law assured that copyright +holders would be paid for the content that was distributed. One fear was that +if Congress simply required cable TV to pay copyright holders whatever they +demanded for their content, then copyright holders associated with broadcasters +would use their power to stifle this new technology, cable. But if Congress had +permitted cable to use broadcasters' content for free, then it would have +unfairly subsidized cable. Thus Congress chose a path that would assure +/{compensation}/ without giving the past (broadcasters) control over the future +(cable). +={ copyright law : + innovative freedom balanced with fair compensation in | two central goals of ; + innovation : + copyright profit balanced with | industry establishment opposed to +7 ; + player pianos +} + +In the same year that Congress struck this balance, two major producers and +distributors of film content filed a lawsuit against another technology, the +video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had +produced, the Betamax. Disney's and Universal's claim against Sony was +relatively simple: Sony produced a device, Disney and Universal claimed, that +enabled consumers to engage in copyright infringement. Because the device that +Sony built had a "record" button, the device could be used to record +copyrighted movies and shows. Sony was therefore benefiting from the copyright +infringement of its customers. It should therefore, Disney and Universal +claimed, be partially liable for that infringement. +={ Betamax +2 ; + cassette recording : + VCRs +2 ; + copyright infringement lawsuits : + distribution technology targeted in +12 ; + Disney, Inc. : + Sony Betamax technology opposed by +6 ; + film industry : + VCR taping facility opposed by +6 ; + Sony : + Betamax technology developed by +2 ; + television : + VCR taping of +2 ; + VCRs +2 ; + Universal Pictures +8 +} + +There was something to Disney's and Universal's claim. Sony did decide to +design its machine to make it very simple to record television shows. It could +have built the machine to block or inhibit any direct copying from a television +broadcast. Or possibly, it could have built the machine to copy only if there +were a special "copy me" signal on the line. It was clear that there were many +television shows that did not grant anyone permission to copy. Indeed, if +anyone had asked, no doubt the majority of shows would not have authorized +copying. And in the face of this obvious preference, Sony could have designed +its system to minimize the opportunity for copyright infringement. It did not, +and for that, Disney and Universal wanted to hold it responsible for the +architecture it chose. + +MPAA president Jack Valenti became the studios' most vocal champion. Valenti +called VCRs "tapeworms." He warned, "When there are 20, 30, 40 million of these +VCRs in the land, we will be invaded by millions of 'tapeworms,' eating away at +the very heart and essence of the most precious asset the copyright owner has, +his copyright."~{ Copyright Infringements (Audio and Video Recorders): Hearing +on S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st and +2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion Picture +Association of America, Inc.). }~ "One does not have to be trained in +sophisticated marketing and creative judgment," he told Congress, "to +understand the devastation on the after-theater marketplace caused by the +hundreds of millions of tapings that will adversely impact on the future of the +creative community in this country. It is simply a question of basic economics +and plain common sense."~{ Copyright Infringements (Audio and Video Recorders), +475. }~ Indeed, as surveys would later show, 45 percent of VCR owners had movie +libraries of ten videos or more~{ /{Universal City Studios, Inc. v. Sony Corp. +of America,}/ 480 F. Supp. 429, 438 (C.D. Cal., 1979). }~ - a use the Court +would later hold was not "fair." By "allowing VCR owners to copy freely by the +means of an exemption from copyright infringement without creating a mechanism +to compensate copyright owners," Valenti testified, Congress would "take from +the owners the very essence of their property: the exclusive right to control +who may use their work, that is, who may copy it and thereby profit from its +reproduction."~{ Copyright Infringements (Audio and Video Recorders), 485 +(testimony of Jack Valenti). }~ +={ Congress, U.S. : + on copyright laws +3 | on VCR technology ; + Valenti, Jack : + on VCR technology +1 +} + +It took eight years for this case to be resolved by the Supreme Court. In the +interim, the Ninth Circuit Court of Appeals, which includes Hollywood in its +jurisdiction - leading Judge Alex Kozinski, who sits on that court, refers to +it as the "Hollywood Circuit" - held that Sony would be liable for the +copyright infringement made possible by its machines. Under the Ninth Circuit's +rule, this totally familiar technology - which Jack Valenti had called "the +Boston Strangler of the American film industry" (worse yet, it was a +/{Japanese}/ Boston Strangler of the American film industry) - was an illegal +technology.~{ /{Universal City Studios, Inc. v. Sony Corp. of America,}/ 659 F. +2d 963 (9th Cir. 1981). }~ +={ Court of Appeals : + Ninth Circuit ; + Ninth Circuit Court of Appeals ; + Supreme Court, U.S. : + on VCR technology +3 ; + Kozinski, Alex +} + +But the Supreme Court reversed the decision of the Ninth Circuit. And in its +reversal, the Court clearly articulated its understanding of when and whether +courts should intervene in such disputes. As the Court wrote, +={ Supreme Court, U.S. : + on balance of interests in copyright law +2 +} + +_1 Sound policy, as well as history, supports our consistent deference to +Congress when major technological innovations alter the market for copyrighted +materials. Congress has the constitutional authority and the institutional +ability to accommodate fully the varied permutations of competing interests +that are inevitably implicated by such new technology."~{ /{Sony Corp. of +America v. Universal City Studios, Inc.,}/ 464 U.S. 417, 431 (1984). }~ +={ innovative freedom balanced with fair compensation in +12 ; + innovation : + copyright profit balanced with +12 +} + +Congress was asked to respond to the Supreme Court's decision. But as with the +plea of recording artists about radio broadcasts, Congress ignored the request. +Congress was convinced that American film got enough, this "taking" +notwithstanding. +={ cassette recording : + VCRs +3 ; + Congress, U.S. : + on copyright laws +4 | on VCR technology +3 ; + VCRs +3 +} + +If we put these cases together, a pattern is clear: + +table{~h c4; 10; 30; 30; 30; + +CASE +WHOSE VALUE WAS "PIRATED" +RESPONSE OF THE COURTS +RESPONSE OF CONGRESS + +Recordings +Composers +No Protection +Statutory License + +Radio +Recording Artists +N/A +Nothing + +Cable TV +Broadcasters +No Protection +Statutory License + +VCR +Film Creators +No Protection +Nothing + +}table + +In each case throughout our history, a new technology changed the way content +was distributed.~{ These are the most important instances in our history, but +there are other cases as well. The technology of digital audio tape (DAT), for +example, was regulated by Congress to minimize the risk of piracy. The remedy +Congress imposed did burden DAT producers, by taxing tape sales and controlling +the technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the +/{United States Code}/), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 +U.S.C. §1001. Again, however, this regulation did not eliminate the opportunity +for free riding in the sense I've described. See Lessig, /{Future,}/ 71. See +also Picker, "From Edison to the Broadcast Flag," /{University of Chicago Law +Review}/ 70 (2003): 293-96. }~ In each case, throughout our history, that +change meant that someone got a "free ride" on someone else's work. + +In /{none}/ of these cases did either the courts or Congress eliminate all free +riding. In /{none}/ of these cases did the courts or Congress insist that the +law should assure that the copyright holder get all the value that his +copyright created. In every case, the copyright owners complained of "piracy." +In every case, Congress acted to recognize some of the legiti macy in the +behavior of the "pirates." In each case, Congress allowed some new technology +to benefit from content made before. It balanced the interests at stake. + +When you think across these examples, and the other examples that make up the +first four chapters of this section, this balance makes sense. Was Walt Disney +a pirate? Would doujinshi be better if creators had to ask permission? Should +tools that enable others to capture and spread images as a way to cultivate or +criticize our culture be better regulated? Is it really right that building a +search engine should expose you to $15 million in damages? Would it have been +better if Edison had controlled film? Should every cover band have to hire a +lawyer to get permission to record a song? +={ Disney, Walt ; + Edison, Thomas +} + +We could answer yes to each of these questions, but our tradition has answered +no. In our tradition, as the Supreme Court has stated, copyright "has never +accorded the copyright owner complete control over all possible uses of his +work."~{ /{Sony Corp. of America v. Universal City Studios, Inc.,}/ 464 U.S. +417, 432 (1984). }~ Instead, the particular uses that the law regulates have +been defined by balancing the good that comes from granting an exclusive right +against the burdens such an exclusive right creates. And this balancing has +historically been done /{after}/ a technology has matured, or settled into the +mix of technologies that facilitate the distribution of content. +={ Supreme Court, U.S. : + on balance of interests in copyright law +} + +We should be doing the same thing today. The technology of the Internet is +changing quickly. The way people connect to the Internet (wires vs. wireless) +is changing very quickly. No doubt the network should not become a tool for +"stealing" from artists. But neither should the law become a tool to entrench +one particular way in which artists (or more accurately, distributors) get +paid. As I describe in some detail in the last chapter of this book, we should +be securing income to artists while we allow the market to secure the most +efficient way to promote and distribute content. This will require changes in +the law, at least in the interim. These changes should be designed to balance +the protection of the law against the strong public interest that innovation +continue. + +This is especially true when a new technology enables a vastly superior mode of +distribution. And this p2p has done. P2p technologies can be ideally efficient +in moving content across a widely diverse network. Left to develop, they could +make the network vastly more efficient. Yet these "potential public benefits," +as John Schwartz writes in /{The New York Times}/, "could be delayed in the P2P +fight."~{ John Schwartz, "New Economy: The Attack on Peer-to-Peer Software +Echoes Past Efforts," /{New York Times,}/ 22 September 2003, C3. }~ +={ peer-to-peer (p2p) file sharing : + benefits of +1 ; + Schwartz, John +} + +!_ Yet when anyone +begins to talk about "balance," the copyright warriors raise a different +argument. "All this hand waving about balance and incentives," they say, +"misses a fundamental point. Our content," the warriors insist, "is our +/{property}/. Why should we wait for Congress to 'rebalance' our property +rights? Do you have to wait before calling the police when your car has been +stolen? And why should Congress deliberate at all about the merits of this +theft? Do we ask whether the car thief had a good use for the car before we +arrest him?" + +"It is /{our property}/," the warriors insist. "And it should be protected just +as any other property is protected." + +:B~ "PROPERTY" + +1~intro_property [Intro]-# + +!_ The copyright warriors +are right: A copyright is a kind of property. It can be owned and sold, and the +law protects against its theft. Ordinarily, the copyright owner gets to hold +out for any price he wants. Markets reckon the supply and demand that partially +determine the price she can get. +={ copyright : + as property +5 ; + property rights : + copyright vs. +5 +} + +% would have placed index links on heading above, but is an un-numbered heading + +But in ordinary language, to call a copyright a "property" right is a bit +misleading, for the property of copyright is an odd kind of property. Indeed, +the very idea of property in any idea or any expression is very odd. I +understand what I am taking when I take the picnic table you put in your +backyard. I am taking a thing, the picnic table, and after I take it, you don't +have it. But what am I taking when I take the good /{idea}/ you had to put a +picnic table in the backyard - by, for example, going to Sears, buying a table, +and putting it in my backyard? What is the thing I am taking then? + +The point is not just about the thingness of picnic tables versus ideas, though +that's an important difference. The point instead is that in the ordinary case +- indeed, in practically every case except for a narrow range of exceptions - +ideas released to the world are free. I don't take anything from you when I +copy the way you dress - though I might seem weird if I did it every day, and +especially weird if you are a woman. Instead, as Thomas Jefferson said (and as +is especially true when I copy the way someone else dresses), - He who receives +an idea from me, receives instruction himself without lessening mine; as he who +lights his taper at mine, receives light without darkening me."~{ Letter from +Thomas Jefferson to Isaac McPherson (13 August 1813) in /{The Writings of +Thomas Jefferson,}/ vol. 6 (Andrew A. Lipscomb and Albert Ellery Bergh, eds., +1903), 330, 333-34. }~ +={ Jefferson, Thomas } + +The exceptions to free use are ideas and expressions within the reach of the +law of patent and copyright, and a few other domains that I won't discuss here. +Here the law says you can't take my idea or expression without my permission: +The law turns the intangible into property. +={ property rights : + intangibility of +} + +But how, and to what extent, and in what form - the details, in other words - +matter. To get a good sense of how this practice of turning the intangible into +property emerged, we need to place this "property" in its proper context.~{ As +the legal realists taught American law, all property rights are intangible. A +property right is simply a right that an individual has against the world to do +or not do certain things that may or may not attach to a physical object. The +right itself is intangible, even if the object to which it is (metaphorically) +attached is tangible. See Adam Mossoff, "What Is Property? Putting the Pieces +Back Together," /{Arizona Law Review}/ 45 (2003): 373, 429 n. 241. }~ + +My strategy in doing this will be the same as my strategy in the preceding +part. I offer four stories to help put the idea of "copyright material is +property" in context. Where did the idea come from? What are its limits? How +does it function in practice? After these stories, the significance of this +true statement - "copyright material is property" - will be a bit more clear, +and its implications will be revealed as quite different from the implications +that the copyright warriors would have us draw. + +1~ Chapter Six: Founders +={ books : + English copyright law developed for +40 ; + copyright law : + development of +40 | English +40 ; + England, copyright laws developed in +40 ; + United Kingdom : + history of copyright law in +40 +} + +!_ William Shakespeare +wrote /{Romeo and Juliet}/ in 1595. The play was first published in 1597. It +was the eleventh major play that Shakespeare had written. He would continue to +write plays through 1613, and the plays that he wrote have continued to define +Anglo-American culture ever since. So deeply have the works of a +sixteenth-century writer seeped into our culture that we often don't even +recognize their source. I once overheard someone commenting on Kenneth +Branagh's adaptation of Henry V: "I liked it, but Shakespeare is so full of +clichés." +={ Branagh, Kenneth ; + Henry V. ; + Shakespeare, William ; + Romeo and Juliet (Shakespeare) +2 +} + +In 1774, almost 180 years after /{Romeo and Juliet}/ was written, the +"copy-right" for the work was still thought by many to be the exclusive right +of a single London publisher, Jacob Tonson.~{ Jacob Tonson is typically +remembered for his associations with prominent eighteenth-century literary +figures, especially John Dryden, and for his handsome "definitive editions" of +classic works. In addition to /{Romeo and Juliet,}/ he published an astonishing +array of works that still remain at the heart of the English canon, including +collected works of Shakespeare, Ben Jonson, John Milton, and John Dryden. See +Keith Walker, "Jacob Tonson, Bookseller," /{American Scholar}/ 61:3 (1992): +424-31. }~ Tonson was the most prominent of a small group of publishers called +the Conger~{ Lyman Ray Patterson, /{Copyright in Historical Perspective}/ +(Nashville: Vanderbilt University Press, 1968), 151-52. }~ who controlled +bookselling in England during the eighteenth century. The Conger claimed a +perpetual right to control the "copy" of books that they had acquired from +authors. That perpetual right meant that no one else could publish copies of a +book to which they held the copyright. Prices of the classics were thus kept +high; competition to produce better or cheaper editions was eliminated. +={ Conger ; + Tonson, Jacob +1 +} + +Now, there's something puzzling about the year 1774 to anyone who knows a +little about copyright law. The better-known year in the history of copyright +is 1710, the year that the British Parliament adopted the first "copyright" +act. Known as the Statute of Anne, the act stated that all published works +would get a copyright term of fourteen years, renewable once if the author was +alive, and that all works already published by 1710 would get a single term of +twenty-one additional years.~{ As Siva Vaidhyanathan nicely argues, it is +erroneous to call this a "copyright law." See Vaidhyanathan, /{Copyrights and +Copywrongs,}/ 40. }~ Under this law, /{Romeo and Juliet}/ should have been free +in 1731. So why was there any issue about it still being under Tonson's control +in 1774? +={ British Parliament ; + copyright : + duration of +1 | renewability of ; + Statute of Anne (1710) +} + +The reason is that the English hadn't yet agreed on what a "copyright" was - +indeed, no one had. At the time the English passed the Statute of Anne, there +was no other legislation governing copyrights. The last law regulating +publishers, the Licensing Act of 1662, had expired in 1695. That law gave +publishers a monopoly over publishing, as a way to make it easier for the Crown +to control what was published. But after it expired, there was no positive law +that said that the publishers, or "Stationers," had an exclusive right to print +books. +={ law : + common vs. positive +1 ; + positive law ; + Licensing Act (1662) +} + +There was no /{positive}/ law, but that didn't mean that there was no law. The +Anglo-American legal tradition looks to both the words of legislatures and the +words of judges to know the rules that are to govern how people are to behave. +We call the words from legislatures "positive law." We call the words from +judges "common law." The common law sets the background against which +legislatures legislate; the legislature, ordinarily, can trump that background +only if it passes a law to displace it. And so the real question after the +licensing statutes had expired was whether the common law protected a +copyright, independent of any positive law. +={ common law } + +This question was important to the publishers, or "booksellers," as they were +called, because there was growing competition from foreign publishers. The +Scottish, in particular, were increasingly publishing and exporting books to +England. That competition reduced the profits of the Conger, which reacted by +demanding that Parliament pass a law to again give them exclusive control over +publishing. That demand ultimately resulted in the Statute of Anne. +={ Conger ; + British Parliament +2 ; + Scottish publishers ; + Statute of Anne (1710) +1 +} + +The Statute of Anne granted the author or "proprietor" of a book an exclusive +right to print that book. In an important limitation, however, and to the +horror of the booksellers, the law gave the bookseller that right for a limited +term. At the end of that term, the copyright "expired," and the work would then +be free and could be published by anyone. Or so the legislature is thought to +have believed. +={ copyright : + as narrow monopoly right +33 +} + +Now, the thing to puzzle about for a moment is this: Why would Parliament limit +the exclusive right? Not why would they limit it to the particular limit they +set, but why would they limit the right /{at all?}}/ + +For the booksellers, and the authors whom they represented, had a very strong +claim. Take /{Romeo and Juliet}/ as an example: That play was written by +Shakespeare. It was his genius that brought it into the world. He didn't take +anybody's property when he created this play (that's a controversial claim, but +never mind), and by his creating this play, he didn't make it any harder for +others to craft a play. So why is it that the law would ever allow someone else +to come along and take Shakespeare's play without his, or his estate's, +permission? What reason is there to allow someone else to "steal" Shakespeare's +work? +={ Shakespeare, William ; + Romeo and Juliet (Shakespeare) +} + +The answer comes in two parts. We first need to see something special about the +notion of "copyright" that existed at the time of the Statute of Anne. Second, +we have to see something important about "booksellers." +={ Statute of Anne (1710) } + +First, about copyright. In the last three hundred years, we have come to apply +the concept of "copyright" ever more broadly. But in 1710, it wasn't so much a +concept as it was a very particular right. The copyright was born as a very +specific set of restrictions: It forbade others from reprinting a book. In +1710, the "copy-right" was a right to use a particular machine to replicate a +particular work. It did not go beyond that very narrow right. It did not +control any more generally how a work could be /{used}/. Today the right +includes a large collection of restrictions on the freedom of others: It grants +the author the exclusive right to copy, the exclusive right to distribute, the +exclusive right to perform, and so on. +={ usage restrictions attached to } + +So, for example, even if the copyright to Shakespeare's works were perpetual, +all that would have meant under the original meaning of the term was that no +one could reprint Shakespeare's work without the permission of the Shakespeare +estate. It would not have controlled anything, for example, about how the work +could be performed, whether the work could be translated, or whether Kenneth +Branagh would be allowed to make his films. The "copy-right" was only an +exclusive right to print - no less, of course, but also no more. +={ Branagh, Kenneth ; + Shakespeare, William +} + +Even that limited right was viewed with skepticism by the British. They had had +a long and ugly experience with "exclusive rights," especially "exclusive +rights" granted by the Crown. The English had fought a civil war in part about +the Crown's practice of handing out monopolies - especially monopolies for +works that already existed. King Henry VIII granted a patent to print the Bible +and a monopoly to Darcy to print playing cards. The English Parliament began to +fight back against this power of the Crown. In 1656, it passed the Statute of +Monopolies, limiting monopolies to patents for new inventions. And by 1710, +Parliament was eager to deal with the growing monopoly in publishing. +={ Henry VIII, King of England ; + monopoly, copyright as +27 ; + Statue of Monopolies (1656) +} + +Thus the "copy-right," when viewed as a monopoly right, was naturally viewed as +a right that should be limited. (However convincing the claim that "it's my +property, and I should have it forever," try sounding convincing when uttering, +"It's my monopoly, and I should have it forever.") The state would protect the +exclusive right, but only so long as it benefited society. The British saw the +harms from special-interest favors; they passed a law to stop them. + +Second, about booksellers. It wasn't just that the copyright was a monopoly. It +was also that it was a monopoly held by the booksellers. Booksellers sound +quaint and harmless to us. They were not viewed as harmless in +seventeenth-century England. Members of the Conger were increasingly seen as +monopolists of the worst kind - tools of the Crown's repression, selling the +liberty of England to guarantee themselves a monopoly profit. The attacks +against these monopolists were harsh: Milton described them as "old patentees +and monopolizers in the trade of book-selling"; they were "men who do not +therefore labour in an honest profession to which learning is indetted."~{ +Philip Wittenberg, /{The Protection and Marketing of Literary Property}/ (New +York: J. Messner, Inc., 1937), 31. }~ +={ Milton, John ; + booksellers, English +25 ; + Conger ; + copyright : + duration of +25 +} + +Many believed the power the booksellers exercised over the spread of knowledge +was harming that spread, just at the time the Enlightenment was teaching the +importance of education and knowledge spread generally. The idea that knowledge +should be free was a hallmark of the time, and these powerful commercial +interests were interfering with that idea. +={ Enlightenment ; + knowledge, freedom of +} + +To balance this power, Parliament decided to increase competition among +booksellers, and the simplest way to do that was to spread the wealth of +valuable books. Parliament therefore limited the term of copyrights, and +thereby guaranteed that valuable books would become open to any publisher to +publish after a limited time. Thus the setting of the term for existing works +to just twenty-one years was a compromise to fight the power of the +booksellers. The limitation on terms was an indirect way to assure competition +among publishers, and thus the construction and spread of culture. +={ British Parliament +4 } + +When 1731 (1710 + 21) came along, however, the booksellers were getting +anxious. They saw the consequences of more competition, and like every +competitor, they didn't like them. At first booksellers simply ignored the +Statute of Anne, continuing to insist on the perpetual right to control +publication. But in 1735 and 1737, they tried to persuade Parliament to extend +their terms. Twenty-one years was not enough, they said; they needed more time. +={ Statute of Anne (1710) +2 ; + copyright : + in perpetuity +2 +} + +Parliament rejected their requests. As one pamphleteer put it, in words that +echo today, + +_1 I see no Reason for granting a further Term now, which will not hold as well +for granting it again and again, as often as the Old ones Expire; so that +should this Bill pass, it will in Effect be establishing a perpetual Monopoly, +a Thing deservedly odious in the Eye of the Law; it will be a great Cramp to +Trade, a Discouragement to Learning, no Benefit to the Authors, but a general +Tax on the Publick; and all this only to increase the private Gain of the +Booksellers."~{ A Letter to a Member of Parliament concerning the Bill now +depending in the House of Commons, for making more effectual an Act in the +Eighth Year of the Reign of Queen Anne, entitled, An Act for the Encouragement +of Learning, by Vesting the Copies of Printed Books in the Authors or +Purchasers of such Copies, during the Times therein mentioned (London, 1735), +in Brief Amici Curiae of Tyler T. Ochoa et al., 8, /{Eldred v. Ashcroft,}/ 537 +U.S. 186 (2003) (No. 01- 618). }~ + +Having failed in Parliament, the publishers turned to the courts in a series of +cases. Their argument was simple and direct: The Statute of Anne gave authors +certain protections through positive law, but those protections were not +intended as replacements for the common law. Instead, they were intended simply +to supplement the common law. Under common law, it was already wrong to take +another person's creative "property" and use it without his permission. The +Statute of Anne, the booksellers argued, didn't change that. Therefore, just +because the protections of the Statute of Anne expired, that didn't mean the +protections of the common law expired: Under the common law they had the right +to ban the publication of a book, even if its Statute of Anne copyright had +expired. This, they argued, was the only way to protect authors. +={ common law ; + law : + common vs. positive ; + positive law +} + +This was a clever argument, and one that had the support of some of the leading +jurists of the day. It also displayed extraordinary chutzpah. Until then, as +law professor Raymond Patterson has put it, "The publishers ... had as much +concern for authors as a cattle rancher has for cattle."~{ Lyman Ray Patterson, +"Free Speech, Copyright, and Fair Use," /{Vanderbilt Law Review}/ 40 (1987): +28. For a wonderfully compelling account, see Vaidhyanathan, 37-48. }~ The +bookseller didn't care squat for the rights of the author. His concern was the +monopoly profit that the author's work gave. + +The booksellers' argument was not accepted without a fight. The hero of this +fight was a Scottish bookseller named Alexander Donaldson.~{ For a compelling +account, see David Saunders, /{Authorship and Copyright}/ (London: Routledge, +1992), 62-69. }~ +={ Donaldson, Alexander +3 ; + Patterson, Raymond ; + Scottish publishers +3 +} + +Donaldson was an outsider to the London Conger. He began his career in +Edinburgh in 1750. The focus of his business was inexpensive reprints "of +standard works whose copyright term had expired," at least under the Statute of +Anne.~{ Mark Rose, /{Authors and Owners}/ (Cambridge: Harvard University Press, +1993), 92. }~ Donaldson's publishing house prospered and became "something of a +center for literary Scotsmen." "[A]mong them," Professor Mark Rose writes, was +"the young James Boswell who, together with his friend Andrew Erskine, +published an anthology of contemporary Scottish poems with Donaldson."~{ Ibid., +93. }~ +={ Statute of Anne (1710) +8 ; + Conger +1 ; + Boswell, James ; + Erskine, Andrew ; + Rose, Mark +} + +When the London booksellers tried to shut down Donaldson's shop in Scotland, he +responded by moving his shop to London, where he sold inexpensive editions "of +the most popular English books, in defiance of the supposed common law right of +Literary Property."~{ Lyman Ray Patterson, /{Copyright in Historical +Perspective,}/ 167 (quoting Borwell). }~ His books undercut the Conger prices +by 30 to 50 percent, and he rested his right to compete upon the ground that, +under the Statute of Anne, the works he was selling had passed out of +protection. +={ common law +3 } + +The London booksellers quickly brought suit to block "piracy" like Donaldson's. +A number of actions were successful against the "pirates," the most important +early victory being /{Millar v. Taylor}/. +={ Millar v. Taylor +5 } + +Millar was a bookseller who in 1729 had purchased the rights to James Thomson's +poem "The Seasons." Millar complied with the requirements of the Statute of +Anne, and therefore received the full protection of the statute. After the term +of copyright ended, Robert Taylor began printing a competing volume. Millar +sued, claiming a perpetual common law right, the Statute of Anne +notwithstanding.~{ Howard B. Abrams, "The Historic Foundation of American +Copyright Law: Exploding the Myth of Common Law Copyright," /{Wayne Law +Review}/ 29 (1983): 1152. }~ +={ Thomson, James +1 ; + copyright : + in perpetuity +1 ; + Seasons, The (Thomson) ; + Taylor, Robert +} + +Astonishingly to modern lawyers, one of the greatest judges in English history, +Lord Mansfield, agreed with the booksellers. Whatever protection the Statute of +Anne gave booksellers, it did not, he held, extinguish any common law right. +The question was whether the common law would protect the author against +subsequent "pirates." Mansfield's answer was yes: The common law would bar +Taylor from reprinting Thomson's poem without Millar's permission. That common +law rule thus effectively gave the booksellers a perpetual right to control the +publication of any book assigned to them. +={ Mansfield, William Murray, Lord +1 } + +Considered as a matter of abstract justice - reasoning as if justice were just +a matter of logical deduction from first principles - Mansfield's conclusion +might make some sense. But what it ignored was the larger issue that Parliament +had struggled with in 1710: How best to limit the monopoly power of publishers? +Parliament's strategy was to offer a term for existing works that was long +enough to buy peace in 1710, but short enough to assure that culture would pass +into competition within a reasonable period of time. Within twenty-one years, +Parliament believed, Britain would mature from the controlled culture that the +Crown coveted to the free culture that we inherited. +={ British Parliament +2 } + +The fight to defend the limits of the Statute of Anne was not to end there, +however, and it is here that Donaldson enters the mix. +={ Donaldson, Alexander +5 ; + Scottish publishers +5 ; + Statute of Anne (1710) +2 +} + +Millar died soon after his victory, so his case was not appealed. His estate +sold Thomson's poems to a syndicate of printers that included Thomas Beckett. +~{ Ibid., 1156. }~ Donaldson then released an unauthorized edition of Thomson's +works. Beckett, on the strength of the decision in /{Millar}/, got an +injunction against Donaldson. Donaldson appealed the case to the House of +Lords, which functioned much like our own Supreme Court. In February of 1774, +that body had the chance to interpret the meaning of Parliament's limits from +sixty years before. +={ Thomson, James ; + Becket, Thomas ; + House of Lords +5 ; + Supreme Court, U.S. : + House of Lords vs. +2 +} + +As few legal cases ever do, /{Donaldson v. Beckett}/ drew an enormous amount of +attention throughout Britain. Donaldson's lawyers argued that whatever rights +may have existed under the common law, the Statute of Anne terminated those +rights. After passage of the Statute of Anne, the only legal protection for an +exclusive right to control publication came from that statute. Thus, they +argued, after the term specified in the Statute of Anne expired, works that had +been protected by the statute were no longer protected. +={ Donaldson v. Beckett +8 ; + common law +3 +} + +The House of Lords was an odd institution. Legal questions were presented to +the House and voted upon first by the "law lords," members of special legal +distinction who functioned much like the Justices in our Supreme Court. Then, +after the law lords voted, the House of Lords generally voted. + +The reports about the law lords' votes are mixed. On some counts, it looks as +if perpetual copyright prevailed. But there is no ambiguity about how the House +of Lords voted as whole. By a two-to-one majority (22 to 11) they voted to +reject the idea of perpetual copyrights. Whatever one's understanding of the +common law, now a copyright was fixed for a limited time, after which the work +protected by copyright passed into the public domain. +={ copyright : + in perpetuity +1 ; + public domain : + English legal establishment of +1 +} + +"The public domain." Before the case of /{Donaldson v. Beckett}/, there was no +clear idea of a public domain in England. Before 1774, there was a strong +argument that common law copyrights were perpetual. After 1774, the public +domain was born. For the first time in Anglo- American history, the legal +control over creative works expired, and the greatest works in English history +- including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan - were +free of legal restraint. +={ Bacon, Francis ; + Bunyan, John ; + Johnson, Samuel ; + Milton, John ; + Shakespeare, William +} + +It is hard for us to imagine, but this decision by the House of Lords fueled an +extraordinarily popular and political reaction. In Scotland, where most of the +"pirate publishers" did their work, people celebrated the decision in the +streets. As the /{Edinburgh Advertiser}/ reported, "No private cause has so +much engrossed the attention of the public, and none has been tried before the +House of Lords in the decision of which so many individuals were interested." +"Great rejoicing in Edinburgh upon victory over literary property: bonfires and +illuminations."~{ Rose, 97. }~ +={ Scottish publishers } + +In London, however, at least among publishers, the reaction was equally strong +in the opposite direction. The /{Morning Chronicle}/ reported: + +_1 By the above decision ... near 200,000 pounds worth of what was honestly +purchased at public sale, and which was yesterday thought property is now +reduced to nothing. The Booksellers of London and Westminster, many of whom +sold estates and houses to purchase Copy-right, are in a manner ruined, and +those who after many years industry thought they had acquired a competency to +provide for their families now find themselves without a shilling to devise to +their successors."~{ Ibid. }~ + +"Ruined" is a bit of an exaggeration. But it is not an exaggeration to say that +the change was profound. The decision of the House of Lords meant that the +booksellers could no longer control how culture in England would grow and +develop. Culture in England was thereafter /{free}/. Not in the sense that +copyrights would not be respected, for of course, for a limited time after a +work was published, the bookseller had an exclusive right to control the +publication of that book. And not in the sense that books could be stolen, for +even after a copyright expired, you still had to buy the book from someone. But +/{free}/ in the sense that the culture and its growth would no longer be +controlled by a small group of publishers. As every free market does, this free +market of free culture would grow as the consumers and producers chose. English +culture would develop as the many English readers chose to let it develop - +chose in the books they bought and wrote; chose in the memes they repeated and +endorsed. Chose in a /{competitive context}/, not a context in which the +choices about what culture is available to people and how they get access to it +are made by the few despite the wishes of the many. +={ House of Lords ; + free culture : + English legal establishment of +} + +At least, this was the rule in a world where the Parliament is anti-monopoly, +resistant to the protectionist pleas of publishers. In a world where the +Parliament is more pliant, free culture would be less protected. +={ British Parliament } + +1~ Chapter Seven: Recorders +={ copyright law : + fair use and +22 ; + documentary film +22 ; + Else, Jon +22 ; + fair use : + in documentary film +22 ; + films : + fair use of copyrighted material in +22 +} + +!_ Jon Else +is a filmmaker. He is best known for his documentaries and has been very +successful in spreading his art. He is also a teacher, and as a teacher myself, +I envy the loyalty and admiration that his students feel for him. (I met, by +accident, two of his students at a dinner party. He was their god.) + +Else worked on a documentary that I was involved in. At a break, he told me a +story about the freedom to create with film in America today. + +In 1990, Else was working on a documentary about Wagner's Ring Cycle. The focus +was stagehands at the San Francisco Opera. Stage- hands are a particularly +funny and colorful element of an opera. During a show, they hang out below the +stage in the grips' lounge and in the lighting loft. They make a perfect +contrast to the art on the stage. +={ Wagner, Richard +1 ; + San Francisco Opera +} + +During one of the performances, Else was shooting some stage- hands playing +checkers. In one corner of the room was a television set. Playing on the +television set, while the stagehands played checkers and the opera company +played Wagner, was /{The Simpsons}/. As Else judged it, this touch of cartoon +helped capture the flavor of what was special about the scene. +={ Simpsons, The +16 } + +Years later, when he finally got funding to complete the film, Else attempted +to clear the rights for those few seconds of /{The Simpsons}/. For of course, +those few seconds are copyrighted; and of course, to use copyrighted material +you need the permission of the copyright owner, unless "fair use" or some other +privilege applies. +={ films : + multiple copyrights associated with +} + +Else called /{Simpsons}/ creator Matt Groening's office to get permission. +Groening approved the shot. The shot was a four-and-a-half-second image on a +tiny television set in the corner of the room. How could it hurt? Groening was +happy to have it in the film, but he told Else to contact Gracie Films, the +company that produces the program. +={ Gracie Films +1 ; + Groening, Matt +2 +} + +Gracie Films was okay with it, too, but they, like Groening, wanted to be +careful. So they told Else to contact Fox, Gracie's parent company. Else called +Fox and told them about the clip in the corner of the one room shot of the +film. Matt Groening had already given permission, Else said. He was just +confirming the permission with Fox. +={ Fox (film company) +1 } + +Then, as Else told me, "two things happened. First we discovered ... that Matt +Groening doesn't own his own creation - or at least that someone [at Fox] +believes he doesn't own his own creation." And second, Fox "wanted ten thousand +dollars as a licensing fee for us to use this four-point-five seconds of ... +entirely unsolicited /{Simpsons}/ which was in the corner of the shot." + +Else was certain there was a mistake. He worked his way up to someone he +thought was a vice president for licensing, Rebecca Herrera. He explained to +her, "There must be some mistake here. ... We're asking for your educational +rate on this." That was the educational rate, Herrera told Else. A day or so +later, Else called again to confirm what he had been told. +={ Herrera, Rebecca +1 } + +"I wanted to make sure I had my facts straight," he told me. "Yes, you have +your facts straight," she said. It would cost $10,000 to use the clip of /{The +Simpsons}/ in the corner of a shot in a documentary film about Wagner's Ring +Cycle. And then, astonishingly, Herrera told Else, "And if you quote me, I'll +turn you over to our attorneys." As an assistant to Herrera told Else later on, +"They don't give a shit. They just want the money." +={ Wagner, Richard } + +Else didn't have the money to buy the right to replay what was playing on the +television backstage at the San Francisco Opera.To reproduce this reality was +beyond the documentary filmmaker's budget. At the very last minute before the +film was to be released, Else digitally replaced the shot with a clip from +another film that he had worked on, /{The Day After Trinity}/, from ten years +before. +={ San Francisco Opera ; + Day After Trinity, The +} + +!_ There's no doubt +that someone, whether Matt Groening or Fox, owns the copyright to /{The +Simpsons}/. That copyright is their property. To use that copyrighted material +thus sometimes requires the permission of the copyright owner. If the use that +Else wanted to make of the /{Simpsons}/ copyright were one of the uses +restricted by the law, then he would need to get the permission of the +copyright owner before he could use the work in that way. And in a free market, +it is the owner of the copyright who gets to set the price for any use that the +law says the owner gets to control. +={ Fox (film company) +2 ; + Groening, Matt +2 +} + +For example, "public performance" is a use of /{The Simpsons}/ that the +copyright owner gets to control. If you take a selection of favorite episodes, +rent a movie theater, and charge for tickets to come see "My Favorite +/{Simpsons}/," then you need to get permission from the copyright owner. And +the copyright owner (rightly, in my view) can charge whatever she wants - $10 +or $1,000,000. That's her right, as set by the law. + +But when lawyers hear this story about Jon Else and Fox, their first thought is +"fair use."~{ For an excellent argument that such use is "fair use," but that +lawyers don't permit recognition that it is "fair use," see Richard A. Posner +with William F. Patry, "Fair Use and Statutory Reform in the Wake of +/{Eldred}/" (draft on file with author), University of Chicago Law School, 5 +August 2003. }~ Else's use of just 4.5 seconds of an indirect shot of a +/{Simpsons}/ episode is clearly a fair use of /{The Simpsons}/ - and fair use +does not require the permission of anyone. + +So I asked Else why he didn't just rely upon "fair use." Here's his reply: + +_1 The /{Simpsons}/ fiasco was for me a great lesson in the gulf between what +lawyers find irrelevant in some abstract sense, and what is crushingly relevant +in practice to those of us actually trying to make and broadcast documentaries. +I never had any doubt that it was "clearly fair use" in an absolute legal +sense. But I couldn't rely on the concept in any concrete way. Here's why: +={ fair use : + legal intimidation tactics against +6 +} + +_1 1. Before our films can be broadcast, the network requires that we buy +Errors and Omissions insurance. The carriers require a detailed "visual cue +sheet" listing the source and licensing status of each shot in the film. They +take a dim view of "fair use," and a claim of "fair use" can grind the +application process to a halt. +={ Errors and Omissions insurance } + +_1 2. I probably never should have asked Matt Groening in the first place. But +I knew (at least from folklore) that Fox had a history of tracking down and +stopping unlicensed /{Simpsons}/ usage, just as George Lucas had a very high +profile litigating /{Star Wars}/ usage. So I decided to play by the book, +thinking that we would be granted free or cheap license to four seconds of +/{Simpsons}/. As a documentary producer working to exhaustion on a shoestring, +the last thing I wanted was to risk legal trouble, even nuisance legal trouble, +and even to defend a principle. +={ Fox (film company) +1 ; + Groening, Matt ; + Lucas, George ; + Star Wars +} + +_1 3. I did, in fact, speak with one of your colleagues at Stanford Law School +... who confirmed that it was fair use. He also confirmed that Fox would +"depose and litigate you to within an inch of your life," regardless of the +merits of my claim. He made clear that it would boil down to who had the bigger +legal department and the deeper pockets, me or them. + +_1 4. The question of fair use usually comes up at the end of the project, when +we are up against a release deadline and out of money." + +In theory, fair use means you need no permission. The theory therefore supports +free culture and insulates against a permission culture. But in practice, fair +use functions very differently. The fuzzy lines of the law, tied to the +extraordinary liability if lines are crossed, means that the effective fair use +for many types of creators is slight. The law has the right aim; practice has +defeated the aim. + +This practice shows just how far the law has come from its eighteenth-century +roots. The law was born as a shield to protect publishers' profits against the +unfair competition of a pirate. It has matured into a sword that interferes +with any use, transformative or not. + +1~ Chapter Eight: Transformers +={ films : + clips and collages of +37 +} + +!_ In 1993, +Alex Alben was a lawyer working at Starwave, Inc. Starwave was an innovative +company founded by Microsoft cofounder Paul Allen to develop digital +entertainment. Long before the Internet became popular, Starwave began +investing in new technology for delivering entertainment in anticipation of the +power of networks. +={ Alben, Alex +27 ; + Allen, Paul ; + Microsoft ; + Starwave +7 +} + +Alben had a special interest in new technology. He was intrigued by the +emerging market for CD-ROM technology - not to distribute film, but to do +things with film that otherwise would be very difficult. In 1993, he launched +an initiative to develop a product to build retrospectives on the work of +particular actors. The first actor chosen was Clint Eastwood. The idea was to +showcase all of the work of Eastwood, with clips from his films and interviews +with figures important to his career. +={ artists : + retrospective collections on +21 ; + CD-ROMs, film clips used in +21 ; + Eastwood, Clint +15 +} + +At that time, Eastwood had made more than fifty films, as an actor and as a +director. Alben began with a series of interviews with Eastwood, asking him +about his career. Because Starwave produced those interviews, it was free to +include them on the CD. + +That alone would not have made a very interesting product, so Starwave wanted +to add content from the movies in Eastwood's career: posters, scripts, and +other material relating to the films Eastwood made. Most of his career was +spent at Warner Brothers, and so it was relatively easy to get permission for +that content. +={ permissions : + for use of film clips +33 ; + Warner Brothers +} + +Then Alben and his team decided to include actual film clips. "Our goal was +that we were going to have a clip from every one of East-wood's films," Alben +told me. It was here that the problem arose. "No one had ever really done this +before," Alben explained. "No one had ever tried to do this in the context of +an artistic look at an actor's career." +={ films : + multiple copyrights associated with +14 +} + +Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, +"Well, what will it take?" +={ Slade, Michael +2 } + +Alben replied, "Well, we're going to have to clear rights from everyone who +appears in these films, and the music and everything else that we want to use +in these film clips." Slade said, "Great! Go for it."~{ Technically, the rights +that Alben had to clear were mainly those of publicity"rights an artist has to +control the commercial exploitation of his image. But these rights, too, burden +"Rip, Mix, Burn" creativity, as this chapter evinces. }~ + +The problem was that neither Alben nor Slade had any idea what clearing those +rights would mean. Every actor in each of the films could have a claim to +royalties for the reuse of that film. But CD-ROMs had not been specified in the +contracts for the actors, so there was no clear way to know just what Starwave +was to do. + +I asked Alben how he dealt with the problem. With an obvious pride in his +resourcefulness that obscured the obvious bizarreness of his tale, Alben +recounted just what they did: + +_1 So we very mechanically went about looking up the film clips. We made some +artistic decisions about what film clips to include - of course we were going +to use the "Make my day" clip from /{Dirty Harry}/. But you then need to get +the guy on the ground who's wiggling under the gun and you need to get his +permission. And then you have to decide what you are going to pay him. +={ Dirty, Harry } + +_1 We decided that it would be fair if we offered them the day-player rate for +the right to reuse that performance. We're talking about a clip of less than a +minute, but to reuse that performance in the CD-ROM the rate at the time was +about $600. + +_1 So we had to identify the people - some of them were hard to identify +because in Eastwood movies you can't tell who's the guy crashing through the +glass - is it the actor or is it the stuntman? And then we just, we put +together a team, my assistant and some others, and we just started calling +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 } + +It was one /{year}/ later - " and even then we weren't sure whether we were +totally in the clear." + +Alben is proud of his work. The project was the first of its kind and the only +time he knew of that a team had undertaken such a massive project for the +purpose of releasing a retrospective. + +_1 Everyone thought it would be too hard. Everyone just threw up their hands +and said, "Oh, my gosh, a film, it's so many copyrights, there's the music, +there's the screenplay, there's the director, there's the actors." But we just +broke it down. We just put it into its constituent parts and said, "Okay, +there's this many actors, this many directors, ... this many musicians," and we +just went at it very systematically and cleared the rights." + +And no doubt, the product itself was exceptionally good. Eastwood loved it, and +it sold very well. + +But I pressed Alben about how weird it seems that it would have to take a +year's work simply to clear rights. No doubt Alben had done this efficiently, +but as Peter Drucker has famously quipped, "There is nothing so useless as +doing efficiently that which should not be done at all."~{ U.S. Department of +Commerce Office of Acquisition Management, /{Seven Steps to Performance-Based +Services Acquisition,}/ available at link #22. }~ Did it make sense, I asked +Alben, that this is the way a new work has to be made? +={ Drucker, Peter } + +For, as he acknowledged, "very few ... have the time and resources, and the +will to do this," and thus, very few such works would ever be made. Does it +make sense, I asked him, from the standpoint of what anybody really thought +they were ever giving rights for originally, that you would have to go clear +rights for these kinds of clips? + +_1 I don't think so. When an actor renders a performance in a movie, he or she +gets paid very well. ... And then when 30 seconds of that performance is used +in a new product that is a retrospective of somebody's career, I don't think +that that person ... should be compensated for that." + +Or at least, is this /{how}/ the artist should be compensated? Would it make +sense, I asked, for there to be some kind of statutory license that someone +could pay and be free to make derivative use of clips like this? Did it really +make sense that a follow-on creator would have to track down every artist, +actor, director, musician, and get explicit permission from each? Wouldn't a +lot more be created if the legal part of the creative process could be made to +be more clean? + +_1 Absolutely. I think that if there were some fair-licensing mechanism - where +you weren't subject to hold-ups and you weren't subject to estranged former +spouses - you'd see a lot more of this work, because it wouldn't be so daunting +to try to put together a retrospective of someone's career and meaningfully +illustrate it with lots of media from that person's career. You'd build in a +cost as the producer of one of these things. You'd build in a cost of paying X +dollars to the talent that performed. But it would be a known cost. That's the +thing that trips everybody up and makes this kind of product hard to get off +the ground. If you knew I have a hundred minutes of film in this product and +it's going to cost me X, then you build your budget around it, and you can get +investments and everything else that you need to produce it. But if you say, +"Oh, I want a hundred minutes of something and I have no idea what it's going +to cost me, and a certain number of people are going to hold me up for money," +then it becomes difficult to put one of these things together." + +Alben worked for a big company. His company was backed by some of the richest +investors in the world. He therefore had authority and access that the average +Web designer would not have. So if it took him a year, how long would it take +someone else? And how much creativity is never made just because the costs of +clearing the rights are so high? + +These costs are the burdens of a kind of regulation. Put on a Republican hat +for a moment, and get angry for a bit. The government defines the scope of +these rights, and the scope defined determines how much it's going to cost to +negotiate them. (Remember the idea that land runs to the heavens, and imagine +the pilot purchasing fly- through rights as he negotiates to fly from Los +Angeles to San Francisco.) These rights might well have once made sense; but as +circumstances change, they make no sense at all. Or at least, a well-trained, +regulation-minimizing Republican should look at the rights and ask, "Does this +still make sense?" +={ Republican Party } + +I've seen the flash of recognition when people get this point, but only a few +times. The first was at a conference of federal judges in California. The +judges were gathered to discuss the emerging topic of cyber-law. I was asked to +be on the panel. Harvey Saferstein, a well-respected lawyer from an L.A. firm, +introduced the panel with a video that he and a friend, Robert Fairbank, had +produced. +={ Saferstein, Harvey ; + Fairbank, Robert +} + +The video was a brilliant collage of film from every period in the twentieth +century, all framed around the idea of a /{60 Minutes}/ episode. The execution +was perfect, down to the sixty-minute stopwatch. The judges loved every minute +of it. +={ 60 Minutes } + +When the lights came up, I looked over to my copanelist, David Nimmer, perhaps +the leading copyright scholar and practitioner in the nation. He had an +astonished look on his face, as he peered across the room of over 250 well- +entertained judges. Taking an ominous tone, he began his talk with a question: +"Do you know how many federal laws were just violated in this room?" +={ Nimmer, David +1 } + +For of course, the two brilliantly talented creators who made this film hadn't +done what Alben did. They hadn't spent a year clearing the rights to these +clips; technically, what they had done violated the law. Of course, it wasn't +as if they or anyone were going to be prosecuted for this violation (the +presence of 250 judges and a gaggle of federal marshals notwithstanding). But +Nimmer was making an important point: A year before anyone would have heard of +the word Napster, and two years before another member of our panel, David +Boies, would defend Napster before the Ninth Circuit Court of Appeals, Nimmer +was trying to get the judges to see that the law would not be friendly to the +capacities that this technology would enable. Technology means you can now do +amazing things easily; but you couldn't easily do them legally. +={ Alben, Alex ; + Boies, David ; + Court of Appeals : + Ninth Circuit ; + Ninth Circuit Court of Appeals ; + Napster +} + +!_ We live in +a "cut and paste" culture enabled by technology. Anyone building a presentation +knows the extraordinary freedom that the cut and paste architecture of the +Internet created - in a second you can find just about any image you want; in +another second, you can have it planted in your presentation. +={ technology : + cut-and-paste culture enabled by +4 +} + +But presentations are just a tiny beginning. Using the Internet and its +archives, musicians are able to string together mixes of sound never before +imagined; filmmakers are able to build movies out of clips on computers around +the world. An extraordinary site in Sweden takes images of politicians and +blends them with music to create biting political commentary. A site called +Camp Chaos has produced some of the most biting criticism of the record +industry that there is through the mixing of Flash! and music. +={ Camp Chaos } + +All of these creations are technically illegal. Even if the creators wanted to +be "legal," the cost of complying with the law is impossibly high. Therefore, +for the law-abiding sorts, a wealth of creativity is never made. And for that +part that is made, if it doesn't follow the clearance rules, it doesn't get +released. + +To some, these stories suggest a solution: Let's alter the mix of rights so +that people are free to build upon our culture. Free to add or mix as they see +fit. We could even make this change without necessarily requiring that the +"free" use be free as in "free beer." Instead, the system could simply make it +easy for follow-on creators to compensate artists without requiring an army of +lawyers to come along: a rule, for example, that says "the royalty owed the +copyright owner of an unregistered work for the derivative reuse of his work +will be a flat 1 percent of net revenues, to be held in escrow for the +copyright owner." Under this rule, the copyright owner could benefit from some +royalty, but he would not have the benefit of a full property right (meaning +the right to name his own price) unless he registers the work. +={ copyright law : + royalty proposal on derivative reuse in ; + derivative works : + royalty system proposed for +} + +Who could possibly object to this? And what reason would there be for +objecting? We're talking about work that is not now being made; which if made, +under this plan, would produce new income for artists. What reason would anyone +have to oppose it? + +!_ In February 2003, +DreamWorks studios announced an agreement with Mike Myers, the comic genius of +/{Saturday Night Live}/ and Austin Powers. According to the announcement, Myers +and DreamWorks would work together to form a "unique filmmaking pact." Under +the agreement, DreamWorks "will acquire the rights to existing motion picture +hits and classics, write new storylines and - with the use of state- of-the-art +digital technology - insert Myers and other actors into the film, thereby +creating an entirely new piece of entertainment." +={ DreamWorks +2 ; + Myers, Mike +2 ; + Saturday Night Live +} + +The announcement called this "film sampling." As Myers explained, "Film +Sampling is an exciting way to put an original spin on existing films and allow +audiences to see old movies in a new light. Rap artists have been doing this +for years with music and now we are able to take that same concept and apply it +to film." Steven Spielberg is quoted as saying, "If anyone can create a way to +bring old films to new audiences, it is Mike." +={ Spielberg, Steven +1 ; + film sampling +3 ; + rap music +} + +Spielberg is right. Film sampling by Myers will be brilliant. But if you don't +think about it, you might miss the truly astonishing point about this +announcement. As the vast majority of our film heritage remains under +copyright, the real meaning of the DreamWorks announcement is just this: It is +Mike Myers and only Mike Myers who is free to sample. Any general freedom to +build upon the film archive of our culture, a freedom in other contexts +presumed for us all, is now a privilege reserved for the funny and famous - and +presumably rich. + +This privilege becomes reserved for two sorts of reasons. The first continues +the story of the last chapter: the vagueness of "fair use." Much of "sampling" +should be considered "fair use." But few would rely upon so weak a doctrine to +create. That leads to the second reason that the privilege is reserved for the +few: The costs of negotiating the legal rights for the creative reuse of +content are astronomically high. These costs mirror the costs with fair use: +You either pay a lawyer to defend your fair use rights or pay a lawyer to track +down permissions so you don't have to rely upon fair use rights. Either way, +the creative process is a process of paying lawyers - again a privilege, or +perhaps a curse, reserved for the few. +={ copyright law : + fair use and ; + fair use : + in sampling works +} + +1~ Chapter Nine: Collectors +={ archives, digital +29 ; + culture : + archives of +29 +} + +!_ In April 1996, +millions of "bots" - computer codes designed to "spider," or automatically +search the Internet and copy content - began running across the Net. Page by +page, these bots copied Internet-based information onto a small set of +computers located in a basement in San Francisco's Presidio. Once the bots +finished the whole of the Internet, they started again. Over and over again, +once every two months, these bits of code took copies of the Internet and +stored them. +={ bots +1 ; + spider +} + +By October 2001, the bots had collected more than five years of copies. And at +a small announcement in Berkeley, California, the archive that these copies +created, the Internet Archive, was opened to the world. Using a technology +called "the Way Back Machine," you could enter a Web page, and see all of its +copies going back to 1996, as well as when those pages changed. +={ Internet Archive +18 ; + Way Back Machine +} + +This is the thing about the Internet that Orwell would have appreciated. In the +dystopia described in /{1984}/, old newspapers were constantly updated to +assure that the current view of the world, approved of by the government, was +not contradicted by previous news reports. Thousands of workers constantly +reedited the past, meaning there was no way ever to know whether the story you +were reading today was the story that was printed on the date published on the +paper. +={ Orwell, George +1 ; + 1984 (Orwell) +} + +It's the same with the Internet. If you go to a Web page today, there's no way +for you to know whether the content you are reading is the same as the content +you read before. The page may seem the same, but the content could easily be +different. The Internet is Orwell's library - constantly updated, without any +reliable memory. + +Until the Way Back Machine, at least. With the Way Back Machine, and the +Internet Archive underlying it, you can see what the Internet was. You have the +power to see what you remember. More importantly, perhaps, you also have the +power to find what you don't remember and what others might prefer you +forget.~{ The temptations remain, however. Brewster Kahle reports that the +White House changes its own press releases without notice. A May 13, 2003, +press release stated, "Combat Operations in Iraq Have Ended." That was later +changed, without notice, to "Major Combat Operations in Iraq Have Ended." +E-mail from Brewster Kahle, 1 December 2003. }~ +={ Way Back Machine } + +!_ We take it +for granted that we can go back to see what we remember reading. Think about +newspapers. If you wanted to study the reaction of your hometown newspaper to +the race riots in Watts in 1965, or to Bull Connor's water cannon in 1963, you +could go to your public library and look at the newspapers. Those papers +probably exist on microfiche. If you're lucky, they exist in paper, too. Either +way, you are free, using a library, to go back and remember - not just what it +is convenient to remember, but remember something close to the truth. +={ libraries : + archival function of +1 ; + newspapers : + archives of +2 +} + +It is said that those who fail to remember history are doomed to repeat it. +That's not quite correct. We /{all}/ forget history. The key is whether we have +a way to go back to rediscover what we forget. More directly, the key is +whether an objective past can keep us honest. Libraries help do that, by +collecting content and keeping it, for schoolchildren, for researchers, for +grandma. A free society presumes this knowledge. +={ history, records of } + +The Internet was an exception to this presumption. Until the Internet Archive, +there was no way to go back. The Internet was the quintessentially transitory +medium. And yet, as it becomes more important in forming and reforming society, +it becomes more and more important to maintain in some historical form. It's +just bizarre to think that we have scads of archives of newspapers from tiny +towns around the world, yet there is but one copy of the Internet - the one +kept by the Internet Archive. + +Brewster Kahle is the founder of the Internet Archive. He was a very successful +Internet entrepreneur after he was a successful computer researcher. In the +1990s, Kahle decided he had had enough business success. It was time to become +a different kind of success. So he launched a series of projects designed to +archive human knowledge. The Internet Archive was just the first of the +projects of this Andrew Carnegie of the Internet. By December of 2002, the +archive had over 10 billion pages, and it was growing at about a billion pages +a month. +={ Kahle, Brewster +20 } + +The Way Back Machine is the largest archive of human knowledge in human +history. At the end of 2002, it held "two hundred and thirty terabytes of +material" - and was "ten times larger than the Library of Congress." And this +was just the first of the archives that Kahle set out to build. In addition to +the Internet Archive, Kahle has been constructing the Television Archive. +Television, it turns out, is even more ephemeral than the Internet. While much +of twentieth- century culture was constructed through television, only a tiny +proportion of that culture is available for anyone to see today. Three hours of +news are recorded each evening by Vanderbilt University - thanks to a specific +exemption in the copyright law.That content is indexed, and is available to +scholars for a very low fee. "But other than that, [television] is almost +unavailable," Kahle told me. "If you were Barbara Walters you could get access +to [the archives], but if you are just a graduate student?" As Kahle put it, +={ Library of Congress ; + Television Archive ; + Vanderbuilt University ; + Way Back Machine ; + libraries : + archival function of ; + news coverage +6 +} + +_1 Do you remember when Dan Quayle was interacting with Murphy Brown? Remember +that back and forth surreal experience of a politician interacting with a +fictional television character? If you were a graduate student wanting to study +that, and you wanted to get those original back and forth exchanges between the +two, the /{60 Minutes}/ episode that came out after it ... it would be almost +impossible. ... Those materials are almost unfindable. ..." +={ Quayle, Dan ; + 60 Minutes +} + +Why is that? Why is it that the part of our culture that is recorded in +newspapers remains perpetually accessible, while the part that is recorded on +videotape is not? How is it that we've created a world where researchers trying +to understand the effect of media on nineteenth-century America will have an +easier time than researchers trying to understand the effect of media on +twentieth-century America? +={ newspapers : + archives of +} + +In part, this is because of the law. Early in American copyright law, copyright +owners were required to deposit copies of their work in libraries. These copies +were intended both to facilitate the spread of knowledge and to assure that a +copy of the work would be around once the copyright expired, so that others +might access and copy the work. +={ libraries : + archival function of +2 +} + +These rules applied to film as well. But in 1915, the Library of Congress made +an exception for film. Film could be copyrighted so long as such deposits were +made. But the filmmaker was then allowed to borrow back the deposits - for an +unlimited time at no cost. In 1915 alone, there were more than 5,475 films +deposited and "borrowed back." Thus, when the copyrights to films expire, there +is no copy held by any library. The copy exists - if it exists at all - in the +library archive of the film company.~{ Doug Herrick, "Toward a National Film +Collection: Motion Pictures at the Library of Congress," /{Film Library +Quarterly}/ 13 nos. 2-3 (1980): 5; Anthony Slide, /{Nitrate Won't Wait: A +History of Film Preservation in the United States}/ (Jefferson, N.C.: McFarland +& Co., 1992), 36. }~ +={ Library of Congress ; + films : + archive of +} + +The same is generally true about television. Television broadcasts were +originally not copyrighted - there was no way to capture the broadcasts, so +there was no fear of "theft." But as technology enabled capturing, broadcasters +relied increasingly upon the law. The law required they make a copy of each +broadcast for the work to be "copy-righted." But those copies were simply kept +by the broadcasters. No library had any right to them; the government didn't +demand them. The content of this part of American culture is practically +invisible to anyone who would look. +={ Television Archive +1 } + +Kahle was eager to correct this. Before September 11, 2001, he and his allies +had started capturing television. They selected twenty stations from around the +world and hit the Record button. After September 11, Kahle, working with dozens +of others, selected twenty stations from around the world and, beginning +October 11, 2001, made their coverage during the week of September 11 available +free on- line. Anyone could see how news reports from around the world covered +the events of that day. +={ September 11, 2001, terrorist attacks of } + +Kahle had the same idea with film. Working with Rick Prelinger, whose archive +of film includes close to 45,000 "ephemeral films" (meaning films other than +Hollywood movies, films that were never copyrighted), Kahle established the +Movie Archive. Prelinger let Kahle digitize 1,300 films in this archive and +post those films on the Internet to be downloaded for free. Prelinger's is a +for- profit company. It sells copies of these films as stock footage. What he +has discovered is that after he made a significant chunk available for free, +his stock footage sales went up dramatically. People could easily find the +material they wanted to use. Some downloaded that material and made films on +their own. Others purchased copies to enable other films to be made. Either +way, the archive enabled access to this important part of our culture. Want to +see a copy of the "Duck and Cover" film that instructed children how to save +themselves in the middle of nuclear attack? Go to archive.org, and you can +download the film in a few minutes - for free. +={ films : + archive of ; + archive.org : + see also Internet Archive ; + Internet Archive ; + Movie Archive ; + Duck and Cover film ; + ephemeral films ; + Prelinger, Rick +} + +Here again, Kahle is providing access to a part of our culture that we +otherwise could not get easily, if at all. It is yet another part of what +defines the twentieth century that we have lost to history. The law doesn't +require these copies to be kept by anyone, or to be deposited in an archive by +anyone. Therefore, there is no simple way to find them. + +The key here is access, not price. Kahle wants to enable free access to this +content, but he also wants to enable others to sell access to it. His aim is to +ensure competition in access to this important part of our culture. Not during +the commercial life of a bit of creative property, but during a second life +that all creative property has - a noncommercial life. +={ creative property : + noncommercial second life of +4 +} + +For here is an idea that we should more clearly recognize. Every bit of +creative property goes through different "lives." In its first life, if the +creator is lucky, the content is sold. In such cases the commercial market is +successful for the creator. The vast majority of creative property doesn't +enjoy such success, but some clearly does. For that content, commercial life is +extremely important. Without this commercial market, there would be, many +argue, much less creativity. + +After the commercial life of creative property has ended, our tradition has +always supported a second life as well. A newspaper delivers the news every day +to the doorsteps of America. The very next day, it is used to wrap fish or to +fill boxes with fragile gifts or to build an archive of knowledge about our +history. In this second life, the content can continue to inform even if that +information is no longer sold. + +The same has always been true about books. A book goes out of print very +quickly (the average today is after about a year~{ Dave Barns, "Fledgling +Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter by +Adopting Business," /{Chicago Tribune,}/ 5 September 1997, at Metro Lake 1L. Of +books published between 1927 and 1946, only 2.2 percent were in print in 2002. +R. Anthony Reese, "The First Sale Doctrine in the Era of Digital Networks," +/{Boston College Law Review}/ 44 (2003): 593 n. 51. }~). After it is out of +print, it can be sold in used book stores without the copyright owner getting +anything and stored in libraries, where many get to read the book, also for +free. Used book stores and libraries are thus the second life of a book. That +second life is extremely important to the spread and stability of culture. +={ libraries : + archival function of +1 ; + books : + out of print +} + +Yet increasingly, any assumption about a stable second life for creative +property does not hold true with the most important components of popular +culture in the twentieth and twenty-first centuries. For these - television, +movies, music, radio, the Internet - there is no guarantee of a second life. +For these sorts of culture, it is as if we've replaced libraries with Barnes & +Noble superstores. With this culture, what's accessible is nothing but what a +certain limited market demands. Beyond that, culture disappears. + +!_ For most of +the twentieth century, it was economics that made this so. It would have been +insanely expensive to collect and make accessible all television and film and +music: The cost of analog copies is extraordinarily high. So even though the +law in principle would have restricted the ability of a Brewster Kahle to copy +culture generally, the real restriction was economics. The market made it +impossibly difficult to do anything about this ephemeral culture; the law had +little practical effect. +={ technology : + archival opportunity offered through +3 +} + +Perhaps the single most important feature of the digital revolution is that for +the first time since the Library of Alexandria, it is feasible to imagine +constructing archives that hold all culture produced or distributed publicly. +Technology makes it possible to imagine an archive of all books published, and +increasingly makes it possible to imagine an archive of all moving images and +sound. +={ libraries : + archival function of +4 +} + +The scale of this potential archive is something we've never imagined before. +The Brewster Kahles of our history have dreamed about it; but we are for the +first time at a point where that dream is possible. As Kahle describes, + +_1 It looks like there's about two to three million recordings of music. Ever. +There are about a hundred thousand theatrical releases of movies, ... and about +one to two million movies [distributed] during the twentieth century. There are +about twenty-six million different titles of books. All of these would fit on +computers that would fit in this room and be able to be afforded by a small +company. So we're at a turning point in our history. Universal access is the +goal. And the opportunity of leading a different life, based on this, is ... +thrilling. It could be one of the things humankind would be most proud of. Up +there with the Library of Alexandria, putting a man on the moon, and the +invention of the printing press." +={ books : + total number of ; + films : + total number of ; + music recordings : + total number of +} + +Kahle is not the only librarian. The Internet Archive is not the only archive. +But Kahle and the Internet Archive suggest what the future of libraries or +archives could be. /{When}/ the commercial life of creative property ends, I +don't know. But it does. And whenever it does, Kahle and his archive hint at a +world where this knowledge, and culture, remains perpetually available. Some +will draw upon it to understand it; some to criticize it. Some will use it, as +Walt Disney did, to re-create the past for the future. These technologies +promise something that had become unimaginable for much of our past - a future +/{for}/ our past. The technology of digital arts could make the dream of the +Library of Alexandria real again. +={ Internet Archive ; + creative property : + noncommercial second life of ; + Disney, Walt ; + technology : + archival opportunity offered through +1 +} + +Technologists have thus removed the economic costs of building such an archive. +But lawyers' costs remain. For as much as we might like to call these +"archives," as warm as the idea of a "library" might seem, the "content" that +is collected in these digital spaces is also some-one's "property." And the law +of property restricts the freedoms that Kahle and others would exercise. + +1~ Chapter Ten: "Property" + +!_ Jack Valenti +has been the president of the Motion Picture Association of America since 1966. +He first came to Washington, D.C., with Lyndon Johnson's administration - +literally. The famous picture of Johnson's swearing-in on Air Force One after +the assassination of President Kennedy has Valenti in the background. In his +almost forty years of running the MPAA, Valenti has established himself as +perhaps the most prominent and effective lobbyist in Washington. +={ Johnson, Lyndon ; + Kennedy, John F. ; + Motion Picture Association of America (MPAA) +3 ; + film industry : + trade association of +3 ; + television : + industry association of +3 ; + Valenti, Jack : + background of +} + +The MPAA is the American branch of the international Motion Picture +Association. It was formed in 1922 as a trade association whose goal was to +defend American movies against increasing domestic criticism. The organization +now represents not only filmmakers but producers and distributors of +entertainment for television, video, and cable. Its board is made up of the +chairmen and presidents of the seven major producers and distributors of motion +picture and television programs in the United States: Walt Disney, Sony +Pictures Entertainment, MGM, Paramount Pictures, Twentieth Century Fox, +Universal Studios, and Warner Brothers. +={ Disney, Inc. ; + MGM ; + Paramount Pictures ; + Twentieth Century Fox ; + Sony Pictures Entertainment ; + Universal Pictures ; + Warner Brothers +} + +Valenti is only the third president of the MPAA. No president before him has +had as much influence over that organization, or over Washington. As a Texan, +Valenti has mastered the single most important political skill of a Southerner +- the ability to appear simple and slow while hiding a lightning-fast +intellect. To this day, Valenti plays the simple, humble man. But this Harvard +MBA, and author of four books, who finished high school at the age of fifteen +and flew more than fifty combat missions in World War II, is no Mr. Smith. When +Valenti went to Washington, he mastered the city in a quintessentially +Washingtonian way. +={ Valenti, Jack : + background of +5 +} + +In defending artistic liberty and the freedom of speech that our culture +depends upon, the MPAA has done important good. In crafting the MPAA rating +system, it has probably avoided a great deal of speech-regulating harm. But +there is an aspect to the organization's mission that is both the most radical +and the most important. This is the organization's effort, epitomized in +Valenti's every act, to redefine the meaning of "creative property." +={ film industry : + rating system of ; + speech, freedom of : + film-rating system vs. +} + +In 1982, Valenti's testimony to Congress captured the strategy perfectly: +={ Valenti, Jack : + on creative property rights +11 +} + +_1 No matter the lengthy arguments made, no matter the charges and the +counter-charges, no matter the tumult and the shouting, reasonable men and +women will keep returning to the fundamental issue, the central theme which +animates this entire debate: /{Creative property owners must be accorded the +same rights and protection resident in all other property owners in the +nation}/. That is the issue. That is the question. And that is the rostrum on +which this entire hearing and the debates to follow must rest."~{ Home +Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, H.R. 4808, +H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on Courts, Civil +Liberties, and the Administration of Justice of the Committee on the Judiciary +of the House of Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of +Jack Valenti). }~ +={ creative property : + other property rights vs. +25 +} + +The strategy of this rhetoric, like the strategy of most of Valenti's rhetoric, +is brilliant and simple and brilliant because simple. The "central theme" to +which "reasonable men and women" will return is this: "Creative property owners +must be accorded the same rights and protections resident in all other property +owners in the nation." There are no second-class citizens, Valenti might have +continued. There should be no second-class property owners. + +This claim has an obvious and powerful intuitive pull. It is stated with such +clarity as to make the idea as obvious as the notion that we use elections to +pick presidents. But in fact, there is no more extreme a claim made by +/{anyone}/ who is serious in this debate than this claim of Valenti's. Jack +Valenti, however sweet and however brilliant, is perhaps the nation's foremost +extremist when it comes to the nature and scope of "creative property." His +views have /{no}/ reasonable connection to our actual legal tradition, even if +the subtle pull of his Texan charm has slowly redefined that tradition, at +least in Washington. +={ creative property : + constitutional tradition on +9 +} + +While "creative property" is certainly "property" in a nerdy and precise sense +that lawyers are trained to understand,~{ Lawyers speak of "property" not as an +absolute thing, but as a bundle of rights that are sometimes associated with a +particular object. Thus, my "property right" to my car gives me the right to +exclusive use, but not the right to drive at 150 miles an hour. For the best +effort to connect the ordinary meaning of "property" to "lawyer talk," see +Bruce Ackerman, /{Private Property and the Constitution}/ (New Haven: Yale +University Press, 1977), 26-27. }~ it has never been the case, nor should it +be, that "creative property owners" have been "ac- corded the same rights and +protection resident in all other property owners." Indeed, if creative property +owners were given the same rights as all other property owners, that would +effect a radical, and radically undesirable, change in our tradition. + +Valenti knows this. But he speaks for an industry that cares squat for our +tradition and the values it represents. He speaks for an industry that is +instead fighting to restore the tradition that the British overturned in 1710. +In the world that Valenti's changes would create, a powerful few would exercise +powerful control over how our creative culture would develop. + +I have two purposes in this chapter. The first is to convince you that, +historically, Valenti's claim is absolutely wrong. The second is to convince +you that it would be terribly wrong for us to reject our history. We have +always treated rights in creative property differently from the rights resident +in all other property owners. They have never been the same. And they should +never be the same, because, however counterintuitive this may seem, to make +them the same would be to fundamentally weaken the opportunity for new creators +to create. Creativity depends upon the owners of creativity having less than +perfect control. + +Organizations such as the MPAA, whose board includes the most powerful of the +old guard, have little interest, their rhetoric notwithstanding, in assuring +that the new can displace them. No organization does. No person does. (Ask me +about tenure, for example.) But what's good for the MPAA is not necessarily +good for America. A society that defends the ideals of free culture must +preserve precisely the opportunity for new creativity to threaten the old. +={ Motion Picture Association of America (MPAA) ; + film industry : + trade association of +} + +!_ To get +just a hint that there is something fundamentally wrong in Valenti's argument, +we need look no further than the United States Constitution itself. +={ Constitution, U.S. : + on creative property +4 +} + +The framers of our Constitution loved "property." Indeed, so strongly did they +love property that they built into the Constitution an important requirement. +If the government takes your property - if it condemns your house, or acquires +a slice of land from your farm - it is required, under the Fifth Amendment's +"Takings Clause," to pay you "just compensation" for that taking. The +Constitution thus guarantees that property is, in a certain sense, sacred. It +cannot /{ever}/ be taken from the property owner unless the government pays for +the privilege. +={ Constitution, U.S. : + Fifth Amendment to | Takings Clause of +1 ; + Fifth Amendment ; + Takings Clause +1 ; + property rights : + Takings Clause on +1 +} + +Yet the very same Constitution speaks very differently about what Valenti calls +"creative property." In the clause granting Congress the power to create +"creative property," the Constitution /{requires}/ that after a "limited time," +Congress take back the rights that it has granted and set the "creative +property" free to the public domain. Yet when Congress does this, when the +expiration of a copyright term "takes" your copyright and turns it over to the +public domain, Congress does not have any obligation to pay "just compensation" +for this "taking." Instead, the same Constitution that requires compensation +for your land requires that you lose your "creative property" right without any +compensation at all. + +The Constitution thus on its face states that these two forms of property are +not to be accorded the same rights. They are plainly to be treated differently. +Valenti is therefore not just asking for a change in our tradition when he +argues that creative-property owners should be accorded the same rights as +every other property-right owner. He is effectively arguing for a change in our +Constitution itself. + +Arguing for a change in our Constitution is not necessarily wrong. There was +much in our original Constitution that was plainly wrong. The Constitution of +1789 entrenched slavery; it left senators to be appointed rather than elected; +it made it possible for the electoral college to produce a tie between the +president and his own vice president (as it did in 1800). The framers were no +doubt extraordinary, but I would be the first to admit that they made big +mistakes. We have since rejected some of those mistakes; no doubt there could +be others that we should reject as well. So my argument is not simply that +because Jefferson did it, we should, too. +={ Jefferson, Thomas +1 ; + copyright law : + innovative freedom balanced with fair compensation in +2 ; + electoral college ; + Senate, U.S. ; + slavery +} + +Instead, my argument is that because Jefferson did it, we should at least try +to understand /{why}/. Why did the framers, fanatical property types that they +were, reject the claim that creative property be given the same rights as all +other property? Why did they require that for creative property there must be a +public domain? + +To answer this question, we need to get some perspective on the history of +these "creative property" rights, and the control that they enabled. Once we +see clearly how differently these rights have been defined, we will be in a +better position to ask the question that should be at the core of this war: Not +/{whether}/ creative property should be protected, but how. Not /{whether}/ we +will enforce the rights the law gives to creative-property owners, but what the +particular mix of rights ought to be. Not /{whether}/ artists should be paid, +but whether institutions designed to assure that artists get paid need also +control how culture develops. + +To answer these questions, we need a more general way to talk about how +property is protected. More precisely, we need a more general way than the +narrow language of the law allows. In /{Code and Other Laws of Cyberspace}/, I +used a simple model to capture this more general perspective. For any +particular right or regulation, this model asks how four different modalities +of regulation interact to support or weaken the right or regulation. I +represented it with this diagram: +={ Code (Lessig) ; + Lessig, Lawrence ; + free culture : + four modalities of constraint on +20 ; + regulation : + four modalities of +20 ; + copyright law : + as ex post regulation modality +5 ; + law : + as constraint modality +5 +} + +{freeculture01.png 350x350 }http://www.free-culture.cc/ + +At the center of this picture is a regulated dot: the individual or group that +is the target of regulation, or the holder of a right. (In each case +throughout, we can describe this either as regulation or as a right. For +simplicity's sake, I will speak only of regulations.) The ovals represent four +ways in which the individual or group might be regulated - either constrained +or, alternatively, enabled. Law is the most obvious constraint (to lawyers, at +least). It constrains by threatening punishments after the fact if the rules +set in advance are violated. So if, for example, you willfully infringe +Madonna's copyright by copying a song from her latest CD and posting it on the +Web, you can be punished with a $150,000 fine. The fine is an ex post +punishment for violating an ex ante rule. It is imposed by the state. +={ Madonna } + +Norms are a different kind of constraint. They, too, punish an individual for +violating a rule. But the punishment of a norm is imposed by a community, not +(or not only) by the state. There may be no law against spitting, but that +doesn't mean you won't be punished if you spit on the ground while standing in +line at a movie. The punishment might not be harsh, though depending upon the +community, it could easily be more harsh than many of the punishments imposed +by the state. The mark of the difference is not the severity of the rule, but +the source of the enforcement. +={ norms, regulatory influence of +1 } + +The market is a third type of constraint. Its constraint is effected through +conditions: You can do X if you pay Y; you'll be paid M if you do N. These +constraints are obviously not independent of law or norms - it is property law +that defines what must be bought if it is to be taken legally; it is norms that +say what is appropriately sold. But given a set of norms, and a background of +property and contract law, the market imposes a simultaneous constraint upon +how an individual or group might behave. +={ market constraints +1 } + +Finally, and for the moment, perhaps, most mysteriously, "architecture" - the +physical world as one finds it - is a constraint on behavior. A fallen bridge +might constrain your ability to get across a river. Railroad tracks might +constrain the ability of a community to integrate its social life. As with the +market, architecture does not effect its constraint through ex post +punishments. Instead, also as with the market, architecture effects its +constraint through simultaneous conditions. These conditions are imposed not by +courts enforcing contracts, or by police punishing theft, but by nature, by +"architecture." If a 500-pound boulder blocks your way, it is the law of +gravity that enforces this constraint. If a $500 airplane ticket stands between +you and a flight to New York, it is the market that enforces this constraint. +={ architecture, constraint effected through } + +So the first point about these four modalities of regulation is obvious: They +interact. Restrictions imposed by one might be reinforced by another. Or +restrictions imposed by one might be undermined by another. +={ law : + as constraint modality +5 +} + +The second point follows directly: If we want to understand the effective +freedom that anyone has at a given moment to do any particular thing, we have +to consider how these four modalities interact. Whether or not there are other +constraints (there may well be; my claim is not about comprehensiveness), these +four are among the most significant, and any regulator (whether controlling or +freeing) must consider how these four in particular interact. + +So, for example, consider the "freedom" to drive a car at a high speed. That +freedom is in part restricted by laws: speed limits that say how fast you can +drive in particular places at particular times. It is in part restricted by +architecture: speed bumps, for example, slow most rational drivers; governors +in buses, as another example, set the maximum rate at which the driver can +drive. The freedom is in part restricted by the market: Fuel efficiency drops +as speed increases, thus the price of gasoline indirectly constrains speed. And +finally, the norms of a community may or may not constrain the freedom to +speed. Drive at 50 mph by a school in your own neighborhood and you're likely +to be punished by the neighbors. The same norm wouldn't be as effective in a +different town, or at night. +={ architecture, constraint effected through ; + market constraints ; + norms, regulatory influence of ; + driving speed, constraints on +1 ; + speeding, constraints on +1 +} + +The final point about this simple model should also be fairly clear: While +these four modalities are analytically independent, law has a special role in +affecting the three.~{ By describing the way law affects the other three +modalities, I don't mean to suggest that the other three don't affect law. +Obviously, they do. Law's only distinction is that it alone speaks as if it has +a right self-consciously to change the other three. The right of the other +three is more timidly expressed. See Lawrence Lessig, /{Code: And Other Laws of +Cyberspace}/ (New York: Basic Books, 1999): 90-95; Lawrence Lessig, "The New +Chicago School," /{Journal of Legal Studies,}/ June 1998. }~ The law, in other +words, sometimes operates to increase or decrease the constraint of a +particular modality. Thus, the law might be used to increase taxes on gasoline, +so as to increase the incentives to drive more slowly. The law might be used to +mandate more speed bumps, so as to increase the difficulty of driving rapidly. +The law might be used to fund ads that stigmatize reckless driving. Or the law +might be used to require that other laws be more strict - a federal requirement +that states decrease the speed limit, for example" so as to decrease the +attractiveness of fast driving. + +{freeculture02.png 540x350 }http://www.free-culture.cc/ + +These constraints can thus change, and they can be changed. To understand the +effective protection of liberty or protection of property at any particular +moment, we must track these changes over time. A restriction imposed by one +modality might be erased by another. A freedom enabled by one modality might be +displaced by another.~{ Some people object to this way of talking about +"liberty." They object because their focus when considering the constraints +that exist at any particular moment are constraints imposed exclusively by the +government. For instance, if a storm destroys a bridge, these people think it +is meaningless to say that one's liberty has been restrained. A bridge has +washed out, and it's harder to get from one place to another. To talk about +this as a loss of freedom, they say, is to confuse the stuff of politics with +the vagaries of ordinary life. I don't mean to deny the value in this narrower +view, which depends upon the context of the inquiry. I do, however, mean to +argue against any insistence that this narrower view is the only proper view of +liberty. As I argued in /{Code,}/ we come from a long tradition of political +thought with a broader focus than the narrow question of what the government +did when. John Stuart Mill defended freedom of speech, for example, from the +tyranny of narrow minds, not from the fear of government prosecution; John +Stuart Mill, /{On Liberty}/ (Indiana: Hackett Publishing Co., 1978), 19. John +R. Commons famously defended the economic freedom of labor from constraints +imposed by the market; John R. Commons, "The Right to Work," in Malcom +Rutherford and Warren J. Samuels, eds., /{John R. Commons: Selected Essays}/ +(London: Routledge: 1997), 62. The Americans with Disabilities Act increases +the liberty of people with physical disabilities by changing the architecture +of certain public places, thereby making access to those places easier; 42 +/{United States Code}/, section 12101 (2000). Each of these interventions to +change existing conditions changes the liberty of a particular group. The +effect of those interventions should be accounted for in order to understand +the effective liberty that each of these groups might face. }~ + +2~ Why Hollywood Is Right + +The most obvious point that this model reveals is just why, or just how, +Hollywood is right. The copyright warriors have rallied Congress and the courts +to defend copyright. This model helps us see why that rallying makes sense. +={ copyright : + four regulatory modalities on +8 +} + +Let's say this is the picture of copyright's regulation before the Internet: + +{freeculture01.png 350x350 }http://www.free-culture.cc/ + +There is balance between law, norms, market, and architecture. The law limits +the ability to copy and share content, by imposing penalties on those who copy +and share content. Those penalties are reinforced by technologies that make it +hard to copy and share content (architecture) and expensive to copy and share +content (market). Finally, those penalties are mitigated by norms we all +recognize - kids, for example, taping other kids' records. These uses of +copyrighted material may well be infringement, but the norms of our society +(before the Internet, at least) had no problem with this form of infringement. +={ architecture, constraint effected through +1 ; + law : + as constraint modality ; + norms, regulatory influence of +1 +} + +Enter the Internet, or, more precisely, technologies such as MP3s and p2p +sharing. Now the constraint of architecture changes dramatically, as does the +constraint of the market. And as both the market and architecture relax the +regulation of copyright, norms pile on. The happy balance (for the warriors, at +least) of life before the Internet becomes an effective state of anarchy after +the Internet. +={ Internet : + copyright regulatory balance lost with +4 ; + peer-to-peer (p2p) file sharing : + regulatory balance lost in ; + market constraints ; + MP3s +} + +Thus the sense of, and justification for, the warriors' response. Technology +has changed, the warriors say, and the effect of this change, when ramified +through the market and norms, is that a balance of protection for the copyright +owners' rights has been lost. This is Iraq after the fall of Saddam, but this +time no government is justifying the looting that results. +={ technology : + established industries threatened by changes in +} + +{freeculture03.png 350x350 }http://www.free-culture.cc/ + +Neither this analysis nor the conclusions that follow are new to the warriors. +Indeed, in a "White Paper" prepared by the Commerce Department (one heavily +influenced by the copyright warriors) in 1995, this mix of regulatory +modalities had already been identified and the strategy to respond already +mapped. In response to the changes the Internet had effected, the White Paper +argued (1) Congress should strengthen intellectual property law, (2) businesses +should adopt innovative marketing techniques, (3) technologists should push to +develop code to protect copyrighted material, and (4) educators should educate +kids to better protect copyright. +={ Commerce, U.S. Department of ; + regulation : + as establishment protectionism +6 +} + +This mixed strategy is just what copyright needed - if it was to preserve the +particular balance that existed before the change induced by the Internet. And +it's just what we should expect the content industry to push for. It is as +American as apple pie to consider the happy life you have as an entitlement, +and to look to the law to protect it if something comes along to change that +happy life. Homeowners living in a flood plain have no hesitation appealing to +the government to rebuild (and rebuild again) when a flood (architecture) wipes +away their property (law). Farmers have no hesitation appealing to the +government to bail them out when a virus (architecture) devastates their crop. +Unions have no hesitation appealing to the government to bail them out when +imports (market) wipe out the U.S. steel industry. +={ farming ; + steel industry +} + +Thus, there's nothing wrong or surprising in the content industry's campaign to +protect itself from the harmful consequences of a technological innovation. And +I would be the last person to argue that the changing technology of the +Internet has not had a profound effect on the content industry's way of doing +business, or as John Seely Brown describes it, its "architecture of revenue." +={ Brown, John Seely } + +But just because a particular interest asks for government support, it doesn't +follow that support should be granted. And just because technology has weakened +a particular way of doing business, it doesn't follow that the government +should intervene to support that old way of doing business. Kodak, for example, +has lost perhaps as much as 20 percent of their traditional film market to the +emerging technologies of digital cameras.~{ See Geoffrey Smith, "Film vs. +Digital: Can Kodak Build a Bridge?" BusinessWeek online, 2 August 1999, +available at link #23. For a more recent analysis of Kodak's place in the +market, see Chana R. Schoenberger, "Can Kodak Make Up for Lost Moments?" +Forbes.com, 6 October 2003, available at link #24. }~ Does anyone believe the +government should ban digital cameras just to support Kodak? Highways have +weakened the freight business for railroads. Does anyone think we should ban +trucks from roads /{for the purpose of}/ protecting the railroads? Closer to +the subject of this book, remote channel changers have weakened the +"stickiness" of television advertising (if a boring commercial comes on the TV, +the remote makes it easy to surf ), and it may well be that this change has +weakened the television advertising market. But does anyone believe we should +regulate remotes to reinforce commercial television? (Maybe by limiting them to +function only once a second, or to switch to only ten channels within an hour?) +={ advertising ; + television : + advertising on ; + commercials ; + camera technology ; + digital cameras ; + Kodak cameras ; + railroad industry ; + remote channel changers +} + +The obvious answer to these obviously rhetorical questions is no. In a free +society, with a free market, supported by free enterprise and free trade, the +government's role is not to support one way of doing business against others. +Its role is not to pick winners and protect them against loss. If the +government did this generally, then we would never have any progress. As +Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software +patents, "established companies have an interest in excluding future +competitors."~{ Fred Warshofsky, /{The Patent Wars}/ (New York: Wiley, 1994), +170-71. }~ And relative to a startup, established companies also have the +means. (Think RCA and FM radio.) A world in which competitors with new ideas +must fight not only the market but also the government is a world in which +competitors with new ideas will not succeed. It is a world of stasis and +increasingly concentrated stagnation. It is the Soviet Union under Brezhnev. +={ free market, technological changes in +2 ; + Brezhnev, Leonid ; + FM radio ; + radio : + FM spectrum of ; + Gates, Bill ; + market competition ; + RCA +} + +Thus, while it is understandable for industries threatened with new +technologies that change the way they do business to look to the government for +protection, it is the special duty of policy makers to guarantee that that +protection not become a deterrent to progress. It is the duty of policy makers, +in other words, to assure that the changes they create, in response to the +request of those hurt by changing technology, are changes that preserve the +incentives and opportunities for innovation and change. + +In the context of laws regulating speech - which include, obviously, copyright +law - that duty is even stronger. When the industry complaining about changing +technologies is asking Congress to respond in a way that burdens speech and +creativity, policy makers should be especially wary of the request. It is +always a bad deal for the government to get into the business of regulating +speech markets. The risks and dangers of that game are precisely why our +framers created the First Amendment to our Constitution: "Congress shall make +no law ... abridging the freedom of speech." So when Congress is being asked to +pass laws that would "abridge" the freedom of speech, it should ask" carefully +- whether such regulation is justified. +={ Constitution, U.S. : + First Amendment to ; + First Amendment ; + speech, freedom of : + constitutional guarantee of +} + +My argument just now, however, has nothing to do with whether the changes that +are being pushed by the copyright warriors are "justified." My argument is +about their effect. For before we get to the question of justification, a hard +question that depends a great deal upon your values, we should first ask +whether we understand the effect of the changes the content industry wants. + +Here's the metaphor that will capture the argument to follow. + +In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul +Hermann Müller won the Nobel Prize for his work demonstrating the insecticidal +properties of DDT. By the 1950s, the insecticide was widely used around the +world to kill disease-carrying pests. It was also used to increase farm +production. +={ Müller, Paul Hermann +3 ; + DDT +6 ; + insecticide, environmental consequences of +6 ; + farming +4 +} + +No one doubts that killing disease-carrying pests or increasing crop production +is a good thing. No one doubts that the work of Müller was important and +valuable and probably saved lives, possibly millions. + +But in 1962, Rachel Carson published /{Silent Spring}/, which argued that DDT, +whatever its primary benefits, was also having unintended environmental +consequences. Birds were losing the ability to reproduce. Whole chains of the +ecology were being destroyed. +={ Carson, Rachel ; + Silent Spring (Carson) ; + environmentalism +4 +} + +No one set out to destroy the environment. Paul Müller certainly did not aim to +harm any birds. But the effort to solve one set of problems produced another +set which, in the view of some, was far worse than the problems that were +originally attacked. Or more accurately, the problems DDT caused were worse +than the problems it solved, at least when considering the other, more +environmentally friendly ways to solve the problems that DDT was meant to +solve. + +It is to this image precisely that Duke University law professor James Boyle +appeals when he argues that we need an "environmentalism" for culture.~{ See, +for example, James Boyle, "A Politics of Intellectual Property: +Environmentalism for the Net?" /{Duke Law Journal}/ 47 (1997): 87. }~ His +point, and the point I want to develop in the balance of this chapter, is not +that the aims of copyright are flawed. Or that authors should not be paid for +their work. Or that music should be given away "for free." The point is that +some of the ways in which we might protect authors will have unintended +consequences for the cultural environment, much like DDT had for the natural +environment. And just as criticism of DDT is not an endorsement of malaria or +an attack on farmers, so, too, is criticism of one particular set of +regulations protecting copyright not an endorsement of anarchy or an attack on +authors. It is an environment of creativity that we seek, and we should be +aware of our actions' effects on the environment. +={ Boyle, James ; + copyright law : + innovative freedom balanced with fair compensation in +1 +} + +My argument, in the balance of this chapter, tries to map exactly this effect. +No doubt the technology of the Internet has had a dramatic effect on the +ability of copyright owners to protect their content. But there should also be +little doubt that when you add together the changes in copyright law over time, +plus the change in technology that the Internet is undergoing just now, the net +effect of these changes will not be only that copyrighted work is effectively +protected. Also, and generally missed, the net effect of this massive increase +in protection will be devastating to the environment for creativity. + +In a line: To kill a gnat, we are spraying DDT with consequences for free +culture that will be far more devastating than that this gnat will be lost. + +2~ Beginnings + +America copied English copyright law. Actually, we copied and improved English +copyright law. Our Constitution makes the purpose of "creative property" rights +clear; its express limitations reinforce the English aim to avoid overly +powerful publishers. +={ Constitution, U.S. : + on creative property | copyright purpose established in +6 | Progress Clause of +5 ; + copyright : + constitutional purpose of | duration of ; + creative property : + constitutional tradition on +6 ; + Progress Clause +5 ; + copyright : + duration of +} + +The power to establish "creative property" rights is granted to Congress in a +way that, for our Constitution, at least, is very odd. Article I, section 8, +clause 8 of our Constitution states that: +={ Congress, U.S. : + in constitutional Progress Clause +2 +} + +_1 Congress has the power to promote the Progress of Science and useful Arts, +by securing for limited Times to Authors and Inventors the exclusive Right to +their respective Writings and Discoveries." + +We can call this the "Progress Clause," for notice what this clause does not +say. It does not say Congress has the power to grant "creative property +rights." It says that Congress has the power /{to promote progress}/. The grant +of power is its purpose, and its purpose is a public one, not the purpose of +enriching publishers, nor even primarily the purpose of rewarding authors. + +The Progress Clause expressly limits the term of copyrights. As we saw in +chapter 6, the English limited the term of copyright so as to assure that a few +would not exercise disproportionate control over culture by exercising +disproportionate control over publishing. We can assume the framers followed +the English for a similar purpose. Indeed, unlike the English, the framers +reinforced that objective, by requiring that copyrights extend "to Authors" +only. +={ copyright law : + as protection of creators +2 | history of American +22 +} + +The design of the Progress Clause reflects something about the Constitution's +design in general. To avoid a problem, the framers built structure. To prevent +the concentrated power of publishers, they built a structure that kept +copyrights away from publishers and kept them short. To prevent the +concentrated power of a church, they banned the federal government from +establishing a church. To prevent concentrating power in the federal +government, they built structures to reinforce the power of the states - +including the Senate, whose members were at the time selected by the states, +and an electoral college, also selected by the states, to select the president. +In each case, a /{structure}/ built checks and balances into the constitutional +frame, structured to prevent otherwise inevitable concentrations of power. +={ Senate, U.S. ; + Constitution, U.S. : + structural checks and balances of ; + electoral college +} + +I doubt the framers would recognize the regulation we call "copyright" today. +The scope of that regulation is far beyond anything they ever considered. To +begin to understand what they did, we need to put our "copyright" in context: +We need to see how it has changed in the 210 years since they first struck its +design. + +Some of these changes come from the law: some in light of changes in +technology, and some in light of changes in technology given a particular +concentration of market power. In terms of our model, we started here: +={ copyright : + four regulatory modalities on +} + +{freeculture01.png 350x350 }http://www.free-culture.cc/ + +%% image 05 same as 01, renumber? + +We will end here: + +{freeculture04.png 310x350 }http://www.free-culture.cc/ + +Let me explain how. + +2~ Law: Duration +={ copyright : + duration of +14 +} + +When the first Congress enacted laws to protect creative property, it faced the +same uncertainty about the status of creative property that the English had +confronted in 1774. Many states had passed laws protecting creative property, +and some believed that these laws simply supplemented common law rights that +already protected creative authorship.~{ William W. Crosskey, /{Politics and +the Constitution in the History of the United States}/ (London: Cambridge +University Press, 1953), vol. 1, 485-86: "extinguish[ing], by plain implication +of "the supreme Law of the Land," /{the perpetual rights which authors had, or +were supposed by some to have, under the Common Law}/" (emphasis added). }~ +This meant that there was no guaranteed public domain in the United States in +1790. If copyrights were protected by the common law, then there was no simple +way to know whether a work published in the United States was controlled or +free. Just as in England, this lingering uncertainty would make it hard for +publishers to rely upon a public domain to reprint and distribute works. +={ Congress, U.S. : + on copyright laws +2 ; + Copyright Act (1790) +3 ; + creative property : + common law protections of ; + public domain : + balance of U.S. content in +5 +} + +That uncertainty ended after Congress passed legislation granting copyrights. +Because federal law overrides any contrary state law, federal protections for +copyrighted works displaced any state law protections. Just as in England the +Statute of Anne eventually meant that the copyrights for all English works +expired, a federal statute meant that any state copyrights expired as well. +={ Statute of Anne (1710) ; + law : + federal vs. state +2 +} + +In 1790, Congress enacted the first copyright law. It created a federal +copyright and secured that copyright for fourteen years. If the author was +alive at the end of that fourteen years, then he could opt to renew the +copyright for another fourteen years. If he did not renew the copyright, his +work passed into the public domain. +={ copyright : + renewability of +11 +} + +While there were many works created in the United States in the first ten years +of the Republic, only 5 percent of the works were actually registered under the +federal copyright regime. Of all the work created in the United States both +before 1790 and from 1790 through 1800, 95 percent immediately passed into the +public domain; the balance would pass into the pubic domain within twenty-eight +years at most, and more likely within fourteen years.~{ Although 13,000 titles +were published in the United States from 1790 to 1799, only 556 copyright +registrations were filed; John Tebbel, /{A History of Book Publishing in the +United States,}/ vol. 1, /{The Creation of an Industry, 1630- 1865}/ (New York: +Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only twelve +were copyrighted under the 1790 act; William J. Maher, /{Copyright Term, +Retrospective Extension and the Copyright Law of 1790 in Historical Context,}/ +7-10 (2002), available at link #25. Thus, the overwhelming majority of works +fell immediately into the public domain. Even those works that were copyrighted +fell into the public domain quickly, because the term of copyright was short. +The initial term of copyright was fourteen years, with the option of renewal +for an additional fourteen years. Copyright Act of May 31, 1790, §1, 1 stat. +124. }~ + +This system of renewal was a crucial part of the American system of copyright. +It assured that the maximum terms of copyright would be granted only for works +where they were wanted. After the initial term of fourteen years, if it wasn't +worth it to an author to renew his copyright, then it wasn't worth it to +society to insist on the copyright, either. + +Fourteen years may not seem long to us, but for the vast majority of copyright +owners at that time, it was long enough: Only a small minority of them renewed +their copyright after fourteen years; the balance allowed their work to pass +into the public domain.~{ Few copyright holders ever chose to renew their +copyrights. For instance, of the 25,006 copyrights registered in 1883, only 894 +were renewed in 1910. For a year-by-year analysis of copyright renewal rates, +see Barbara A. Ringer, "Study No. 31: Renewal of Copyright," /{Studies on +Copyright,}/ vol. 1 (New York: Practicing Law Institute, 1963), 618. For a more +recent and comprehensive analysis, see William M. Landes and Richard A. Posner, +"Indefinitely Renewable Copyright," /{University of Chicago Law Review}/ 70 +(2003): 471, 498-501, and accompanying figures. }~ + +Even today, this structure would make sense. Most creative work has an actual +commercial life of just a couple of years. Most books fall out of print after +one year.~{ See Ringer, ch. 9, n. 2. }~ When that happens, the used books are +traded free of copyright regulation. Thus the books are no longer +/{effectively}/ controlled by copyright. The only practical commercial use of +the books at that time is to sell the books as used books; that use - because +it does not involve publication - is effectively free. +={ books : + resales of | out of print +} + +In the first hundred years of the Republic, the term of copyright was changed +once. In 1831, the term was increased from a maximum of 28 years to a maximum +of 42 by increasing the initial term of copyright from 14 years to 28 years. In +the next fifty years of the Republic, the term increased once again. In 1909, +Congress extended the renewal term of 14 years to 28 years, setting a maximum +term of 56 years. +={ Congress, U.S. : + on copyright laws +6 | copyright terms extended by +6 ; + copyright law : + term extensions in +6 +} + +Then, beginning in 1962, Congress started a practice that has defined copyright +law since. Eleven times in the last forty years, Congress has extended the +terms of existing copyrights; twice in those forty years, Congress extended the +term of future copyrights. Initially, the extensions of existing copyrights +were short, a mere one to two years. In 1976, Congress extended all existing +copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term +Extension Act, Congress extended the term of existing and future copyrights by +twenty years. +={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) +1 ; + public domain : + future patents vs. future copyrights in +4 +} + +The effect of these extensions is simply to toll, or delay, the passing of +works into the public domain. This latest extension means that the public +domain will have been tolled for thirty-nine out of fifty-five years, or 70 +percent of the time since 1962. Thus, in the twenty years after the Sonny Bono +Act, while one million patents will pass into the public domain, zero +copyrights will pass into the public domain by virtue of the expiration of a +copyright term. +={ patents : + in public domain +} + +The effect of these extensions has been exacerbated by another, little-noticed +change in the copyright law. Remember I said that the framers established a +two- part copyright regime, requiring a copyright owner to renew his copyright +after an initial term. The requirement of renewal meant that works that no +longer needed copyright protection would pass more quickly into the public +domain. The works remaining under protection would be those that had some +continuing commercial value. + +The United States abandoned this sensible system in 1976. For all works created +after 1978, there was only one copyright term - the maximum term. For "natural" +authors, that term was life plus fifty years. For corporations, the term was +seventy-five years. Then, in 1992, Congress abandoned the renewal requirement +for all works created before 1978. All works still under copyright would be +accorded the maximum term then available. After the Sonny Bono Act, that term +was ninety-five years. +={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) ; + copyright : + of natural authors vs. corporations ; + corporations : + copyright terms for +} + +This change meant that American law no longer had an automatic way to assure +that works that were no longer exploited passed into the public domain. And +indeed, after these changes, it is unclear whether it is even possible to put +works into the public domain. The public domain is orphaned by these changes in +copyright law. Despite the requirement that terms be "limited," we have no +evidence that anything will limit them. + +The effect of these changes on the average duration of copyright is dramatic. +In 1973, more than 85 percent of copyright owners failed to renew their +copyright. That meant that the average term of copyright in 1973 was just 32.2 +years. Because of the elimination of the renewal requirement, the average term +of copyright is now the maximum term. In thirty years, then, the average term +has tripled, from 32.2 years to 95 years.~{ These statistics are understated. +Between the years 1910 and 1962 (the first year the renewal term was extended), +the average term was never more than thirty-two years, and averaged thirty +years. See Landes and Posner, "Indefinitely Renewable Copyright," loc. cit. }~ + +2~ Law: Scope +={ copyright : + scope of +17 +} + +The "scope" of a copyright is the range of rights granted by the law. The scope +of American copyright has changed dramatically. Those changes are not +necessarily bad. But we should understand the extent of the changes if we're to +keep this debate in context. + +In 1790, that scope was very narrow. Copyright covered only "maps, charts, and +books." That means it didn't cover, for example, music or architecture. More +significantly, the right granted by a copyright gave the author the exclusive +right to "publish" copyrighted works. That means someone else violated the +copyright only if he republished the work without the copyright owner's +permission. Finally, the right granted by a copyright was an exclusive right to +that particular book. The right did not extend to what lawyers call "derivative +works." It would not, therefore, interfere with the right of someone other than +the author to translate a copyrighted book, or to adapt the story to a +different form (such as a drama based on a published book). +={ copyright law : + on republishing vs. transformation of original work ; + derivative works : + historical shift in copyright coverage of +2 +} + +This, too, has changed dramatically. While the contours of copyright today are +extremely hard to describe simply, in general terms, the right covers +practically any creative work that is reduced to a tangible form. It covers +music as well as architecture, drama as well as computer programs. It gives the +copyright owner of that creative work not only the exclusive right to "publish" +the work, but also the exclusive right of control over any "copies" of that +work. And most significant for our purposes here, the right gives the copyright +owner control over not only his or her particular work, but also any +"derivative work" that might grow out of the original work. In this way, the +right covers more creative work, protects the creative work more broadly, and +protects works that are based in a significant way on the initial creative +work. + +At the same time that the scope of copyright has expanded, procedural +limitations on the right have been relaxed. I've already described the complete +removal of the renewal requirement in 1992. In addition to the renewal +requirement, for most of the history of American copyright law, there was a +requirement that a work be registered before it could receive the protection of +a copyright. There was also a requirement that any copyrighted work be marked +either with that famous © or the word /{copyright}/. And for most of the +history of American copyright law, there was a requirement that works be +deposited with the government before a copyright could be secured. +={ copyright : + marking of +2 ; + formalities +2 ; + copyright law : + registration requirement of +2 +} + +The reason for the registration requirement was the sensible understanding that +for most works, no copyright was required. Again, in the first ten years of the +Republic, 95 percent of works eligible for copyright were never copyrighted. +Thus, the rule reflected the norm: Most works apparently didn't need copyright, +so registration narrowed the regulation of the law to the few that did. The +same reasoning justified the requirement that a work be marked as copyrighted - +that way it was easy to know whether a copyright was being claimed. The +requirement that works be deposited was to assure that after the copyright +expired, there would be a copy of the work somewhere so that it could be copied +by others without locating the original author. + +All of these "formalities" were abolished in the American system when we +decided to follow European copyright law. There is no requirement that you +register a work to get a copyright; the copyright now is automatic; the +copyright exists whether or not you mark your work with a ©; and the copyright +exists whether or not you actually make a copy available for others to copy. +={ copyright law : + European +} + +Consider a practical example to understand the scope of these differences. + +If, in 1790, you wrote a book and you were one of the 5 percent who actually +copyrighted that book, then the copyright law protected you against another +publisher's taking your book and republishing it without your permission. The +aim of the act was to regulate publishers so as to prevent that kind of unfair +competition. In 1790, there were 174 publishers in the United States.~{ See +Thomas Bender and David Sampliner, "Poets, Pirates, and the Creation of +American Literature," 29 /{New York University Journal of International Law and +Politics}/ 255 (1997), and James Gilraeth, ed., Federal Copyright Records, +1790- 1800 (U.S. G.P.O., 1987). }~ The Copyright Act was thus a tiny regulation +of a tiny proportion of a tiny part of the creative market in the United States +- publishers. +={ Copyright Act (1790) +1 } + +The act left other creators totally unregulated. If I copied your poem by hand, +over and over again, as a way to learn it by heart, my act was totally +unregulated by the 1790 act. If I took your novel and made a play based upon +it, or if I translated it or abridged it, none of those activities were +regulated by the original copyright act. These creative activities remained +free, while the activities of publishers were restrained. +={ copyright law : + on republishing vs. transformation of original work +8 ; + derivative works : + piracy vs. +3 ; + piracy : + derivative work vs. +6 +} + +Today the story is very different: If you write a book, your book is +automatically protected. Indeed, not just your book. Every e-mail, every note +to your spouse, every doodle, /{every}/ creative act that's reduced to a +tangible form - all of this is automatically copyrighted. There is no need to +register or mark your work. The protection follows the creation, not the steps +you take to protect it. + +That protection gives you the right (subject to a narrow range of fair use +exceptions) to control how others copy the work, whether they copy it to +republish it or to share an excerpt. + +That much is the obvious part. Any system of copyright would control competing +publishing. But there's a second part to the copyright of today that is not at +all obvious. This is the protection of "derivative rights." If you write a +book, no one can make a movie out of your book without permission. No one can +translate it without permission. CliffsNotes can't make an abridgment unless +permission is granted. All of these derivative uses of your original work are +controlled by the copyright holder. The copyright, in other words, is now not +just an exclusive right to your writings, but an exclusive right to your +writings and a large proportion of the writings inspired by them. + +It is this derivative right that would seem most bizarre to our framers, though +it has become second nature to us. Initially, this expansion was created to +deal with obvious evasions of a narrower copyright. If I write a book, can you +change one word and then claim a copyright in a new and different book? +Obviously that would make a joke of the copyright, so the law was properly +expanded to include those slight modifications as well as the verbatim original +work. + +In preventing that joke, the law created an astonishing power within a free +culture - at least, it's astonishing when you understand that the law applies +not just to the commercial publisher but to anyone with a computer. I +understand the wrong in duplicating and selling someone else's work. But +whatever /{that}/ wrong is, transforming someone else's work is a different +wrong. Some view transformation as no wrong at all - they believe that our law, +as the framers penned it, should not protect derivative rights at all.~{ +Jonathan Zittrain, "The Copyright Cage," /{Legal Affairs,}/ July/August 2003, +available at link #26. }~ Whether or not you go that far, it seems plain that +whatever wrong is involved is fundamentally different from the wrong of direct +piracy. + +Yet copyright law treats these two different wrongs in the same way. I can go +to court and get an injunction against your pirating my book. I can go to court +and get an injunction against your transformative use of my book.~{ Professor +Rubenfeld has presented a powerful constitutional argument about the difference +that copyright law should draw (from the perspective of the First Amendment) +between mere "copies" and derivative works. See Jed Rubenfeld, "The Freedom of +Imagination: Copyright's Constitutionality," /{Yale Law Journal}/ 112 (2002): +1-60 (see especially pp. 53-59). }~ These two different uses of my creative +work are treated the same. + +This again may seem right to you. If I wrote a book, then why should you be +able to write a movie that takes my story and makes money from it without +paying me or crediting me? Or if Disney creates a creature called "Mickey +Mouse," why should you be able to make Mickey Mouse toys and be the one to +trade on the value that Disney originally created? +={ Disney, Walt ; + Mickey Mouse +} + +These are good arguments, and, in general, my point is not that the derivative +right is unjustified. My aim just now is much narrower: simply to make clear +that this expansion is a significant change from the rights originally granted. + +2~ Law and Architecture: Reach + +Whereas originally the law regulated only publishers, the change in copyright's +scope means that the law today regulates publishers, users, and authors. It +regulates them because all three are capable of making copies, and the core of +the regulation of copyright law is copies.~{ This is a simplification of the +law, but not much of one. The law certainly regulates more than "copies" - a +public performance of a copyrighted song, for example, is regulated even though +performance per se doesn't make a copy; 17 /{United States Code,}/ section +106(4). And it certainly sometimes doesn't regulate a "copy"; 17 /{United +States Code,}/ section 112(a). But the presumption under the existing law +(which regulates "copies;" 17 /{United States Code,}/ section 102) is that if +there is a copy, there is a right. }~ +={ copyright law : + copies as core issue of +1 | scope of +2 +} + +"Copies." That certainly sounds like the obvious thing for /{copy}/right law to +regulate. But as with Jack Valenti's argument at the start of this chapter, +that "creative property" deserves the "same rights" as all other property, it +is the /{obvious}/ that we need to be most careful about. For while it may be +obvious that in the world before the Internet, copies were the obvious trigger +for copyright law, upon reflection, it should be obvious that in the world with +the Internet, copies should /{not}/ be the trigger for copyright law. More +precisely, they should not /{always}/ be the trigger for copyright law. +={ Valenti, Jack : + on creative property rights ; + creative property : + other property rights vs. +1 +} + +This is perhaps the central claim of this book, so let me take this very slowly +so that the point is not easily missed. My claim is that the Internet should at +least force us to rethink the conditions under which the law of copyright +automatically applies,~{ Thus, my argument is not that in each place that +copyright law extends, we should repeal it. It is instead that we should have a +good argument for its extending where it does, and should not determine its +reach on the basis of arbitrary and automatic changes caused by technology. }~ +because it is clear that the current reach of copyright was never contemplated, +much less chosen, by the legislators who enacted copyright law. + +We can see this point abstractly by beginning with this largely empty circle. + +{freeculture05.png 350x350 "uses" }http://www.free-culture.cc/ + +Think about a book in real space, and imagine this circle to represent all its +potential /{uses}/. Most of these uses are unregulated by copyright law, +because the uses don't create a copy. If you read a book, that act is not +regulated by copyright law. If you give someone the book, that act is not +regulated by copyright law. If you resell a book, that act is not regulated +(copyright law expressly states that after the first sale of a book, the +copyright owner can impose no further conditions on the disposition of the +book). If you sleep on the book or use it to hold up a lamp or let your puppy +chew it up, those acts are not regulated by copyright law, because those acts +do not make a copy. +={ books : + three types of uses of +9 ; + copyright law : + copies as core issue of +16 ; + Internet : + copyright applicability altered by technology of +16 ; + technology : + copyright intent altered by +16 ; + derivative works : + piracy vs. +3 ; + piracy : + derivative work vs. +3 +} + +% piracy derivative work vs. in original index, not found, but included for page indicated + +{freeculture06.png 350x350 "unregulated" }http://www.free-culture.cc/ + +Obviously, however, some uses of a copyrighted book are regulated by copyright +law. Republishing the book, for example, makes a copy. It is therefore +regulated by copyright law. Indeed, this particular use stands at the core of +this circle of possible uses of a copyrighted work. It is the paradigmatic use +properly regulated by copyright regulation (see first diagram on next page). + +Finally, there is a tiny sliver of otherwise regulated copying uses that remain +unregulated because the law considers these "fair uses." +={ fair use +6 ; + copyright law : + fair use and +6 +} + +{freeculture07.png 350x350 }http://www.free-culture.cc/ + +These are uses that themselves involve copying, but which the law treats as +unregulated because public policy demands that they remain unregulated. You are +free to quote from this book, even in a review that is quite negative, without +my permission, even though that quoting makes a copy. That copy would +ordinarily give the copyright owner the exclusive right to say whether the copy +is allowed or not, but the law denies the owner any exclusive right over such +"fair uses" for public policy (and possibly First Amendment) reasons. +={ Constitution, U.S. : + First Amendment to ; + First Amendment +} + +{freeculture08.png 450x350 }http://www.free-culture.cc/ + +{freeculture09.png 350x350 }http://www.free-culture.cc/ + +In real space, then, the possible uses of a book are divided into three sorts: +(1) unregulated uses, (2) regulated uses, and (3) regulated uses that are +nonetheless deemed "fair" regardless of the copyright owner's views. +={ copyright : + usage restrictions attached to +8 +} + +Enter the Internet - a distributed, digital network where every use of a +copyrighted work produces a copy.~{ I don't mean "nature" in the sense that it +couldn't be different, but rather that its present instantiation entails a +copy. Optical networks need not make copies of content they transmit, and a +digital network could be designed to delete anything it copies so that the same +number of copies remain. }~ And because of this single, arbitrary feature of +the design of a digital network, the scope of category 1 changes dramatically. +Uses that before were presumptively unregulated are now presumptively +regulated. No longer is there a set of presumptively unregulated uses that +define a freedom associated with a copyrighted work. Instead, each use is now +subject to the copyright, because each use also makes a copy - category 1 gets +sucked into category 2. And those who would defend the unregulated uses of +copyrighted work must look exclusively to category 3, fair uses, to bear the +burden of this shift. +={ books : + on Internet +7 ; + Internet : + books on +7 ; + fair use : + Internet burdens on +} + +So let's be very specific to make this general point clear. Before the +Internet, if you purchased a book and read it ten times, there would be no +plausible /{copyright}/-related argument that the copyright owner could make to +control that use of her book. Copyright law would have nothing to say about +whether you read the book once, ten times, or every night before you went to +bed. None of those instances of use - reading - could be regulated by copyright +law because none of those uses produced a copy. + +But the same book as an e-book is effectively governed by a different set of +rules. Now if the copyright owner says you may read the book only once or only +once a month, then /{copyright law}/ would aid the copyright owner in +exercising this degree of control, because of the accidental feature of +copyright law that triggers its application upon there being a copy. Now if you +read the book ten times and the license says you may read it only five times, +then whenever you read the book (or any portion of it) beyond the fifth time, +you are making a copy of the book contrary to the copyright owner's wish. +={ e-books +5 ; + derivative works : + technological developments and +4 +} + +There are some people who think this makes perfect sense. My aim just now is +not to argue about whether it makes sense or not. My aim is only to make clear +the change. Once you see this point, a few other points also become clear: + +First, making category 1 disappear is not anything any policy maker ever +intended. Congress did not think through the collapse of the presumptively +unregulated uses of copyrighted works. There is no evidence at all that policy +makers had this idea in mind when they allowed our policy here to shift. +Unregulated uses were an important part of free culture before the Internet. + +Second, this shift is especially troubling in the context of transformative +uses of creative content. Again, we can all understand the wrong in commercial +piracy. But the law now purports to regulate /{any}/ transformation you make of +creative work using a machine. "Copy and paste" and "cut and paste" become +crimes. Tinkering with a story and releasing it to others exposes the tinkerer +to at least a requirement of justification. However troubling the expansion +with respect to copying a particular work, it is extraordinarily troubling with +respect to transformative uses of creative work. +={ copyright law : + on republishing vs. transformation of original work +1 +} + +Third, this shift from category 1 to category 2 puts an extraordinary burden on +category 3 ("fair use") that fair use never before had to bear. If a copyright +owner now tried to control how many times I could read a book on-line, the +natural response would be to argue that this is a violation of my fair use +rights. But there has never been any litigation about whether I have a fair use +right to read, because before the Internet, reading did not trigger the +application of copyright law and hence the need for a fair use defense. The +right to read was effectively protected before because reading was not +regulated. +={ fair use : + Internet burdens on +1 ; + copyright law : + fair use and +1 ; + derivative works : + fair use vs. +1 +} + +This point about fair use is totally ignored, even by advocates for free +culture. We have been cornered into arguing that our rights depend upon fair +use - never even addressing the earlier question about the expansion in +effective regulation. A thin protection grounded in fair use makes sense when +the vast majority of uses are /{unregulated}/. But when everything becomes +presumptively regulated, then the protections of fair use are not enough. + +The case of Video Pipeline is a good example. Video Pipeline was in the +business of making "trailer" advertisements for movies available to video +stores. The video stores displayed the trailers as a way to sell videos. Video +Pipeline got the trailers from the film distributors, put the trailers on tape, +and sold the tapes to the retail stores. +={ Video Pipeline +5 ; + advertising +2 ; + film industry : + trailer advertisements of +2 +} + +The company did this for about fifteen years. Then, in 1997, it began to think +about the Internet as another way to distribute these previews. The idea was to +expand their "selling by sampling" technique by giving on-line stores the same +ability to enable "browsing." Just as in a bookstore you can read a few pages +of a book before you buy the book, so, too, you would be able to sample a bit +from the movie on-line before you bought it. +={ browsing } + +In 1998, Video Pipeline informed Disney and other film distributors that it +intended to distribute the trailers through the Internet (rather than sending +the tapes) to distributors of their videos. Two years later, Disney told Video +Pipeline to stop. The owner of Video Pipeline asked Disney to talk about the +matter - he had built a business on distributing this content as a way to help +sell Disney films; he had customers who depended upon his delivering this +content. Disney would agree to talk only if Video Pipeline stopped the +distribution immediately. Video Pipeline thought it was within their "fair use" +rights to distribute the clips as they had. So they filed a lawsuit to ask the +court to declare that these rights were in fact their rights. +={ Disney, Inc. +3 ; + copyright law : + fair use and ; + copyright law : + copies as core issue of +3 ; + fair use : + legal intimidation tactics against +3 +} + +Disney countersued - for $100 million in damages. Those damages were predicated +upon a claim that Video Pipeline had - willfully infringed" on Disney's +copyright. When a court makes a finding of willful infringement, it can award +damages not on the basis of the actual harm to the copyright owner, but on the +basis of an amount set in the statute. Because Video Pipeline had distributed +seven hundred clips of Disney movies to enable video stores to sell copies of +those movies, Disney was now suing Video Pipeline for $100 million. +={ copyright : + usage restrictions attached to +2 ; + copyright infringement lawsuits : + willful infringement findings in +2 ; + willful infringement +} + +Disney has the right to control its property, of course. But the video stores +that were selling Disney's films also had some sort of right to be able to sell +the films that they had bought from Disney. Disney's claim in court was that +the stores were allowed to sell the films and they were permitted to list the +titles of the films they were selling, but they were not allowed to show clips +of the films as a way of selling them without Disney's permission. + +Now, you might think this is a close case, and I think the courts would +consider it a close case. My point here is to map the change that gives Disney +this power. Before the Internet, Disney couldn't really control how people got +access to their content. Once a video was in the marketplace, the "first-sale +doctrine" would free the seller to use the video as he wished, including +showing portions of it in order to engender sales of the entire movie video. +But with the Internet, it becomes possible for Disney to centralize control +over access to this content. Because each use of the Internet produces a copy, +use on the Internet becomes subject to the copyright owner's control. The +technology expands the scope of effective control, because the technology +builds a copy into every transaction. +={ first-sale doctrine } + +No doubt, a potential is not yet an abuse, and so the potential for control is +not yet the abuse of control. Barnes & Noble has the right to say you can't +touch a book in their store; property law gives them that right. But the market +effectively protects against that abuse. If Barnes & Noble banned browsing, +then consumers would choose other bookstores. Competition protects against the +extremes. And it may well be (my argument so far does not even question this) +that competition would prevent any similar danger when it comes to copyright. +Sure, publishers exercising the rights that authors have assigned to them might +try to regulate how many times you read a book, or try to stop you from sharing +the book with anyone. But in a competitive market such as the book market, the +dangers of this happening are quite slight. +={ Barnes & Noble ; + browsing ; + market competition +} + +Again, my aim so far is simply to map the changes that this changed +architecture enables. Enabling technology to enforce the control of copyright +means that the control of copyright is no longer defined by balanced policy. +The control of copyright is simply what private owners choose. In some +contexts, at least, that fact is harmless. But in some contexts it is a recipe +for disaster. + +2~ Architecture and Law: Force + +The disappearance of unregulated uses would be change enough, but a second +important change brought about by the Internet magnifies its significance. This +second change does not affect the reach of copyright regulation; it affects how +such regulation is enforced. + +In the world before digital technology, it was generally the law that +controlled whether and how someone was regulated by copyright law. The law, +meaning a court, meaning a judge: In the end, it was a human, trained in the +tradition of the law and cognizant of the balances that tradition embraced, who +said whether and how the law would restrict your freedom. +={ copyright law : + technology as automatic enforcer of ; + technology : + copyright enforcement controlled by +} + +There's a famous story about a battle between the Marx Brothers and Warner +Brothers. The Marxes intended to make a parody of /{Casablanca}/. Warner +Brothers objected. They wrote a nasty letter to the Marxes, warning them that +there would be serious legal consequences if they went forward with their +plan.~{ See David Lange, "Recognizing the Public Domain," /{Law and +Contemporary Problems}/ 44 (1981): 172-73. }~ +={ Marx Brothers +3 ; + Warner Brothers +2 ; + Casablanca +1 +} + +This led the Marx Brothers to respond in kind. They warned Warner Brothers that +the Marx Brothers "were brothers long before you were."~{ Ibid. See also +Vaidhyanathan, /{Copyrights and Copywrongs,}/ 1-3. }~ The Marx Brothers +therefore owned the word /{brothers}/, and if Warner Brothers insisted on +trying to control /{Casablanca}/, then the Marx Brothers would insist on +control over /{brothers}/. + +An absurd and hollow threat, of course, because Warner Brothers, like the Marx +Brothers, knew that no court would ever enforce such a silly claim. This +extremism was irrelevant to the real freedoms anyone (including Warner +Brothers) enjoyed. + +On the Internet, however, there is no check on silly rules, because on the +Internet, increasingly, rules are enforced not by a human but by a machine: +Increasingly, the rules of copyright law, as interpreted by the copyright +owner, get built into the technology that delivers copyrighted content. It is +code, rather than law, that rules. And the problem with code regulations is +that, unlike law, code has no shame. Code would not get the humor of the Marx +Brothers. The consequence of that is not at all funny. +={ books : + on Internet +30 ; + Internet : + books on +28 +} + +Consider the life of my Adobe eBook Reader. +={ Adobe eBook Reader +2 ; + copyright law : + technology as automatic enforcer of +68 ; + technology : + copyright enforcement controlled by +68 ; + e-books +27 +} + +An e-book is a book delivered in electronic form. An Adobe eBook is not a book +that Adobe has published; Adobe simply produces the software that publishers +use to deliver e-books. It provides the technology, and the publisher delivers +the content by using the technology. + +On the next page is a picture of an old version of my Adobe eBook Reader. + +As you can see, I have a small collection of e-books within this e-book +library. Some of these books reproduce content that is in the public domain: +/{Middlemarch}/, for example, is in the public domain. Some of them reproduce +content that is not in the public domain: My own book /{The Future of Ideas}/ +is not yet within the public domain. +={ Future of Ideas, The (Lessig) ; + Lessig, Lawrence ; + Middlemarch (Eliot) +1 ; + public domain : + e-book restrictions on +9 +} + +Consider /{Middlemarch}/ first. If you click on my e-book copy of +/{Middlemarch}/, you'll see a fancy cover, and then a button at the bottom +called Permissions. +={ Internet : + copyright enforced through +46 ; + permissions : + coded controls vs. +23 +} + +{freeculture10.png 340x450 }http://www.free-culture.cc/ + +If you click on the Permissions button, you'll see a list of the permissions +that the publisher purports to grant with this book. + +{freeculture11.png 560x250 }http://www.free-culture.cc/ + +According to my eBook Reader, I have the permission to copy to the clipboard of +the computer ten text selections every ten days. (So far, I've copied no text +to the clipboard.) I also have the permission to print ten pages from the book +every ten days. Lastly, I have the permission to use the Read Aloud button to +hear /{Middlemarch}/ read aloud through the computer. +={ Middlemarch (Eliot) } + +{freeculture12.png 310x410 }http://www.free-culture.cc/ + +Here's the e-book for another work in the public domain (including the +translation): Aristotle's /{Politics}/. +={ Aristotle ; + Politics (Aristotle) +} + +According to its permissions, no printing or copying is permitted at all. But +fortunately, you can use the Read Aloud button to hear the book. + +{freeculture13.png 560x220 }http://www.free-culture.cc/ + +Finally (and most embarrassingly), here are the permissions for the original e- +book version of my last book, /{The Future of Ideas}/: +={ Future of Ideas, The (Lessig) ; + Lessig, Lawrence +} + +{freeculture14.png 560x224 }http://www.free-culture.cc/ + +No copying, no printing, and don't you dare try to listen to this book! + +Now, the Adobe eBook Reader calls these controls "permissions" - as if the +publisher has the power to control how you use these works. For works under +copyright, the copyright owner certainly does have the power - up to the limits +of the copyright law. But for work not under copyright, there is no such +copyright power.~{ In principle, a contract might impose a requirement on me. I +might, for example, buy a book from you that includes a contract that says I +will read it only three times, or that I promise to read it three times. But +that obligation (and the limits for creating that obligation) would come from +the contract, not from copyright law, and the obligations of contract would not +necessarily pass to anyone who subsequently acquired the book. }~ When my +e-book of /{Middlemarch}/ says I have the permission to copy only ten text +selections into the memory every ten days, what that really means is that the +eBook Reader has enabled the publisher to control how I use the book on my +computer, far beyond the control that the law would enable. + +The control comes instead from the code - from the technology within which the +e- book "lives." Though the e-book says that these are permissions, they are +not the sort of "permissions" that most of us deal with. When a teenager gets +"permission" to stay out till midnight, she knows (unless she's Cinderella) +that she can stay out till 2 A.M., but will suffer a punishment if she's +caught. But when the Adobe eBook Reader says I have the permission to make ten +copies of the text into the computer's memory, that means that after I've made +ten copies, the computer will not make any more. The same with the printing +restrictions: After ten pages, the eBook Reader will not print any more pages. +It's the same with the silly restriction that says that you can't use the Read +Aloud button to read my book aloud - it's not that the company will sue you if +you do; instead, if you push the Read Aloud button with my book, the machine +simply won't read aloud. + +These are /{controls}/, not permissions. Imagine a world where the Marx +Brothers sold word processing software that, when you tried to type "Warner +Brothers," erased "Brothers" from the sentence. +={ Marx Brothers ; + Warner Brothers +} + +This is the future of copyright law: not so much copyright /{law}/ as copyright +/{code}/. The controls over access to content will not be controls that are +ratified by courts; the controls over access to content will be controls that +are coded by programmers. And whereas the controls that are built into the law +are always to be checked by a judge, the controls that are built into the +technology have no similar built-in check. + +How significant is this? Isn't it always possible to get around the controls +built into the technology? Software used to be sold with technologies that +limited the ability of users to copy the software, but those were trivial +protections to defeat. Why won't it be trivial to defeat these protections as +well? + +We've only scratched the surface of this story. Return to the Adobe eBook +Reader. + +Early in the life of the Adobe eBook Reader, Adobe suffered a public relations +nightmare. Among the books that you could download for free on the Adobe site +was a copy of /{Alice's Adventures in Wonderland}/. This wonderful book is in +the public domain. Yet when you clicked on Permissions for that book, you got +the following report: +={ Alice's Adventures in Wonderland (Caroll) +4 ; + public domain : + e-book restrictions on +4 +} + +{freeculture15.png 560x310 }http://www.free-culture.cc/ + +Here was a public domain children's book that you were not allowed to copy, not +allowed to lend, not allowed to give, and, as the "permissions" indicated, not +allowed to "read aloud"! + +The public relations nightmare attached to that final permission. For the text +did not say that you were not permitted to use the Read Aloud button; it said +you did not have the permission to read the book aloud. That led some people to +think that Adobe was restricting the right of parents, for example, to read the +book to their children, which seemed, to say the least, absurd. + +Adobe responded quickly that it was absurd to think that it was trying to +restrict the right to read a book aloud. Obviously it was only restricting the +ability to use the Read Aloud button to have the book read aloud. But the +question Adobe never did answer is this: Would Adobe thus agree that a consumer +was free to use software to hack around the restrictions built into the eBook +Reader? If some company (call it Elcomsoft) developed a program to disable the +technological protection built into an Adobe eBook so that a blind person, say, +could use a computer to read the book aloud, would Adobe agree that such a use +of an eBook Reader was fair? Adobe didn't answer because the answer, however +absurd it might seem, is no. + +The point is not to blame Adobe. Indeed, Adobe is among the most innovative +companies developing strategies to balance open access to content with +incentives for companies to innovate. But Adobe's technology enables control, +and Adobe has an incentive to defend this control. That incentive is +understandable, yet what it creates is often crazy. + +To see the point in a particularly absurd context, consider a favorite story of +mine that makes the same point. + +Consider the robotic dog made by Sony named "Aibo." The Aibo learns tricks, +cuddles, and follows you around. It eats only electricity and that doesn't +leave that much of a mess (at least in your house). +={ Aibo robotic dog +6 ; + robotic dog +6 ; + Sony : + Aibo robotic dog produced by +6 +} + +The Aibo is expensive and popular. Fans from around the world have set up clubs +to trade stories. One fan in particular set up a Web site to enable information +about the Aibo dog to be shared. This fan set up aibopet.com (and aibohack.com, +but that resolves to the same site), and on that site he provided information +about how to teach an Aibo to do tricks in addition to the ones Sony had taught +it. +={ hacks +4 } + +"Teach" here has a special meaning. Aibos are just cute computers. You teach a +computer how to do something by programming it differently. So to say that +aibopet.com was giving information about how to teach the dog to do new tricks +is just to say that aibopet.com was giving information to users of the Aibo pet +about how to hack their computer "dog" to make it do new tricks (thus, +aibohack.com). + +If you're not a programmer or don't know many programmers, the word /{hack}/ +has a particularly unfriendly connotation. Nonprogrammers hack bushes or weeds. +Nonprogrammers in horror movies do even worse. But to programmers, or coders, +as I call them, /{hack}/ is a much more positive term. /{Hack}/ just means code +that enables the program to do something it wasn't originally intended or +enabled to do. If you buy a new printer for an old computer, you might find the +old computer doesn't run, or "drive," the printer. If you discovered that, +you'd later be happy to discover a hack on the Net by someone who has written a +driver to enable the computer to drive the printer you just bought. + +Some hacks are easy. Some are unbelievably hard. Hackers as a community like to +challenge themselves and others with increasingly difficult tasks. There's a +certain respect that goes with the talent to hack well. There's a well-deserved +respect that goes with the talent to hack ethically. + +The Aibo fan was displaying a bit of both when he hacked the program and +offered to the world a bit of code that would enable the Aibo to dance jazz. +The dog wasn't programmed to dance jazz. It was a clever bit of tinkering that +turned the dog into a more talented creature than Sony had built. + +I've told this story in many contexts, both inside and outside the United +States. Once I was asked by a puzzled member of the audience, is it permissible +for a dog to dance jazz in the United States? We forget that stories about the +backcountry still flow across much of the world. So let's just be clear before +we continue: It's not a crime anywhere (anymore) to dance jazz. Nor is it a +crime to teach your dog to dance jazz. Nor should it be a crime (though we +don't have a lot to go on here) to teach your robot dog to dance jazz. Dancing +jazz is a completely legal activity. One imagines that the owner of aibopet.com +thought, /{What possible problem could there be with teaching a robot dog to +dance?}/ + +Let's put the dog to sleep for a minute, and turn to a pony show - not +literally a pony show, but rather a paper that a Princeton academic named Ed +Felten prepared for a conference. This Princeton academic is well known and +respected. He was hired by the government in the Microsoft case to test +Microsoft's claims about what could and could not be done with its own code. In +that trial, he demonstrated both his brilliance and his coolness. Under heavy +badgering by Microsoft lawyers, Ed Felten stood his ground. He was not about to +be bullied into being silent about something he knew very well. +={ Felten, Ed +11 ; + Microsoft : + government case against +} + +But Felten's bravery was really tested in April 2001.~{ See Pamela Samuelson, +"Anticircumvention Rules: Threat to Science," /{Science}/ 293 (2001): 2028; +Brendan I. Koerner, "Play Dead: Sony Muzzles the Techies Who Teach a Robot Dog +New Tricks," /{American Prospect,}/ 1 January 2002; "Court Dismisses Computer +Scientists' Challenge to DMCA," /{Intellectual Property Litigation Reporter,}/ +11 December 2001; Bill Holland, "Copyright Act Raising Free-Speech Concerns," +/{Billboard,}/ 26 May 2001; Janelle Brown, "Is the RIAA Running Scared?" +Salon.com, 26 April 2001; Electronic Frontier Foundation, "Frequently Asked +Questions about /{Felten and USENIX v. RIAA}/ Legal Case," available at link +#27. }~ He and a group of colleagues were working on a paper to be submitted at +conference. The paper was intended to describe the weakness in an encryption +system being developed by the Secure Digital Music Initiative as a technique to +control the distribution of music. +={ Secure Digital Music Initiative (SDMI) +5 ; + encryption systems +5 ; + Internet : + encryption systems designed for +5 +} + +The SDMI coalition had as its goal a technology to enable content owners to +exercise much better control over their content than the Internet, as it +originally stood, granted them. Using encryption, SDMI hoped to develop a +standard that would allow the content owner to say "this music cannot be +copied," and have a computer respect that command. The technology was to be +part of a "trusted system" of control that would get content owners to trust +the system of the Internet much more. + +When SDMI thought it was close to a standard, it set up a competition. In +exchange for providing contestants with the code to an SDMI-encrypted bit of +content, contestants were to try to crack it and, if they did, report the +problems to the consortium. + +Felten and his team figured out the encryption system quickly. He and the team +saw the weakness of this system as a type: Many encryption systems would suffer +the same weakness, and Felten and his team thought it worthwhile to point this +out to those who study encryption. + +Let's review just what Felten was doing. Again, this is the United States. We +have a principle of free speech. We have this principle not just because it is +the law, but also because it is a really great idea. A strongly protected +tradition of free speech is likely to encourage a wide range of criticism. That +criticism is likely, in turn, to improve the systems or people or ideas +criticized. +={ speech, freedom of : + useful criticism fostered by +} + +What Felten and his colleagues were doing was publishing a paper describing the +weakness in a technology. They were not spreading free music, or building and +deploying this technology. The paper was an academic essay, unintelligible to +most people. But it clearly showed the weakness in the SDMI system, and why +SDMI would not, as presently constituted, succeed. + +What links these two, aibopet.com and Felten, is the letters they then +received. Aibopet.com received a letter from Sony about the aibopet.com hack. +Though a jazz-dancing dog is perfectly legal, Sony wrote: +={ Aibo robotic dog +1 ; + robotic dog +1 ; + Sony : + Aibo robotic dog produced by +1 +} + +_1 Your site contains information providing the means to circumvent AIBO-ware's +copy protection protocol constituting a violation of the anti-circumvention +provisions of the Digital Millennium Copyright Act." +={ circumvention technologies ; + Digital Millennium Copyright Act (DMCA) +7 ; + DMCA (Digital Millennium Copyright Act) +7 ; + copyright law : + circumvention technology banned by +19 ; + technology : + of circumvention +} + +And though an academic paper describing the weakness in a system of encryption +should also be perfectly legal, Felten received a letter from an RIAA lawyer +that read: +={ Recording Industry Association of America (RIAA) : + on encryption system critique +1 +} + +_1 Any disclosure of information gained from participating in the Public +Challenge would be outside the scope of activities permitted by the Agreement +and could subject you and your research team to actions under the Digital +Millennium Copyright Act ("DMCA")." + +In both cases, this weirdly Orwellian law was invoked to control the spread of +information. The Digital Millennium Copyright Act made spreading such +information an offense. + +The DMCA was enacted as a response to copyright owners' first fear about +cyberspace. The fear was that copyright control was effectively dead; the +response was to find technologies that might compensate. These new technologies +would be copyright protection technologies - technologies to control the +replication and distribution of copyrighted material. They were designed as +/{code}/ to modify the original /{code}/ of the Internet, to reestablish some +protection for copyright owners. + +The DMCA was a bit of law intended to back up the protection of this code +designed to protect copyrighted material. It was, we could say, /{legal code}/ +intended to buttress /{software code}/ which itself was intended to support the +/{legal code of copyright}/. + +But the DMCA was not designed merely to protect copyrighted works to the extent +copyright law protected them. Its protection, that is, did not end at the line +that copyright law drew. The DMCA regulated devices that were designed to +circumvent copyright protection measures. It was designed to ban those devices, +whether or not the use of the copyrighted material made possible by that +circumvention would have been a copyright violation. +={ circumvention technologies +13 ; + fair use : + circumvention technology ban and +1 ; + technology : + of circumvention +13 +} + +Aibopet.com and Felten make the point. The Aibo hack circumvented a copyright +protection system for the purpose of enabling the dog to dance jazz. That +enablement no doubt involved the use of copyrighted material. But as +aibopet.com's site was noncommercial, and the use did not enable subsequent +copyright infringements, there's no doubt that aibopet.com's hack was fair use +of Sony's copyrighted material. Yet fair use is not a defense to the DMCA. The +question is not whether the use of the copyrighted material was a copyright +violation. The question is whether a copyright protection system was +circumvented. +={ Felten, Ed +1 ; + Aibo robotic dog ; + robotic dog ; + Sony : + Aibo robotic dog produced by ; + copyright law : + fair use and +} + +The threat against Felten was more attenuated, but it followed the same line of +reasoning. By publishing a paper describing how a copyright protection system +could be circumvented, the RIAA lawyer suggested, Felten himself was +distributing a circumvention technology. Thus, even though he was not himself +infringing anyone's copyright, his academic paper was enabling others to +infringe others' copyright. +={ Recording Industry Association of America (RIAA) : + on circumvention technology +} + +The bizarreness of these arguments is captured in a cartoon drawn in 1981 by +Paul Conrad. At that time, a court in California had held that the VCR could be +banned because it was a copyright-infringing technology: It enabled consumers +to copy films without the permission of the copyright owner. No doubt there +were uses of the technology that were legal: Fred Rogers, aka "Mr. Rogers," for +example, had testified in that case that he wanted people to feel free to tape +/{Mr. Rogers' Neighborhood}/. +={ Conrad, Paul ; + Rogers, Fred ; + cassette recording : + VCRs +10 ; + VCRs +10 ; + Mr. Rogers' Neighborhood ; + television : + VCR taping of +8 +} + +_1 Some public stations, as well as commercial stations, program the +"Neighborhood" at hours when some children cannot use it. I think that it's a +real service to families to be able to record such programs and show them at +appropriate times. I have always felt that with the advent of all of this new +technology that allows people to tape the "Neighborhood" off-the-air, and I'm +speaking for the "Neighborhood" because that's what I produce, that they then +become much more active in the programming of their family's television life. +Very frankly, I am opposed to people being programmed by others. My whole +approach in broadcasting has always been "You are an important person just the +way you are. You can make healthy decisions." Maybe I'm going on too long, but +I just feel that anything that allows a person to be more active in the control +of his or her life, in a healthy way, is important."~{ /{Sony Corporation of +America v. Universal City Studios, Inc.,}/ 464 U.S. 417, 455 fn. 27 (1984). +Rogers never changed his view about the VCR. See James Lardner, /{Fast Forward: +Hollywood, the Japanese, and the Onslaught of the VCR}/ (New York: W. W. +Norton, 1987), 270-71. }~ + +Even though there were uses that were legal, because there were some uses that +were illegal, the court held the companies producing the VCR responsible. + +This led Conrad to draw the cartoon below, which we can adopt to the DMCA. +={ Conrad, Paul ; + Digital Millennium Copyright Act (DMCA) +2 ; + DMCA (Digital Millennium Copyright Act) +2 +} + +No argument I have can top this picture, but let me try to get close. + +The anticircumvention provisions of the DMCA target copyright circumvention +technologies. Circumvention technologies can be used for different ends. They +can be used, for example, to enable massive pirating of copyrighted material - +a bad end. Or they can be used to enable the use of particular copyrighted +materials in ways that would be considered fair use - a good end. + +A handgun can be used to shoot a police officer or a child. Most would agree +such a use is bad. Or a handgun can be used for target practice or to protect +against an intruder. At least some would say that such a use would be good. It, +too, is a technology that has both good and bad uses. +={ guns +1 ; + handguns +1 +} + +{freeculture16.png 425x500 }http://www.free-culture.cc/ + +The obvious point of Conrad's cartoon is the weirdness of a world where guns +are legal, despite the harm they can do, while VCRs (and circumvention +technologies) are illegal. Flash: /{No one ever died from copyright +circumvention}/. Yet the law bans circumvention technologies absolutely, +despite the potential that they might do some good, but permits guns, despite +the obvious and tragic harm they do. +={ Recording Industry Association of America (RIAA) : + on circumvention technology +1 +} + +The Aibo and RIAA examples demonstrate how copyright owners are changing the +balance that copyright law grants. Using code, copyright owners restrict fair +use; using the DMCA, they punish those who would attempt to evade the +restrictions on fair use that they impose through code. Technology becomes a +means by which fair use can be erased; the law of the DMCA backs up that +erasing. +={ Conrad, Paul ; + Digital Millennium Copyright Act (DMCA) ; + DMCA (Digital Millennium Copyright Act) ; + Aibo robotic dog +1 ; + robotic dog +1 ; + copyright law : + fair use and +1 ; + fair use : + technological restriction of +1 +} + +This is how /{code}/ becomes /{law}/. The controls built into the technology of +copy and access protection become rules the violation of which is also a +violation of the law. In this way, the code extends the law - increasing its +regulation, even if the subject it regulates (activities that would otherwise +plainly constitute fair use) is beyond the reach of the law. Code becomes law; +code extends the law; code thus extends the control that copyright owners +effect - at least for those copyright holders with the lawyers who can write +the nasty letters that Felten and aibopet.com received. +={ Felten, Ed } + +There is one final aspect of the interaction between architecture and law that +contributes to the force of copyright's regulation. This is the ease with which +infringements of the law can be detected. For contrary to the rhetoric common +at the birth of cyberspace that on the Internet, no one knows you're a dog, +increasingly, given changing technologies deployed on the Internet, it is easy +to find the dog who committed a legal wrong. The technologies of the Internet +are open to snoops as well as sharers, and the snoops are increasingly good at +tracking down the identity of those who violate the rules. + +For example, imagine you were part of a /{Star Trek}/ fan club. You gathered +every month to share trivia, and maybe to enact a kind of fan fiction about the +show. One person would play Spock, another, Captain Kirk. The characters would +begin with a plot from a real story, then simply continue it.~{ For an early +and prescient analysis, see Rebecca Tushnet, "Legal Fictions, Copyright, Fan +Fiction, and a New Common Law," /{Loyola of Los Angeles Entertainment Law +Journal}/ 17 (1997): 651. }~ + +Before the Internet, this was, in effect, a totally unregulated activity. No +matter what happened inside your club room, you would never be interfered with +by the copyright police. You were free in that space to do as you wished with +this part of our culture. You were allowed to build on it as you wished without +fear of legal control. +={ Internet : + copyright enforced through +1 +} + +But if you moved your club onto the Internet, and made it generally available +for others to join, the story would be very different. Bots scouring the Net +for trademark and copyright infringement would quickly find your site. Your +posting of fan fiction, depending upon the ownership of the series that you're +depicting, could well inspire a lawyer's threat. And ignoring the lawyer's +threat would be extremely costly indeed. The law of copyright is extremely +efficient. The penalties are severe, and the process is quick. +={ bots } + +This change in the effective force of the law is caused by a change in the ease +with which the law can be enforced. That change too shifts the law's balance +radically. It is as if your car transmitted the speed at which you traveled at +every moment that you drove; that would be just one step before the state +started issuing tickets based upon the data you transmitted. That is, in +effect, what is happening here. + +2~ Market: Concentration + +So copyright's duration has increased dramatically - tripled in the past thirty +years. And copyright's scope has increased as well - from regulating only +publishers to now regulating just about everyone. And copyright's reach has +changed, as every action becomes a copy and hence presumptively regulated. And +as technologists find better ways to control the use of content, and as +copyright is increasingly enforced through technology, copyright's force +changes, too. Misuse is easier to find and easier to control. This regulation +of the creative process, which began as a tiny regulation governing a tiny part +of the market for creative work, has become the single most important regulator +of creativity there is. It is a massive expansion in the scope of the +government's control over innovation and creativity; it would be totally +unrecognizable to those who gave birth to copyright's control. + +Still, in my view, all of these changes would not matter much if it weren't for +one more change that we must also consider. This is a change that is in some +sense the most familiar, though its significance and scope are not well +understood. It is the one that creates precisely the reason to be concerned +about all the other changes I have described. + +This is the change in the concentration and integration of the media. In the +past twenty years, the nature of media ownership has undergone a radical +alteration, caused by changes in legal rules governing the media. Before this +change happened, the different forms of media were owned by separate media +companies. Now, the media is increasingly owned by only a few companies. +Indeed, after the changes that the FCC announced in June 2003, most expect that +within a few years, we will live in a world where just three companies control +more than 85 percent of the media. +={ FCC : + media ownership regulated by +2 ; + media : + ownership concentration in +21 +} + +These changes are of two sorts: the scope of concentration, and its nature. + +Changes in scope are the easier ones to describe. As Senator John McCain +summarized the data produced in the FCC's review of media ownership, "five +companies control 85 percent of our media sources."~{ FCC Oversight: Hearing +Before the Senate Commerce, Science and Transportation Committee, 108th Cong., +1st sess. (22 May 2003) (statement of Senator John McCain). }~ The five +recording labels of Universal Music Group, BMG, Sony Music Entertainment, +Warner Music Group, and EMI control 84.8 percent of the U.S. music market.~{ +Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to Slide," +/{New York Times,}/ 23 December 2002. }~ The "five largest cable companies pipe +programming to 74 percent of the cable subscribers nationwide."~{ Molly Ivins, +"Media Consolidation Must Be Stopped," /{Charleston Gazette,}/ 31 May 2003. }~ +={ BMG ; + cable television ; + EMI ; + McCain, John ; + recording industry : + ownership concentration in ; + Sony Music Entertainment ; + Universal Music Group ; + Warner Music Group ; + television : + ownership consolidation in +} + +The story with radio is even more dramatic. Before deregulation, the nation's +largest radio broadcasting conglomerate owned fewer than seventy-five stations. +Today /{one}/ company owns more than 1,200 stations. During that period of +consolidation, the total number of radio owners dropped by 34 percent. Today, +in most markets, the two largest broadcasters control 74 percent of that +market's revenues. Overall, just four companies control 90 percent of the +nation's radio advertising revenues. +={ radio : + ownership concentration in +} + +Newspaper ownership is becoming more concentrated as well. Today, there are six +hundred fewer daily newspapers in the United States than there were eighty +years ago, and ten companies control half of the nation's circulation. There +are twenty major newspaper publishers in the United States. The top ten film +studios receive 99 percent of all film revenue. The ten largest cable companies +account for 85 percent of all cable revenue. This is a market far from the free +press the framers sought to protect. Indeed, it is a market that is quite well +protected - by the market. +={ cable television +2 ; + television : + ownership consolidation in +2 ; + film industry : + consolidation of ; + newspapers : + ownership consolidation of +2 +} + +Concentration in size alone is one thing. The more invidious change is in the +nature of that concentration. As author James Fallows put it in a recent +article about Rupert Murdoch, +={ Fallows, James +1 ; + radio : + ownership concentration in +2 ; + Murdoch, Rupert +1 } + +_1 Murdoch's companies now constitute a production system unmatched in its +integration. They supply content - Fox movies ... Fox TV shows ... +Fox-controlled sports broadcasts, plus newspapers and books. They sell the +content to the public and to advertisers - in newspapers, on the broadcast +network, on the cable channels. And they operate the physical distribution +system through which the content reaches the customers. Murdoch's satellite +systems now distribute News Corp. content in Europe and Asia; if Murdoch +becomes DirecTV's largest single owner, that system will serve the same +function in the United States."~{ James Fallows, "The Age of Murdoch," +/{Atlantic Monthly}/ (September 2003): 89. }~ +={ DirectTV ; + Fox (film company) ; + News Corp +} + +The pattern with Murdoch is the pattern of modern media. Not just large +companies owning many radio stations, but a few companies owning as many +outlets of media as possible. A picture describes this pattern better than a +thousand words could do: + +{freeculture17.png 560x350 }http://www.free-culture.cc/ + +Does this concentration matter? Will it affect what is made, or what is +distributed? Or is it merely a more efficient way to produce and distribute +content? +={ innovation : + media conglomeration as disincentive for +13 +} + +My view was that concentration wouldn't matter. I thought it was nothing more +than a more efficient financial structure. But now, after reading and listening +to a barrage of creators try to convince me to the contrary, I am beginning to +change my mind. + +Here's a representative story that begins to suggest how this integration may +matter. + +In 1969, Norman Lear created a pilot for /{All in the Family}/. He took the +pilot to ABC. The network didn't like it. It was too edgy, they told Lear. Make +it again. Lear made a second pilot, more edgy than the first. ABC was +exasperated. You're missing the point, they told Lear. We wanted less edgy, not +more. +={ Lear, Norman +2 ; + ABC +1 ; + All in the Family ; + television : + independent production for +7 +} + +Rather than comply, Lear simply took the show elsewhere. CBS was happy to have +the series; ABC could not stop Lear from walking. The copyrights that Lear held +assured an independence from network control.~{ Leonard Hill, "The Axis of +Access," remarks before Weidenbaum Center Forum, "Entertainment Economics: The +Movie Industry," St. Louis, Missouri, 3 April 2003 (transcript of prepared +remarks available at link #28; for the Lear story, not included in the prepared +remarks, see link #29). }~ +={ CBS } + +The network did not control those copyrights because the law forbade the +networks from controlling the content they syndicated. The law required a +separation between the networks and the content producers; that separation +would guarantee Lear freedom. And as late as 1992, because of these rules, the +vast majority of prime time television - 75 percent of it - was "independent" +of the networks. + +In 1994, the FCC abandoned the rules that required this independence. After +that change, the networks quickly changed the balance. In 1985, there were +twenty- five independent television production studios; in 2002, only five +independent television studios remained. "In 1992, only 15 percent of new +series were produced for a network by a company it controlled. Last year, the +percentage of shows produced by controlled companies more than quintupled to 77 +percent." "In 1992, 16 new series were produced independently of conglomerate +control, last year there was one."~{ NewsCorp./DirecTV Merger and Media +Consolidation: Hearings on Media Ownership Before the Senate Commerce +Committee, 108th Cong., 1st sess. (2003) (testimony of Gene Kimmelman on behalf +of Consumers Union and the Consumer Federation of America), available at link +#30. Kimmelman quotes Victoria Riskin, president of Writers Guild of America, +West, in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February +2003. }~ In 2002, 75 percent of prime time television was owned by the networks +that ran it. "In the ten-year period between 1992 and 2002, the number of prime +time television hours per week produced by network studios increased over 200%, +whereas the number of prime time television hours per week produced by +independent studios decreased 63%."~{ Ibid. }~ +={ FCC : + on television production studios +} + +Today, another Norman Lear with another /{All in the Family}/ would find that +he had the choice either to make the show less edgy or to be fired: The content +of any show developed for a network is increasingly owned by the network. +={ Lear, Norman ; + All in the Family +} + +While the number of channels has increased dramatically, the ownership of those +channels has narrowed to an ever smaller and smaller few. As Barry Diller said +to Bill Moyers, +={ Diller, Barry +1 ; + Moyers, Bill +} + +_1 Well, if you have companies that produce, that finance, that air on their +channel and then distribute worldwide everything that goes through their +controlled distribution system, then what you get is fewer and fewer actual +voices participating in the process. [We u]sed to have dozens and dozens of +thriving independent production companies producing television programs. Now +you have less than a handful."~{ "Barry Diller Takes on Media Deregulation," +/{Now with Bill Moyers,}/ Bill Moyers, 25 April 2003, edited transcript +available at link #31. }~ + +This narrowing has an effect on what is produced. The product of such large and +concentrated networks is increasingly homogenous. Increasingly safe. +Increasingly sterile. The product of news shows from networks like this is +increasingly tailored to the message the network wants to convey. This is not +the communist party, though from the inside, it must feel a bit like the +communist party. No one can question without risk of consequence - not +necessarily banishment to Siberia, but punishment nonetheless. Independent, +critical, different views are quashed. This is not the environment for a +democracy. +={ democracy : + media concentration and +} + +Economics itself offers a parallel that explains why this integration affects +creativity. Clay Christensen has written about the "Innovator's Dilemma": the +fact that large traditional firms find it rational to ignore new, breakthrough +technologies that compete with their core business. The same analysis could +help explain why large, traditional media companies would find it rational to +ignore new cultural trends.~{ Clayton M. Christensen, /{The Innovator's +Dilemma: The Revolutionary National Bestseller that Changed the Way We Do +Business}/ (Cambridge: Harvard Business School Press, 1997). Christensen +acknowledges that the idea was first suggested by Dean Kim Clark. See Kim B. +Clark, "The Interaction of Design Hierarchies and Market Concepts in +Technological Evolution," /{Research Policy}/ 14 (1985): 235- 51. For a more +recent study, see Richard Foster and Sarah Kaplan, /{Creative Destruction: Why +Companies That Are Built to Last Underperform the Market - and How to +Successfully Transform Them}/ (New York: Currency/Doubleday, 2001). }~ +Lumbering giants not only don't, but should not, sprint. Yet if the field is +only open to the giants, there will be far too little sprinting. +={ Christensen, Clayton M. ; + Innovator's Dilemma, The (Christensen) +} + +I don't think we know enough about the economics of the media market to say +with certainty what concentration and integration will do. The efficiencies are +important, and the effect on culture is hard to measure. + +But there is a quintessentially obvious example that does strongly suggest the +concern. + +In addition to the copyright wars, we're in the middle of the drug wars. +Government policy is strongly directed against the drug cartels; criminal and +civil courts are filled with the consequences of this battle. + +Let me hereby disqualify myself from any possible appointment to any position +in government by saying I believe this war is a profound mistake. I am not pro +drugs. Indeed, I come from a family once wrecked by drugs - though the drugs +that wrecked my family were all quite legal. I believe this war is a profound +mistake because the collateral damage from it is so great as to make waging the +war insane. When you add together the burdens on the criminal justice system, +the desperation of generations of kids whose only real economic opportunities +are as drug warriors, the queering of constitutional protections because of the +constant surveillance this war requires, and, most profoundly, the total +destruction of the legal systems of many South American nations because of the +power of the local drug cartels, I find it impossible to believe that the +marginal benefit in reduced drug consumption by Americans could possibly +outweigh these costs. +={ drugs : + illegal +2 ; + criminal justice system +} + +You may not be convinced. That's fine. We live in a democracy, and it is +through votes that we are to choose policy. But to do that, we depend +fundamentally upon the press to help inform Americans about these issues. + +Beginning in 1998, the Office of National Drug Control Policy launched a media +campaign as part of the "war on drugs." The campaign produced scores of short +film clips about issues related to illegal drugs. In one series (the Nick and +Norm series) two men are in a bar, discussing the idea of legalizing drugs as a +way to avoid some of the collateral damage from the war. One advances an +argument in favor of drug legalization. The other responds in a powerful and +effective way against the argument of the first. In the end, the first guy +changes his mind (hey, it's television). The plug at the end is a damning +attack on the pro-legalization campaign. +={ advertising +4 ; + commercials +4 ; + television : + advertising on +4 ; + Nick and Norm anti-drug campaign +} + +Fair enough. It's a good ad. Not terribly misleading. It delivers its message +well. It's a fair and reasonable message. + +But let's say you think it is a wrong message, and you'd like to run a +countercommercial. Say you want to run a series of ads that try to demonstrate +the extraordinary collateral harm that comes from the drug war. Can you do it? + +Well,obviously, these ads cost lots of money. Assume you raise the money. +Assume a group of concerned citizens donates all the money in the world to help +you get your message out. Can you be sure your message will be heard then? + +No.You cannot. Television stations have a general policy of avoiding +"controversial" ads. Ads sponsored by the government are deemed +uncontroversial; ads disagreeing with the government are controversial. This +selectivity might be thought inconsistent with the First Amendment, but the +Supreme Court has held that stations have the right to choose what they run. +Thus, the major channels of commercial media will refuse one side of a crucial +debate the opportunity to present its case. And the courts will defend the +rights of the stations to be this biased.~{ The Marijuana Policy Project, in +February 2003, sought to place ads that directly responded to the Nick and Norm +series on stations within the Washington, D.C., area. Comcast rejected the ads +as "against [their] policy." The local NBC affiliate, WRC, rejected the ads +without reviewing them. The local ABC affiliate, WJOA, originally agreed to run +the ads and accepted payment to do so, but later decided not to run the ads and +returned the collected fees. Interview with Neal Levine, 15 October 2003. These +restrictions are, of course, not limited to drug policy. See, for example, Nat +Ives, "On the Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV +Networks," /{New York Times,}/ 13 March 2003, C4. Outside of election-related +air time there is very little that the FCC or the courts are willing to do to +even the playing field. For a general overview, see Rhonda Brown, "Ad Hoc +Access: The Regulation of Editorial Advertising on Television and Radio," +/{Yale Law and Policy Review}/ 6 (1988): 449-79, and for a more recent summary +of the stance of the FCC and the courts, see /{Radio-Television News Directors +Association v. FCC,}/ 184 F. 3d 872 (D.C. Cir. 1999). Municipal authorities +exercise the same authority as the networks. In a recent example from San +Francisco, the San Francisco transit authority rejected an ad that criticized +its Muni diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming +After Muni Rejects Ad," SFGate.com, 16 June 2003, available at link #32. The +ground was that the criticism was "too controversial." }~ +={ Constitution, U.S. : + First Amendment to ; + First Amendment ; + Supreme Court, U.S. : + on television advertising bans ; + television : + controversy avoided by +} + +I'd be happy to defend the networks' rights, as well - if we lived in a media +market that was truly diverse. But concentration in the media throws that +condition into doubt. If a handful of companies control access to the media, +and that handful of companies gets to decide which political positions it will +allow to be promoted on its channels, then in an obvious and important way, +concentration matters. You might like the positions the handful of companies +selects. But you should not like a world in which a mere few get to decide +which issues the rest of us get to know about. + +2~ Together +={ copyright : + scope of +25 +} + +There is something innocent and obvious about the claim of the copyright +warriors that the government should "protect my property." In the abstract, it +is obviously true and, ordinarily, totally harmless. No sane sort who is not an +anarchist could disagree. + +But when we see how dramatically this "property" has changed - when we +recognize how it might now interact with both technology and markets to mean +that the effective constraint on the liberty to cultivate our culture is +dramatically different - the claim begins to seem less innocent and obvious. +Given (1) the power of technology to supplement the law's control, and (2) the +power of concentrated markets to weaken the opportunity for dissent, if +strictly enforcing the massively expanded "property" rights granted by +copyright fundamentally changes the freedom within this culture to cultivate +and build upon our past, then we have to ask whether this property should be +redefined. + +Not starkly. Or absolutely. My point is not that we should abolish copyright or +go back to the eighteenth century. That would be a total mistake, disastrous +for the most important creative enterprises within our culture today. + +But there is a space between zero and one, Internet culture notwithstanding. +And these massive shifts in the effective power of copyright regulation, tied +to increased concentration of the content industry and resting in the hands of +technology that will increasingly enable control over the use of culture, +should drive us to consider whether another adjustment is called for. Not an +adjustment that increases copyright's power. Not an adjustment that increases +its term. Rather, an adjustment to restore the balance that has traditionally +defined copyright's regulation - a weakening of that regulation, to strengthen +creativity. + +Copyright law has not been a rock of Gibraltar. It's not a set of constant +commitments that, for some mysterious reason, teenagers and geeks now flout. +Instead, copyright power has grown dramatically in a short period of time, as +the technologies of distribution and creation have changed and as lobbyists +have pushed for more control by copyright holders. Changes in the past in +response to changes in technology suggest that we may well need similar changes +in the future. And these changes have to be /{reductions}/ in the scope of +copyright, in response to the extraordinary increase in control that technology +and the market enable. + +For the single point that is lost in this war on pirates is a point that we see +only after surveying the range of these changes. When you add together the +effect of changing law, concentrated markets, and changing technology, together +they produce an astonishing conclusion: /{Never in our history have fewer had a +legal right to control more of the development of our culture than now}/. + +Not when copyrights were perpetual, for when copyrights were perpetual, they +affected only that precise creative work. Not when only publishers had the +tools to publish, for the market then was much more diverse. Not when there +were only three television networks, for even then, newspapers, film studios, +radio stations, and publishers were independent of the networks. /{Never}/ has +copyright protected such a wide range of rights, against as broad a range of +actors, for a term that was remotely as long. This form of regulation - a tiny +regulation of a tiny part of the creative energy of a nation at the founding - +is now a massive regulation of the overall creative process. Law plus +technology plus the market now interact to turn this historically benign +regulation into the most significant regulation of culture that our free +society has known.~{ Siva Vaidhyanathan captures a similar point in his "four +surrenders" of copyright law in the digital age. See Vaidhyanathan, 159-60. }~ +={ copyright : + in perpetuity +} + +!_ This has been +a long chapter. Its point can now be briefly stated. + +At the start of this book, I distinguished between commercial and noncommercial +culture. In the course of this chapter, I have distinguished between copying a +work and transforming it. We can now combine these two distinctions and draw a +clear map of the changes that copyright law has undergone. +={ copyright law : + history of American +10 | on republishing vs. transformation of original work +16 ; + culture : + commercial vs. noncommercial +11 ; + derivative works : + historical shift in copyright coverage of +14 ; + public domain : + balance of U.S. content in +14 +} + +In 1790, the law looked like this: + +table{~h c3; 33; 33; 33; + + +Publish +Transform + +Commercial +© +Free + +Noncommercial +Free +Free + +}table + +The act of publishing a map, chart, and book was regulated by copyright law. +Nothing else was. Transformations were free. And as copyright attached only +with registration, and only those who intended to benefit commercially would +register, copying through publishing of noncommercial work was also free. +={ copyright law : + registration requirement of ; + copyright law : + copies as core issue of +7 +} + +By the end of the nineteenth century, the law had changed to this: + +table{~h c3; 33; 33; 33; + + +Publish +Transform + +Commercial +© +© + +Noncommercial +Free +Free + +}table + +Derivative works were now regulated by copyright law - if published, which +again, given the economics of publishing at the time, means if offered +commercially. But noncommercial publishing and transformation were still +essentially free. +={ derivative works : + technological developments and +5 ; + technology : + of copying +5 +} + +In 1909 the law changed to regulate copies, not publishing, and after this +change, the scope of the law was tied to technology. As the technology of +copying became more prevalent, the reach of the law expanded. Thus by 1975, as +photocopying machines became more common, we could say the law began to look +like this: +={ photocopyring machines +} + +table{~h c3; 33; 33; 33; + + +Publish +Transform + +Commercial +© +© + +Noncommercial +©/Free +Free + +}table + +The law was interpreted to reach noncommercial copying through, say, copy +machines, but still much of copying outside of the commercial market remained +free. But the consequence of the emergence of digital technologies, especially +in the context of a digital network, means that the law now looks like this: + +table{~h c3; 33; 33; 33; + + +Publish +Transform + +Commercial +© +© + +Noncommercial +© +© + +}table + +Every realm is governed by copyright law, whereas before most creativity was +not. The law now regulates the full range of creativity - commercial or not, +transformative or not - with the same rules designed to regulate commercial +publishers. + +Obviously, copyright law is not the enemy. The enemy is regulation that does no +good. So the question that we should be asking just now is whether extending +the regulations of copyright law into each of these domains actually does any +good. +={ copyright : + duration of +2 +} + +I have no doubt that it does good in regulating commercial copying. But I also +have no doubt that it does more harm than good when regulating (as it regulates +just now) noncommercial copying and, especially, noncommercial transformation. +And increasingly, for the reasons sketched especially in chapters 7 and 8, one +might well wonder whether it does more harm than good for commercial +transformation. More commercial transformative work would be created if +derivative rights were more sharply restricted. + +The issue is therefore not simply whether copyright is property. Of course +copyright is a kind of "property," and of course, as with any property, the +state ought to protect it. But first impressions notwithstanding, historically, +this property right (as with all property rights~{ It was the single most +important contribution of the legal realist movement to demonstrate that all +property rights are always crafted to balance public and private interests. See +Thomas C. Grey, "The Disintegration of Property," in /{Nomos XXII: Property,}/ +J. Roland Pennock and John W. Chapman, eds. (New York: New York University +Press, 1980). }~) has been crafted to balance the important need to give +authors and artists incentives with the equally important need to assure access +to creative work. This balance has always been struck in light of new +technologies. And for almost half of our tradition, the "copyright" did not +control /{at all}/ the freedom of others to build upon or transform a creative +work. American culture was born free, and for almost 180 years our country +consistently protected a vibrant and rich free culture. +={ copyright : + as property +1 ; + copyright law : + fair use and +1 | innovative freedom balanced with fair compensation in +2 ; + fair use : + legal intimidation tactics against +1 ; + property rights : + as balance of public good vs. private +2 | copyright vs. +2 +} + +We achieved that free culture because our law respected important limits on the +scope of the interests protected by "property." The very birth of "copyright" +as a statutory right recognized those limits, by granting copyright owners +protection for a limited time only (the story of chapter 6). The tradition of +"fair use" is animated by a similar concern that is increasingly under strain +as the costs of exercising any fair use right become unavoidably high (the +story of chapter 7). Adding statutory rights where markets might stifle +innovation is another familiar limit on the property right that copyright is +(chapter 8). And granting archives and libraries a broad freedom to collect, +claims of property notwithstanding, is a crucial part of guaranteeing the soul +of a culture (chapter 9). Free cultures, like free markets, are built with +property. But the nature of the property that builds a free culture is very +different from the extremist vision that dominates the debate today. +={ archives : + digital ; + culture : + archives of ; + culture archives of ; + libraries : + archival function of +} + +Free culture is increasingly the casualty in this war on piracy. In response to +a real, if not yet quantified, threat that the technologies of the Internet +present to twentieth-century business models for producing and distributing +culture, the law and technology are being transformed in a way that will +undermine our tradition of free culture. The property right that is copyright +is no longer the balanced right that it was, or was intended to be. The +property right that is copyright has become unbalanced, tilted toward an +extreme. The opportunity to create and transform becomes weakened in a world in +which creation requires permission and creativity must check with a lawyer. +={ free culture : + permission culture vs. ; + permission culture : + free culture vs. +} + +:B~ PUZZLES + +1~ Chapter Eleven: Chimera + +!_ In a well-known +short story by H. G. Wells, a mountain climber named Nunez trips (literally, +down an ice slope) into an unknown and isolated valley in the Peruvian Andes.~{ +H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells, /{The +Country of the Blind and Other Stories,}/ Michael Sherborne, ed. (New York: +Oxford University Press, 1996). }~ The valley is extraordinarily beautiful, +with "sweet water, pasture, an even climate, slopes of rich brown soil with +tangles of a shrub that bore an excellent fruit." But the villagers are all +blind. Nunez takes this as an opportunity. "In the Country of the Blind," he +tells himself, "the One-Eyed Man is King." So he resolves to live with the +villagers to explore life as a king. +={ Wells, H.G. +8 ; + Country of the Blind, The (Wells) +8 +} + +Things don't go quite as he planned. He tries to explain the idea of sight to +the villagers. They don't understand. He tells them they are "blind." They +don't have the word /{blind}/. They think he's just thick. Indeed, as they +increasingly notice the things he can't do (hear the sound of grass being +stepped on, for example), they increasingly try to control him. He, in turn, +becomes increasingly frustrated. "'You don't understand,' he cried, in a voice +that was meant to be great and resolute, and which broke. 'You are blind and I +can see. Leave me alone!'" + +The villagers don't leave him alone. Nor do they see (so to speak) the virtue +of his special power. Not even the ultimate target of his affection, a young +woman who to him seems "the most beautiful thing in the whole of creation," +understands the beauty of sight. Nunez's description of what he sees "seemed to +her the most poetical of fancies, and she listened to his description of the +stars and the mountains and her own sweet white-lit beauty as though it was a +guilty indulgence." "She did not believe," Wells tells us, and "she could only +half understand, but she was mysteriously delighted." + +When Nunez announces his desire to marry his "mysteriously delighted" love, the +father and the village object. "You see, my dear," her father instructs, "he's +an idiot. He has delusions. He can't do anything right." They take Nunez to the +village doctor. + +After a careful examination, the doctor gives his opinion. "His brain is +affected," he reports. + +"What affects it?" the father asks. + +"Those queer things that are called the eyes ... are diseased ... in such a way +as to affect his brain." + +The doctor continues: "I think I may say with reasonable certainty that in +order to cure him completely, all that we need to do is a simple and easy +surgical operation - namely, to remove these irritant bodies [the eyes]." + +"Thank Heaven for science!" says the father to the doctor. They inform Nunez of +this condition necessary for him to be allowed his bride. (You'll have to read +the original to learn what happens in the end. I believe in free culture, but +never in giving away the end of a story.) + +!_ It sometimes +happens that the eggs of twins fuse in the mother's womb. That fusion produces +a "chimera." A chimera is a single creature with two sets of DNA. The DNA in +the blood, for example, might be different from the DNA of the skin. This +possibility is an underused plot for murder mysteries. "But the DNA shows with +100 percent certainty that she was not the person whose blood was at the scene. +..." +={ chimeras +7 ; + twins, as chimera +2 +} + +Before I had read about chimeras, I would have said they were impossible. A +single person can't have two sets of DNA. The very idea of DNA is that it is +the code of an individual. Yet in fact, not only can two individuals have the +same set of DNA (identical twins), but one person can have two different sets +of DNA (a chimera). Our understanding of a "person" should reflect this +reality. + +The more I work to understand the current struggle over copyright and culture, +which I've sometimes called unfairly, and sometimes not unfairly enough, "the +copyright wars," the more I think we're dealing with a chimera. For example, in +the battle over the question "What is p2p file sharing?" both sides have it +right, and both sides have it wrong. One side says, "File sharing is just like +two kids taping each others' records - the sort of thing we've been doing for +the last thirty years without any question at all." That's true, at least in +part. When I tell my best friend to try out a new CD that I've bought, but +rather than just send the CD, I point him to my p2p server, that is, in all +relevant respects, just like what every executive in every recording company no +doubt did as a kid: sharing music. +={ peer-to-peer (p2p) file sharing : + shoplifting vs. +4 ; + piracy : + of intangible property +6 +} + +But the description is also false in part. For when my p2p server is on a p2p +network through which anyone can get access to my music, then sure, my friends +can get access, but it stretches the meaning of "friends" beyond recognition to +say "my ten thousand best friends" can get access. Whether or not sharing my +music with my best friend is what "we have always been allowed to do," we have +not always been allowed to share music with "our ten thousand best friends." +={ peer-to-peer (p2p) file sharing : + felony punishments for +4 ; + peer-to-peer (p2p) file sharing : + total legalization of ; + copyright law : + felony punishment for infringement of +2 ; + Internet : + music files downloaded from +12 +} + +Likewise, when the other side says, "File sharing is just like walking into a +Tower Records and taking a CD off the shelf and walking out with it," that's +true, at least in part. If, after Lyle Lovett (finally) releases a new album, +rather than buying it, I go to Kazaa and find a free copy to take, that is very +much like stealing a copy from Tower. +={ Kazaa ; + Lovett, Lyle +} + +But it is not quite stealing from Tower. After all, when I take a CD from Tower +Records, Tower has one less CD to sell. And when I take a CD from Tower +Records, I get a bit of plastic and a cover, and something to show on my +shelves. (And, while we're at it, we could also note that when I take a CD from +Tower Records, the maximum fine that might be imposed on me, under California +law, at least, is $1,000. According to the RIAA, by contrast, if I download a +ten-song CD, I'm liable for $1,500,000 in damages.) +={ copyright infringement lawsuits : + exaggerated claims of +2 | in recording industry +2 | against student file sharing +2 ; + recording industry : + copyright infringement lawsuits of +2 ; + Recording Industry Association of America (RIAA) : + copyright infringement lawsuits filed by +2 ; + copyright law : + felony punishment for infringement of +2 +} + +The point is not that it is as neither side describes. The point is that it is +both - both as the RIAA describes it and as Kazaa describes it. It is a +chimera. And rather than simply denying what the other side asserts, we need to +begin to think about how we should respond to this chimera. What rules should +govern it? +={ Kazaa } + +We could respond by simply pretending that it is not a chimera. We could, with +the RIAA, decide that every act of file sharing should be a felony. We could +prosecute families for millions of dollars in damages just because file sharing +occurred on a family computer. And we can get universities to monitor all +computer traffic to make sure that no computer is used to commit this crime. +These responses might be extreme, but each of them has either been proposed or +actually implemented.~{ For an excellent summary, see the report prepared by +GartnerG2 and the Berkman Center for Internet and Society at Harvard Law +School, "Copy- right and Digital Media in a Post-Napster World," 27 June 2003, +available at link #33. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman +(D-Calif.) have introduced a bill that would treat unauthorized on-line copying +as a felony offense with punishments ranging as high as five years +imprisonment; see Jon Healey, "House Bill Aims to Up Stakes on Piracy," /{Los +Angeles Times,}/ 17 July 2003, available at link #34. Civil penalties are +currently set at $150,000 per copied song. For a recent (and unsuccessful) +legal challenge to the RIAA's demand that an ISP reveal the identity of a user +accused of sharing more than 600 songs through a family computer, see /{RIAA v. +Verizon Internet Services (In re. Verizon Internet Services),}/ 240 F. Supp. 2d +24 (D.D.C. 2003). Such a user could face liability ranging as high as $90 +million. Such astronomical figures furnish the RIAA with a powerful arsenal in +its prosecution of file sharers. Settlements ranging from $12,000 to $17,500 +for four students accused of heavy file sharing on university networks must +have seemed a mere pittance next to the $98 billion the RIAA could seek should +the matter proceed to court. See Elizabeth Young, "Downloading Could Lead to +Fines," redandblack.com, 26 August 2003, available at link #35. For an example +of the RIAA's targeting of student file sharing, and of the subpoenas issued to +universities to reveal student file-sharer identities, see James Collins, "RIAA +Steps Up Bid to Force BC, MIT to Name Students," /{Boston Globe,}/ 8 August +2003, D3, available at link #36. }~ +={ university computer networks, p2p sharing on } + +Alternatively, we could respond to file sharing the way many kids act as though +we've responded. We could totally legalize it. Let there be no copyright +liability, either civil or criminal, for making copyrighted content available +on the Net. Make file sharing like gossip: regulated, if at all, by social +norms but not by law. +={ peer-to-peer (p2p) file sharing : + total legalization of +} + +Either response is possible. I think either would be a mistake. Rather than +embrace one of these two extremes, we should embrace something that recognizes +the truth in both. And while I end this book with a sketch of a system that +does just that, my aim in the next chapter is to show just how awful it would +be for us to adopt the zero-tolerance extreme. I believe /{either}/ extreme +would be worse than a reasonable alternative. But I believe the zero-tolerance +solution would be the worse of the two extremes. +={ copyright infringement lawsuits : + zero tolerance in +1 ; + peer-to-peer (p2p) file sharing : + zero-tolerance of +7 +} + +Yet zero tolerance is increasingly our government's policy. In the middle of +the chaos that the Internet has created, an extraordinary land grab is +occurring. The law and technology are being shifted to give content holders a +kind of control over our culture that they have never had before. And in this +extremism, many an opportunity for new innovation and new creativity will be +lost. +={ copyright law : + technology as automatic enforcer of +4 ; + recording industry : + copyright protections in +2 ; + technology : + copyright enforcement controlled by +3 +} + +I'm not talking about the opportunities for kids to "steal" music. My focus +instead is the commercial and cultural innovation that this war will also kill. +We have never seen the power to innovate spread so broadly among our citizens, +and we have just begun to see the innovation that this power will unleash. Yet +the Internet has already seen the passing of one cycle of innovation around +technologies to distribute content. The law is responsible for this passing. As +the vice president for global public policy at one of these new innovators, +eMusic.com, put it when criticizing the DMCA's added protection for copyrighted +material, +={ copyright law : + on music recordings +1 ; + Digital Millennium Copyright Act (DMCA) ; + DMCA (Digital Millennium Copyright Act) ; + eMusic.com +4 ; + peer-to-peer (p2p) file sharing : + infringement protections in +3 +} + +_1 eMusic opposes music piracy. We are a distributor of copyrighted material, +and we want to protect those rights. + +_1 But building a technology fortress that locks in the clout of the major +labels is by no means the only way to protect copyright interests, nor is it +necessarily the best. It is simply too early to answer that question. Market +forces operating naturally may very well produce a totally different industry +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. }~ + +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 } + +Reversing our tradition of tolerance now will not merely quash piracy. It will +sacrifice values that are important to this culture, and will kill +opportunities that could be extraordinarily valuable. + +1~ Chapter Twelve: Harms + +!_ To fight +"piracy," to protect "property," the content industry has launched a war. +Lobbying and lots of campaign contributions have now brought the government +into this war. As with any war, this one will have both direct and collateral +damage. As with any war of prohibition, these damages will be suffered most by +our own people. + +My aim so far has been to describe the consequences of this war, in particular, +the consequences for "free culture." But my aim now is to extend this +description of consequences into an argument. Is this war justified? + +In my view, it is not. There is no good reason why this time, for the first +time, the law should defend the old against the new, just when the power of the +property called "intellectual property" is at its greatest in our history. + +Yet "common sense" does not see it this way. Common sense is still on the side +of the Causbys and the content industry. The extreme claims of control in the +name of property still resonate; the uncritical rejection of "piracy" still has +play. +={ piracy : + uncritical rejection of +1 +} + +There will be many consequences of continuing this war. I want to describe just +three. All three might be said to be unintended. I am quite confident the third +is unintended. I'm less sure about the first two. The first two protect modern +RCAs, but there is no Howard Armstrong in the wings to fight today's +monopolists of culture. +={ Armstrong, Edwin Howard ; + RCA +} + +2~ Constraining Creators +={ copyright law : + creativity impeded by +14 ; + creativity : + legal restrictions on +14 +} + +In the next ten years we will see an explosion of digital technologies. These +technologies will enable almost anyone to capture and share content. Capturing +and sharing content, of course, is what humans have done since the dawn of man. +It is how we learn and communicate. But capturing and sharing through digital +technology is different. The fidelity and power are different. You could send +an e-mail telling someone about a joke you saw on Comedy Central, or you could +send the clip. You could write an essay about the inconsistencies in the +arguments of the politician you most love to hate, or you could make a short +film that puts statement against statement. You could write a poem to express +your love, or you could weave together a string - a mash-up - of songs from +your favorite artists in a collage and make it available on the Net. +={ technology : + of digital capturing and sharing +2 +} + +This digital "capturing and sharing" is in part an extension of the capturing +and sharing that has always been integral to our culture, and in part it is +something new. It is continuous with the Kodak, but it explodes the boundaries +of Kodak-like technologies. The technology of digital "capturing and sharing" +promises a world of extraordinarily diverse creativity that can be easily and +broadly shared. And as that creativity is applied to democracy, it will enable +a broad range of citizens to use technology to express and criticize and +contribute to the culture all around. +={ democracy : + digital sharing within ; + Kodak cameras +} + +Technology has thus given us an opportunity to do something with culture that +has only ever been possible for individuals in small groups, isolated from +others. Think about an old man telling a story to a collection of neighbors in +a small town. Now imagine that same storytelling extended across the globe. + +Yet all this is possible only if the activity is presumptively legal. In the +current regime of legal regulation, it is not. Forget file sharing for a +moment. Think about your favorite amazing sites on the Net. Web sites that +offer plot summaries from forgotten television shows; sites that catalog +cartoons from the 1960s; sites that mix images and sound to criticize +politicians or businesses; sites that gather newspaper articles on remote +topics of science or culture. There is a vast amount of creative work spread +across the Internet. But as the law is currently crafted, this work is +presumptively illegal. +={ Internet : + creative Web sites on +} + +That presumption will increasingly chill creativity, as the examples of extreme +penalties for vague infringements continue to proliferate. It is impossible to +get a clear sense of what's allowed and what's not, and at the same time, the +penalties for crossing the line are astonishingly harsh. The four students who +were threatened by the RIAA (Jesse Jordan of chapter 3 was just one) were +threatened with a $98 billion lawsuit for building search engines that +permitted songs to be copied. Yet WorldCom - which defrauded investors of $11 +billion, resulting in a loss to investors in market capitalization of over $200 +billion - received a fine of a mere $750 million.~{ See Lynne W. Jeter, +/{Disconnected: Deceit and Betrayal at WorldCom}/ (Hoboken, N.J.: John Wiley & +Sons, 2003), 176, 204; for details of the settlement, see MCI press release, +"MCI Wins U.S. District Court Approval for SEC Settlement" (7 July 2003), +available at link #37. }~ And under legislation being pushed in Congress right +now, a doctor who negligently removes the wrong leg in an operation would be +liable for no more than $250,000 in damages for pain and suffering.~{ The bill, +modeled after California's tort reform model, was passed in the House of +Representatives but defeated in a Senate vote in July 2003. For an overview, +see Tanya Albert, "Measure Stalls in Senate: 'We'll Be Back,' Say Tort +Reformers," amednews.com, 28 July 2003, available at link #38, and "Senate +Turns Back Malpractice Caps," CBSNews.com, 9 July 2003, available at link #39. +President Bush has continued to urge tort reform in recent months. }~ Can +common sense recognize the absurdity in a world where the maximum fine for +downloading two songs off the Internet is more than the fine for a doctor's +negligently butchering a patient? +={ WorldCom ; + copyright infringement lawsuits : + exaggerated claims of | individual defendants intimidated by +1 | in recording industry ; + doctors malpractice claims against ; + Jordan, Jesse ; + legal system, attorney costs in +1 ; + recording industry : + copyright infringement lawsuits of ; + Recording Industry Association of America (RIAA) : + copyright infringement lawsuits filed by +} + +The consequence of this legal uncertainty, tied to these extremely high +penalties, is that an extraordinary amount of creativity will either never be +exercised, or never be exercised in the open. We drive this creative process +underground by branding the modern-day Walt Disneys "pirates." We make it +impossible for businesses to rely upon a public domain, because the boundaries +of the public domain are designed to be unclear. It never pays to do anything +except pay for the right to create, and hence only those who can pay are +allowed to create. As was the case in the Soviet Union, though for very +different reasons, we will begin to see a world of underground art - not +because the message is necessarily political, or because the subject is +controversial, but because the very act of creating the art is legally fraught. +Already, exhibits of "illegal art" tour the United States.~{ See Danit Lidor, +"Artists Just Wanna Be Free," /{Wired,}/ 7 July 2003, available at link #40. +For an overview of the exhibition, see link #41. }~ In what does their +"illegality" consist? In the act of mixing the culture around us with an +expression that is critical or reflective. +={ public domain : + legal murkiness on ; + art, underground +} + +Part of the reason for this fear of illegality has to do with the changing law. +I described that change in detail in chapter 10. But an even bigger part has to +do with the increasing ease with which infractions can be tracked. As users of +file-sharing systems discovered in 2002, it is a trivial matter for copyright +owners to get courts to order Internet service providers to reveal who has what +content. It is as if your cassette tape player transmitted a list of the songs +that you played in the privacy of your own home that anyone could tune into for +whatever reason they chose. +={ copyright law : + technology as automatic enforcer of +1 ; + Internet : + user identities released by service providers of ; + ISPs (Internet service providers), user identities revealed by ; + technology : + copyright enforcement controlled by +1 +} + +Never in our history has a painter had to worry about whether his painting +infringed on someone else's work; but the modern-day painter, using the tools +of Photoshop, sharing content on the Web, must worry all the time. Images are +all around, but the only safe images to use in the act of creation are those +purchased from Corbis or another image farm. And in purchasing, censoring +happens. There is a free market in pencils; we needn't worry about its effect +on creativity. But there is a highly regulated, monopolized market in cultural +icons; the right to cultivate and transform them is not similarly free. +={ images, ownership of } + +Lawyers rarely see this because lawyers are rarely empirical. As I described in +chapter 7, in response to the story about documentary filmmaker Jon Else, I +have been lectured again and again by lawyers who insist Else's use was fair +use, and hence I am wrong to say that the law regulates such a use. +={ Else, Jon ; + copyright law : + fair use and +2 ; + fair use : + legal intimidation tactics against +2 ; + legal system, attorney costs in +5 +} + +But fair use in America simply means the right to hire a lawyer to defend your +right to create. And as lawyers love to forget, our system for defending rights +such as fair use is astonishingly bad - in practically every context, but +especially here. It costs too much, it delivers too slowly, and what it +delivers often has little connection to the justice underlying the claim. The +legal system may be tolerable for the very rich. For everyone else, it is an +embarrassment to a tradition that prides itself on the rule of law. +={ copyright infringement lawsuits : + exaggerated claims of +4 | individual defendants intimidated by +4 +} + +Judges and lawyers can tell themselves that fair use provides adequate +"breathing room" between regulation by the law and the access the law should +allow. But it is a measure of how out of touch our legal system has become that +anyone actually believes this. The rules that publishers impose upon writers, +the rules that film distributors impose upon filmmakers, the rules that +newspapers impose upon journalists - these are the real laws governing +creativity. And these rules have little relationship to the "law" with which +judges comfort themselves. + +For in a world that threatens $150,000 for a single willful infringement of a +copyright, and which demands tens of thousands of dollars to even defend +against a copyright infringement claim, and which would never return to the +wrongfully accused defendant anything of the costs she suffered to defend her +right to speak - in that world, the astonishingly broad regulations that pass +under the name "copyright" silence speech and creativity. And in that world, it +takes a studied blindness for people to continue to believe they live in a +culture that is free. + +As Jed Horovitz, the businessman behind Video Pipeline, said to me, +={ Horovitz, Jed +1 ; + Video Pipeline +} + +_1 We're losing [creative] opportunities right and left. Creative people are +being forced not to express themselves. Thoughts are not being expressed. And +while a lot of stuff may [still] be created, it still won't get distributed. +Even if the stuff gets made ... you're not going to get it distributed in the +mainstream media unless you've got a little note from a lawyer saying, "This +has been cleared." You're not even going to get it on PBS without that kind of +permission. That's the point at which they control it." + +2~ Constraining Innovators +={ copyright law : + innovation hampered by +48 ; + innovation : + industry establishment opposed to +48 ; + regulation : + as establishment protectionism +48 +} + +The story of the last section was a crunchy-lefty story - creativity quashed, +artists who can't speak, yada yada yada. Maybe that doesn't get you going. +Maybe you think there's enough weird art out there, and enough expression that +is critical of what seems to be just about everything. And if you think that, +you might think there's little in this story to worry you. + +But there's an aspect of this story that is not lefty in any sense. Indeed, it +is an aspect that could be written by the most extreme pro-market ideologue. +And if you're one of these sorts (and a special one at that, 188 pages into a +book like this), then you can see this other aspect by substituting "free +market" every place I've spoken of "free culture." The point is the same, even +if the interests affecting culture are more fundamental. +={ market constraints +1 } + +The charge I've been making about the regulation of culture is the same charge +free marketers make about regulating markets. Everyone, of course, concedes +that some regulation of markets is necessary - at a minimum, we need rules of +property and contract, and courts to enforce both. Likewise, in this culture +debate, everyone concedes that at least some framework of copyright is also +required. But both perspectives vehemently insist that just because some +regulation is good, it doesn't follow that more regulation is better. And both +perspectives are constantly attuned to the ways in which regulation simply +enables the powerful industries of today to protect themselves against the +competitors of tomorrow. + +This is the single most dramatic effect of the shift in regulatory strategy +that I described in chapter 10. The consequence of this massive threat of +liability tied to the murky boundaries of copyright law is that innovators who +want to innovate in this space can safely innovate only if they have the +sign-off from last generation's dominant industries. That lesson has been +taught through a series of cases that were designed and executed to teach +venture capitalists a lesson. That lesson - what former Napster CEO Hank Barry +calls a "nuclear pall" that has fallen over the Valley - has been learned. +={ Barry, Hank ; + venture capitalists +} + +Consider one example to make the point, a story whose beginning I told in /{The +Future of Ideas}/ and which has progressed in a way that even I (pessimist +extraordinaire) would never have predicted. +={ Future of Ideas, The (Lessig) ; + Lessig, Lawrence +} + +In 1997, Michael Roberts launched a company called MP3.com. MP3.com was keen to +remake the music business. Their goal was not just to facilitate new ways to +get access to content. Their goal was also to facilitate new ways to create +content. Unlike the major labels, MP3.com offered creators a venue to +distribute their creativity, without demanding an exclusive engagement from the +creators. +={ MP3.com +8 ; + my.mp3.com +8 ; + Roberts, Michael +} + +To make this system work, however, MP3.com needed a reliable way to recommend +music to its users. The idea behind this alternative was to leverage the +revealed preferences of music listeners to recommend new artists. If you like +Lyle Lovett, you're likely to enjoy Bonnie Raitt. And so on. +={ Lovett, Lyle } + +This idea required a simple way to gather data about user preferences. MP3.com +came up with an extraordinarily clever way to gather this preference data. In +January 2000, the company launched a service called my.mp3.com. Using software +provided by MP3.com, a user would sign into an account and then insert into her +computer a CD. The software would identify the CD, and then give the user +access to that content. So, for example, if you inserted a CD by Jill Sobule, +then wherever you were - at work or at home - you could get access to that +music once you signed into your account. The system was therefore a kind of +music-lockbox. +={ CDs : + preference data on +2 +} + +No doubt some could use this system to illegally copy content. But that +opportunity existed with or without MP3.com. The aim of the my.mp3.com service +was to give users access to their own content, and as a by-product, by seeing +the content they already owned, to discover the kind of content the users +liked. + +To make this system function, however, MP3.com needed to copy 50,000 CDs to a +server. (In principle, it could have been the user who uploaded the music, but +that would have taken a great deal of time, and would have produced a product +of questionable quality.) It therefore purchased 50,000 CDs from a store, and +started the process of making copies of those CDs. Again, it would not serve +the content from those copies to anyone except those who authenticated that +they had a copy of the CD they wanted to access. So while this was 50,000 +copies, it was 50,000 copies directed at giving customers something they had +already bought. + +Nine days after MP3.com launched its service, the five major labels, headed by +the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of the +five. Nine months later, a federal judge found MP3.com to have been guilty of +willful infringement with respect to the fifth. Applying the law as it is, the +judge imposed a fine against MP3.com of $118 million. MP3.com then settled with +the remaining plaintiff, Vivendi Universal, paying over $54 million. Vivendi +purchased MP3.com just about a year later. +={ Vivendi Universal +2 ; + copyright infringement lawsuits : + distribution technology targeted in | exaggerated claims of | in recording industry +3 ; + recording industry : + copyright infringement lawsuits of ; + Recording Industry Association of America (RIAA) : + copyright infringement lawsuits filed by ; + regulation : + outsize penalties of +} + +That part of the story I have told before. Now consider its conclusion. + +After Vivendi purchased MP3.com, Vivendi turned around and filed a malpractice +lawsuit against the lawyers who had advised it that they had a good faith claim +that the service they wanted to offer would be considered legal under copyright +law. This lawsuit alleged that it should have been obvious that the courts +would find this behavior illegal; therefore, this lawsuit sought to punish any +lawyer who had dared to suggest that the law was less restrictive than the +labels demanded. +={ copyright law : + malpractice lawsuits against lawyers advising on +2 ; + lawyers : + malpractice suits against +2 +} + +The clear purpose of this lawsuit (which was settled for an unspecified amount +shortly after the story was no longer covered in the press) was to send an +unequivocal message to lawyers advising clients in this space: It is not just +your clients who might suffer if the content industry directs its guns against +them. It is also you. So those of you who believe the law should be less +restrictive should realize that such a view of the law will cost you and your +firm dearly. + +This strategy is not just limited to the lawyers. In April 2003, Universal and +EMI brought a lawsuit against Hummer Winblad, the venture capital firm (VC) +that had funded Napster at a certain stage of its development, its cofounder +(John Hummer), and general partner (Hank Barry).~{ See Joseph Menn, "Universal, +EMI Sue Napster Investor," /{Los Angeles Times,}/ 23 April 2003. For a parallel +argument about the effects on innovation in the distribution of music, see +Janelle Brown, "The Music Revolution Will Not Be Digitized," Salon.com, 1 June +2001, available at link #42. See also Jon Healey, "Online Music Services +Besieged," /{Los Angeles Times,}/ 28 May 2001. }~ The claim here, as well, was +that the VC should have recognized the right of the content industry to control +how the industry should develop. They should be held personally liable for +funding a company whose business turned out to be beyond the law. Here again, +the aim of the lawsuit is transparent: Any VC now recognizes that if you fund a +company whose business is not approved of by the dinosaurs, you are at risk not +just in the marketplace, but in the courtroom as well. Your investment buys you +not only a company, it also buys you a lawsuit. So extreme has the environment +become that even car manufacturers are afraid of technologies that touch +content. In an article in /{Business 2.0}/, Rafe Needleman describes a +discussion with BMW: +={ Barry, Hank ; + copyright infringement lawsuits : + distribution technology targeted in ; + BMW +1 ; + cars, MP3 sound systems in +1 ; + EMI ; + Hummer, John ; + Hummer Winblad ; + MP3 players ; + Napster : + venture capital for ; + Needleman, Raffe +1 ; + Universal Music Group ; + venture capitalists +} + +_1 I asked why, with all the storage capacity and computer power in the car, +there was no way to play MP3 files. I was told that BMW engineers in Germany +had rigged a new vehicle to play MP3s via the car's built-in sound system, but +that the company's marketing and legal departments weren't comfortable with +pushing this forward for release stateside. Even today, no new cars are sold in +the United States with bona fide MP3 players. ..."~{ Rafe Needleman, "Driving +in Cars with MP3s," /{Business 2.0,}/ 16 June 2003, available at link #43. I am +grateful to Dr. Mohammad Al-Ubaydli for this example. }~ + +This is the world of the mafia - filled with "your money or your life" offers, +governed in the end not by courts but by the threats that the law empowers +copyright holders to exercise. It is a system that will obviously and +necessarily stifle new innovation. It is hard enough to start a company. It is +impossibly hard if that company is constantly threatened by litigation. + +The point is not that businesses should have a right to start illegal +enterprises. The point is the definition of "illegal." The law is a mess of +uncertainty. We have no good way to know how it should apply to new +technologies. Yet by reversing our tradition of judicial deference, and by +embracing the astonishingly high penalties that copyright law imposes, that +uncertainty now yields a reality which is far more conservative than is right. +If the law imposed the death penalty for parking tickets, we'd not only have +fewer parking tickets, we'd also have much less driving. The same principle +applies to innovation. If innovation is constantly checked by this uncertain +and unlimited liability, we will have much less vibrant innovation and much +less creativity. +={ market constraints +2 ; + permission culture : + transaction cost of +2 ; + regulation : + outsize penalties of ; + technology : + legal murkiness on +} + +The point is directly parallel to the crunchy-lefty point about fair use. +Whatever the "real" law is, realism about the effect of law in both contexts is +the same. This wildly punitive system of regulation will systematically stifle +creativity and innovation. It will protect some industries and some creators, +but it will harm industry and creativity generally. Free market and free +culture depend upon vibrant competition. Yet the effect of the law today is to +stifle just this kind of competition. The effect is to produce an overregulated +culture, just as the effect of too much control in the market is to produce an +overregulated-regulated market. + +The building of a permission culture, rather than a free culture, is the first +important way in which the changes I have described will burden innovation. A +permission culture means a lawyer's culture - a culture in which the ability to +create requires a call to your lawyer. Again, I am not antilawyer, at least +when they're kept in their proper place. I am certainly not antilaw. But our +profession has lost the sense of its limits. And leaders in our profession have +lost an appreciation of the high costs that our profession imposes upon others. +The inefficiency of the law is an embarrassment to our tradition. And while I +believe our profession should therefore do everything it can to make the law +more efficient, it should at least do everything it can to limit the reach of +the law where the law is not doing any good. The transaction costs buried +within a permission culture are enough to bury a wide range of creativity. +Someone needs to do a lot of justifying to justify that result. + +!_ The uncertainty +of the law is one burden on innovation. There is a second burden that operates +more directly. This is the effort by many in the content industry to use the +law to directly regulate the technology of the Internet so that it better +protects their content. +={ Internet : + efficient content distribution on +4 +} + +The motivation for this response is obvious. The Internet enables the efficient +spread of content. That efficiency is a feature of the Inter-net's design. But +from the perspective of the content industry, this feature is a "bug." The +efficient spread of content means that content distributors have a harder time +controlling the distribution of content. One obvious response to this +efficiency is thus to make the Internet less efficient. If the Internet enables +"piracy," then, this response says, we should break the kneecaps of the +Internet. + +The examples of this form of legislation are many. At the urging of the content +industry, some in Congress have threatened legislation that would require +computers to determine whether the content they access is protected or not, and +to disable the spread of protected content.~{ "Copyright and Digital Media in a +Post-Napster World," GartnerG2 and the Berkman Center for Internet and Society +at Harvard Law School (2003), 33-35, available at link #44. }~ Congress has +already launched proceedings to explore a mandatory "broadcast flag" that would +be required on any device capable of transmitting digital video (i.e., a +computer), and that would disable the copying of any content that is marked +with a broadcast flag. Other members of Congress have proposed immunizing +content providers from liability for technology they might deploy that would +hunt down copyright violators and disable their machines.~{ GartnerG2, 26-27. +}~ +={ broadcast flag ; + Congress, U.S. : + on copyright laws +} + +In one sense, these solutions seem sensible. If the problem is the code, why +not regulate the code to remove the problem. But any regulation of technical +infrastructure will always be tuned to the particular technology of the day. It +will impose significant burdens and costs on the technology, but will likely be +eclipsed by advances around exactly those requirements. + +In March 2002, a broad coalition of technology companies, led by Intel, tried +to get Congress to see the harm that such legislation would impose.~{ See David +McGuire, "Tech Execs Square Off Over Piracy," Newsbytes, 28 February 2002 +(Entertainment). }~ Their argument was obviously not that copyright should not +be protected. Instead, they argued, any protection should not do more harm than +good. +={ Congress, U.S. : + on copyright laws +5 ; + Intel +} + +!_ There is one +more obvious way in which this war has harmed innovation - again, a story that +will be quite familiar to the free market crowd. + +Copyright may be property, but like all property, it is also a form of +regulation. It is a regulation that benefits some and harms others. When done +right, it benefits creators and harms leeches. When done wrong, it is +regulation the powerful use to defeat competitors. + +As I described in chapter 10, despite this feature of copyright as regulation, +and subject to important qualifications outlined by Jessica Litman in her book +/{Digital Copyright}/,~{ Jessica Litman, /{Digital Copyright}/ (Amherst, N.Y.: +Prometheus Books, 2001). }~ overall this history of copyright is not bad. As +chapter 10 details, when new technologies have come along, Congress has struck +a balance to assure that the new is protected from the old. Compulsory, or +statutory, licenses have been one part of that strategy. Free use (as in the +case of the VCR) has been another. +={ cassette recording : + VCRs ; + VCRs ; + Digital Copyright (Litman) ; + Litman, Jessica ; + statutory licenses ; + copyright law : + statutory licenses in +} + +But that pattern of deference to new technologies has now changed with the rise +of the Internet. Rather than striking a balance between the claims of a new +technology and the legitimate rights of content creators, both the courts and +Congress have imposed legal restrictions that will have the effect of +smothering the new to benefit the old. + +The response by the courts has been fairly universal.~{ The only circuit court +exception is found in /{Recording Industry Association of America (RIAA) v. +Diamond Multimedia Systems,}/ 180 F. 3d 1072 (9th Cir. 1999). There the court +of appeals for the Ninth Circuit reasoned that makers of a portable MP3 player +were not liable for contributory copyright infringement for a device that is +unable to record or redistribute music (a device whose only copying function is +to render portable a music file already stored on a user's hard drive). At the +district court level, the only exception is found in /{Metro-Goldwyn-Mayer +Studios, Inc. v. Grokster, Ltd.,}/ 259 F. Supp. 2d 1029 (C.D. Cal., 2003), +where the court found the link between the distributor and any given user's +conduct too attenuated to make the distributor liable for contributory or +vicarious infringement liability. }~ It has been mirrored in the responses +threatened and actually implemented by Congress. I won't catalog all of those +responses here.~{ For example, in July 2002, Representative Howard Berman +introduced the Peer- to-Peer Piracy Prevention Act (H.R. 5211), which would +immunize copyright holders from liability for damage done to computers when the +copyright holders use technology to stop copyright infringement. In August +2002, Representative Billy Tauzin introduced a bill to mandate that +technologies capable of rebroadcasting digital copies of films broadcast on TV +(i.e., computers) respect a "broadcast flag" that would disable copying of that +content. And in March of the same year, Senator Fritz Hollings introduced the +Consumer Broadband and Digital Television Promotion Act, which mandated +copyright protection technology in all digital media devices. See GartnerG2, +"Copyright and Digital Media in a Post-Napster World," 27 June 2003, 33-34, +available at link #44. }~ But there is one example that captures the flavor of +them all. This is the story of the demise of Internet radio. +={ Internet : + radio on +18 ; + radio : + on Internet +18 +} + +As I described in chapter 4, when a radio station plays a song, the recording +artist doesn't get paid for that "radio performance" unless he or she is also +the composer. So, for example if Marilyn Monroe had recorded a version of +"Happy Birthday" - to memorialize her famous performance before President +Kennedy at Madison Square Garden - then whenever that recording was played on +the radio, the current copyright owners of "Happy Birthday" would get some +money, whereas Marilyn Monroe would not. +={ artists : + recording industry payments to +1 ; + copyright law : + on music recordings +1 ; + Kennedy, John F. ; + Monroe, Marilyn ; + radio : + music recordings played on +1 ; + recording industry : + artist remuneration in +1 ; + recording industry : + copyright protections in +} + +The reasoning behind this balance struck by Congress makes some sense. The +justification was that radio was a kind of advertising. The recording artist +thus benefited because by playing her music, the radio station was making it +more likely that her records would be purchased. Thus, the recording artist got +something, even if only indirectly. Probably this reasoning had less to do with +the result than with the power of radio stations: Their lobbyists were quite +good at stopping any efforts to get Congress to require compensation to the +recording artists. + +Enter Internet radio. Like regular radio, Internet radio is a technology to +stream content from a broadcaster to a listener. The broadcast travels across +the Internet, not across the ether of radio spectrum. Thus, I can "tune in" to +an Internet radio station in Berlin while sitting in San Francisco, even though +there's no way for me to tune in to a regular radio station much beyond the San +Francisco metropolitan area. + +This feature of the architecture of Internet radio means that there are +potentially an unlimited number of radio stations that a user could tune in to +using her computer, whereas under the existing architecture for broadcast +radio, there is an obvious limit to the number of broadcasters and clear +broadcast frequencies. Internet radio could therefore be more competitive than +regular radio; it could provide a wider range of selections. And because the +potential audience for Internet radio is the whole world, niche stations could +easily develop and market their content to a relatively large number of users +worldwide. According to some estimates, more than eighty million users +worldwide have tuned in to this new form of radio. + +Internet radio is thus to radio what FM was to AM. It is an improvement +potentially vastly more significant than the FM improvement over AM, since not +only is the technology better, so, too, is the competition. Indeed, there is a +direct parallel between the fight to establish FM radio and the fight to +protect Internet radio. As one author describes Howard Armstrong's struggle to +enable FM radio, +={ Armstrong, Edwin Howard +2 ; + FM radio +2 ; + radio : + FM spectrum of +2 +} + +_1 An almost unlimited number of FM stations was possible in the shortwaves, +thus ending the unnatural restrictions imposed on radio in the crowded +longwaves. If FM were freely developed, the number of stations would be limited +only by economics and competition rather than by technical restrictions. ... +Armstrong likened the situation that had grown up in radio to that following +the invention of the printing press, when governments and ruling interests +attempted to control this new instrument of mass communications by imposing +restrictive licenses on it. This tyranny was broken only when it became +possible for men freely to acquire printing presses and freely to run them. FM +in this sense was as great an invention as the printing presses, for it gave +radio the opportunity to strike off its shackles.~{ Lessing, 239. }~ + +This potential for FM radio was never realized - not because Armstrong was +wrong about the technology, but because he underestimated the power of "vested +interests, habits, customs and legislation"~{ Ibid., 229. }~ to retard the +growth of this competing technology. + +Now the very same claim could be made about Internet radio. For again, there is +no technical limitation that could restrict the number of Internet radio +stations. The only restrictions on Internet radio are those imposed by the law. +Copyright law is one such law. So the first question we should ask is, what +copyright rules would govern Internet radio? + +But here the power of the lobbyists is reversed. Internet radio is a new +industry. The recording artists, on the other hand, have a very powerful lobby, +the RIAA. Thus when Congress considered the phenomenon of Internet radio in +1995, the lobbyists had primed Congress to adopt a different rule for Internet +radio than the rule that applies to terrestrial radio. While terrestrial radio +does not have to pay our hypothetical Marilyn Monroe when it plays her +hypothetical recording of "Happy Birthday" on the air, /{Internet radio does}/. +Not only is the law not neutral toward Internet radio - the law actually +burdens Internet radio more than it burdens terrestrial radio. +={ artists : + recording industry payments to +1 ; + Congress, U.S. : + on copyright laws ; + Congress, U.S. : + on radio | on recording industry ; + recording industry : + artist remuneration in +1 ; + recording industry : + radio broadcast and +1 | Internet radio hampered by +9 ; + Recording Industry Association of America (RIAA) : + on Internet radio fees +1 | lobbying power of +1 +} + +This financial burden is not slight. As Harvard law professor William Fisher +estimates, if an Internet radio station distributed ad-free popular music to +(on average) ten thousand listeners, twenty-four hours a day, the total artist +fees that radio station would owe would be over $1 million a year.~{ This +example was derived from fees set by the original Copyright Arbitration Royalty +Panel (CARP) proceedings, and is drawn from an example offered by Professor +William Fisher. Conference Proceedings, iLaw (Stanford), 3 July 2003, on file +with author. Professors Fisher and Zittrain submitted testimony in the CARP +proceeding that was ultimately rejected. See Jonathan Zittrain, Digital +Performance Right in Sound Recordings and Ephemeral Recordings, Docket No. +2000- 9, CARP DTRA 1 and 2, available at link #45. For an excellent analysis +making a similar point, see Randal C. Picker, "Copyright as Entry Policy: The +Case of Digital Distribution," /{Antitrust Bulletin}/ (Summer/Fall 2002): 461: +"This was not confusion, these are just old- fashioned entry barriers. Analog +radio stations are protected from digital entrants, reducing entry in radio and +diversity. Yes, this is done in the name of getting royalties to copyright +holders, but, absent the play of powerful interests, that could have been done +in a media-neutral way." }~ A regular radio station broadcasting the same +content would pay no equivalent fee. +={ Fisher, William } + +The burden is not financial only. Under the original rules that were proposed, +an Internet radio station (but not a terrestrial radio station) would have to +collect the following data from /{every listening transaction}/: + +group{ + + 1. name of the service; + + 2. channel of the program (AM/FM stations use station ID); + + 3. type of program (archived/looped/live); + + 4. date of transmission; + + 5. time of transmission; + + 6. time zone of origination of transmission; + + 7. numeric designation of the place of the sound recording within the program; + + 8. duration of transmission (to nearest second); + + 9. sound recording title; + + 10. ISRC code of the recording; + + 11. release year of the album per copyright notice and in the case of compilation albums, the release year of the album and copyright date of the track; + + 12. featured recording artist; + + 13. retail album title; + + 14. recording label; + + 15. UPC code of the retail album; + + 16. catalog number; + + 17. copyright owner information; + + 18. musical genre of the channel or program (station format); + + 19. name of the service or entity; + + 20. channel or program; + + 21. date and time that the user logged in (in the user's time zone); + + 22. date and time that the user logged out (in the user's time zone); + + 23. time zone where the signal was received (user); + + 24. Unique User identifier; + + 25. the country in which the user received the transmissions. + +}group + +The Librarian of Congress eventually suspended these reporting requirements, +pending further study. And he also changed the original rates set by the +arbitration panel charged with setting rates. But the basic difference between +Internet radio and terrestrial radio remains: Internet radio has to pay a +/{type of copyright fee}/ that terrestrial radio does not. +={ Library of Congress } + +Why? What justifies this difference? Was there any study of the economic +consequences from Internet radio that would justify these differences? Was the +motive to protect artists against piracy? + +In a rare bit of candor, one RIAA expert admitted what seemed obvious to +everyone at the time. As Alex Alben, vice president for Public Policy at Real +Networks, told me, +={ Alben, Alex +2 ; + Recording Industry Association of America (RIAA) : + on Internet radio fees +2 ; + artists : + recording industry payments to +2 ; + recording industry : + artist remuneration in +2 +} + +_1 The RIAA, which was representing the record labels, presented some testimony +about what they thought a willing buyer would pay to a willing seller, and it +was much higher. It was ten times higher than what radio stations pay to +perform the same songs for the same period of time. And so the attorneys +representing the webcasters asked the RIAA, ... "How do you come up with a rate +that's so much higher? Why is it worth more than radio? Because here we have +hundreds of thousands of webcasters who want to pay, and that should establish +the market rate, and if you set the rate so high, you're going to drive the +small webcasters out of business. ..." + +_1 And the RIAA experts said, "Well, we don't really model this as an industry +with thousands of webcasters, /{we think it should be an industry with, you +know, five or seven big players who can pay a high rate and it's a stable, +predictable market.}/" (Emphasis added.) + +Translation: The aim is to use the law to eliminate competition, so that this +platform of potentially immense competition, which would cause the diversity +and range of content available to explode, would not cause pain to the +dinosaurs of old. There is no one, on either the right or the left, who should +endorse this use of the law. And yet there is practically no one, on either the +right or the left, who is doing anything effective to prevent it. + +2~ Corrupting Citizens +={ copyright law : + illegal behavior as broad response to +33 ; + law : + citizen respect for +33 ; + prohibition, citizen rebellion against +33 ; + regulation : + rule of law degraded by excess of +33 +} + +Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a +veto over the future. It wastes the extraordinary opportunity for a democratic +creativity that digital technology enables. + +In addition to these important harms, there is one more that was important to +our forebears, but seems forgotten today. Overregulation corrupts citizens and +weakens the rule of law. + +The war that is being waged today is a war of prohibition. As with every war of +prohibition, it is targeted against the behavior of a very large number of +citizens. According to /{The New York Times}/, 43 million Americans downloaded +music in May 2002.~{ Mike Graziano and Lee Rainie, "The Music Downloading +Deluge," Pew Internet and American Life Project (24 April 2001), available at +link #46. The Pew Internet and American Life Project reported that 37 million +Americans had downloaded music files from the Internet by early 2001. }~ +According to the RIAA, the behavior of those 43 million Americans is a felony. +We thus have a set of rules that transform 20 percent of America into +criminals. As the RIAA launches lawsuits against not only the Napsters and +Kazaas of the world, but against students building search engines, and +increasingly against ordinary users downloading content, the technologies for +sharing will advance to further protect and hide illegal use. It is an arms +race or a civil war, with the extremes of one side inviting a more extreme +response by the other. +={ Internet : + music files downloaded from ; + copyright infringement lawsuits : + individual defendants intimidated by +1 | in recording industry +1 ; + recording industry : + copyright infringement lawsuits of +1 ; + Recording Industry Association of America (RIAA) : + copyright infringement lawsuits filed by +1 | intimidation tactics of +1 +} + +The content industry's tactics exploit the failings of the American legal +system. When the RIAA brought suit against Jesse Jordan, it knew that in Jordan +it had found a scapegoat, not a defendant. The threat of having to pay either +all the money in the world in damages ($15,000,000) or almost all the money in +the world to defend against paying all the money in the world in damages +($250,000 in legal fees) led Jordan to choose to pay all the money he had in +the world ($12,000) to make the suit go away. The same strategy animates the +RIAA's suits against individual users. In September 2003, the RIAA sued 261 +individuals - including a twelve-year-old girl living in public housing and a +seventy-year-old man who had no idea what file sharing was.~{ Alex Pham, "The +Labels Strike Back: N.Y. Girl Settles RIAA Case," /{Los Angeles Times,}/ 10 +September 2003, Business. }~ As these scapegoats discovered, it will always +cost more to defend against these suits than it would cost to simply settle. +(The twelve year old, for example, like Jesse Jordan, paid her life savings of +$2,000 to settle the case.) Our law is an awful system for defending rights. It +is an embarrassment to our tradition. And the consequence of our law as it is, +is that those with the power can use the law to quash any rights they oppose. +={ Jordan, Jesse } + +Wars of prohibition are nothing new in America. This one is just something more +extreme than anything we've seen before. We experimented with alcohol +prohibition, at a time when the per capita consumption of alcohol was 1.5 +gallons per capita per year. The war against drinking initially reduced that +consumption to just 30 percent of its preprohibition levels, but by the end of +prohibition, consumption was up to 70 percent of the preprohibition level. +Americans were drinking just about as much, but now, a vast number were +criminals.~{ Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During +Prohibition," /{American Economic Review}/ 81, no. 2 (1991): 242. }~ We have +launched a war on drugs aimed at reducing the consumption of regulated +narcotics that 7 percent (or 16 million) Americans now use.~{ National Drug +Control Policy: Hearing Before the House Government Reform Committee, 108th +Cong., 1st sess. (5 March 2003) (statement of John P. Walters, director of +National Drug Control Policy). }~ That is a drop from the high (so to speak) in +1979 of 14 percent of the population. We regulate automobiles to the point +where the vast majority of Americans violate the law every day. We run such a +complex tax system that a majority of cash businesses regularly cheat.~{ See +James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax Compliance," +/{Journal of Economic Literature}/ 36 (1998): 818 (survey of compliance +literature). }~ We pride ourselves on our "free society," but an endless array +of ordinary behavior is regulated within our society. And as a result, a huge +proportion of Americans regularly violate at least some law. +={ alcohol prohibition +1 ; + drugs : + illegal +1 ; + tax system +1 +} + +This state of affairs is not without consequence. It is a particularly salient +issue for teachers like me, whose job it is to teach law students about the +importance of "ethics." As my colleague Charlie Nesson told a class at +Stanford, each year law schools admit thousands of students who have illegally +downloaded music, illegally consumed alcohol and sometimes drugs, illegally +worked without paying taxes, illegally driven cars. These are kids for whom +behaving illegally is increasingly the norm. And then we, as law professors, +are supposed to teach them how to behave ethically - how to say no to bribes, +or keep client funds separate, or honor a demand to disclose a document that +will mean that your case is over. Generations of Americans - more significantly +in some parts of America than in others, but still, everywhere in America today +- can't live their lives both normally and legally, since "normally" entails a +certain degree of illegality. +={ ethics ; + law schools ; + Nesson, Charlie +} + +The response to this general illegality is either to enforce the law more +severely or to change the law. We, as a society, have to learn how to make that +choice more rationally. Whether a law makes sense depends, in part, at least, +upon whether the costs of the law, both intended and collateral, outweigh the +benefits. If the costs, intended and collateral, do outweigh the benefits, then +the law ought to be changed. Alternatively, if the costs of the existing system +are much greater than the costs of an alternative, then we have a good reason +to consider the alternative. + +My point is not the idiotic one: Just because people violate a law, we should +therefore repeal it. Obviously, we could reduce murder statistics dramatically +by legalizing murder on Wednesdays and Fridays. But that wouldn't make any +sense, since murder is wrong every day of the week. A society is right to ban +murder always and everywhere. + +My point is instead one that democracies understood for generations, but that +we recently have learned to forget. The rule of law depends upon people obeying +the law. The more often, and more repeatedly, we as citizens experience +violating the law, the less we respect the law. Obviously, in most cases, the +important issue is the law, not respect for the law. I don't care whether the +rapist respects the law or not; I want to catch and incarcerate the rapist. But +I do care whether my students respect the law. And I do care if the rules of +law sow increasing disrespect because of the extreme of regulation they impose. +Twenty million Americans have come of age since the Internet introduced this +different idea of "sharing." We need to be able to call these twenty million +Americans "citizens," not "felons." + +When at least forty-three million citizens download content from the Internet, +and when they use tools to combine that content in ways unauthorized by +copyright holders, the first question we should be asking is not how best to +involve the FBI. The first question should be whether this particular +prohibition is really necessary in order to achieve the proper ends that +copyright law serves. Is there another way to assure that artists get paid +without transforming forty-three million Americans into felons? Does it make +sense if there are other ways to assure that artists get paid without +transforming America into a nation of felons? + +This abstract point can be made more clear with a particular example. + +We all own CDs. Many of us still own phonograph records. These pieces of +plastic encode music that in a certain sense we have bought. The law protects +our right to buy and sell that plastic: It is not a copyright infringement for +me to sell all my classical records at a used record store and buy jazz records +to replace them. That "use" of the recordings is free. + +But as the MP3 craze has demonstrated, there is another use of phonograph +records that is effectively free. Because these recordings were made without +copy-protection technologies, I am "free" to copy, or "rip," music from my +records onto a computer hard disk. Indeed, Apple Corporation went so far as to +suggest that "freedom" was a right: In a series of commercials, Apple endorsed +the "Rip, Mix, Burn" capacities of digital technologies. +={ Apple Corporation +1 ; + Rip, Mix, Burn technologies +1 ; + technology : + cut-and-paste culture enabled by +} + +This "use" of my records is certainly valuable. I have begun a large process at +home of ripping all of my and my wife's CDs, and storing them in one archive. +Then, using Apple's iTunes, or a wonderful program called Andromeda, we can +build different play lists of our music: Bach, Baroque, Love Songs, Love Songs +of Significant Others - the potential is endless. And by reducing the costs of +mixing play lists, these technologies help build a creativity with play lists +that is itself independently valuable. Compilations of songs are creative and +meaningful in their own right. +={ Andromeda } + +This use is enabled by unprotected media - either CDs or records. But +unprotected media also enable file sharing. File sharing threatens (or so the +content industry believes) the ability of creators to earn a fair return from +their creativity. And thus, many are beginning to experiment with technologies +to eliminate unprotected media. These technologies, for example, would enable +CDs that could not be ripped. Or they might enable spy programs to identify +ripped content on people's machines. +={ CDs : + mix technology and +1 ; + technology : + copyright enforcement controlled by +1 ; + copyright law : + technology as automatic enforcer of +} + +If these technologies took off, then the building of large archives of your own +music would become quite difficult. You might hang in hacker circles, and get +technology to disable the technologies that protect the content. Trading in +those technologies is illegal, but maybe that doesn't bother you much. In any +case, for the vast majority of people, these protection technologies would +effectively destroy the archiving use of CDs. The technology, in other words, +would force us all back to the world where we either listened to music by +manipulating pieces of plastic or were part of a massively complex "digital +rights management" system. + +If the only way to assure that artists get paid were the elimination of the +ability to freely move content, then these technologies to interfere with the +freedom to move content would be justifiable. But what if there were another +way to assure that artists are paid, without locking down any content? What if, +in other words, a different system could assure compensation to artists while +also preserving the freedom to move content easily? + +My point just now is not to prove that there is such a system. I offer a +version of such a system in the last chapter of this book. For now, the only +point is the relatively uncontroversial one: If a different system achieved the +same legitimate objectives that the existing copyright system achieved, but +left consumers and creators much more free, then we'd have a very good reason +to pursue this alternative - namely, freedom. The choice, in other words, would +not be between property and piracy; the choice would be between different +property systems and the freedoms each allowed. +={ copyright law : + commercial creativity as primary purpose of +1 | as protection of creators +1 +} + +I believe there is a way to assure that artists are paid without turning +forty-three million Americans into felons. But the salient feature of this +alternative is that it would lead to a very different market for producing and +distributing creativity. The dominant few, who today control the vast majority +of the distribution of content in the world, would no longer exercise this +extreme of control. Rather, they would go the way of the horse-drawn buggy. + +Except that this generation's buggy manufacturers have already saddled +Congress, and are riding the law to protect themselves against this new form of +competition. For them the choice is between forty-three million Americans as +criminals and their own survival. + +It is understandable why they choose as they do. It is not understandable why +we as a democracy continue to choose as we do. Jack Valenti is charming; but +not so charming as to justify giving up a tradition as deep and important as +our tradition of free culture. +={ Valenti, Jack } + +!_ There's one more +aspect to this corruption that is particularly important to civil liberties, +and follows directly from any war of prohibition. As Electronic Frontier +Foundation attorney Fred von Lohmann describes, this is the "collateral damage" +that "arises whenever you turn a very large percentage of the population into +criminals." This is the collateral damage to civil liberties generally. +={ civil liberties +11 ; + Electronic Frontier Foundation ; + von Lohmann, Fred +2 +} + +"If you can treat someone as a putative lawbreaker," von Lohmann explains, + +_1 then all of a sudden a lot of basic civil liberty protections evaporate to +one degree or another. ... If you're a copyright infringer, how can you hope to +have any privacy rights? If you're a copyright infringer, how can you hope to +be secure against seizures of your computer? How can you hope to continue to +receive Internet access? ... Our sensibilities change as soon as we think, "Oh, +well, but that person's a criminal, a lawbreaker." Well, what this campaign +against file sharing has done is turn a remarkable percentage of the American +Internet-using population into "law-breakers." +={ privacy rights +3 } + +And the consequence of this transformation of the American public into +criminals is that it becomes trivial, as a matter of due process, to +effectively erase much of the privacy most would presume. + +Users of the Internet began to see this generally in 2003 as the RIAA launched +its campaign to force Internet service providers to turn over the names of +customers who the RIAA believed were violating copyright law. Verizon fought +that demand and lost. With a simple request to a judge, and without any notice +to the customer at all, the identity of an Internet user is revealed. +={ Internet : + user identities released by service providers of +4 ; + ISPs (Internet service providers), user identities revealed by +4 ; + Recording Industry Association of America (RIAA) : + ISP user identities sought by +4 ; + Verizon Internet Services +} + +The RIAA then expanded this campaign, by announcing a general strategy to sue +individual users of the Internet who are alleged to have downloaded copyrighted +music from file-sharing systems. But as we've seen, the potential damages from +these suits are astronomical: If a family's computer is used to download a +single CD's worth of music, the family could be liable for $2 million in +damages. That didn't stop the RIAA from suing a number of these families, just +as they had sued Jesse Jordan.~{ See Frank Ahrens, "RIAA's Lawsuits Meet +Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among +Defendants," /{Washington Post,}/ 10 September 2003, E1; Chris Cobbs, "Worried +Parents Pull Plug on File 'Stealing'; With the Music Industry Cracking Down on +File Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued," +/{Orlando Sentinel Tribune,}/ 30 August 2003, C1; Jefferson Graham, "Recording +Industry Sues Parents," /{USA Today,}/ 15 September 2003, 4D; John Schwartz, +"She Says She's No Music Pirate. No Snoop Fan, Either," /{New York Times,}/ 25 +September 2003, C1; Margo Varadi, "Is Brianna a Criminal?" /{Toronto Star,}/ 18 +September 2003, P7. }~ +={ Jordan, Jesse ; + copyright infringement lawsuits : + exaggerated claims of +3 ; + peer-to-peer (p2p) file sharing : + regulatory balance lost in +6 ; + Recording Industry Association of America (RIAA) : + intimidation tactics of +3 +} + +Even this understates the espionage that is being waged by the RIAA. A report +from CNN late last summer described a strategy the RIAA had adopted to track +Napster users.~{ See "Revealed: How RIAA Tracks Downloaders: Music Industry +Discloses Some Methods Used," CNN.com, available at link #47. }~ Using a +sophisticated hashing algorithm, the RIAA took what is in effect a fingerprint +of every song in the Napster catalog. Any copy of one of those MP3s will have +the same "fingerprint." +={ Napster : + recording industry tracking users of +2 +} + +So imagine the following not-implausible scenario: Imagine a friend gives a CD +to your daughter - a collection of songs just like the cassettes you used to +make as a kid. You don't know, and neither does your daughter, where these +songs came from. But she copies these songs onto her computer. She then takes +her computer to college and connects it to a college network, and if the +college network is "cooperating" with the RIAA's espionage, and she hasn't +properly protected her content from the network (do you know how to do that +yourself ?), then the RIAA will be able to identify your daughter as a +"criminal." And under the rules that universities are beginning to deploy,~{ +See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent," /{Boston +Globe,}/ 18 May 2003, City Weekly, 1; Frank Ahrens, "Four Students Sued over +Music Sites; Industry Group Targets File Sharing at Colleges," /{Washington +Post,}/ 4 April 2003, E1; Elizabeth Armstrong, "Students 'Rip, Mix, Burn' at +Their Own Risk," /{Christian Science Monitor,}/ 2 September 2003, 20; Robert +Becker and Angela Rozas, "Music Pirate Hunt Turns to Loyola; Two Students Names +Are Handed Over; Lawsuit Possible," /{Chicago Tribune,}/ 16 July 2003, 1C; Beth +Cox, "RIAA Trains Antipiracy Guns on Universities," /{Internet News,}/ 30 +January 2003, available at link #48; Benny Evangelista, "Download Warning 101: +Freshman Orientation This Fall to Include Record Industry Warnings Against File +Sharing," /{San Francisco Chronicle,}/ 11 August 2003, E11; "Raid, Letters Are +Weapons at Universities," /{USA Today,}/ 26 September 2000, 3D. }~ your +daughter can lose the right to use the university's computer network. She can, +in some cases, be expelled. +={ university computer networks, p2p sharing on +1 } + +Now, of course, she'll have the right to defend herself. You can hire a lawyer +for her (at $300 per hour, if you're lucky), and she can plead that she didn't +know anything about the source of the songs or that they came from Napster. And +it may well be that the university believes her. But the university might not +believe her. It might treat this "contraband" as presumptive of guilt. And as +any number of college students have already learned, our presumptions about +innocence disappear in the middle of wars of prohibition. This war is no +different. + +Says von Lohmann, +={ von Lohmann, Fred +1 } + +_1 So when we're talking about numbers like forty to sixty million Americans +that are essentially copyright infringers, you create a situation where the +civil liberties of those people are very much in peril in a general matter. [I +don't] think [there is any] analog where you could randomly choose any person +off the street and be confident that they were committing an unlawful act that +could put them on the hook for potential felony liability or hundreds of +millions of dollars of civil liability. Certainly we all speed, but speeding +isn't the kind of an act for which we routinely forfeit civil liberties. Some +people use drugs, and I think that's the closest analog, [but] many have noted +that the war against drugs has eroded all of our civil liberties because it's +treated so many Americans as criminals. Well, I think it's fair to say that +file sharing is an order of magnitude larger number of Americans than drug use. +... If forty to sixty million Americans have become lawbreakers, then we're +really on a slippery slope to lose a lot of civil liberties for all forty to +sixty million of them." +={ driving speed, constraints on ; + speeding, constraints on ; + drugs : + illegal +} + +When forty to sixty million Americans are considered "criminals" under the law, +and when the law could achieve the same objective - securing rights to authors +- without these millions being considered "criminals," who is the villain? +Americans or the law? Which is American, a constant war on our own people or a +concerted effort through our democracy to change our law? + +:B~ BALANCES + +1~intro_balances [Intro]-# + +!_ So here's +the picture: You're standing at the side of the road. Your car is on fire. You +are angry and upset because in part you helped start the fire. Now you don't +know how to put it out. Next to you is a bucket, filled with gasoline. +Obviously, gasoline won't put the fire out. + +As you ponder the mess, someone else comes along. In a panic, she grabs the +bucket. Before you have a chance to tell her to stop - or before she +understands just why she should stop - the bucket is in the air. The gasoline +is about to hit the blazing car. And the fire that gasoline will ignite is +about to ignite everything around. + +!_ A war +about copyright rages all around - and we're all focusing on the wrong thing. +No doubt, current technologies threaten existing businesses. No doubt they may +threaten artists. But technologies change. The industry and technologists have +plenty of ways to use technology to protect themselves against the current +threats of the Internet. This is a fire that if let alone would burn itself +out. + +Yet policy makers are not willing to leave this fire to itself. Primed with +plenty of lobbyists' money, they are keen to intervene to eliminate the problem +they perceive. But the problem they perceive is not the real threat this +culture faces. For while we watch this small fire in the corner, there is a +massive change in the way culture is made that is happening all around. + +Somehow we have to find a way to turn attention to this more important and +fundamental issue. Somehow we have to find a way to avoid pouring gasoline onto +this fire. + +We have not found that way yet. Instead, we seem trapped in a simpler, binary +view. However much many people push to frame this debate more broadly, it is +the simple, binary view that remains. We rubberneck to look at the fire when we +should be keeping our eyes on the road. + +This challenge has been my life these last few years. It has also been my +failure. In the two chapters that follow, I describe one small brace of +efforts, so far failed, to find a way to refocus this debate. We must +understand these failures if we're to understand what success will require. + +1~ Chapter Thirteen: Eldred +={ Eldred, Eric +10 } + +!_ In 1995, +a father was frustrated that his daughters didn't seem to like Hawthorne. No +doubt there was more than one such father, but at least one did something about +it. Eric Eldred, a retired computer programmer living in New Hampshire, decided +to put Hawthorne on the Web. An electronic version, Eldred thought, with links +to pictures and explanatory text, would make this nineteenth-century author's +work come alive. +={ Hawthorne, Nathaniel +3 } + +It didn't work - at least for his daughters. They didn't find Hawthorne any +more interesting than before. But Eldred's experiment gave birth to a hobby, +and his hobby begat a cause: Eldred would build a library of public domain +works by scanning these works and making them available for free. +={ libraries : + of public-domain literature +4 ; + public domain : + library of works derived from +4 +} + +Eldred's library was not simply a copy of certain public domain works, though +even a copy would have been of great value to people across the world who can't +get access to printed versions of these works. Instead, Eldred was producing +derivative works from these public domain works. Just as Disney turned Grimm +into stories more accessible to the twentieth century, Eldred transformed +Hawthorne, and many others, into a form more accessible - technically +accessible - today. +={ Disney, Walt +1 ; + Grimm fairy tales +} + +Eldred's freedom to do this with Hawthorne's work grew from the same source as +Disney's. Hawthorne's /{Scarlet Letter}/ had passed into the public domain in +1907. It was free for anyone to take without the permission of the Hawthorne +estate or anyone else. Some, such as Dover Press and Penguin Classics, take +works from the public domain and produce printed editions, which they sell in +bookstores across the country. Others, such as Disney, take these stories and +turn them into animated cartoons, sometimes successfully (/{Cinderella}/), +sometimes not (/{The Hunchback of Notre Dame}/, /{Treasure Planet}/). These are +all commercial publications of public domain works. +={ Scarlet Letter, The (Hawthorne) } + +The Internet created the possibility of noncommercial publications of public +domain works. Eldred's is just one example. There are literally thousands of +others. Hundreds of thousands from across the world have discovered this +platform of expression and now use it to share works that are, by law, free for +the taking. This has produced what we might call the "noncommercial publishing +industry," which before the Internet was limited to people with large egos or +with political or social causes. But with the Internet, it includes a wide +range of individuals and groups dedicated to spreading culture generally.~{ +There's a parallel here with pornography that is a bit hard to describe, but +it's a strong one. One phenomenon that the Internet created was a world of +noncommercial pornographers - people who were distributing porn but were not +making money directly or indirectly from that distribution. Such a class didn't +exist before the Internet came into being because the costs of distributing +porn were so high. Yet this new class of distributors got special attention in +the Supreme Court, when the Court struck down the Communications Decency Act of +1996. It was partly because of the burden on noncommercial speakers that the +statute was found to exceed Congress's power. The same point could have been +made about noncommercial publishers after the advent of the Internet. The Eric +Eldreds of the world before the Internet were extremely few. Yet one would +think it at least as important to protect the Eldreds of the world as to +protect noncommercial pornographers. }~ + +As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection of +poems /{New Hampshire}/ was slated to pass into the public domain. Eldred +wanted to post that collection in his free public library. But Congress got in +the way. As I described in chapter 10, in 1998, for the eleventh time in forty +years, Congress extended the terms of existing copyrights - this time by twenty +years. Eldred would not be free to add any works more recent than 1923 to his +collection until 2019. Indeed, no copyrighted work would pass into the public +domain until that year (and not even then, if Congress extends the term again). +By contrast, in the same period, more than 1 million patents will pass into the +public domain. +={ Congress, U.S. : + copyright terms extended by +23 ; + copyright : + duration of +23 ; + copyright law : + term extensions in +23 ; + Frost, Robert ; + New Hampshire (Frost) ; + patents : + in public domain | future patents vs. future copyrights in +1 +} + +This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in memory +of the congressman and former musician Sonny Bono, who, his widow, Mary Bono, +says, believed that "copyrights should be forever."~{ The full text is: "Sonny +[Bono] wanted the term of copyright protection to last forever. I am informed +by staff that such a change would violate the Constitution. I invite all of you +to work with me to strengthen our copyright laws in all of the ways available +to us. As you know, there is also Jack Valenti's proposal for a term to last +forever less one day. Perhaps the Committee may look at that next Congress," +144 Cong. Rec. H9946, 9951-2 (October 7, 1998). }~ +={ Bono, Mary ; + Bono, Sonny ; + copyright : + in perpetuity +5 ; + Sonny Bono Copyright Term Extension Act (CTEA) (1998) +1 +} + +Eldred decided to fight this law. He first resolved to fight it through civil +disobedience. In a series of interviews, Eldred announced that he would publish +as planned, CTEA notwithstanding. But because of a second law passed in 1998, +the NET (No Electronic Theft) Act, his act of publishing would make Eldred a +felon - whether or not anyone complained. This was a dangerous strategy for a +disabled programmer to undertake. +={ copyright law : + felony punishment for infringement of ; + NET (No Electronic Theft) Act (1988) ; + No Electronic Theft (NET) Act (1988) ; + peer-to-peer (p2p) file sharing : + felony punishments for +} + +It was here that I became involved in Eldred's battle. I was a constitutional +scholar whose first passion was constitutional interpretation. And though +constitutional law courses never focus upon the Progress Clause of the +Constitution, it had always struck me as importantly different. As you know, +the Constitution says, +={ Congress : + constitutional powers of +3 ; + Constitution, U.S. : + Progress Clause of +2 ; + Progress Clause +2 ; + Lessig, Lawrence : + Eldred case involvement of +2 +} + +_1 Congress has the power to promote the Progress of Science ... by securing +for limited Times to Authors ... exclusive Right to their ... Writings. ..." + +As I've described, this clause is unique within the power-granting clause of +Article I, section 8 of our Constitution. Every other clause granting power to +Congress simply says Congress has the power to do something - for example, to +regulate "commerce among the several states" or "declare War." But here, the +"something" is something quite specific - to "promote ... Progress" - through +means that are also specific - by "securing" "exclusive Rights" (i.e., +copyrights) "for limited Times." + +In the past forty years, Congress has gotten into the practice of extending +existing terms of copyright protection. What puzzled me about this was, if +Congress has the power to extend existing terms, then the Constitution's +requirement that terms be "limited" will have no practical effect. If every +time a copyright is about to expire, Congress has the power to extend its term, +then Congress can achieve what the Constitution plainly forbids - perpetual +terms "on the installment plan," as Professor Peter Jaszi so nicely put it. +={ Jaszi, Peter } + +As an academic, my first response was to hit the books. I remember sitting late +at the office, scouring on-line databases for any serious consideration of the +question. No one had ever challenged Congress's practice of extending existing +terms. That failure may in part be why Congress seemed so untroubled in its +habit. That, and the fact that the practice had become so lucrative for +Congress. Congress knows that copyright owners will be willing to pay a great +deal of money to see their copyright terms extended. And so Congress is quite +happy to keep this gravy train going. +={ Lessig, Lawrence : + Eldred case involvement of +} + +For this is the core of the corruption in our present system of +government."Corruption" not in the sense that representatives are bribed. +Rather, "corruption" in the sense that the system induces the beneficiaries of +Congress's acts to raise and give money to Congress to induce it to act. +There's only so much time; there's only so much Congress can do. Why not limit +its actions to those things it must do - and those things that pay? Extending +copyright terms pays. + +If that's not obvious to you, consider the following: Say you're one of the +very few lucky copyright owners whose copyright continues to make money one +hundred years after it was created. The Estate of Robert Frost is a good +example. Frost died in 1963. His poetry continues to be extraordinarily +valuable. Thus the Robert Frost estate benefits greatly from any extension of +copyright, since no publisher would pay the estate any money if the poems Frost +wrote could be published by anyone for free. +={ Frost, Robert +12 } + +So imagine the Robert Frost estate is earning $100,000 a year from three of +Frost's poems. And imagine the copyright for those poems is about to expire. +You sit on the board of the Robert Frost estate. Your financial adviser comes +to your board meeting with a very grim report: + +"Next year," the adviser announces, "our copyrights in works A, B, and C will +expire. That means that after next year, we will no longer be receiving the +annual royalty check of $100,000 from the publishers of those works. + +"There's a proposal in Congress, however," she continues, "that could change +this. A few congressmen are floating a bill to extend the terms of copyright by +twenty years. That bill would be extraordinarily valuable to us. So we should +hope this bill passes." + +"Hope?" a fellow board member says. "Can't we be doing something about it?" + +"Well, obviously, yes," the adviser responds. "We could contribute to the +campaigns of a number of representatives to try to assure that they support the +bill." +={ Congress, U.S. : + lobbying of +8 } + +You hate politics. You hate contributing to campaigns. So you want to know +whether this disgusting practice is worth it. "How much would we get if this +extension were passed?" you ask the adviser. "How much is it worth?" + +"Well," the adviser says, "if you're confident that you will continue to get at +least $100,000 a year from these copyrights, and you use the 'discount rate' +that we use to evaluate estate investments (6 percent), then this law would be +worth $1,146,000 to the estate." + +You're a bit shocked by the number, but you quickly come to the correct +conclusion: + +"So you're saying it would be worth it for us to pay more than $1,000,000 in +campaign contributions if we were confident those contributions would assure +that the bill was passed?" + +"Absolutely," the adviser responds. "It is worth it to you to contribute up to +the 'present value' of the income you expect from these copyrights. Which for +us means over $1,000,000." + +You quickly get the point - you as the member of the board and, I trust, you +the reader. Each time copyrights are about to expire, every beneficiary in the +position of the Robert Frost estate faces the same choice: If they can +contribute to get a law passed to extend copyrights, they will benefit greatly +from that extension. And so each time copyrights are about to expire, there is +a massive amount of lobbying to get the copyright term extended. + +Thus a congressional perpetual motion machine: So long as legislation can be +bought (albeit indirectly), there will be all the incentive in the world to buy +further extensions of copyright. + +In the lobbying that led to the passage of the Sonny Bono Copyright Term +Extension Act, this "theory" about incentives was proved real. Ten of the +thirteen original sponsors of the act in the House received the maximum +contribution from Disney's political action committee; in the Senate, eight of +the twelve sponsors received contributions.~{ Associated Press, "Disney +Lobbying for Copyright Extension No Mickey Mouse Effort; Congress OKs Bill +Granting Creators 20 More Years," /{Chicago Tribune,}/ 17 October 1998, 22. }~ +The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in +the 1998 election cycle. They paid out more than $200,000 in campaign +contributions.~{ See Nick Brown, "Fair Use No More?: Copyright in the +Information Age," available at link #49. }~ Disney is estimated to have +contributed more than $800,000 to reelection campaigns in the 1998 cycle.~{ +Alan K. Ota, "Disney in Washington: The Mouse That Roars," /{Congressional +Quarterly This Week,}/ 8 August 1990, available at link #50. }~ +={ Disney, Inc. ; + film industry : + trade association of ; + Motion Picture Association of America (MPAA) ; + Recording Industry Association of America (RIAA) : + lobbying power of ; + Sonny Bono Copyright Term Extension Act (CTEA) (1998) ; + Congress, U.S. : + copyright terms extended by +13 +} + +!_ Constitutional law +is not oblivious to the obvious. Or at least, it need not be. So when I was +considering Eldred's complaint, this reality about the never-ending incentives +to increase the copyright term was central to my thinking. In my view, a +pragmatic court committed to interpreting and applying the Constitution of our +framers would see that if Congress has the power to extend existing terms, then +there would be no effective constitutional requirement that terms be "limited." +If they could extend it once, they would extend it again and again and again. +={ Lessig, Lawrence : + Eldred case involvement of +1 ; + Constitution, U.S. : + Progress Clause of ; + Eldred, Eric ; + copyright law : + term extensions in +12 +} + +It was also my judgment that /{this}/ Supreme Court would not allow Congress to +extend existing terms. As anyone close to the Supreme Court's work knows, this +Court has increasingly restricted the power of Congress when it has viewed +Congress's actions as exceeding the power granted to it by the Constitution. +Among constitutional scholars, the most famous example of this trend was the +Supreme Court's decision in 1995 to strike down a law that banned the +possession of guns near schools. +={ Congress, U.S. : + Supreme Court restraint on +6 ; + copyright law : + Supreme Court case on term extension of +5 ; + Supreme Court, U.S. : + congressional actions restrained by +5 | on copyright term extensions ; + guns +2 ; + schools, gun possession near +2 +} + +Since 1937, the Supreme Court had interpreted Congress's granted powers very +broadly; so, while the Constitution grants Congress the power to regulate only +"commerce among the several states" (aka "interstate commerce"), the Supreme +Court had interpreted that power to include the power to regulate any activity +that merely affected interstate commerce. +={ commerce, interstate +3 ; + Congress, U.S. : + constitutional powers of +5 ; + interstate commerce +4 +} + +As the economy grew, this standard increasingly meant that there was no limit +to Congress's power to regulate, since just about every activity, when +considered on a national scale, affects interstate commerce. A Constitution +designed to limit Congress's power was instead interpreted to impose no limit. + +The Supreme Court, under Chief Justice Rehnquist's command, changed that in +/{United States v. Lopez}/. The government had argued that possessing guns near +schools affected interstate commerce. Guns near schools increase crime, crime +lowers property values, and so on. In the oral argument, the Chief Justice +asked the government whether there was any activity that would not affect +interstate commerce under the reasoning the government advanced. The government +said there was not; if Congress says an activity affects interstate commerce, +then that activity affects interstate commerce. The Supreme Court, the +government said, was not in the position to second-guess Congress. +={ Rehnquist, William H. +1 ; + United States v. Lopez +1 +} + +"We pause to consider the implications of the government's arguments," the +Chief Justice wrote.~{ /{United States v. Lopez,}/ 514 U.S. 549, 564 (1995). }~ +If anything Congress says is interstate commerce must therefore be considered +interstate commerce, then there would be no limit to Congress's power. The +decision in /{Lopez}/ was reaffirmed five years later in /{United States v. +Morrison}/.~{ /{United States v. Morrison,}/ 529 U.S. 598 (2000). }~ +={ United States v. Morrison } + +If a principle were at work here, then it should apply to the Progress Clause +as much as the Commerce Clause.~{ If it is a principle about enumerated powers, +then the principle carries from one enumerated power to another. The animating +point in the context of the Commerce Clause was that the interpretation offered +by the government would allow the government unending power to regulate +commerce - the limitation to interstate commerce notwithstanding. The same +point is true in the context of the Copyright Clause. Here, too, the +government's interpretation would allow the government unending power to +regulate copyrights - the limitation to "limited times" notwithstanding. }~ And +if it is applied to the Progress Clause, the principle should yield the +conclusion that Congress can't extend an existing term. If Congress could +extend an existing term, then there would be no "stopping point" to Congress's +power over terms, though the Constitution expressly states that there is such a +limit. Thus, the same principle applied to the power to grant copyrights should +entail that Congress is not allowed to extend the term of existing copyrights. +={ Constitution, U.S. : + Progress Clause of | Commerce Clause of ; + copyright : + duration of ; + Supreme Court, U.S. : + congressional actions restrained by +2 +} + +/{If}/, that is, the principle announced in /{Lopez}/ stood for a principle. +Many believed the decision in /{Lopez}/ stood for politics - a conservative +Supreme Court, which believed in states' rights, using its power over Congress +to advance its own personal political preferences. But I rejected that view of +the Supreme Court's decision. Indeed, shortly after the decision, I wrote an +article demonstrating the "fidelity" in such an interpretation of the +Constitution. The idea that the Supreme Court decides cases based upon its +politics struck me as extraordinarily boring. I was not going to devote my life +to teaching constitutional law if these nine Justices were going to be petty +politicians. +={ Congress, U.S. : + Supreme Court restraint on +3 ; + United States v. Lopez +} + +!_ Now let's pause +for a moment to make sure we understand what the argument in /{Eldred}/ was not +about. By insisting on the Constitution's limits to copyright, obviously Eldred +was not endorsing piracy. Indeed, in an obvious sense, he was fighting a kind +of piracy - piracy of the public domain. When Robert Frost wrote his work and +when Walt Disney created Mickey Mouse, the maximum copyright term was just +fifty-six years. Because of interim changes, Frost and Disney had already +enjoyed a seventy-five-year monopoly for their work. They had gotten the +benefit of the bargain that the Constitution envisions: In exchange for a +monopoly protected for fifty-six years, they created new work. But now these +entities were using their power - expressed through the power of lobbyists' +money - to get another twenty-year dollop of monopoly. That twenty-year dollop +would be taken from the public domain. Eric Eldred was fighting a piracy that +affects us all. +={ Constitution, U.S. : + copyright purpose established in ; + copyright : + constitutional purpose of | duration of ; + Disney, Walt ; + Eldred, Eric +2 ; + Frost, Robert ; + Mickey Mouse ; + public domain : + protection of +2 +} + +Some people view the public domain with contempt. In their brief before the +Supreme Court, the Nashville Songwriters Association wrote that the public +domain is nothing more than "legal piracy."~{ Brief of the Nashville +Songwriters Association, /{Eldred v. Ashcroft,}/ 537 U.S. 186 (2003) (No. +01-618), n.10, available at link #51. }~ But it is not piracy when the law +allows it; and in our constitutional system, our law requires it. Some may not +like the Constitution's requirements, but that doesn't make the Constitution a +pirate's charter. +={ Eldred v. Ashcroft ; + Constitution, U.S. : + copyright purpose established in +1 ; + copyright : + constitutional purpose of +1 ; + Nashville Songwriters Association +} + +As we've seen, our constitutional system requires limits on copyright as a way +to assure that copyright holders do not too heavily influence the development +and distribution of our culture. Yet, as Eric Eldred discovered, we have set up +a system that assures that copyright terms will be repeatedly extended, and +extended, and extended. We have created the perfect storm for the public +domain. Copyrights have not expired, and will not expire, so long as Congress +is free to be bought to extend them again. +={ Eldred, Eric ; + copyright : + duration of +2 +} + +!_ It is valuable +copyrights that are responsible for terms being extended. Mickey Mouse and +"Rhapsody in Blue." These works are too valuable for copyright owners to +ignore. But the real harm to our society from copyright extensions is not that +Mickey Mouse remains Disney's. Forget Mickey Mouse. Forget Robert Frost. Forget +all the works from the 1920s and 1930s that have continuing commercial value. +The real harm of term extension comes not from these famous works. The real +harm is to the works that are not famous, not commercially exploited, and no +longer available as a result. +={ Mickey Mouse ; + Rhapsody in Blue (Gershwin) ; + Frost, Robert +} + +% added this Frost index reference + +If you look at the work created in the first twenty years (1923 to 1942) +affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that work +has any continuing commercial value. It was the copyright holders for that 2 +percent who pushed the CTEA through. But the law and its effect were not +limited to that 2 percent. The law extended the terms of copyright generally.~{ +The figure of 2 percent is an extrapolation from the study by the Congressional +Research Service, in light of the estimated renewal ranges. See Brief of +Petitioners, /{Eldred v. Ashcroft,}/ 7, available at link #52. }~ +={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) } + +Think practically about the consequence of this extension - practically, as a +businessperson, and not as a lawyer eager for more legal work. In 1930, 10,047 +books were published. In 2000, 174 of those books were still in print. Let's +say you were Brewster Kahle, and you wanted to make available to the world in +your iArchive project the remaining 9,873. What would you have to do? +={ Kahle, Brewster ; + archives, digital ; + Internet Archive +} + +Well, first, you'd have to determine which of the 9,873 books were still under +copyright. That requires going to a library (these data are not on-line) and +paging through tomes of books, cross-checking the titles and authors of the +9,873 books with the copyright registration and renewal records for works +published in 1930. That will produce a list of books still under copyright. + +Then for the books still under copyright, you would need to locate the current +copyright owners. How would you do that? + +Most people think that there must be a list of these copyright owners +somewhere. Practical people think this way. How could there be thousands and +thousands of government monopolies without there being at least a list? +={ copyright : + no registration of works +5 +} + +But there is no list. There may be a name from 1930, and then in 1959, of the +person who registered the copyright. But just think practically about how +impossibly difficult it would be to track down thousands of such records - +especially since the person who registered is not necessarily the current +owner. And we're just talking about 1930! + +"But there isn't a list of who owns property generally," the apologists for the +system respond. "Why should there be a list of copyright owners?" + +Well, actually, if you think about it, there /{are}/ plenty of lists of who +owns what property. Think about deeds on houses, or titles to cars. And where +there isn't a list, the code of real space is pretty good at suggesting who the +owner of a bit of property is. (A swing set in your backyard is probably +yours.) So formally or informally, we have a pretty good way to know who owns +what tangible property. + +So: You walk down a street and see a house. You can know who owns the house by +looking it up in the courthouse registry. If you see a car, there is ordinarily +a license plate that will link the owner to the car. If you see a bunch of +children's toys sitting on the front lawn of a house, it's fairly easy to +determine who owns the toys. And if you happen to see a baseball lying in a +gutter on the side of the road, look around for a second for some kids playing +ball. If you don't see any kids, then okay: Here's a bit of property whose +owner we can't easily determine. It is the exception that proves the rule: that +we ordinarily know quite well who owns what property. + +Compare this story to intangible property. You go into a library. The library +owns the books. But who owns the copyrights? As I've already described, there's +no list of copyright owners. There are authors' names, of course, but their +copyrights could have been assigned, or passed down in an estate like Grandma's +old jewelry. To know who owns what, you would have to hire a private detective. +The bottom line: The owner cannot easily be located. And in a regime like ours, +in which it is a felony to use such property without the property owner's +permission, the property isn't going to be used. +={ copyright law : + felony for infringement of +} + +The consequence with respect to old books is that they won't be digitized, and +hence will simply rot away on shelves. But the consequence for other creative +works is much more dire. + +Consider the story of Michael Agee, chairman of Hal Roach Studios, which owns +the copyrights for the Laurel and Hardy films. Agee is a direct beneficiary of +the Bono Act. The Laurel and Hardy films were made between 1921 and 1951. Only +one of these films, /{The Lucky Dog}/, is currently out of copyright. But for +the CTEA, films made after 1923 would have begun entering the public domain. +Because Agee controls the exclusive rights for these popular films, he makes a +great deal of money. According to one estimate, "Roach has sold about 60,000 +videocassettes and 50,000 DVDs of the duo's silent films."~{ See David G. +Savage, "High Court Scene of Showdown on Copyright Law," /{Los Angeles Times,}/ +6 October 2002; David Streitfeld, "Classic Movies, Songs, Books at Stake; +Supreme Court Hears Arguments Today on Striking Down Copyright Extension," +/{Orlando Sentinel Tribune,}/ 9 October 2002. }~ +={ Agee, Michael +2 ; + films : + in public domain +12 ; + Hal Roach Studios ; + Laurel and Hardy films ; + Lucky Dog, The ; + public domain : + films in +12 +} + +Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this +culture: selflessness. He argued in a brief before the Supreme Court that the +Sonny Bono Copyright Term Extension Act will, if left standing, destroy a whole +generation of American film. +={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) } + +His argument is straightforward. A tiny fraction of this work has any +continuing commercial value. The rest - to the extent it survives at all - sits +in vaults gathering dust. It may be that some of this work not now commercially +valuable will be deemed to be valuable by the owners of the vaults. For this to +occur, however, the commercial benefit from the work must exceed the costs of +making the work available for distribution. + +We can't know the benefits, but we do know a lot about the costs. For most of +the history of film, the costs of restoring film were very high; digital +technology has lowered these costs substantially. While it cost more than +$10,000 to restore a ninety-minute black-and-white film in 1993, it can now +cost as little as $100 to digitize one hour of 8 mm film.~{ Brief of Hal Roach +Studios and Michael Agee as Amicus Curiae Supporting the Petitoners, /{Eldred +v. Ashcroft,}/ 537 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus +Curiae filed on behalf of Petitioners by the Internet Archive, /{Eldred v. +Ashcroft,}/ available at link #53. }~ +={ films : + restoration of +4 +} + +Restoration technology is not the only cost, nor the most important. Lawyers, +too, are a cost, and increasingly, a very important one. In addition to +preserving the film, a distributor needs to secure the rights. And to secure +the rights for a film that is under copyright, you need to locate the copyright +owner. +={ films : + multiple copyrights associated with +1 +} + +Or more accurately, /{owners}/. As we've seen, there isn't only a single +copyright associated with a film; there are many. There isn't a single person +whom you can contact about those copyrights; there are as many as can hold the +rights, which turns out to be an extremely large number. Thus the costs of +clearing the rights to these films is exceptionally high. + +"But can't you just restore the film, distribute it, and then pay the copyright +owner when she shows up?" Sure, if you want to commit a felony. And even if +you're not worried about committing a felony, when she does show up, she'll +have the right to sue you for all the profits you have made. So, if you're +successful, you can be fairly confident you'll be getting a call from someone's +lawyer. And if you're not successful, you won't make enough to cover the costs +of your own lawyer. Either way, you have to talk to a lawyer. And as is too +often the case, saying you have to talk to a lawyer is the same as saying you +won't make any money. + +For some films, the benefit of releasing the film may well exceed these costs. +But for the vast majority of them, there is no way the benefit would outweigh +the legal costs. Thus, for the vast majority of old films, Agee argued, the +film will not be restored and distributed until the copyright expires. +={ Agee, Michael } + +But by the time the copyright for these films expires, the film will have +expired. These films were produced on nitrate-based stock, and nitrate stock +dissolves over time. They will be gone, and the metal canisters in which they +are now stored will be filled with nothing more than dust. + +!_ Of all the +creative work produced by humans anywhere, a tiny fraction has continuing +commercial value. For that tiny fraction, the copyright is a crucially +important legal device. For that tiny fraction, the copyright creates +incentives to produce and distribute the creative work. For that tiny fraction, +the copyright acts as an "engine of free expression." + +But even for that tiny fraction, the actual time during which the creative work +has a commercial life is extremely short. As I've indicated, most books go out +of print within one year. The same is true of music and film. Commercial +culture is sharklike. It must keep moving. And when a creative work falls out +of favor with the commercial distributors, the commercial life ends. +={ culture : + commercial vs. noncommercial +1 +} + +Yet that doesn't mean the life of the creative work ends. We don't keep +libraries of books in order to compete with Barnes & Noble, and we don't have +archives of films because we expect people to choose between spending Friday +night watching new movies and spending Friday night watching a 1930 news +documentary. The noncommercial life of culture is important and valuable - for +entertainment but also, and more importantly, for knowledge. To understand who +we are, and where we came from, and how we have made the mistakes that we have, +we need to have access to this history. + +Copyrights in this context do not drive an engine of free expression. In this +context, there is no need for an exclusive right. Copyrights in this context do +no good. + +Yet, for most of our history, they also did little harm. For most of our +history, when a work ended its commercial life, there was no +/{copyright-related use}/ that would be inhibited by an exclusive right. When a +book went out of print, you could not buy it from a publisher. But you could +still buy it from a used book store, and when a used book store sells it, in +America, at least, there is no need to pay the copyright owner anything. Thus, +the ordinary use of a book after its commercial life ended was a use that was +independent of copyright law. + +The same was effectively true of film. Because the costs of restoring a film - +the real economic costs, not the lawyer costs - were so high, it was never at +all feasible to preserve or restore film. Like the remains of a great dinner, +when it's over, it's over. Once a film passed out of its commercial life, it +may have been archived for a bit, but that was the end of its life so long as +the market didn't have more to offer. +={ films : + restoration of +} + +In other words, though copyright has been relatively short for most of our +history, long copyrights wouldn't have mattered for the works that lost their +commercial value. Long copyrights for these works would not have interfered +with anything. + +But this situation has now changed. + +One crucially important consequence of the emergence of digital technologies is +to enable the archive that Brewster Kahle dreams of. Digital technologies now +make it possible to preserve and give access to all sorts of knowledge. Once a +book goes out of print, we can now imagine digitizing it and making it +available to everyone, forever. Once a film goes out of distribution, we could +digitize it and make it available to everyone, forever. Digital technologies +give new life to copyrighted material after it passes out of its commercial +life. It is now possible to preserve and assure universal access to this +knowledge and culture, whereas before it was not. +={ Kahle, Brewster +3 ; + archives, digital +4 ; + culture : + archives of +4 +} + +And now copyright law does get in the way. Every step of producing this digital +archive of our culture infringes on the exclusive right of copyright. To +digitize a book is to copy it. To do that requires permission of the copyright +owner. The same with music, film, or any other aspect of our culture protected +by copyright. The effort to make these things available to history, or to +researchers, or to those who just want to explore, is now inhibited by a set of +rules that were written for a radically different context. + +Here is the core of the harm that comes from extending terms: Now that +technology enables us to rebuild the library of Alexandria, the law gets in the +way. And it doesn't get in the way for any useful /{copyright}/ purpose, for +the purpose of copyright is to enable the commercial market that spreads +culture. No, we are talking about culture after it has lived its commercial +life. In this context, copyright is serving no purpose /{at all}/ related to +the spread of knowledge. In this context, copyright is not an engine of free +expression. Copyright is a brake. +={ libraries : + archival function of +2 +} + +You may well ask, "But if digital technologies lower the costs for Brewster +Kahle, then they will lower the costs for Random House, too. So won't Random +House do as well as Brewster Kahle in spreading culture widely?" + +Maybe. Someday. But there is absolutely no evidence to suggest that publishers +would be as complete as libraries. If Barnes & Noble offered to lend books from +its stores for a low price, would that eliminate the need for libraries? Only +if you think that the only role of a library is to serve what "the market" +would demand. But if you think the role of a library is bigger than this - if +you think its role is to archive culture, whether there's a demand for any +particular bit of that culture or not - then we can't count on the commercial +market to do our library work for us. + +I would be the first to agree that it should do as much as it can: We should +rely upon the market as much as possible to spread and enable culture. My +message is absolutely not antimarket. But where we see the market is not doing +the job, then we should allow nonmarket forces the freedom to fill the gaps. As +one researcher calculated for American culture, 94 percent of the films, books, +and music produced between 1923 and 1946 is not commercially available. However +much you love the commercial market, if access is a value, then 6 percent is a +failure to provide that value.~{ Jason Schultz, "The Myth of the 1976 Copyright +'Chaos' Theory," 20 December 2002, available at link #54. }~ + +!_ In January 1999, +we filed a lawsuit on Eric Eldred's behalf in federal district court in +Washington, D.C., asking the court to declare the Sonny Bono Copyright Term +Extension Act unconstitutional. The two central claims that we made were (1) +that extending existing terms violated the Constitution's "limited Times" +requirement, and (2) that extending terms by another twenty years violated the +First Amendment. +={ Eldred v. Ashcroft +126 ; + Lessig, Lawrence : + Eldred case involvement of +126 ; + Congress, U.S. : + copyright terms extended by +2 ; + Constitution, U.S. : + First Amendment to ; + First Amendment : + copyright extension as violation of ; + Sonny Bono Copyright Term Extension Act (CTEA) (1998) : + Supreme Court challenge of +7 ; + Supreme Court, U.S. : + on copyright term extensions +126 ; + copyright law : + Supreme Court case on term extension of +126 | term extensions in +126 +} + +The district court dismissed our claims without even hearing an argument. A +panel of the Court of Appeals for the D.C. Circuit also dismissed our claims, +though after hearing an extensive argument. But that decision at least had a +dissent, by one of the most conservative judges on that court. That dissent +gave our claims life. + +Judge David Sentelle said the CTEA violated the requirement that copyrights be +for "limited Times" only. His argument was as elegant as it was simple: If +Congress can extend existing terms, then there is no "stopping point" to +Congress's power under the Copyright Clause. The power to extend existing terms +means Congress is not required to grant terms that are "limited." Thus, Judge +Sentelle argued, the court had to interpret the term "limited Times" to give it +meaning. And the best interpretation, Judge Sentelle argued, would be to deny +Congress the power to extend existing terms. +={ Congress, U.S. : + challenge of CTEA legislation of +124 ; + Sentelle, David +2 +} + +We asked the Court of Appeals for the D.C. Circuit as a whole to hear the case. +Cases are ordinarily heard in panels of three, except for important cases or +cases that raise issues specific to the circuit as a whole, where the court +will sit "en banc" to hear the case. +={ Court of Appeals : + D.C. Circuit +1 ; + D.C. Court of Appeals +1 +} + +The Court of Appeals rejected our request to hear the case en banc. This time, +Judge Sentelle was joined by the most liberal member of the D.C. Circuit, Judge +David Tatel. Both the most conservative and the most liberal judges in the D.C. +Circuit believed Congress had over-stepped its bounds. +={ Tatel, David } + +It was here that most expected /{Eldred v. Ashcroft}/ would die, for the +Supreme Court rarely reviews any decision by a court of appeals. (It hears +about one hundred cases a year, out of more than five thousand appeals.) And it +practically never reviews a decision that upholds a statute when no other court +has yet reviewed the statute. +={ Supreme Court, U.S. : + annual docket of +} + +But in February 2002, the Supreme Court surprised the world by granting our +petition to review the D.C. Circuit opinion. Argument was set for October of +2002. The summer would be spent writing briefs and preparing for argument. + +!_ It is over +a year later as I write these words. It is still astonishingly hard. If you +know anything at all about this story, you know that we lost the appeal. And if +you know something more than just the minimum, you probably think there was no +way this case could have been won. After our defeat, I received literally +thousands of missives by well-wishers and supporters, thanking me for my work +on behalf of this noble but doomed cause. And none from this pile was more +significant to me than the e-mail from my client, Eric Eldred. +={ Eldred, Eric } + +But my client and these friends were wrong. This case could have been won. It +should have been won. And no matter how hard I try to retell this story to +myself, I can never escape believing that my own mistake lost it. + +!_ The mistake +was made early, though it became obvious only at the very end. Our case had +been supported from the very beginning by an extraordinary lawyer, Geoffrey +Stewart, and by the law firm he had moved to, Jones, Day, Reavis and Pogue. +Jones Day took a great deal of heat from its copyright-protectionist clients +for supporting us. They ignored this pressure (something that few law firms +today would ever do), and throughout the case, they gave it everything they +could. +={ Stewart, Gordon +1 ; + Jones, Day, Reavis and Pogue (Jones Day) +1 +} + +There were three key lawyers on the case from Jones Day. Geoff Stewart was the +first, but then Dan Bromberg and Don Ayer became quite involved. Bromberg and +Ayer in particular had a common view about how this case would be won: We would +only win, they repeatedly told me, if we could make the issue seem "important" +to the Supreme Court. It had to seem as if dramatic harm were being done to +free speech and free culture; otherwise, they would never vote against "the +most powerful media companies in the world." +={ Ayer, Don ; + Bromberg, Dan +} + +I hate this view of the law. Of course I thought the Sonny Bono Act was a +dramatic harm to free speech and free culture. Of course I still think it is. +But the idea that the Supreme Court decides the law based on how important they +believe the issues are is just wrong. It might be "right" as in "true," I +thought, but it is "wrong" as in "it just shouldn't be that way." As I believed +that any faithful interpretation of what the framers of our Constitution did +would yield the conclusion that the CTEA was unconstitutional, and as I +believed that any faithful interpretation of what the First Amendment means +would yield the conclusion that the power to extend existing copyright terms is +unconstitutional, I was not persuaded that we had to sell our case like soap. +Just as a law that bans the swastika is unconstitutional not because the Court +likes Nazis but because such a law would violate the Constitution, so too, in +my view, would the Court decide whether Congress's law was constitutional based +on the Constitution, not based on whether they liked the values that the +framers put in the Constitution. +={ Constitution, U.S. : + First Amendment to ; + First Amendment : + copyright extension as violation of ; + Sonny Bono Copyright Term Extension Act (CTEA) (1998) : + Supreme Court challenge of +} + +In any case, I thought, the Court must already see the danger and the harm +caused by this sort of law. Why else would they grant review? There was no +reason to hear the case in the Supreme Court if they weren't convinced that +this regulation was harmful. So in my view, we didn't need to persuade them +that this law was bad, we needed to show why it was unconstitutional. + +There was one way, however, in which I felt politics would matter and in which +I thought a response was appropriate. I was convinced that the Court would not +hear our arguments if it thought these were just the arguments of a group of +lefty loons. This Supreme Court was not about to launch into a new field of +judicial review if it seemed that this field of review was simply the +preference of a small political minority. Although my focus in the case was not +to demonstrate how bad the Sonny Bono Act was but to demonstrate that it was +unconstitutional, my hope was to make this argument against a background of +briefs that covered the full range of political views. To show that this claim +against the CTEA was grounded in /{law}/ and not politics, then, we tried to +gather the widest range of credible critics - credible not because they were +rich and famous, but because they, in the aggregate, demonstrated that this law +was unconstitutional regardless of one's politics. +={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) : + Supreme Court challenge of +} + +The first step happened all by itself. Phyllis Schlafly's organization, Eagle +Forum, had been an opponent of the CTEA from the very beginning. Mrs. Schlafly +viewed the CTEA as a sellout by Congress. In November 1998, she wrote a +stinging editorial attacking the Republican Congress for allowing the law to +pass. As she wrote, "Do you sometimes wonder why bills that create a financial +windfall to narrow special interests slide easily through the intricate +legislative process, while bills that benefit the general public seem to get +bogged down?" The answer, as the editorial documented, was the power of money. +Schlafly enumerated Disney's contributions to the key players on the +committees. It was money, not justice, that gave Mickey Mouse twenty more years +in Disney's control, Schlafly argued. +={ Disney, Inc. ; + Eagle Forum +2 ; + Mickey Mouse ; + Schlafy, Phyllis +} + +In the Court of Appeals, Eagle Forum was eager to file a brief supporting our +position. Their brief made the argument that became the core claim in the +Supreme Court: If Congress can extend the term of existing copyrights, there is +no limit to Congress's power to set terms. That strong conservative argument +persuaded a strong conservative judge, Judge Sentelle. +={ Court of Appeals : + D.C. Circuit ; + D.C. Court of Appeals ; + Sentelle, David +} + +In the Supreme Court, the briefs on our side were about as diverse as it gets. +They included an extraordinary historical brief by the Free Software Foundation +(home of the GNU project that made GNU/ Linux possible). They included a +powerful brief about the costs of uncertainty by Intel. There were two law +professors' briefs, one by copyright scholars and one by First Amendment +scholars. There was an exhaustive and uncontroverted brief by the world's +experts in the history of the Progress Clause. And of course, there was a new +brief by Eagle Forum, repeating and strengthening its arguments. +={ Free Software Foundation ; + GNU/Linux operating system ; + Linux operating system ; + Intel ; + Constitution, U.S. : + Progress Clause of ; + Progress Clause +} + +Those briefs framed a legal argument. Then to support the legal argument, there +were a number of powerful briefs by libraries and archives, including the +Internet Archive, the American Association of Law Libraries, and the National +Writers Union. +={ American Association of Law Libraries ; + Internet Archive ; + National Writers Union +} + +But two briefs captured the policy argument best. One made the argument I've +already described: A brief by Hal Roach Studios argued that unless the law was +struck, a whole generation of American film would disappear. The other made the +economic argument absolutely clear. +={ Hal Roach Studios } + +This economists' brief was signed by seventeen economists, including five Nobel +Prize winners, including Ronald Coase, James Buchanan, Milton Friedman, Kenneth +Arrow, and George Akerlof. The economists, as the list of Nobel winners +demonstrates, spanned the political spectrum. Their conclusions were powerful: +There was no plausible claim that extending the terms of existing copyrights +would do anything to increase incentives to create. Such extensions were +nothing more than "rent-seeking" - the fancy term economists use to describe +special- interest legislation gone wild. +={ Akerlof, George ; + Arrow, Kenneth ; + Buchanan, James ; + Coase, Ronald ; + Fridman, Milton +2 +} + +The same effort at balance was reflected in the legal team we gathered to write +our briefs in the case. The Jones Day lawyers had been with us from the start. +But when the case got to the Supreme Court, we added three lawyers to help us +frame this argument to this Court: Alan Morrison, a lawyer from Public Citizen, +a Washington group that had made constitutional history with a series of +seminal victories in the Supreme Court defending individual rights; my +colleague and dean, Kathleen Sullivan, who had argued many cases in the Court, +and who had advised us early on about a First Amendment strategy; and finally, +former solicitor general Charles Fried. +={ Jones, Day, Reavis and Pogue (Jones Day) ; + Morrison, Alan ; + Sullivan, Kathleen ; + Fried, Charles +1 ; + Public Citizen +} + +Fried was a special victory for our side. Every other former solicitor general +was hired by the other side to defend Congress's power to give media companies +the special favor of extended copyright terms. Fried was the only one who +turned down that lucrative assignment to stand up for something he believed in. +He had been Ronald Reagan's chief lawyer in the Supreme Court. He had helped +craft the line of cases that limited Congress's power in the context of the +Commerce Clause. And while he had argued many positions in the Supreme Court +that I personally disagreed with, his joining the cause was a vote of +confidence in our argument. +={ Reagan, Ronald ; + Congress, U.S. : + constitutional powers of ; + Constitution, U.S. : + Commerce Clause of +} + +The government, in defending the statute, had its collection of friends, as +well. Significantly, however, none of these "friends" included historians or +economists. The briefs on the other side of the case were written exclusively +by major media companies, congressmen, and copyright holders. + +The media companies were not surprising. They had the most to gain from the +law. The congressmen were not surprising either - they were defending their +power and, indirectly, the gravy train of contributions such power induced. And +of course it was not surprising that the copyright holders would defend the +idea that they should continue to have the right to control who did what with +content they wanted to control. + +Dr. Seuss's representatives, for example, argued that it was better for the Dr. +Seuss estate to control what happened to Dr. Seuss's work - better than +allowing it to fall into the public domain - because if this creativity were in +the public domain, then people could use it to "glorify drugs or to create +pornography."~{ Brief of Amici Dr. Seuss Enterprise et al., /{Eldred v. +Ashcroft,}/ 537 U.S. 186 (2003) (No. 01-618), 19. }~ That was also the motive +of the Gershwin estate, which defended its "protection" of the work of George +Gershwin. They refuse, for example, to license /{Porgy and Bess}/ to anyone who +refuses to use African Americans in the cast.~{ Dinitia Smith, "Immortal Words, +Immortal Royalties? Even Mickey Mouse Joins the Fray," /{New York Times,}/ 28 +March 1998, B7. }~ That's their view of how this part of American culture +should be controlled, and they wanted this law to help them effect that +control. +={ Gershwin, George +1 ; + Porgy and Bess ; + pornography ; + Seuss, Dr. +1 +} + +This argument made clear a theme that is rarely noticed in this debate. When +Congress decides to extend the term of existing copyrights, Congress is making +a choice about which speakers it will favor. Famous and beloved copyright +owners, such as the Gershwin estate and Dr. Seuss, come to Congress and say, +"Give us twenty years to control the speech about these icons of American +culture. We'll do better with them than anyone else." Congress of course likes +to reward the popular and famous by giving them what they want. But when +Congress gives people an exclusive right to speak in a certain way, that's just +what the First Amendment is traditionally meant to block. +={ First Amendment : + copyright extension as violation of ; + Constitution, U.S. : + First Amendment to +} + +We argued as much in a final brief. Not only would upholding the CTEA mean that +there was no limit to the power of Congress to extend copyrights - extensions +that would further concentrate the market; it would also mean that there was no +limit to Congress's power to play favorites, through copyright, with who has +the right to speak. +={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) : + Supreme Court challenge of +64 ; + Congress, U.S. : + constitutional powers of +8 +} + +!_ Between February +and October, there was little I did beyond preparing for this case. Early on, +as I said, I set the strategy. + +The Supreme Court was divided into two important camps. One camp we called "the +Conservatives." The other we called "the Rest." The Conservatives included +Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and +Justice Thomas. These five had been the most consistent in limiting Congress's +power. They were the five who had supported the /{Lopez/Morrison}/ line of +cases that said that an enumerated power had to be interpreted to assure that +Congress's powers had limits. +={ Kennedy, Anthony ; + O'Connor, Sandra Day ; + Rehnquist, William H. ; + Thomas, Clarence ; + United States v. Lopez ; + United States v. Morrison ; + Scalia, Antonin ; + Congress, U.S. : + Supreme Court restraint on ; + Supreme Court, U.S. : + congressional actions restrained by | factions of +3 +} + +The Rest were the four Justices who had strongly opposed limits on Congress's +power. These four - Justice Stevens, Justice Souter, Justice Ginsburg, and +Justice Breyer - had repeatedly argued that the Constitution gives Congress +broad discretion to decide how best to implement its powers. In case after +case, these justices had argued that the Court's role should be one of +deference. Though the votes of these four justices were the votes that I +personally had most consistently agreed with, they were also the votes that we +were least likely to get. +={ Breyer, Stephen ; + Ginsburg, Ruth Bader ; + Stevens, John Paul ; + Souter, David +} + +In particular, the least likely was Justice Ginsburg's. In addition to her +general view about deference to Congress (except where issues of gender are +involved), she had been particularly deferential in the context of intellectual +property protections. She and her daughter (an excellent and well-known +intellectual property scholar) were cut from the same intellectual property +cloth. We expected she would agree with the writings of her daughter: that +Congress had the power in this context to do as it wished, even if what +Congress wished made little sense. + +Close behind Justice Ginsburg were two justices whom we also viewed as unlikely +allies, though possible surprises. Justice Souter strongly favored deference to +Congress, as did Justice Breyer. But both were also very sensitive to free +speech concerns. And as we strongly believed, there was a very important free +speech argument against these retrospective extensions. +={ Breyer, Stephen ; + Ginsburg, Ruth Bader ; + Souter, David +} + +The only vote we could be confident about was that of Justice Stevens. History +will record Justice Stevens as one of the greatest judges on this Court. His +votes are consistently eclectic, which just means that no simple ideology +explains where he will stand. But he had consistently argued for limits in the +context of intellectual property generally. We were fairly confident he would +recognize limits here. +={ Stevens, John Paul } + +This analysis of "the Rest" showed most clearly where our focus had to be: on +the Conservatives. To win this case, we had to crack open these five and get at +least a majority to go our way.Thus, the single overriding argument that +animated our claim rested on the Conservatives' most important jurisprudential +innovation - the argument that Judge Sentelle had relied upon in the Court of +Appeals, that Congress's power must be interpreted so that its enumerated +powers have limits. +={ Court of Appeals : + D.C. Circuit ; + D.C. Court of Appeals ; + Sentelle, David +} + +This then was the core of our strategy - a strategy for which I am responsible. +We would get the Court to see that just as with the /{Lopez}/ case, under the +government's argument here, Congress would always have unlimited power to +extend existing terms. If anything was plain about Congress's power under the +Progress Clause, it was that this power was supposed to be "limited." Our aim +would be to get the Court to reconcile /{Eldred}/ with /{Lopez:}/ If Congress's +power to regulate commerce was limited, then so, too, must Congress's power to +regulate copyright be limited. +={ United States v. Lopez ; + commerce, interstate ; + interstate commerce ; + Congress, U.S. : + in constitutional Progress Clause ; + Progress Clause ; + Congress, U.S. : + copyright terms extended by +3 ; + Constitution, U.S. : + Progress Clause of +} + +!_ The argument +on the government's side came down to this: Congress has done it before. It +should be allowed to do it again. The government claimed that from the very +beginning, Congress has been extending the term of existing copyrights. So, the +government argued, the Court should not now say that practice is +unconstitutional. + +There was some truth to the government's claim, but not much. We certainly +agreed that Congress had extended existing terms in 1831 and in 1909. And of +course, in 1962, Congress began extending existing terms regularly - eleven +times in forty years. + +But this "consistency" should be kept in perspective. Congress extended +existing terms once in the first hundred years of the Republic. It then +extended existing terms once again in the next fifty. Those rare extensions are +in contrast to the now regular practice of extending existing terms. Whatever +restraint Congress had had in the past, that restraint was now gone. Congress +was now in a cycle of extensions; there was no reason to expect that cycle +would end. This Court had not hesitated to intervene where Congress was in a +similar cycle of extension. There was no reason it couldn't intervene here. + +!_ Oral argument +was scheduled for the first week in October. I arrived in D.C. two weeks before +the argument. During those two weeks, I was repeatedly "mooted" by lawyers who +had volunteered to help in the case. Such "moots" are basically practice +rounds, where wannabe justices fire questions at wannabe winners. + +I was convinced that to win, I had to keep the Court focused on a single point: +that if this extension is permitted, then there is no limit to the power to set +terms. Going with the government would mean that terms would be effectively +unlimited; going with us would give Congress a clear line to follow: Don't +extend existing terms. The moots were an effective practice; I found ways to +take every question back to this central idea. + +One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He had +served in the Reagan Justice Department with Solicitor General Charles Fried. +He had argued many cases before the Supreme Court. And in his review of the +moot, he let his concern speak: +={ Ayer, Don +2 ; + Fried, Charles ; + Jones, Day, Reavis and Pogue (Jones Day) ; + Reagan, Ronald +} + +"I'm just afraid that unless they really see the harm, they won't be willing to +upset this practice that the government says has been a consistent practice for +two hundred years. You have to make them see the harm - passionately get them +to see the harm. For if they don't see that, then we haven't any chance of +winning." + +He may have argued many cases before this Court, I thought, but he didn't +understand its soul. As a clerk, I had seen the Justices do the right thing - +not because of politics but because it was right. As a law professor, I had +spent my life teaching my students that this Court does the right thing - not +because of politics but because it is right. As I listened to Ayer's plea for +passion in pressing politics, I understood his point, and I rejected it. Our +argument was right. That was enough. Let the politicians learn to see that it +was also good. + +!_ The night before +the argument, a line of people began to form in front of the Supreme Court. The +case had become a focus of the press and of the movement to free culture. +Hundreds stood in line for the chance to see the proceedings. Scores spent the +night on the Supreme Court steps so that they would be assured a seat. + +Not everyone has to wait in line. People who know the Justices can ask for +seats they control. (I asked Justice Scalia's chambers for seats for my +parents, for example.) Members of the Supreme Court bar can get a seat in a +special section reserved for them. And senators and congressmen have a special +place where they get to sit, too. And finally, of course, the press has a +gallery, as do clerks working for the Justices on the Court. As we entered that +morning, there was no place that was not taken. This was an argument about +intellectual property law, yet the halls were filled. As I walked in to take my +seat at the front of the Court, I saw my parents sitting on the left. As I sat +down at the table, I saw Jack Valenti sitting in the special section ordinarily +reserved for family of the Justices. +={ Scalia, Antonin ; + Valenti, Jack +} + +When the Chief Justice called me to begin my argument, I began where I intended +to stay: on the question of the limits on Congress's power. This was a case +about enumerated powers, I said, and whether those enumerated powers had any +limit. +={ Congress, U.S. : + constitutional powers of +3 +} + +Justice O'Connor stopped me within one minute of my opening. The history was +bothering her. +={ O'Connor, Sandra Day +1 } + +_1 JUSTICE O'CONNOR: Congress has extended the term so often through the years, +and if you are right, don't we run the risk of upsetting previous extensions of +time? I mean, this seems to be a practice that began with the very first act." + +She was quite willing to concede "that this flies directly in the face of what +the framers had in mind." But my response again and again was to emphasize +limits on Congress's power. + +_1 MR. LESSIG: Well, if it flies in the face of what the framers had in mind, +then the question is, is there a way of interpreting their words that gives +effect to what they had in mind, and the answer is yes." + +There were two points in this argument when I should have seen where the Court +was going. The first was a question by Justice Kennedy, who observed, +={ Kennedy, Anthony +1 } + +_1 JUSTICE KENNEDY: Well, I suppose implicit in the argument that the '76 act, +too, should have been declared void, and that we might leave it alone because +of the disruption, is that for all these years the act has impeded progress in +science and the useful arts. I just don't see any empirical evidence for that. + +Here follows my clear mistake. Like a professor correcting a student, I +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." + +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 } + +The second came from the Chief, for whom the whole case had been crafted. For +the Chief Justice had crafted the /{Lopez}/ ruling, and we hoped that he would +see this case as its second cousin. +={ United States v. Lopez } + +It was clear a second into his question that he wasn't at all sympathetic. To +him, we were a bunch of anarchists. As he asked: + +_1 CHIEF JUSTICE: Well, but you want more than that. You want the right to copy +verbatim other people's books, don't you? +={ Rehnquist, William H. } + +_1 MR. LESSIG: We want the right to copy verbatim works that should be in the +public domain and would be in the public domain but for a statute that cannot +be justified under ordinary First Amendment analysis or under a proper reading +of the limits built into the Copyright Clause." + +Things went better for us when the government gave its argument; for now the +Court picked up on the core of our claim. As Justice Scalia asked Solicitor +General Olson, +={ Olson, Theodore B. +2 ; + Scalia, Antonin +1 +} + +_1 JUSTICE SCALIA: You say that the functional equivalent of an unlimited time +would be a violation [of the Constitution], but that's precisely the argument +that's being made by petitioners here, that a limited time which is extendable +is the functional equivalent of an unlimited time." + +When Olson was finished, it was my turn to give a closing rebuttal. Olson's +flailing had revived my anger. But my anger still was directed to the academic, +not the practical. The government was arguing as if this were the first case +ever to consider limits on Congress's Copyright and Patent Clause power. Ever +the professor and not the advocate, I closed by pointing out the long history +of the Court imposing limits on Congress's power in the name of the Copyright +and Patent Clause - indeed, the very first case striking a law of Congress as +exceeding a specific enumerated power was based upon the Copyright and Patent +Clause. All true. But it wasn't going to move the Court to my side. +={ Congress, U.S. : + constitutional powers of +2 +} + +!_ As I left +the court that day, I knew there were a hundred points I wished I could remake. +There were a hundred questions I wished I had answered differently. But one way +of thinking about this case left me optimistic. + +The government had been asked over and over again, what is the limit? Over and +over again, it had answered there is no limit. This was precisely the answer I +wanted the Court to hear. For I could not imagine how the Court could +understand that the government believed Congress's power was unlimited under +the terms of the Copyright Clause, and sustain the government's argument. The +solicitor general had made my argument for me. No matter how often I tried, I +could not understand how the Court could find that Congress's power under the +Commerce Clause was limited, but under the Copyright Clause, unlimited. In +those rare moments when I let myself believe that we may have prevailed, it was +because I felt this Court - in particular, the Conservatives - would feel +itself constrained by the rule of law that it had established elsewhere. + +!_ The morning +of January 15, 2003, I was five minutes late to the office and missed the 7:00 +A.M.call from the Supreme Court clerk. Listening to the message, I could tell +in an instant that she had bad news to report.The Supreme Court had affirmed +the decision of the Court of Appeals. Seven justices had voted in the majority. +There were two dissents. + +A few seconds later, the opinions arrived by e-mail. I took the phone off the +hook, posted an announcement to our blog, and sat down to see where I had been +wrong in my reasoning. + +My /{reasoning}/. Here was a case that pitted all the money in the world +against /{reasoning}/. And here was the last naïve law professor, scouring the +pages, looking for reasoning. + +I first scoured the opinion, looking for how the Court would distinguish the +principle in this case from the principle in /{Lopez}/. The argument was +nowhere to be found. The case was not even cited. The argument that was the +core argument of our case did not even appear in the Court's opinion. +={ United States v. Lopez +3 } + +Justice Ginsburg simply ignored the enumerated powers argument. Consistent with +her view that Congress's power was not limited generally, she had found +Congress's power not limited here. +={ Ginsburg, Ruth Bader } + +Her opinion was perfectly reasonable - for her, and for Justice Souter. Neither +believes in /{Lopez}/. It would be too much to expect them to write an opinion +that recognized, much less explained, the doctrine they had worked so hard to +defeat. +={ Souter, David } + +But as I realized what had happened, I couldn't quite believe what I was +reading. I had said there was no way this Court could reconcile limited powers +with the Commerce Clause and unlimited powers with the Progress Clause. It had +never even occurred to me that they could reconcile the two simply /{by not +addressing the argument}/. There was no inconsistency because they would not +talk about the two together. There was therefore no principle that followed +from the /{Lopez}/ case: In that context, Congress's power would be limited, +but in this context it would not. + +Yet by what right did they get to choose which of the framers' values they +would respect? By what right did they - the silent five - get to select the +part of the Constitution they would enforce based on the values they thought +important? We were right back to the argument that I said I hated at the start: +I had failed to convince them that the issue here was important, and I had +failed to recognize that however much I might hate a system in which the Court +gets to pick the constitutional values that it will respect, that is the system +we have. + +Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion was +crafted internal to the law: He argued that the tradition of intellectual +property law should not support this unjustified extension of terms. He based +his argument on a parallel analysis that had governed in the context of patents +(so had we). But the rest of the Court discounted the parallel - without +explaining how the very same words in the Progress Clause could come to mean +totally different things depending upon whether the words were about patents or +copyrights. The Court let Justice Stevens's charge go unanswered. +={ Breyer, Stephen +1 ; + patents : + duration of ; + Stevens, John Paul +} + +Justice Breyer's opinion, perhaps the best opinion he has ever written, was +external to the Constitution. He argued that the term of copyrights has become +so long as to be effectively unlimited. We had said that under the current +term, a copyright gave an author 99.8 percent of the value of a perpetual term. +Breyer said we were wrong, that the actual number was 99.9997 percent of a +perpetual term. Either way, the point was clear: If the Constitution said a +term had to be "limited," and the existing term was so long as to be +effectively unlimited, then it was unconstitutional. +={ copyright : + in perpetuity +} + +These two justices understood all the arguments we had made. But because +neither believed in the /{Lopez}/ case, neither was willing to push it as a +reason to reject this extension. The case was decided without anyone having +addressed the argument that we had carried from Judge Sentelle. It was +/{Hamlet}/ without the Prince. +={ Setnelle, David ; + United States v. Lopez +2 +} + +!_ Defeat brings depression. +They say it is a sign of health when depression gives way to anger. My anger +came quickly, but it didn't cure the depression. This anger was of two sorts. + +It was first anger with the five "Conservatives." It would have been one thing +for them to have explained why the principle of /{Lopez}/ didn't apply in this +case. That wouldn't have been a very convincing argument, I don't believe, +having read it made by others, and having tried to make it myself. But it at +least would have been an act of integrity. These justices in particular have +repeatedly said that the proper mode of interpreting the Constitution is +"originalism" - to first understand the framers' text, interpreted in their +context, in light of the structure of the Constitution. That method had +produced /{Lopez}/ and many other "originalist" rulings. Where was their +"originalism" now? +={ Constitution, U.S. : + originalist interpretation of ; + originalism +} + +Here, they had joined an opinion that never once tried to explain what the +framers had meant by crafting the Progress Clause as they did; they joined an +opinion that never once tried to explain how the structure of that clause would +affect the interpretation of Congress's power. And they joined an opinion that +didn't even try to explain why this grant of power could be unlimited, whereas +the Commerce Clause would be limited. In short, they had joined an opinion that +did not apply to, and was inconsistent with, their own method for interpreting +the Constitution. This opinion may well have yielded a result that they liked. +It did not produce a reason that was consistent with their own principles. +={ Constitution, U.S. : + Progress Clause of ; + Progress Clause ; + Constitution, U.S. : + Commerce Clause of +} + +My anger with the Conservatives quickly yielded to anger with myself. For I had +let a view of the law that I liked interfere with a view of the law as it is. + +Most lawyers, and most law professors, have little patience for idealism about +courts in general and this Supreme Court in particular. Most have a much more +pragmatic view. When Don Ayer said that this case would be won based on whether +I could convince the Justices that the framers' values were important, I fought +the idea, because I didn't want to believe that that is how this Court decides. +I insisted on arguing this case as if it were a simple application of a set of +principles. I had an argument that followed in logic. I didn't need to waste my +time showing it should also follow in popularity. +={ Ayer, Don } + +As I read back over the transcript from that argument in October, I can see a +hundred places where the answers could have taken the conversation in different +directions, where the truth about the harm that this unchecked power will cause +could have been made clear to this Court. Justice Kennedy in good faith wanted +to be shown. I, idiotically, corrected his question. Justice Souter in good +faith wanted to be shown the First Amendment harms. I, like a math teacher, +reframed the question to make the logical point. I had shown them how they +could strike this law of Congress if they wanted to. There were a hundred +places where I could have helped them want to, yet my stubbornness, my refusal +to give in, stopped me. I have stood before hundreds of audiences trying to +persuade; I have used passion in that effort to persuade; but I refused to +stand before this audience and try to persuade with the passion I had used +elsewhere. It was not the basis on which a court should decide the issue. +={ Souter, David ; + Kennedy, Anthony ; + Constitution, U.S. : + First Amendment to ; + First Amendment : + copyright extension as violation of +} + +Would it have been different if I had argued it differently? Would it have been +different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan? + +My friends huddled around me to insist it would not. The Court was not ready, +my friends insisted. This was a loss that was destined. It would take a great +deal more to show our society why our framers were right. And when we do that, +we will be able to show that Court. + +Maybe, but I doubt it. These Justices have no financial interest in doing +anything except the right thing. They are not lobbied. They have little reason +to resist doing right. I can't help but think that if I had stepped down from +this pretty picture of dispassionate justice, I could have persuaded. + +And even if I couldn't, then that doesn't excuse what happened in January. For +at the start of this case, one of America's leading intellectual property +professors stated publicly that my bringing this case was a mistake. "The Court +is not ready," Peter Jaszi said; this issue should not be raised until it is. +={ Jaszi, Peter } + +After the argument and after the decision, Peter said to me, and publicly, that +he was wrong. But if indeed that Court could not have been persuaded, then that +is all the evidence that's needed to know that here again Peter was right. +Either I was not ready to argue this case in a way that would do some good or +they were not ready to hear this case in a way that would do some good. Either +way, the decision to bring this case - a decision I had made four years before +- was wrong. + +!_ While the reaction +to the Sonny Bono Act itself was almost unanimously negative, the reaction to +the Court's decision was mixed. No one, at least in the press, tried to say +that extending the term of copyright was a good idea. We had won that battle +over ideas. Where the decision was praised, it was praised by papers that had +been skeptical of the Court's activism in other cases. Deference was a good +thing, even if it left standing a silly law. But where the decision was +attacked, it was attacked because it left standing a silly and harmful law. +/{The New York Times}/ wrote in its editorial, + +_1 In effect, the Supreme Court's decision makes it likely that we are seeing +the beginning of the end of public domain and the birth of copyright +perpetuity. The public domain has been a grand experiment, one that should not +be allowed to die. The ability to draw freely on the entire creative output of +humanity is one of the reasons we live in a time of such fruitful creative +ferment." +={ copyright : + in perpetuity +} + +The best responses were in the cartoons. There was a gaggle of hilarious +images" of Mickey in jail and the like. The best, from my view of the case, was +Ruben Bolling's, reproduced on the next page. The "powerful and wealthy" line +is a bit unfair. But the punch in the face felt exactly like that. +={ Bolling, Ruben +2 } + +The image that will always stick in my head is that evoked by the quote from +/{The New York Times}/. That "grand experiment" we call the "public domain" is +over? When I can make light of it, I think, "Honey, I shrunk the Constitution." +But I can rarely make light of it. We had in our Constitution a commitment to +free culture. In the case that I fathered, the Supreme Court effectively +renounced that commitment. A better lawyer would have made them see +differently. + +{freeculture18.png 550x720 }http://www.free-culture.cc/ +={ Scalia, Antonin } + +1~ Chapter Fourteen: Eldred II + +!_ The day +/{Eldred}/ was decided, fate would have it that I was to travel to Washington, +D.C. (The day the rehearing petition in /{Eldred}/ was denied - meaning the +case was really finally over - fate would have it that I was giving a speech to +technologists at Disney World.) This was a particularly long flight to my least +favorite city. The drive into the city from Dulles was delayed because of +traffic, so I opened up my computer and wrote an op-ed piece. + +It was an act of contrition. During the whole of the flight from San Francisco +to Washington, I had heard over and over again in my head the same advice from +Don Ayer: You need to make them see why it is important. And alternating with +that command was the question of Justice Kennedy: "For all these years the act +has impeded progress in science and the useful arts. I just don't see any +empirical evidence for that." And so, having failed in the argument of +constitutional principle, finally, I turned to an argument of politics. +={ Ayer, Don ; + Kennedy, Anthony +} + +/{The New York Times}/ published the piece. In it, I proposed a simple fix: +Fifty years after a work has been published, the copyright owner would be +required to register the work and pay a small fee. If he paid the fee, he got +the benefit of the full term of copyright. If he did not, the work passed into +the public domain. +={ copyright law : + registration requirement of +23 +} + +We called this the Eldred Act, but that was just to give it a name. Eric Eldred +was kind enough to let his name be used once again, but as he said early on, it +won't get passed unless it has another name. +={ Eldred, Eric ; + Eldred Act +23 +} + +Or another two names. For depending upon your perspective, this is either the +"Public Domain Enhancement Act" or the "Copyright Term Deregulation Act." +Either way, the essence of the idea is clear and obvious: Remove copyright +where it is doing nothing except blocking access and the spread of knowledge. +Leave it for as long as Congress allows for those works where its worth is at +least $1. But for everything else, let the content go. + +The reaction to this idea was amazingly strong. Steve Forbes endorsed it in an +editorial. I received an avalanche of e-mail and letters expressing support. +When you focus the issue on lost creativity, people can see the copyright +system makes no sense. As a good Republican might say, here government +regulation is simply getting in the way of innovation and creativity. And as a +good Democrat might say, here the government is blocking access and the spread +of knowledge for no good reason. Indeed, there is no real difference between +Democrats and Republicans on this issue. Anyone can recognize the stupid harm +of the present system. +={ Democratic Party ; + Republican Party ; + Forbes, Steve +} + +Indeed, many recognized the obvious benefit of the registration requirement. +For one of the hardest things about the current system for people who want to +license content is that there is no obvious place to look for the current +copyright owners. Since registration is not required, since marking content is +not required, since no formality at all is required, it is often impossibly +hard to locate copyright owners to ask permission to use or license their work. +This system would lower these costs, by establishing at least one registry +where copyright owners could be identified. +={ copyright : + no registration of works +} + +As I described in chapter 10, formalities in copyright law were removed in +1976, when Congress followed the Europeans by abandoning any formal requirement +before a copyright is granted.~{ Until the 1908 Berlin Act of the Berne +Convention, national copyright legislation sometimes made protection depend +upon compliance with formalities such as registration, deposit, and affixation +of notice of the author's claim of copyright. However, starting with the 1908 +act, every text of the Convention has provided that "the enjoyment and the +exercise" of rights guaranteed by the Convention "shall not be subject to any +formality." The prohibition against formalities is presently embodied in +Article 5(2) of the Paris Text of the Berne Convention. Many countries continue +to impose some form of deposit or registration requirement, albeit not as a +condition of copyright. French law, for example, requires the deposit of copies +of works in national repositories, principally the National Museum. Copies of +books published in the United Kingdom must be deposited in the British Library. +The German Copyright Act provides for a Registrar of Authors where the author's +true name can be filed in the case of anonymous or pseudonymous works. Paul +Goldstein, /{International Intellectual Property Law, Cases and Materials}/ +(New York: Foundation Press, 2001), 153-54. }~ The Europeans are said to view +copyright as a "natural right." Natural rights don't need forms to exist. +Traditions, like the Anglo-American tradition that required copyright owners to +follow form if their rights were to be protected, did not, the Europeans +thought, properly respect the dignity of the author. My right as a creator +turns on my creativity, not upon the special favor of the government. +={ copyright law : + European +} + +That's great rhetoric. It sounds wonderfully romantic. But it is absurd +copyright policy. It is absurd especially for authors, because a world without +formalities harms the creator. The ability to spread "Walt Disney creativity" +is destroyed when there is no simple way to know what's protected and what's +not. + +The fight against formalities achieved its first real victory in Berlin in +1908. International copyright lawyers amended the Berne Convention in 1908, to +require copyright terms of life plus fifty years, as well as the abolition of +copyright formalities. The formalities were hated because the stories of +inadvertent loss were increasingly common. It was as if a Charles Dickens +character ran all copyright offices, and the failure to dot an /{i}/ or cross a +/{t}/ resulted in the loss of widows' only income. +={ Berne Convention (1908) } + +These complaints were real and sensible. And the strictness of the formalities, +especially in the United States, was absurd. The law should always have ways of +forgiving innocent mistakes. There is no reason copyright law couldn't, as +well. Rather than abandoning formalities totally, the response in Berlin should +have been to embrace a more equitable system of registration. + +Even that would have been resisted, however, because registration in the +nineteenth and twentieth centuries was still expensive. It was also a hassle. +The abolishment of formalities promised not only to save the starving widows, +but also to lighten an unnecessary regulatory burden imposed upon creators. + +In addition to the practical complaint of authors in 1908, there was a moral +claim as well. There was no reason that creative property should be a +second-class form of property. If a carpenter builds a table, his rights over +the table don't depend upon filing a form with the government. He has a +property right over the table "naturally," and he can assert that right against +anyone who would steal the table, whether or not he has informed the government +of his ownership of the table. + +This argument is correct, but its implications are misleading. For the argument +in favor of formalities does not depend upon creative property being +second-class property. The argument in favor of formalities turns upon the +special problems that creative property presents. The law of formalities +responds to the special physics of creative property, to assure that it can be +efficiently and fairly spread. + +No one thinks, for example, that land is second-class property just because you +have to register a deed with a court if your sale of land is to be effective. +And few would think a car is second-class property just because you must +register the car with the state and tag it with a license. In both of those +cases, everyone sees that there is an important reason to secure registration" +both because it makes the markets more efficient and because it better secures +the rights of the owner. Without a registration system for land, landowners +would perpetually have to guard their property. With registration, they can +simply point the police to a deed. Without a registration system for cars, auto +theft would be much easier. With a registration system, the thief has a high +burden to sell a stolen car. A slight burden is placed on the property owner, +but those burdens produce a much better system of protection for property +generally. + +It is similarly special physics that makes formalities important in copyright +law. Unlike a carpenter's table, there's nothing in nature that makes it +relatively obvious who might own a particular bit of creative property. A +recording of Lyle Lovett's latest album can exist in a billion places without +anything necessarily linking it back to a particular owner. And like a car, +there's no way to buy and sell creative property with confidence unless there +is some simple way to authenticate who is the author and what rights he has. +Simple transactions are destroyed in a world without formalities. Complex, +expensive, /{lawyer}/ transactions take their place. + +This was the understanding of the problem with the Sonny Bono Act that we tried +to demonstrate to the Court. This was the part it didn't "get." Because we live +in a system without formalities, there is no way easily to build upon or use +culture from our past. If copyright terms were, as Justice Story said they +would be, "short," then this wouldn't matter much. For fourteen years, under +the framers' system, a work would be presumptively controlled. After fourteen +years, it would be presumptively uncontrolled. +={ Sonny Bono Copyright Term Extension Act (CTEA) (1998) : + Supreme Court challenge of ; + Story, Joseph +} + +But now that copyrights can be just about a century long, the inability to know +what is protected and what is not protected becomes a huge and obvious burden +on the creative process. If the only way a library can offer an Internet +exhibit about the New Deal is to hire a lawyer to clear the rights to every +image and sound, then the copyright system is burdening creativity in a way +that has never been seen before /{because there are no formalities}/. + +The Eldred Act was designed to respond to exactly this problem. If it is worth +$1 to you, then register your work and you can get the longer term. Others will +know how to contact you and, therefore, how to get your permission if they want +to use your work. And you will get the benefit of an extended copyright term. + +If it isn't worth it to you to register to get the benefit of an extended term, +then it shouldn't be worth it for the government to defend your monopoly over +that work either. The work should pass into the public domain where anyone can +copy it, or build archives with it, or create a movie based on it. It should +become free if it is not worth $1 to you. + +Some worry about the burden on authors. Won't the burden of registering the +work mean that the $1 is really misleading? Isn't the hassle worth more than +$1? Isn't that the real problem with registration? + +It is. The hassle is terrible. The system that exists now is awful. I +completely agree that the Copyright Office has done a terrible job (no doubt +because they are terribly funded) in enabling simple and cheap registrations. +Any real solution to the problem of formalities must address the real problem +of /{governments}/ standing at the core of any system of formalities. In this +book, I offer such a solution. That solution essentially remakes the Copyright +Office. For now, assume it was Amazon that ran the registration system. Assume +it was one-click registration. The Eldred Act would propose a simple, one-click +registration fifty years after a work was published. Based upon historical +data, that system would move up to 98 percent of commercial work, commercial +work that no longer had a commercial life, into the public domain within fifty +years. What do you think? +={ Copyright Office ; + public domain : + content industry opposition to +15 +} + +!_ When Steve Forbes +endorsed the idea, some in Washington began to pay attention. Many people +contacted me pointing to representatives who might be willing to introduce the +Eldred Act. And I had a few who directly suggested that they might be willing +to take the first step. +={ Forbes, Steve } + +One representative, Zoe Lofgren of California, went so far as to get the bill +drafted. The draft solved any problem with international law. It imposed the +simplest requirement upon copyright owners possible. In May 2003, it looked as +if the bill would be introduced. On May 16, I posted on the Eldred Act blog, +"we are close." There was a general reaction in the blog community that +something good might happen here. +={ Lofgren, Zoe } + +But at this stage, the lobbyists began to intervene. Jack Valenti and the MPAA +general counsel came to the congresswoman's office to give the view of the +MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the +congresswoman that the MPAA would oppose the Eldred Act. The reasons are +embarrassingly thin. More importantly, their thinness shows something clear +about what this debate is really about. +={ Valenti, Jack : + Eldred Act opposed by ; + film industry : + trade association of +2 ; + Motion Picture Association of America (MPAA) +2 +} + +The MPAA argued first that Congress had "firmly rejected the central concept in +the proposed bill" - that copyrights be renewed. That was true, but irrelevant, +as Congress's "firm rejection" had occurred long before the Internet made +subsequent uses much more likely. Second, they argued that the proposal would +harm poor copyright owners - apparently those who could not afford the $1 fee. +Third, they argued that Congress had determined that extending a copyright term +would encourage restoration work. Maybe in the case of the small percentage of +work covered by copyright law that is still commercially valuable, but again +this was irrelevant, as the proposal would not cut off the extended term unless +the $1 fee was not paid. Fourth, the MPAA argued that the bill would impose +"enormous" costs, since a registration system is not free. True enough, but +those costs are certainly less than the costs of clearing the rights for a +copyright whose owner is not known. Fifth, they worried about the risks if the +copyright to a story underlying a film were to pass into the public domain. But +what risk is that? If it is in the public domain, then the film is a valid +derivative use. +={ films : + in public domain ; + public domain : + films in +} + +Finally, the MPAA argued that existing law enabled copyright owners to do this +if they wanted. But the whole point is that there are thousands of copyright +owners who don't even know they have a copyright to give. Whether they are free +to give away their copyright or not - a controversial claim in any case - +unless they know about a copyright, they're not likely to. + +!_ At the beginning +of this book, I told two stories about the law reacting to changes in +technology. In the one, common sense prevailed. In the other, common sense was +delayed. The difference between the two stories was the power of the opposition +- the power of the side that fought to defend the status quo. In both cases, a +new technology threatened old interests. But in only one case did those +interest's have the power to protect themselves against this new competitive +threat. + +I used these two cases as a way to frame the war that this book has been about. +For here, too, a new technology is forcing the law to react. And here, too, we +should ask, is the law following or resisting common sense? If common sense +supports the law, what explains this common sense? + +When the issue is piracy, it is right for the law to back the copyright owners. +The commercial piracy that I described is wrong and harmful, and the law should +work to eliminate it. When the issue is p2p sharing, it is easy to understand +why the law backs the owners still: Much of this sharing is wrong, even if much +is harmless. When the issue is copyright terms for the Mickey Mouses of the +world, it is possible still to understand why the law favors Hollywood: Most +people don't recognize the reasons for limiting copyright terms; it is thus +still possible to see good faith within the resistance. + +But when the copyright owners oppose a proposal such as the Eldred Act, then, +finally, there is an example that lays bare the naked self-interest driving +this war. This act would free an extraordinary range of content that is +otherwise unused. It wouldn't interfere with any copyright owner's desire to +exercise continued control over his content. It would simply liberate what +Kevin Kelly calls the "Dark Content" that fills archives around the world. So +when the warriors oppose a change like this, we should ask one simple question: +={ Eldred Act +3 ; + Kelly, Kevin +} + +What does this industry really want? + +With very little effort, the warriors could protect their content. So the +effort to block something like the Eldred Act is not really about protecting +/{their}/ content. The effort to block the Eldred Act is an effort to assure +that nothing more passes into the public domain. It is another step to assure +that the public domain will never compete, that there will be no use of content +that is not commercially controlled, and that there will be no commercial use +of content that doesn't require /{their}/ permission first. + +The opposition to the Eldred Act reveals how extreme the other side is. The +most powerful and sexy and well loved of lobbies really has as its aim not the +protection of "property" but the rejection of a tradition. Their aim is not +simply to protect what is theirs. /{Their aim is to assure that all there is is +what is theirs}/. + +It is not hard to understand why the warriors take this view. It is not hard to +see why it would benefit them if the competition of the public domain tied to +the Internet could somehow be quashed. Just as RCA feared the competition of +FM, they fear the competition of a public domain connected to a public that now +has the means to create with it and to share its own creation. +={ radio : + FM spectrum of ; + FM radio ; + RCA +} + +What is hard to understand is why the public takes this view. It is as if the +law made airplanes trespassers. The MPAA stands with the Causbys and demands +that their remote and useless property rights be respected, so that these +remote and forgotten copyright holders might block the progress of others. +={ Causby, Thomas Lee ; + Causby, Tinie ; + film industry : + trade association of ; + Motion Picture Association of America (MPAA) +} + +All this seems to follow easily from this untroubled acceptance of the +"property" in intellectual property. Common sense supports it, and so long as +it does, the assaults will rain down upon the technologies of the Internet. The +consequence will be an increasing "permission society." The past can be +cultivated only if you can identify the owner and gain permission to build upon +his work. The future will be controlled by this dead (and often unfindable) +hand of the past. + +:B~ CONCLUSION + +1~conclusion [Conclusion]-# + +!_ There are more +than 35 million people with the AIDS virus worldwide. Twenty-five million of +them live in sub-Saharan Africa. Seventeen million have already died. Seventeen +million Africans is proportional percentage-wise to seven million Americans. +More importantly, it is seventeen million Africans. +={ Africa, medications for HIV patients in +15 ; + AIDS medications +15 ; + antiretroviral drugs +15 ; + developing countries, foreign patent costs in +15 ; + drugs : + pharmaceutical +15 ; + HIV/AIDS therapies +15 +} + +There is no cure for AIDS, but there are drugs to slow its progression. These +antiretroviral therapies are still experimental, but they have already had a +dramatic effect. In the United States, AIDS patients who regularly take a +cocktail of these drugs increase their life expectancy by ten to twenty years. +For some, the drugs make the disease almost invisible. + +These drugs are expensive. When they were first introduced in the United +States, they cost between $10,000 and $15,000 per person per year. Today, some +cost $25,000 per year. At these prices, of course, no African nation can afford +the drugs for the vast majority of its population: $15,000 is thirty times the +per capita gross national product of Zimbabwe. At these prices, the drugs are +totally unavailable.~{ Commission on Intellectual Property Rights, "Final +Report: Integrating Intellectual Property Rights and Development Policy" +(London, 2002), available at link #55. According to a World Health Organization +press release issued 9 July 2002, only 230,000 of the 6 million who need drugs +in the developing world receive them - and half of them are in Brazuil. }~ + +These prices are not high because the ingredients of the drugs are expensive. +These prices are high because the drugs are protected by patents. The drug +companies that produced these life-saving mixes enjoy at least a twenty-year +monopoly for their inventions. They use that monopoly power to extract the most +they can from the market. That power is in turn used to keep the prices high. +={ patents : + on pharmaceuticals +14 ; + pharmaceutical patents +14 +} + +There are many who are skeptical of patents, especially drug patents. I am not. +Indeed, of all the areas of research that might be supported by patents, drug +research is, in my view, the clearest case where patents are needed. The patent +gives the drug company some assurance that if it is successful in inventing a +new drug to treat a disease, it will be able to earn back its investment and +more. This is socially an extremely valuable incentive. I am the last person +who would argue that the law should abolish it, at least without other changes. + +But it is one thing to support patents, even drug patents. It is another thing +to determine how best to deal with a crisis. And as African leaders began to +recognize the devastation that AIDS was bringing, they started looking for ways +to import HIV treatments at costs significantly below the market price. + +In 1997, South Africa tried one tack. It passed a law to allow the importation +of patented medicines that had been produced or sold in another nation's market +with the consent of the patent owner. For example, if the drug was sold in +India, it could be imported into Africa from India. This is called "parallel +importation," and it is generally permitted under international trade law and +is specifically permitted within the European Union.~{ See Peter Drahos with +John Braithwaite, /{Information Feudalism: Who Owns the Knowledge Economy?}/ +(New York: The New Press, 2003), 37. }~ +={ international law +11 ; + parallel importation +1 ; + South Africa, Republic of, pharmaceutical imports by +5 +} + +However, the United States government opposed the bill. Indeed, more than +opposed. As the International Intellectual Property Association characterized +it, "The U.S. government pressured South Africa ... not to permit compulsory +licensing or parallel imports."~{ International Intellectual Property Institute +(IIPI), /{Patent Protection and Access to HIV/AIDS Pharmaceuticals in +Sub-Saharan Africa, a Report Prepared for the World Intellectual Property +Organization}/ (Washington, D.C., 2000), 14, available at link #56. For a +firsthand account of the struggle over South Africa, see Hearing Before the +Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House +Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July +1999), 150-57 (statement of James Love). }~ Through the Office of the United +States Trade Representative, the government asked South Africa to change the +law - and to add pressure to that request, in 1998, the USTR listed South +Africa for possible trade sanctions. That same year, more than forty +pharmaceutical companies began proceedings in the South African courts to +challenge the govern-ment's actions. The United States was then joined by other +governments from the EU. Their claim, and the claim of the pharmaceutical +companies, was that South Africa was violating its obligations under +international law by discriminating against a particular kind of patent - +pharmaceutical patents. The demand of these governments, with the United States +in the lead, was that South Africa respect these patents as it respects any +other patent, regardless of any effect on the treatment of AIDS within South +Africa.~{ International Intellectual Property Institute (IIPI), /{Patent +Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a +Report Prepared for the World Intellectual Property Organization}/ (Washington, +D.C., 2000), 15. }~ +={ United States Trade Representative (USTR) } + +We should place the intervention by the United States in context. No doubt +patents are not the most important reason that Africans don't have access to +drugs. Poverty and the total absence of an effective health care infrastructure +matter more. But whether patents are the most important reason or not, the +price of drugs has an effect on their demand, and patents affect price. And so, +whether massive or marginal, there was an effect from our government's +intervention to stop the flow of medications into Africa. + +By stopping the flow of HIV treatment into Africa, the United States government +was not saving drugs for United States citizens. This is not like wheat (if +they eat it, we can't); instead, the flow that the United States intervened to +stop was, in effect, a flow of knowledge: information about how to take +chemicals that exist within Africa, and turn those chemicals into drugs that +would save 15 to 30 million lives. + +Nor was the intervention by the United States going to protect the profits of +United States drug companies - at least, not substantially. It was not as if +these countries were in the position to buy the drugs for the prices the drug +companies were charging. Again, the Africans are wildly too poor to afford +these drugs at the offered prices. Stopping the parallel import of these drugs +would not substantially increase the sales by U.S. companies. + +Instead, the argument in favor of restricting this flow of information, which +was needed to save the lives of millions, was an argument about the sanctity of +property.~{ See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's +Needs at Odds with Firms' Profit Motive," /{San Francisco Chronicle,}/ 24 May +1999, A1, available at link #57 ("compulsory licenses and gray markets pose a +threat to the entire system of intellectual property protection"); Robert +Weissman, "AIDS and Developing Countries: Democratizing Access to Essential +Medicines," /{Foreign Policy in Focus}/ 4:23 (August 1999), available at link +#58 (describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical +Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between +Intellectual Property Rights and Compassion, a Synopsis," /{Widener Law +Symposium Journal}/ (Spring 2001): 175. }~ It was because "intellectual +property" would be violated that these drugs should not flow into Africa. It +was a principle about the importance of "intellectual property" that led these +government actors to intervene against the South African response to AIDS. + +Now just step back for a moment. There will be a time thirty years from now +when our children look back at us and ask, how could we have let this happen? +How could we allow a policy to be pursued whose direct cost would be to speed +the death of 15 to 30 million Africans, and whose only real benefit would be to +uphold the "sanctity" of an idea? What possible justification could there ever +be for a policy that results in so many deaths? What exactly is the insanity +that would allow so many to die for such an abstraction? + +Some blame the drug companies. I don't. They are corporations. Their managers +are ordered by law to make money for the corporation. They push a certain +patent policy not because of ideals, but because it is the policy that makes +them the most money. And it only makes them the most money because of a certain +corruption within our political system - a corruption the drug companies are +certainly not responsible for. +={ corporations : + in pharmaceutical industry +2 +} + +The corruption is our own politicians' failure of integrity. For the drug +companies would love - they say, and I believe them - to sell their drugs as +cheaply as they can to countries in Africa and elsewhere. There are issues +they'd have to resolve to make sure the drugs didn't get back into the United +States, but those are mere problems of technology. They could be overcome. + +A different problem, however, could not be overcome. This is the fear of the +grandstanding politician who would call the presidents of the drug companies +before a Senate or House hearing, and ask, "How is it you can sell this HIV +drug in Africa for only $1 a pill, but the same drug would cost an American +$1,500?" Because there is no "sound bite" answer to that question, its effect +would be to induce regulation of prices in America. The drug companies thus +avoid this spiral by avoiding the first step. They reinforce the idea that +property should be sacred. They adopt a rational strategy in an irrational +context, with the unintended consequence that perhaps millions die. And that +rational strategy thus becomes framed in terms of this ideal - the sanctity of +an idea called "intellectual property." +={ intellectual property rights : + of drug patents +3 +} + +So when the common sense of your child confronts you, what will you say? When +the common sense of a generation finally revolts against what we have done, how +will we justify what we have done? What is the argument? + +A sensible patent policy could endorse and strongly support the patent system +without having to reach everyone everywhere in exactly the same way. Just as a +sensible copyright policy could endorse and strongly support a copyright system +without having to regulate the spread of culture perfectly and forever, a +sensible patent policy could endorse and strongly support a patent system +without having to block the spread of drugs to a country not rich enough to +afford market prices in any case. A sensible policy, in other words, could be a +balanced policy. For most of our history, both copyright and patent policies +were balanced in just this sense. + +But we as a culture have lost this sense of balance. We have lost the critical +eye that helps us see the difference between truth and extremism. A certain +property fundamentalism, having no connection to our tradition, now reigns in +this culture - bizarrely, and with consequences more grave to the spread of +ideas and culture than almost any other single policy decision that we as a +democracy will make. + +!_ A simple idea +blinds us, and under the cover of darkness, much happens that most of us would +reject if any of us looked. So uncritically do we accept the idea of property +in ideas that we don't even notice how monstrous it is to deny ideas to a +people who are dying without them. So uncritically do we accept the idea of +property in culture that we don't even question when the control of that +property removes our ability, as a people, to develop our culture +democratically. Blindness becomes our common sense. And the challenge for +anyone who would reclaim the right to cultivate our culture is to find a way to +make this common sense open its eyes. + +So far, common sense sleeps. There is no revolt. Common sense does not yet see +what there could be to revolt about. The extremism that now dominates this +debate fits with ideas that seem natural, and that fit is reinforced by the +RCAs of our day. They wage a frantic war to fight "piracy," and devastate a +culture for creativity. They defend the idea of "creative property," while +transforming real creators into modern-day sharecroppers. They are insulted by +the idea that rights should be balanced, even though each of the major players +in this content war was itself a beneficiary of a more balanced ideal. The +hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. +Powerful lobbies, complex issues, and MTV attention spans produce the "perfect +storm" for free culture. + +!_ In August 2003, +a fight broke out in the United States about a decision by the World +Intellectual Property Organization to cancel a meeting.~{ Jonathan Krim, "The +Quiet War over Open-Source," /{Washington Post,}/ 21 August 2003, E1, available +at link #59; William New, "Global Group's Shift on 'Open Source' Meeting Spurs +Stir," National Journal's Technology Daily, 19 August 2003, available at link +#60; William New, "U.S. Official Opposes 'Open Source' Talks at WIPO," +/{National Journal's Technology Daily,}/ 19 August 2003, available at link #61. +}~ At the request of a wide range of interests, WIPO had decided to hold a +meeting to discuss "open and collaborative projects to create public goods." +These are projects that have been successful in producing public goods without +relying exclusively upon a proprietary use of intellectual property. Examples +include the Internet and the World Wide Web, both of which were developed on +the basis of protocols in the public domain. It included an emerging trend to +support open academic journals, including the Public Library of Science project +that I describe in the Afterword. It included a project to develop single +nucleotide polymorphisms (SNPs), which are thought to have great significance +in biomedical research. (That nonprofit project comprised a consortium of the +Wellcome Trust and pharmaceutical and technological companies, including +Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, +Hoffmann-La Roche, Glaxo- SmithKline, IBM, Motorola, Novartis, Pfizer, and +Searle.) It included the Global Positioning System, which Ronald Reagan set +free in the early 1980s. And it included "open source and free software." +={ academic journals ; + biomedical research ; + intellectual property rights : + international organization on issues of +4 ; + Internet : + development of ; + PLoS (Public Library of Science) ; + Public Library of Science (PLoS) ; + public domain : + public projects in ; + single nucleotied polymorphisms (SNPs) ; + Wellcome Trust ; + World Intellectual Property Organization (WIPO) +4 ; + World Wide Web ; + Global Positioning System ; + Reagan, Ronald +} + +The aim of the meeting was to consider this wide range of projects from one +common perspective: that none of these projects relied upon intellectual +property extremism. Instead, in all of them, intellectual property was balanced +by agreements to keep access open or to impose limitations on the way in which +proprietary claims might be used. + +From the perspective of this book, then, the conference was ideal.~{ I should +disclose that I was one of the people who asked WIPO for the meeting. }~ The +projects within its scope included both commercial and noncommercial work. They +primarily involved science, but from many perspectives. And WIPO was an ideal +venue for this discussion, since WIPO is the preeminent international body +dealing with intellectual property issues. +={ Lessig, Lawrence : + in international debate on intellectual property +4 +} + +Indeed, I was once publicly scolded for not recognizing this fact about WIPO. +In February 2003, I delivered a keynote address to a preparatory conference for +the World Summit on the Information Society (WSIS). At a press conference +before the address, I was asked what I would say. I responded that I would be +talking a little about the importance of balance in intellectual property for +the development of an information society. The moderator for the event then +promptly interrupted to inform me and the assembled reporters that no question +about intellectual property would be discussed by WSIS, since those questions +were the exclusive domain of WIPO. In the talk that I had prepared, I had +actually made the issue of intellectual property relatively minor. But after +this astonishing statement, I made intellectual property the sole focus of my +talk. There was no way to talk about an "Information Society" unless one also +talked about the range of information and culture that would be free. My talk +did not make my immoderate moderator very happy. And she was no doubt correct +that the scope of intellectual property protections was ordinarily the stuff of +WIPO. But in my view, there couldn't be too much of a conversation about how +much intellectual property is needed, since in my view, the very idea of +balance in intellectual property had been lost. +={ World Summit on the Information Society (WSIS) +1 } + +So whether or not WSIS can discuss balance in intellectual property, I had +thought it was taken for granted that WIPO could and should. And thus the +meeting about "open and collaborative projects to create public goods" seemed +perfectly appropriate within the WIPO agenda. + +But there is one project within that list that is highly controversial, at +least among lobbyists. That project is "open source and free software." +Microsoft in particular is wary of discussion of the subject. From its +perspective, a conference to discuss open source and free software would be +like a conference to discuss Apple's operating system. Both open source and +free software compete with Microsoft's software. And internationally, many +governments have begun to explore requirements that they use open source or +free software, rather than "proprietary software," for their own internal uses. +={ free software/open-source software (FS/OSS) +7 ; + Apple Corporation ; + Microsoft : + on free software +4 +} + +I don't mean to enter that debate here. It is important only to make clear that +the distinction is not between commercial and noncommercial software. There are +many important companies that depend fundamentally upon open source and free +software, IBM being the most prominent. IBM is increasingly shifting its focus +to the GNU/Linux operating system, the most famous bit of "free software" - and +IBM is emphatically a commercial entity. Thus, to support "open source and free +software" is not to oppose commercial entities. It is, instead, to support a +mode of software development that is different from Microsoft's.~{ Microsoft's +position about free and open source software is more sophisticated. As it has +repeatedly asserted, it has no problem with "open source" software or software +in the public domain. Microsoft's principal opposition is to "free software" +licensed under a "copyleft" license, meaning a license that requires the +licensee to adopt the same terms on any derivative work. See Bradford L. Smith, +"The Future of Software: Enabling the Marketplace to Decide," /{Government +Policy Toward Open Source Software}/ (Washington, D.C.: AEI-Brookings Joint +Center for Regulatory Studies, American Enterprise Institute for Public Policy +Research, 2002), 69, available at link #62. See also Craig Mundie, Microsoft +senior vice president, /{The Commercial Software Model,}/ discussion at New +York University Stern School of Business (3 May 2001), available at link #63. +}~ +={ GNU/Linux operating system ; + Linux operating system ; + IBM +} + +More important for our purposes, to support "open source and free software" is +not to oppose copyright. "Open source and free software" is not software in the +public domain. Instead, like Microsoft's software, the copyright owners of free +and open source software insist quite strongly that the terms of their software +license be respected by adopters of free and open source software. The terms of +that license are no doubt different from the terms of a proprietary software +license. Free software licensed under the General Public License (GPL), for +example, requires that the source code for the software be made available by +anyone who modifies and redistributes the software. But that requirement is +effective only if copyright governs software. If copyright did not govern +software, then free software could not impose the same kind of requirements on +its adopters. It thus depends upon copyright law just as Microsoft does. +={ General Public License (GPL) ; + GPL (General Public License) +} + +It is therefore understandable that as a proprietary software developer, +Microsoft would oppose this WIPO meeting, and understandable that it would use +its lobbyists to get the United States government to oppose it, as well. And +indeed, that is just what was reported to have happened. According to Jonathan +Krim of the /{Washington Post}/, Microsoft's lobbyists succeeded in getting the +United States government to veto the meeting.~{ Krim, "The Quiet War over +Open-Source," available at link #64. }~ And without U.S. backing, the meeting +was canceled. +={ intellectual property rights : + international organization on issues of +11 ; + World Intellectual Property Organization (WIPO) +11 ; + Krim, Jonathan +2 ; + Microsoft : + WIPO meeting opposed by +} + +I don't blame Microsoft for doing what it can to advance its own interests, +consistent with the law. And lobbying governments is plainly consistent with +the law. There was nothing surprising about its lobbying here, and nothing +terribly surprising about the most powerful software producer in the United +States having succeeded in its lobbying efforts. + +What was surprising was the United States government's reason for opposing the +meeting. Again, as reported by Krim, Lois Boland, acting director of +international relations for the U.S. Patent and Trademark Office, explained +that "open-source software runs counter to the mission of WIPO, which is to +promote intellectual-property rights." She is quoted as saying, "To hold a +meeting which has as its purpose to disclaim or waive such rights seems to us +to be contrary to the goals of WIPO." +={ Boland, Lois +10 ; + Patent and Trademark Office, U.S. +15 ; + intellectual property rights : + U.S. Patent Office on private control of +15 +} + +% PTO range not properly identified, recheck + +These statements are astonishing on a number of levels. + +First, they are just flat wrong. As I described, most open source and free +software relies fundamentally upon the intellectual property right called +"copyright." Without it, restrictions imposed by those licenses wouldn't work. +Thus, to say it "runs counter" to the mission of promoting intellectual +property rights reveals an extraordinary gap in under- standing - the sort of +mistake that is excusable in a first-year law student, but an embarrassment +from a high government official dealing with intellectual property issues. + +Second, who ever said that WIPO's exclusive aim was to "promote" intellectual +property maximally? As I had been scolded at the preparatory conference of +WSIS, WIPO is to consider not only how best to protect intellectual property, +but also what the best balance of intellectual property is. As every economist +and lawyer knows, the hard question in intellectual property law is to find +that balance. But that there should be limits is, I had thought, uncontested. +One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose +patent has expired) contrary to the WIPO mission? Does the public domain weaken +intellectual property? Would it have been better if the protocols of the +Internet had been patented? +={ World Summit on the Information Society (WSIS) ; + drugs : + pharmaceutical ; + generic drugs ; + patents : + on pharmaceuticals +} + +Third, even if one believed that the purpose of WIPO was to maximize +intellectual property rights, in our tradition, intellectual property rights +are held by individuals and corporations. They get to decide what to do with +those rights because, again, they are /{their}/ rights. If they want to "waive" +or "disclaim" their rights, that is, within our tradition, totally appropriate. +When Bill Gates gives away more than $20 billion to do good in the world, that +is not inconsistent with the objectives of the property system. That is, on the +contrary, just what a property system is supposed to be about: giving +individuals the right to decide what to do with /{their}/ property. +={ Gates, Bill } + +When Ms. Boland says that there is something wrong with a meeting "which has as +its purpose to disclaim or waive such rights," she's saying that WIPO has an +interest in interfering with the choices of the individuals who own +intellectual property rights. That somehow, WIPO's objective should be to stop +an individual from "waiving" or "dis-claiming" an intellectual property right. +That the interest of WIPO is not just that intellectual property rights be +maximized, but that they also should be exercised in the most extreme and +restrictive way possible. + +There is a history of just such a property system that is well known in the +Anglo-American tradition. It is called "feudalism." Under feudalism, not only +was property held by a relatively small number of individuals and entities. And +not only were the rights that ran with that property powerful and extensive. +But the feudal system had a strong interest in assuring that property holders +within that system not weaken feudalism by liberating people or property within +their control to the free market. Feudalism depended upon maximum control and +concentration. It fought any freedom that might interfere with that control. +={ feudal system +1 ; + property rights : + feudal system of +1 +} + +As Peter Drahos and John Braithwaite relate, this is precisely the choice we +are now making about intellectual property.~{ See Drahos with Braithwaite, +/{Information Feudalism,}/ 210-20. }~ We will have an information society. That +much is certain. Our only choice now is whether that information society will +be /{free}/ or /{feudal}/. The trend is toward the feudal. +={ Braithwait, John ; + Drahos, Peter +} + +When this battle broke, I blogged it. A spirited debate within the comment +section ensued. Ms. Boland had a number of supporters who tried to show why her +comments made sense. But there was one comment that was particularly depressing +for me. An anonymous poster wrote, +={ Lessig, Lawrence : + in international debate on intellectual property +5 } + +_1 George, you misunderstand Lessig: He's only talking about the world as it +should be ("the goal of WIPO, and the goal of any government, should be to +promote the right balance of intellectual- property rights, not simply to +promote intellectual property rights"), not as it is. If we were talking about +the world as it is, then of course Boland didn't say anything wrong. But in the +world as Lessig would have it, then of course she did. Always pay attention to +the distinction between Lessig's world and ours." + +I missed the irony the first time I read it. I read it quickly and thought the +poster was supporting the idea that seeking balance was what our government +should be doing. (Of course, my criticism of Ms. Boland was not about whether +she was seeking balance or not; my criticism was that her comments betrayed a +first-year law student's mistake. I have no illusion about the extremism of our +government, whether Republican or Democrat. My only illusion apparently is +about whether our government should speak the truth or not.) + +Obviously, however, the poster was not supporting that idea. Instead, the +poster was ridiculing the very idea that in the real world, the "goal" of a +government should be "to promote the right balance" of intellectual property. +That was obviously silly to him. And it obviously betrayed, he believed, my own +silly utopianism. "Typical for an academic," the poster might well have +continued. + +I understand criticism of academic utopianism. I think utopianism is silly, +too, and I'd be the first to poke fun at the absurdly unrealistic ideals of +academics throughout history (and not just in our own country's history). + +But when it has become silly to suppose that the role of our government should +be to "seek balance," then count me with the silly, for that means that this +has become quite serious indeed. If it should be obvious to everyone that the +government does not seek balance, that the government is simply the tool of the +most powerful lobbyists, that the idea of holding the government to a different +standard is absurd, that the idea of demanding of the government that it speak +truth and not lies is just naïve, then who have we, the most powerful democracy +in the world, become? + +It might be crazy to expect a high government official to speak the truth. It +might be crazy to believe that government policy will be something more than +the handmaiden of the most powerful interests. It might be crazy to argue that +we should preserve a tradition that has been part of our tradition for most of +our history - free culture. + +If this is crazy, then let there be more crazies. Soon. + +!_ There are moments +of hope in this struggle. And moments that surprise. When the FCC was +considering relaxing ownership rules, which would thereby further increase the +concentration in media ownership, an extraordinary bipartisan coalition formed +to fight this change. For perhaps the first time in history, interests as +diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and +CodePink Women for Peace organized to oppose this change in FCC policy. An +astonishing 700,000 letters were sent to the FCC, demanding more hearings and a +different result. +={ CodePink Women for Peace ; + FCC : + media ownership regulated by +1 ; + media : + ownership concentration in +6 ; + Safire, William ; + Turner, Ted +} + +This activism did not stop the FCC, but soon after, a broad coalition in the +Senate voted to reverse the FCC decision. The hostile hearings leading up to +that vote revealed just how powerful this movement had become. There was no +substantial support for the FCC's decision, and there was broad and sustained +support for fighting further concentration in the media. +={ Senate, U.S. : + FCC media ownership rules reversed by +} + +But even this movement misses an important piece of the puzzle. Largeness as +such is not bad. Freedom is not threatened just because some become very rich, +or because there are only a handful of big players. The poor quality of Big +Macs or Quarter Pounders does not mean that you can't get a good hamburger from +somewhere else. + +The danger in media concentration comes not from the concentration, but instead +from the feudalism that this concentration, tied to the change in copyright, +produces. It is not just that there are a few powerful companies that control +an ever expanding slice of the media. It is that this concentration can call +upon an equally bloated range of rights - property rights of a historically +extreme form - that makes their bigness bad. + +It is therefore significant that so many would rally to demand competition and +increased diversity. Still, if the rally is understood as being about bigness +alone, it is not terribly surprising. We Americans have a long history of +fighting "big," wisely or not. That we could be motivated to fight "big" again +is not something new. + +It would be something new, and something very important, if an equal number +could be rallied to fight the increasing extremism built within the idea of +"intellectual property." Not because balance is alien to our tradition; indeed, +as I've argued, balance is our tradition. But because the muscle to think +critically about the scope of anything called "property" is not well exercised +within this tradition anymore. + +If we were Achilles, this would be our heel. This would be the place of our +tragedy. + +!_ As I write +these final words, the news is filled with stories about the RIAA lawsuits +against almost three hundred individuals.~{ John Borland, "RIAA Sues 261 File +Swappers," CNET News.com, 8 September 2003, available at link #65; Paul R. La +Monica, "Music Industry Sues Swappers," CNN/Money, 8 September 2003, available +at link #66; Soni Sangha and Phyllis Furman with Robert Gearty, "Sued for a +Song, N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," /{New York Daily News,}/ 9 +September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; +Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants," +/{Washington Post,}/ 10 September 2003, E1; Katie Dean, "Schoolgirl Settles +with RIAA," /{Wired News,}/ 10 September 2003, available at link #67. }~ Eminem +has just been sued for "sampling" someone else's music.~{ Jon Wiederhorn, +"Eminem Gets Sued ... by a Little Old Lady," mtv.com, 17 September 2003, +available at link #68. }~ The story about Bob Dylan "stealing" from a Japanese +author has just finished making the rounds.~{ Kenji Hall, Associated Press, +"Japanese Book May Be Inspiration for Dylan Songs," Kansascity.com, 9 July +2003, available at link #69. }~ An insider from Hollywood - who insists he must +remain anonymous - reports "an amazing conversation with these studio guys. +They've got extraordinary [old] content that they'd love to use but can't +because they can't begin to clear the rights. They've got scores of kids who +could do amazing things with the content, but it would take scores of lawyers +to clean it first." Congressmen are talking about deputizing computer viruses +to bring down computers thought to violate the law. Universities are +threatening expulsion for kids who use a computer to share content. +={ Dylan, Bob ; + Eminem ; + university computer networks, p2p sharing on ; + copyright infringement lawsuits : + individual defendants intimidated by | in recording industry ; + recording industry : + copyright infringement lawsuits of ; + Recording Industry Association of America (RIAA) : + copyright infringement lawsuits filed by +} + +Yet on the other side of the Atlantic, the BBC has just announced that it will +build a "Creative Archive," from which British citizens can download BBC +content, and rip, mix, and burn it.~{ "BBC Plans to Open Up Its Archive to the +Public," BBC press release, 24 August 2003, available at link #70. }~ And in +Brazil, the culture minister, Gilberto Gil, himself a folk hero of Brazilian +music, has joined with Creative Commons to release content and free licenses in +that Latin American country.~{ "Creative Commons and Brazil," Creative Commons +Weblog, 6 August 2003, available at link #71. }~ +={ BBC ; + Brazil, free culture in ; + Creative Commons ; + Gil, Gilberto ; + United Kingdom : + public creative archive in +} + +I've told a dark story. The truth is more mixed. A technology has given us a +new freedom. Slowly, some begin to understand that this freedom need not mean +anarchy. We can carry a free culture into the twenty-first century, without +artists losing and without the potential of digital technology being destroyed. +It will take some thought, and more importantly, it will take some will to +transform the RCAs of our day into the Causbys. + +Common sense must revolt. It must act to free culture. Soon, if this potential +is ever to be realized. + +:B~ AFTERWORD + +1~intro_afterword [Intro]-# + +!_ At least some +who have read this far will agree with me that something must be done to change +where we are heading. The balance of this book maps what might be done. +={ copyright : + voluntary reform efforts on +3 +} + +I divide this map into two parts: that which anyone can do now, and that which +requires the help of lawmakers. If there is one lesson that we can draw from +the history of remaking common sense, it is that it requires remaking how many +people think about the very same issue. + +That means this movement must begin in the streets. It must recruit a +significant number of parents, teachers, librarians, creators, authors, +musicians, filmmakers, scientists - all to tell this story in their own words, +and to tell their neighbors why this battle is so important. + +Once this movement has its effect in the streets, it has some hope of having an +effect in Washington. We are still a democracy. What people think matters. Not +as much as it should, at least when an RCA stands opposed, but still, it +matters. And thus, in the second part below, I sketch changes that Congress +could make to better secure a free culture. +={ RCA } + +1~us US, NOW +={ copyright : + voluntary reform efforts on +45 +} + +!_ Common sense +is with the copyright warriors because the debate so far has been framed at the +extremes - as a grand either/or: either property or anarchy, either total +control or artists won't be paid. If that really is the choice, then the +warriors should win. + +The mistake here is the error of the excluded middle. There are extremes in +this debate, but the extremes are not all that there is. There are those who +believe in maximal copyright - "All Rights Reserved" - and those who reject +copyright - "No Rights Reserved." The "All Rights Reserved" sorts believe that +you should ask permission before you "use" a copyrighted work in any way. The +"No Rights Reserved" sorts believe you should be able to do with content as you +wish, regardless of whether you have permission or not. + +When the Internet was first born, its initial architecture effectively tilted +in the "no rights reserved" direction. Content could be copied perfectly and +cheaply; rights could not easily be controlled. Thus, regardless of anyone's +desire, the effective regime of copyright under the original design of the +Internet was "no rights reserved." Content was "taken" regardless of the +rights. Any rights were effectively unprotected. +={ Internet : + development of +1 | initial free character of +1 +} + +This initial character produced a reaction (opposite, but not quite equal) by +copyright owners. That reaction has been the topic of this book. Through +legislation, litigation, and changes to the network's design, copyright holders +have been able to change the essential character of the environment of the +original Internet. If the original architecture made the effective default "no +rights reserved," the future architecture will make the effective default "all +rights reserved." The architecture and law that surround the Internet's design +will increasingly produce an environment where all use of content requires +permission. The "cut and paste" world that defines the Internet today will +become a "get permission to cut and paste" world that is a creator's nightmare. + +What's needed is a way to say something in the middle - neither "all rights +reserved" nor "no rights reserved" but "some rights reserved" - and thus a way +to respect copyrights but enable creators to free content as they see fit. In +other words, we need a way to restore a set of freedoms that we could just take +for granted before. + +2~ Rebuilding Freedoms Previously Presumed: Examples +={ free culture : + restoration efforts on previous aspects of +22 +} + +If you step back from the battle I've been describing here, you will recognize +this problem from other contexts. Think about privacy. Before the Internet, +most of us didn't have to worry much about data about our lives that we +broadcast to the world. If you walked into a bookstore and browsed through some +of the works of Karl Marx, you didn't need to worry about explaining your +browsing habits to your neighbors or boss. The "privacy" of your browsing +habits was assured. +={ browsing +4 ; + privacy rights +5 +} + +What made it assured? + +Well, if we think in terms of the modalities I described in chapter 10, your +privacy was assured because of an inefficient architecture for gathering data +and hence a market constraint (cost) on anyone who wanted to gather that data. +If you were a suspected spy for North Korea, working for the CIA, no doubt your +privacy would not be assured. But that's because the CIA would (we hope) find +it valuable enough to spend the thousands required to track you. But for most +of us (again, we can hope), spying doesn't pay. The highly inefficient +architecture of real space means we all enjoy a fairly robust amount of +privacy. That privacy is guaranteed to us by friction. Not by law (there is no +law protecting "privacy" in public places), and in many places, not by norms +(snooping and gossip are just fun), but instead, by the costs that friction +imposes on anyone who would want to spy. + +Enter the Internet, where the cost of tracking browsing in particular has +become quite tiny. If you're a customer at Amazon, then as you browse the +pages, Amazon collects the data about what you've looked at. You know this +because at the side of the page, there's a list of "recently viewed" pages. +Now, because of the architecture of the Net and the function of cookies on the +Net, it is easier to collect the data than not. The friction has disappeared, +and hence any "privacy" protected by the friction disappears, too. +={ Amazon +1 ; + cookies, Internet ; + Internet : + privacy protection on +2 +} + +Amazon, of course, is not the problem. But we might begin to worry about +libraries. If you're one of those crazy lefties who thinks that people should +have the "right" to browse in a library without the government knowing which +books you look at (I'm one of those lefties, too), then this change in the +technology of monitoring might concern you. If it becomes simple to gather and +sort who does what in electronic spaces, then the friction-induced privacy of +yesterday disappears. +={ libraries : + privacy rights in use of +} + +It is this reality that explains the push of many to define "privacy" on the +Internet. It is the recognition that technology can remove what friction before +gave us that leads many to push for laws to do what friction did.~{ See, for +example, Marc Rotenberg, "Fair Information Practices and the Architecture of +Privacy (What Larry Doesn't Get)," /{Stanford Technology Law Review}/ 1 (2001): +par. 6-18, available at link #72 (describing examples in which technology +defines privacy policy). See also Jeffrey Rosen, /{The Naked Crowd: Reclaiming +Security and Freedom in an Anxious Age}/ (New York: Random House, 2004) +(mapping tradeoffs between technology and privacy). }~ And whether you're in +favor of those laws or not, it is the pattern that is important here. We must +take affirmative steps to secure a kind of freedom that was passively provided +before. A change in technology now forces those who believe in privacy to +affirmatively act where, before, privacy was given by default. + +A similar story could be told about the birth of the free software movement. +When computers with software were first made available commercially, the +software - both the source code and the binaries - was free. You couldn't run a +program written for a Data General machine on an IBM machine, so Data General +and IBM didn't care much about controlling their software. +={ Data General ; + IBM ; + free software/open-source software (FS/OSS) +7 +} + +That was the world Richard Stallman was born into, and while he was a +researcher at MIT, he grew to love the community that developed when one was +free to explore and tinker with the software that ran on machines. Being a +smart sort himself, and a talented programmer, Stallman grew to depend upon the +freedom to add to or modify other people's work. +={ Stallman, Richard +6 } + +In an academic setting, at least, that's not a terribly radical idea. In a math +department, anyone would be free to tinker with a proof that someone offered. +If you thought you had a better way to prove a theorem, you could take what +someone else did and change it. In a classics department, if you believed a +colleague's translation of a recently discovered text was flawed, you were free +to improve it. Thus, to Stallman, it seemed obvious that you should be free to +tinker with and improve the code that ran a machine. This, too, was knowledge. +Why shouldn't it be open for criticism like anything else? + +No one answered that question. Instead, the architecture of revenue for +computing changed. As it became possible to import programs from one system to +another, it became economically attractive (at least in the view of some) to +hide the code of your program. So, too, as companies started selling +peripherals for mainframe systems. If I could just take your printer driver and +copy it, then that would make it easier for me to sell a printer to the market +than it was for you. +={ proprietary code +1 } + +Thus, the practice of proprietary code began to spread, and by the early 1980s, +Stallman found himself surrounded by proprietary code. The world of free +software had been erased by a change in the economics of computing. And as he +believed, if he did nothing about it, then the freedom to change and share +software would be fundamentally weakened. + +Therefore, in 1984, Stallman began a project to build a free operating system, +so that at least a strain of free software would survive. That was the birth of +the GNU project, into which Linus Torvalds's "Linux" kernel was added to +produce the GNU/Linux operating system. +={ Torvalds, Linus ; + GNU/Linux operating system ; + Linux operating system +} + +Stallman's technique was to use copyright law to build a world of software that +must be kept free. Software licensed under the Free Software Foundation's GPL +cannot be modified and distributed unless the source code for that software is +made available as well. Thus, anyone building upon GPL'd software would have to +make their buildings free as well. This would assure, Stallman believed, that +an ecology of code would develop that remained free for others to build upon. +His fundamental goal was freedom; innovative creative code was a byproduct. +={ Free Software Foundation ; + General Public License (GPL) ; + GPL (General Public License) +} + +Stallman was thus doing for software what privacy advocates now do for privacy. +He was seeking a way to rebuild a kind of freedom that was taken for granted +before. Through the affirmative use of licenses that bind copyrighted code, +Stallman was affirmatively reclaiming a space where free software would +survive. He was actively protecting what before had been passively guaranteed. + +Finally, consider a very recent example that more directly resonates with the +story of this book. This is the shift in the way academic and scientific +journals are produced. +={ academic journals +7 ; + scientific journals +7 +} + +As digital technologies develop, it is becoming obvious to many that printing +thousands of copies of journals every month and sending them to libraries is +perhaps not the most efficient way to distribute knowledge. Instead, journals +are increasingly becoming electronic, and libraries and their users are given +access to these electronic journals through password-protected sites. Something +similar to this has been happening in law for almost thirty years: Lexis and +Westlaw have had electronic versions of case reports available to subscribers +to their service. Although a Supreme Court opinion is not copyrighted, and +anyone is free to go to a library and read it, Lexis and Westlaw are also free +to charge users for the privilege of gaining access to that Supreme Court +opinion through their respective services. +={ Lexis and Westlaw +1 ; + law : + databases of case reports in +1 ; + libraries : + journals in ; + Supreme Court, U.S. : + access to opinions of +} + +There's nothing wrong in general with this, and indeed, the ability to charge +for access to even public domain materials is a good incentive for people to +develop new and innovative ways to spread knowledge. The law has agreed, which +is why Lexis and Westlaw have been allowed to flourish. And if there's nothing +wrong with selling the public domain, then there could be nothing wrong, in +principle, with selling access to material that is not in the public domain. +={ public domain : + access fees for material in | license system for rebuilding of +22 +} + +But what if the only way to get access to social and scientific data was +through proprietary services? What if no one had the ability to browse this +data except by paying for a subscription? + +As many are beginning to notice, this is increasingly the reality with +scientific journals. When these journals were distributed in paper form, +libraries could make the journals available to anyone who had access to the +library. Thus, patients with cancer could become cancer experts because the +library gave them access. Or patients trying to understand the risks of a +certain treatment could research those risks by reading all available articles +about that treatment. This freedom was therefore a function of the institution +of libraries (norms) and the technology of paper journals (architecture) - +namely, that it was very hard to control access to a paper journal. +={ libraries : + journals in +2 +} + +As journals become electronic, however, the publishers are demanding that +libraries not give the general public access to the journals. This means that +the freedoms provided by print journals in public libraries begin to disappear. +Thus, as with privacy and with software, a changing technology and market +shrink a freedom taken for granted before. + +This shrinking freedom has led many to take affirmative steps to restore the +freedom that has been lost. The Public Library of Science (PLoS), for example, +is a nonprofit corporation dedicated to making scientific research available to +anyone with a Web connection. Authors of scientific work submit that work to +the Public Library of Science. That work is then subject to peer review. If +accepted, the work is then deposited in a public, electronic archive and made +permanently available for free. PLoS also sells a print version of its work, +but the copyright for the print journal does not inhibit the right of anyone to +redistribute the work for free. +={ PLoS (Public Library of Science) ; + Public Library of Science (PLoS) +} + +This is one of many such efforts to restore a freedom taken for granted before, +but now threatened by changing technology and markets. There's no doubt that +this alternative competes with the traditional publishers and their efforts to +make money from the exclusive distribution of content. But competition in our +tradition is presumptively a good - especially when it helps spread knowledge +and science. + +2~ Rebuilding Free Culture: One Idea +={ free culture : + Creative Commons license for recreation of +16 ; + copyright : + Creative Commons licenses for material in +16 ; + Creative Commons +16 +} + +The same strategy could be applied to culture, as a response to the increasing +control effected through law and technology. + +Enter the Creative Commons. The Creative Commons is a nonprofit corporation +established in Massachusetts, but with its home at Stanford University. Its aim +is to build a layer of /{reasonable}/ copyright on top of the extremes that now +reign. It does this by making it easy for people to build upon other people's +work, by making it simple for creators to express the freedom for others to +take and build upon their work. Simple tags, tied to human-readable +descriptions, tied to bullet-proof licenses, make this possible. +={ Stanford University } + +/{Simple}/ - which means without a middleman, or without a lawyer. By +developing a free set of licenses that people can attach to their content, +Creative Commons aims to mark a range of content that can easily, and reliably, +be built upon. These tags are then linked to machine-readable versions of the +license that enable computers automatically to identify content that can easily +be shared. These three expressions together - a legal license, a human-readable +description, and machine-readable tags - constitute a Creative Commons license. +A Creative Commons license constitutes a grant of freedom to anyone who +accesses the license, and more importantly, an expression of the ideal that the +person associated with the license believes in something different than the +"All" or "No" extremes. Content is marked with the CC mark, which does not mean +that copyright is waived, but that certain freedoms are given. + +These freedoms are beyond the freedoms promised by fair use. Their precise +contours depend upon the choices the creator makes. The creator can choose a +license that permits any use, so long as attribution is given. She can choose a +license that permits only noncommercial use. She can choose a license that +permits any use so long as the same freedoms are given to other uses ("share +and share alike"). Or any use so long as no derivative use is made. Or any use +at all within developing nations. Or any sampling use, so long as full copies +are not made. Or lastly, any educational use. +={ copyright law : + fair use and +1 ; + fair use : + creative Commons license vs. +1 +} + +These choices thus establish a range of freedoms beyond the default of +copyright law. They also enable freedoms that go beyond traditional fair use. +And most importantly, they express these freedoms in a way that subsequent +users can use and rely upon without the need to hire a lawyer. Creative Commons +thus aims to build a layer of content, governed by a layer of reasonable +copyright law, that others can build upon. Voluntary choice of individuals and +creators will make this content available. And that content will in turn enable +us to rebuild a public domain. + +This is just one project among many within the Creative Commons. And of course, +Creative Commons is not the only organization pursuing such freedoms. But the +point that distinguishes the Creative Commons from many is that we are not +interested only in talking about a public domain or in getting legislators to +help build a public domain. Our aim is to build a movement of consumers and +producers of content ("content conducers," as attorney Mia Garlick calls them) +who help build the public domain and, by their work, demonstrate the importance +of the public domain to other creativity. +={ Garlick, Mia } + +The aim is not to fight the "All Rights Reserved" sorts. The aim is to +complement them. The problems that the law creates for us as a culture are +produced by insane and unintended consequences of laws written centuries ago, +applied to a technology that only Jefferson could have imagined. The rules may +well have made sense against a background of technologies from centuries ago, +but they do not make sense against the background of digital technologies. New +rules - with different freedoms, expressed in ways so that humans without +lawyers can use them - are needed. Creative Commons gives people a way +effectively to begin to build those rules. +={ Jefferson, Thomas } + +Why would creators participate in giving up total control? Some participate to +better spread their content. Cory Doctorow, for example, is a science fiction +author. His first novel, /{Down and Out in the Magic Kingdom}/, was released +on- line and for free, under a Creative Commons license, on the same day that +it went on sale in bookstores. +={ Doctorow, Cory ; + Down and Out in the Magic Kingdom (Doctorow) +} + +Why would a publisher ever agree to this? I suspect his publisher reasoned like +this: There are two groups of people out there: (1) those who will buy Cory's +book whether or not it's on the Internet, and (2) those who may never hear of +Cory's book, if it isn't made available for free on the Internet. Some part of +(1) will download Cory's book instead of buying it. Call them bad-(1)s. Some +part of (2) will download Cory's book, like it, and then decide to buy it. Call +them (2)-goods. If there are more (2)-goods than bad-(1)s, the strategy of +releasing Cory's book free on-line will probably /{increase}/ sales of Cory's +book. +={ books : + free on-line releases of +2 ; + Internet : + books on +2 +} + +Indeed, the experience of his publisher clearly supports that conclusion. The +book's first printing was exhausted months before the publisher had expected. +This first novel of a science fiction author was a total success. + +The idea that free content might increase the value of nonfree content was +confirmed by the experience of another author. Peter Wayner, who wrote a book +about the free software movement titled /{Free for All}/, made an electronic +version of his book free on-line under a Creative Commons license after the +book went out of print. He then monitored used book store prices for the book. +As predicted, as the number of downloads increased, the used book price for his +book increased, as well. +={ Wayner, Peter ; + Free for All (Wayner) +} + +These are examples of using the Commons to better spread proprietary content. I +believe that is a wonderful and common use of the Commons. There are others who +use Creative Commons licenses for other reasons. Many who use the "sampling +license" do so because anything else would be hypocritical. The sampling +license says that others are free, for commercial or noncommercial purposes, to +sample content from the licensed work; they are just not free to make full +copies of the licensed work available to others. This is consistent with their +own art - they, too, sample from others. Because the /{legal}/ costs of +sampling are so high (Walter Leaphart, manager of the rap group Public Enemy, +which was born sampling the music of others, has stated that he does not +"allow" Public Enemy to sample anymore, because the legal costs are so high~{ +/{Willful Infringement: A Report from the Front Lines of the Real Culture +Wars}/ (2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat +Lucre production, available at link #72. }~), these artists release into the +creative environment content that others can build upon, so that their form of +creativity might grow. +={ Leaphart, Walter ; + Public Enemy +} + +Finally, there are many who mark their content with a Creative Commons license +just because they want to express to others the importance of balance in this +debate. If you just go along with the system as it is, you are effectively +saying you believe in the "All Rights Reserved" model. Good for you, but many +do not. Many believe that however appropriate that rule is for Hollywood and +freaks, it is not an appropriate description of how most creators view the +rights associated with their content. The Creative Commons license expresses +this notion of "Some Rights Reserved," and gives many the chance to say it to +others. + +In the first six months of the Creative Commons experiment, over 1 million +objects were licensed with these free-culture licenses. The next step is +partnerships with middleware content providers to help them build into their +technologies simple ways for users to mark their content with Creative Commons +freedoms. Then the next step is to watch and celebrate creators who build +content based upon content set free. + +These are first steps to rebuilding a public domain. They are not mere +arguments; they are action. Building a public domain is the first step to +showing people how important that domain is to creativity and innovation. +Creative Commons relies upon voluntary steps to achieve this rebuilding. They +will lead to a world in which more than voluntary steps are possible. + +Creative Commons is just one example of voluntary efforts by individuals and +creators to change the mix of rights that now govern the creative field. The +project does not compete with copyright; it complements it. Its aim is not to +defeat the rights of authors, but to make it easier for authors and creators to +exercise their rights more flexibly and cheaply. That difference, we believe, +will enable creativity to spread more easily. + +1~them THEM, SOON +={ copyright law : + government reforms proposed on +102 +} + +!_ We will +not reclaim a free culture by individual action alone. It will also take +important reforms of laws. We have a long way to go before the politicians will +listen to these ideas and implement these reforms. But that also means that we +have time to build awareness around the changes that we need. + +In this chapter, I outline five kinds of changes: four that are general, and +one that's specific to the most heated battle of the day, music. Each is a +step, not an end. But any of these steps would carry us a long way to our end. + +2~1 1. More Formalities +={ copyright law : + formalities reinstated in +13 ; + formalities +13 +} + +If you buy a house, you have to record the sale in a deed. If you buy land upon +which to build a house, you have to record the purchase in a deed. If you buy a +car, you get a bill of sale and register the car. If you buy an airplane +ticket, it has your name on it. +={ property rights : + formalities associated with +1 +} + +These are all formalities associated with property. They are requirements that +we all must bear if we want our property to be protected. + +In contrast, under current copyright law, you automatically get a copyright, +regardless of whether you comply with any formality. You don't have to +register. You don't even have to mark your content. The default is control, and +"formalities" are banished. +={ copyright : + marking of +5 +} + +Why? + +As I suggested in chapter 10, the motivation to abolish formalities was a good +one. In the world before digital technologies, formalities imposed a burden on +copyright holders without much benefit. Thus, it was progress when the law +relaxed the formal requirements that a copyright owner must bear to protect and +secure his work. Those formalities were getting in the way. + +But the Internet changes all this. Formalities today need not be a burden. +Rather, the world without formalities is the world that burdens creativity. +Today, there is no simple way to know who owns what, or with whom one must deal +in order to use or build upon the creative work of others. There are no +records, there is no system to trace - there is no simple way to know how to +get permission. Yet given the massive increase in the scope of copyright's +rule, getting permission is a necessary step for any work that builds upon our +past. And thus, the /{lack}/ of formalities forces many into silence where they +otherwise could speak. + +The law should therefore change this requirement~{ The proposal I am advancing +here would apply to American works only. Obviously, I believe it would be +beneficial for the same idea to be adopted by other countries as well. }~ - but +it should not change it by going back to the old, broken system. We should +require formalities, but we should establish a system that will create the +incentives to minimize the burden of these formalities. + +The important formalities are three: marking copyrighted work, registering +copyrights, and renewing the claim to copyright. Traditionally, the first of +these three was something the copyright owner did; the second two were +something the government did. But a revised system of formalities would banish +the government from the process, except for the sole purpose of approving +standards developed by others. +={ copyright law : + registration requirement of +} + +3~ Registration and Renewal +={ copyright : + renewability of +4 ; + copyright law : + registration requirement of +4 +} + +Under the old system, a copyright owner had to file a registration with the +Copyright Office to register or renew a copyright. When filing that +registration, the copyright owner paid a fee. As with most government agencies, +the Copyright Office had little incentive to minimize the burden of +registration; it also had little incentive to minimize the fee. And as the +Copyright Office is not a main target of government policy- making, the office +has historically been terribly underfunded. Thus, when people who know +something about the process hear this idea about formalities, their first +reaction is panic - nothing could be worse than forcing people to deal with the +mess that is the Copyright Office. +={ Copyright Office } + +Yet it is always astonishing to me that we, who come from a tradition of +extraordinary innovation in governmental design, can no longer think +innovatively about how governmental functions can be designed. Just because +there is a public purpose to a government role, it doesn't follow that the +government must actually administer the role. Instead, we should be creating +incentives for private parties to serve the public, subject to standards that +the government sets. + +In the context of registration, one obvious model is the Internet. There are at +least 32 million Web sites registered around the world. Domain name owners for +these Web sites have to pay a fee to keep their registration alive. In the main +top-level domains (.com, .org, .net), there is a central registry. The actual +registrations are, however, performed by many competing registrars. That +competition drives the cost of registering down, and more importantly, it +drives the ease with which registration occurs up. +={ domain names ; + Internet : + domain name registration on ; + Web sites, domain name registration of +} + +We should adopt a similar model for the registration and renewal of copyrights. +The Copyright Office may well serve as the central registry, but it should not +be in the registrar business. Instead, it should establish a database, and a +set of standards for registrars. It should approve registrars that meet its +standards. Those registrars would then compete with one another to deliver the +cheapest and simplest systems for registering and renewing copyrights. That +competition would substantially lower the burden of this formality - while +producing a database of registrations that would facilitate the licensing of +content. +={ Copyright Office } + +3~ Marking +={ copyright : + marking of +9 +} + +It used to be that the failure to include a copyright notice on a creative work +meant that the copyright was forfeited. That was a harsh punishment for failing +to comply with a regulatory rule - akin to imposing the death penalty for a +parking ticket in the world of creative rights. Here again, there is no reason +that a marking requirement needs to be enforced in this way. And more +importantly, there is no reason a marking requirement needs to be enforced +uniformly across all media. + +The aim of marking is to signal to the public that this work is copyrighted and +that the author wants to enforce his rights. The mark also makes it easy to +locate a copyright owner to secure permission to use the work. + +One of the problems the copyright system confronted early on was that different +copyrighted works had to be differently marked. It wasn't clear how or where a +statue was to be marked, or a record, or a film. A new marking requirement +could solve these problems by recognizing the differences in media, and by +allowing the system of marking to evolve as technologies enable it to. The +system could enable a special signal from the failure to mark - not the loss of +the copyright, but the loss of the right to punish someone for failing to get +permission first. + +Let's start with the last point. If a copyright owner allows his work to be +published without a copyright notice, the consequence of that failure need not +be that the copyright is lost. The consequence could instead be that anyone has +the right to use this work, until the copyright owner complains and +demonstrates that it is his work and he doesn't give permission.~{ There would +be a complication with derivative works that I have not solved here. In my +view, the law of derivatives creates a more complicated system than is +justified by the marginal incentive it creates. }~ The meaning of an unmarked +work would therefore be "use unless someone complains." If someone does +complain, then the obligation would be to stop using the work in any new work +from then on though no penalty would attach for existing uses. This would +create a strong incentive for copyright owners to mark their work. + +That in turn raises the question about how work should best be marked. Here +again, the system needs to adjust as the technologies evolve. The best way to +ensure that the system evolves is to limit the Copyright Office's role to that +of approving standards for marking content that have been crafted elsewhere. +={ Copyright Office +1 } + +For example, if a recording industry association devises a method for marking +CDs, it would propose that to the Copyright Office. The Copyright Office would +hold a hearing, at which other proposals could be made. The Copyright Office +would then select the proposal that it judged preferable, and it would base +that choice /{solely}/ upon the consideration of which method could best be +integrated into the registration and renewal system. We would not count on the +government to innovate; but we would count on the government to keep the +product of innovation in line with its other important functions. +={ CDs : + copyright marking of ; + copyright law : + on music recordings | registration requirement of +3 ; + recording industry : + copyright protections in +} + +Finally, marking content clearly would simplify registration requirements. If +photographs were marked by author and year, there would be little reason not to +allow a photographer to reregister, for example, all photographs taken in a +particular year in one quick step. The aim of the formality is not to burden +the creator; the system itself should be kept as simple as possible. + +The objective of formalities is to make things clear. The existing system does +nothing to make things clear. Indeed, it seems designed to make things unclear. + +If formalities such as registration were reinstated, one of the most difficult +aspects of relying upon the public domain would be removed. It would be simple +to identify what content is presumptively free; it would be simple to identify +who controls the rights for a particular kind of content; it would be simple to +assert those rights, and to renew that assertion at the appropriate time. + +2~2 2. Shorter Terms +={ copyright : + duration of +9 +} + +The term of copyright has gone from fourteen years to ninety-five years for +corporate authors, and life of the author plus seventy years for natural +authors. + +In /{The Future of Ideas}/, I proposed a seventy-five-year term, granted in +five- year increments with a requirement of renewal every five years. That +seemed radical enough at the time. But after we lost /{Eldred v. Ashcroft}/, +the proposals became even more radical. /{The Economist}/ endorsed a proposal +for a fourteen-year copyright term.~{ "A Radical Rethink," /{Economist,}/ +366:8308 (25 January 2003): 15, available at link #74. }~ Others have proposed +tying the term to the term for patents. +={ Eldred v. Ashcroft ; + Future of Ideas, The (Lessig) ; + Lessig, Lawrence +7 ; + copyright : + renewability of +} + +I agree with those who believe that we need a radical change in copyright's +term. But whether fourteen years or seventy-five, there are four principles +that are important to keep in mind about copyright terms. + +_1 (1) /{Keep it short:}/ The term should be as long as necessary to give +incentives to create, but no longer. If it were tied to very strong protections +for authors (so authors were able to reclaim rights from publishers), rights to +the same work (not derivative works) might be extended further. The key is not +to tie the work up with legal regulations when it no longer benefits an author. + +_1 (2) /{Keep it simple:}/ The line between the public domain and protected +content must be kept clear. Lawyers like the fuzziness of "fair use," and the +distinction between "ideas" and "expression." That kind of law gives them lots +of work. But our framers had a simpler idea in mind: protected versus +unprotected. The value of short terms is that there is little need to build +exceptions into copyright when the term itself is kept short. A clear and +active "lawyer-free zone" makes the complexities of "fair use" and +"idea/expression" less necessary to navigate. +={ copyright law : + fair use and | lawyers as detriment to ; + lawyers : + copyright cultural balance impeded by ; + fair use : + fuzziness of +} + +_1 (3) /{Keep it alive:}/ Copyright should have to be renewed. Especially if +the maximum term is long, the copyright owner should be required to signal +periodically that he wants the protection continued. This need not be an +onerous burden, but there is no reason this monopoly protection has to be +granted for free. On average, it takes ninety minutes for a veteran to apply +for a pension. ~{ Department of Veterans Affairs, Veteran's Application for +Compensation and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), +available at link #75. }~ If we make veterans suffer that burden, I don't see +why we couldn't require authors to spend ten minutes every fifty years to file +a single form. +={ veterans' pensions ; + copyright : + renewability of +} + +_1 (4) /{Keep it prospective:}/ Whatever the term of copyright should be, the +clearest lesson that economists teach is that a term once given should not be +extended. It might have been a mistake in 1923 for the law to offer authors +only a fifty-six-year term. I don't think so, but it's possible. If it was a +mistake, then the consequence was that we got fewer authors to create in 1923 +than we otherwise would have. But we can't correct that mistake today by +increasing the term. No matter what we do today, we will not increase the +number of authors who wrote in 1923. Of course, we can increase the reward that +those who write now get (or alternatively, increase the copyright burden that +smothers many works that are today invisible). But increasing their reward will +not increase their creativity in 1923. What's not done is not done, and there's +nothing we can do about that now. + +These changes together should produce an /{average}/ copyright term that is +much shorter than the current term. Until 1976, the average term was just 32.2 +years. We should be aiming for the same. + +No doubt the extremists will call these ideas "radical." (After all, I call +them "extremists.") But again, the term I recommended was longer than the term +under Richard Nixon. How "radical" can it be to ask for a more generous +copyright law than Richard Nixon presided over? +={ Nixon, Richard } + +2~3 3. Free Use Vs. Fair Use +={ copyright law : + on republishing vs. transformation of original work +11 +} + +As I observed at the beginning of this book, property law originally granted +property owners the right to control their property from the ground to the +heavens. The airplane came along. The scope of property rights quickly changed. +There was no fuss, no constitutional challenge. It made no sense anymore to +grant that much control, given the emergence of that new technology. +={ property rights : + air traffic vs. ; + land ownership, air traffic and +} + +Our Constitution gives Congress the power to give authors "exclusive right" to +"their writings." Congress has given authors an exclusive right to "their +writings" plus any derivative writings (made by others) that are sufficiently +close to the author's original work. Thus, if I write a book, and you base a +movie on that book, I have the power to deny you the right to release that +movie, even though that movie is not "my writing." +={ derivative works : + reform copyright term and scope on +8 ; + Congress, U.S. : + on derivative rights +1 | on copyright laws +1 +} + +Congress granted the beginnings of this right in 1870, when it expanded the +exclusive right of copyright to include a right to control translations and +dramatizations of a work.~{ Benjamin Kaplan, /{An Unhurried View of Copyright}/ +(New York: Columbia University Press, 1967), 32. }~ The courts have expanded it +slowly through judicial interpretation ever since. This expansion has been +commented upon by one of the law's greatest judges, Judge Benjamin Kaplan. +={ Kaplan, Benjamin } + +_1 So inured have we become to the extension of the monopoly to a large range +of so-called derivative works, that we no longer sense the oddity of accepting +such an enlargement of copyright while yet intoning the abracadabra of idea and +expression."~{ Ibid., 56. }~ + +I think it's time to recognize that there are airplanes in this field and the +expansiveness of these rights of derivative use no longer make sense. More +precisely, they don't make sense for the period of time that a copyright runs. +And they don't make sense as an amorphous grant. Consider each limitation in +turn. +={ property rights : + air traffic vs. ; + copyright : + duration of +1 +} + +/{Term:}/ If Congress wants to grant a derivative right, then that right should +be for a much shorter term. It makes sense to protect John Grisham's right to +sell the movie rights to his latest novel (or at least I'm willing to assume it +does); but it does not make sense for that right to run for the same term as +the underlying copyright. The derivative right could be important in inducing +creativity; it is not important long after the creative work is done. +={ Grisham, John ; + Congress, U.S. : + on derivative rights | on copyright laws +} + +/{Scope:}/ Likewise should the scope of derivative rights be narrowed. Again, +there are some cases in which derivative rights are important. Those should be +specified. But the law should draw clear lines around regulated and unregulated +uses of copyrighted material. When all "reuse" of creative material was within +the control of businesses, perhaps it made sense to require lawyers to +negotiate the lines. It no longer makes sense for lawyers to negotiate the +lines. Think about all the creative possibilities that digital technologies +enable; now imagine pouring molasses into the machines. That's what this +general requirement of permission does to the creative process. Smothers it. +={ copyright : + scope of +} + +This was the point that Alben made when describing the making of the Clint +Eastwood CD. While it makes sense to require negotiation for foreseeable +derivative rights - turning a book into a movie, or a poem into a musical score +- it doesn't make sense to require negotiation for the unforeseeable. Here, a +statutory right would make much more sense. +={ Alben, Alex ; + Eastwood, Clint ; + copyright : + statutory licenses in +} + +In each of these cases, the law should mark the uses that are protected, and +the presumption should be that other uses are not protected. This is the +reverse of the recommendation of my colleague Paul Goldstein.~{ Paul Goldstein, +/{Copyright's Highway: From Gutenberg to the Celestial Jukebox}/ (Stanford: +Stanford University Press, 2003), 187-216. }~ His view is that the law should +be written so that expanded protections follow expanded uses. +={ Goldstein, Paul } + +Goldstein's analysis would make perfect sense if the cost of the legal system +were small. But as we are currently seeing in the context of the Internet, the +uncertainty about the scope of protection, and the incentives to protect +existing architectures of revenue, combined with a strong copyright, weaken the +process of innovation. + +The law could remedy this problem either by removing protection beyond the part +explicitly drawn or by granting reuse rights upon certain statutory conditions. +Either way, the effect would be to free a great deal of culture to others to +cultivate. And under a statutory rights regime, that reuse would earn artists +more income. +={ copyright : + statutory licenses in ; + statutory licenses +} + +2~4 4. Liberate the Music - Again +={ peer-to-peer (p2p) file sharing : + reform proposals of copyright restraints on +41 +} + +The battle that got this whole war going was about music, so it wouldn't be +fair to end this book without addressing the issue that is, to most people, +most pressing - music. There is no other policy issue that better teaches the +lessons of this book than the battles around the sharing of music. + +The appeal of file-sharing music was the crack cocaine of the Inter-net's +growth. It drove demand for access to the Internet more powerfully than any +other single application. It was the Internet's killer app-possibly in two +senses of that word. It no doubt was the application that drove demand for +bandwidth. It may well be the application that drives demand for regulations +that in the end kill innovation on the network. + +The aim of copyright, with respect to content in general and music in +particular, is to create the incentives for music to be composed, performed, +and, most importantly, spread. The law does this by giving an exclusive right +to a composer to control public performances of his work, and to a performing +artist to control copies of her performance. + +File-sharing networks complicate this model by enabling the spread of content +for which the performer has not been paid. But of course, that's not all the +file-sharing networks do. As I described in chapter 5, they enable four +different kinds of sharing: +={ peer-to-peer (p2p) file sharing : + four types of +5 +} + +_1 A. There are some who are using sharing networks as substitutes for +purchasing CDs. + +_1 B. There are also some who are using sharing networks to sample, on the way +to purchasing CDs. + +_1 C. There are many who are using file-sharing networks to get access to +content that is no longer sold but is still under copyright or that would have +been too cumbersome to buy off the Net. + +_1 D. There are many who are using file-sharing networks to get access to +content that is not copyrighted or to get access that the copyright owner +plainly endorses. + +Any reform of the law needs to keep these different uses in focus. It must +avoid burdening type D even if it aims to eliminate type A. The eagerness with +which the law aims to eliminate type A, moreover, should depend upon the +magnitude of type B. As with VCRs, if the net effect of sharing is actually not +very harmful, the need for regulation is significantly weakened. +={ cassette recording : + VCRs ; + VCRs +} + +As I said in chapter 5, the actual harm caused by sharing is controversial. For +the purposes of this chapter, however, I assume the harm is real. I assume, in +other words, that type A sharing is significantly greater than type B, and is +the dominant use of sharing networks. + +Nonetheless, there is a crucial fact about the current technological context +that we must keep in mind if we are to understand how the law should respond. + +Today, file sharing is addictive. In ten years, it won't be. It is addictive +today because it is the easiest way to gain access to a broad range of content. +It won't be the easiest way to get access to a broad range of content in ten +years. Today, access to the Internet is cumbersome and slow - we in the United +States are lucky to have broadband service at 1.5 MBs, and very rarely do we +get service at that speed both up and down. Although wireless access is +growing, most of us still get access across wires. Most only gain access +through a machine with a keyboard. The idea of the always on, always connected +Internet is mainly just an idea. +={ Internet : + speed of access +3 +} + +But it will become a reality, and that means the way we get access to the +Internet today is a technology in transition. Policy makers should not make +policy on the basis of technology in transition. They should make policy on the +basis of where the technology is going. The question should not be, how should +the law regulate sharing in this world? The question should be, what law will +we require when the network becomes the network it is clearly becoming? That +network is one in which every machine with electricity is essentially on the +Net; where everywhere you are - except maybe the desert or the Rockies - you +can instantaneously be connected to the Internet. Imagine the Internet as +ubiquitous as the best cell-phone service, where with the flip of a device, you +are connected. + +In that world, it will be extremely easy to connect to services that give you +access to content on the fly - such as Internet radio, content that is streamed +to the user when the user demands. Here, then, is the critical point: When it +is /{extremely}/ easy to connect to services that give access to content, it +will be /{easier}/ to connect to services that give you access to content than +it will be to download and store content /on the many devices you will have for +playing content/. It will be easier, in other words, to subscribe than it will +be to be a database manager, as everyone in the download-sharing world of +Napster-like technologies essentially is. Content services will compete with +content sharing, even if the services charge money for the content they give +access to. Already cell-phone services in Japan offer music (for a fee) +streamed over cell phones (enhanced with plugs for headphones). The Japanese +are paying for this content even though "free" content is available in the form +of MP3s across the Web.~{ See, for example, "Music Media Watch," The J@pan Inc. +Newsletter, 3 April 2002, available at link #76. }~ +={ cell phones, music streamed over } + +This point about the future is meant to suggest a perspective on the present: +It is emphatically temporary. The "problem" with file sharing - to the extent +there is a real problem - is a problem that will increasingly disappear as it +becomes easier to connect to the Internet. And thus it is an extraordinary +mistake for policy makers today to be "solving" this problem in light of a +technology that will be gone tomorrow. The question should not be how to +regulate the Internet to eliminate file sharing (the Net will evolve that +problem away). The question instead should be how to assure that artists get +paid, during this transition between twentieth-century models for doing +business and twenty-first-century technologies. + +The answer begins with recognizing that there are different "problems" here to +solve. Let's start with type D content - uncopyrighted content or copyrighted +content that the artist wants shared. The "problem" with this content is to +make sure that the technology that would enable this kind of sharing is not +rendered illegal. You can think of it this way: Pay phones are used to deliver +ransom demands, no doubt. But there are many who need to use pay phones who +have nothing to do with ransoms. It would be wrong to ban pay phones in order +to eliminate kidnapping. + +Type C content raises a different "problem." This is content that was, at one +time, published and is no longer available. It may be unavailable because the +artist is no longer valuable enough for the record label he signed with to +carry his work. Or it may be unavailable because the work is forgotten. Either +way, the aim of the law should be to facilitate the access to this content, +ideally in a way that returns something to the artist. + +Again, the model here is the used book store. Once a book goes out of print, it +may still be available in libraries and used book stores. But libraries and +used book stores don't pay the copyright owner when someone reads or buys an +out-of- print book. That makes total sense, of course, since any other system +would be so burdensome as to eliminate the possibility of used book stores' +existing. But from the author's perspective, this "sharing" of his content +without his being compensated is less than ideal. +={ books : + out of print | resales of +} + +The model of used book stores suggests that the law could simply deem +out-of-print music fair game. If the publisher does not make copies of the +music available for sale, then commercial and noncommercial providers would be +free, under this rule, to "share" that content, even though the sharing +involved making a copy. The copy here would be incidental to the trade; in a +context where commercial publishing has ended, trading music should be as free +as trading books. + +Alternatively, the law could create a statutory license that would ensure that +artists get something from the trade of their work. For example, if the law set +a low statutory rate for the commercial sharing of content that was not offered +for sale by a commercial publisher, and if that rate were automatically +transferred to a trust for the benefit of the artist, then businesses could +develop around the idea of trading this content, and artists would benefit from +this trade. +={ copyright infringement lawsuits : + statutory licenses in +1 ; + statutory licenses +1 +} + +This system would also create an incentive for publishers to keep works +available commercially. Works that are available commercially would not be +subject to this license. Thus, publishers could protect the right to charge +whatever they want for content if they kept the work commercially available. +But if they don't keep it available, and instead, the computer hard disks of +fans around the world keep it alive, then any royalty owed for such copying +should be much less than the amount owed a commercial publisher. + +The hard case is content of types A and B, and again, this case is hard only +because the extent of the problem will change over time, as the technologies +for gaining access to content change. The law's solution should be as flexible +as the problem is, understanding that we are in the middle of a radical +transformation in the technology for delivering and accessing content. + +So here's a solution that will at first seem very strange to both sides in this +war, but which upon reflection, I suggest, should make some sense. + +Stripped of the rhetoric about the sanctity of property, the basic claim of the +content industry is this: A new technology (the Internet) has harmed a set of +rights that secure copyright. If those rights are to be protected, then the +content industry should be compensated for that harm. Just as the technology of +tobacco harmed the health of millions of Americans, or the technology of +asbestos caused grave illness to thousands of miners, so, too, has the +technology of digital networks harmed the interests of the content industry. + +I love the Internet, and so I don't like likening it to tobacco or asbestos. +But the analogy is a fair one from the perspective of the law. And it suggests +a fair response: Rather than seeking to destroy the Internet, or the p2p +technologies that are currently harming content providers on the Internet, we +should find a relatively simple way to compensate those who are harmed. +={ recording industry : + artist remuneration in +4 ; + artists : + recording industry payments to +} + +The idea would be a modification of a proposal that has been floated by Harvard +law professor William Fisher.~{ William Fisher, /{Digital Music: Problems and +Possibilities}/ (last revised: 10 October 2000), available at link #77; William +Fisher, /{Promises to Keep: Technology, Law, and the Future of Entertainment}/ +(forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available at +link #78. Professor Netanel has proposed a related idea that would exempt +noncommercial sharing from the reach of copyright and would establish +compensation to artists to balance any loss. See Neil Weinstock Netanel, +"Impose a Noncommercial Use Levy to Allow Free P2P File Sharing," available at +link #79. For other proposals, see Lawrence Lessig, "Who's Holding Back +Broadband?" /{Washington Post,}/ 8 January 2002, A17; Philip S. Corwin on +behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman +of the Senate Foreign Relations Committee, 26 February 2002, available at link +#80; Serguei Osokine, /{A Quick Case for Intellectual Property Use Fee +(IPUF),}/ 3 March 2002, available at link #81; Jefferson Graham, "Kazaa, +Verizon Propose to Pay Artists Directly," /{USA Today,}/ 13 May 2002, available +at link #82; Steven M. Cherry, "Getting Copyright Right," IEEE Spectrum Online, +1 July 2002, available at link #83; Declan Mc-Cullagh, "Verizon's Copyright +Campaign," CNET News.com, 27 August 2002, available at link #84. Fisher's +proposal is very similar to Richard Stallman's proposal for DAT. Unlike +Fisher's, Stallman's proposal would not pay artists directly proportionally, +though more popular artists would get more than the less popular. As is typical +with Stallman, his proposal predates the current debate by about a decade. See +link #85. }~ Fisher suggests a very clever way around the current impasse of +the Internet. Under his plan, all content capable of digital transmission would +(1) be marked with a digital watermark (don't worry about how easy it is to +evade these marks; as you'll see, there's no incentive to evade them). Once the +content is marked, then entrepreneurs would develop (2) systems to monitor how +many items of each content were distributed. On the basis of those numbers, +then (3) artists would be compensated. The compensation would be paid for by +(4) an appropriate tax. +={ Fisher, William +2 ; + Promises to Keep (Fisher) +1 +} + +Fisher's proposal is careful and comprehensive. It raises a million questions, +most of which he answers well in his upcoming book, /{Promises to Keep}/. The +modification that I would make is relatively simple: Fisher imagines his +proposal replacing the existing copyright system. I imagine it complementing +the existing system. The aim of the proposal would be to facilitate +compensation to the extent that harm could be shown. This compensation would be +temporary, aimed at facilitating a transition between regimes. And it would +require renewal after a period of years. If it continues to make sense to +facilitate free exchange of content, supported through a taxation system, then +it can be continued. If this form of protection is no longer necessary, then +the system could lapse into the old system of controlling access. + +Fisher would balk at the idea of allowing the system to lapse. His aim is not +just to ensure that artists are paid, but also to ensure that the system +supports the widest range of "semiotic democracy" possible. But the aims of +semiotic democracy would be satisfied if the other changes I described were +accomplished - in particular, the limits on derivative uses. A system that +simply charges for access would not greatly burden semiotic democracy if there +were few limitations on what one was allowed to do with the content itself. +={ semiotic democracy ; + democracy : + semiotic +} + +No doubt it would be difficult to calculate the proper measure of "harm" to an +industry. But the difficulty of making that calculation would be outweighed by +the benefit of facilitating innovation. This background system to compensate +would also not need to interfere with innovative proposals such as Apple's +MusicStore. As experts predicted when Apple launched the MusicStore, it could +beat "free" by being easier than free is. This has proven correct: Apple has +sold millions of songs at even the very high price of 99 cents a song. (At 99 +cents, the cost is the equivalent of a per-song CD price, though the labels +have none of the costs of a CD to pay.) Apple's move was countered by Real +Networks, offering music at just 79 cents a song. And no doubt there will be a +great deal of competition to offer and sell music on-line. +={ Apple Corporation ; + MusicStore ; + Real Networks ; + CDs : + prices of +} + +This competition has already occurred against the background of "free" music +from p2p systems. As the sellers of cable television have known for thirty +years, and the sellers of bottled water for much more than that, there is +nothing impossible at all about "competing with free." Indeed, if anything, the +competition spurs the competitors to offer new and better products. This is +precisely what the competitive market was to be about. Thus in Singapore, +though piracy is rampant, movie theaters are often luxurious - with "first +class" seats, and meals served while you watch a movie - as they struggle and +succeed in finding ways to compete with "free." +={ cable television ; + television : + cable vs. broadcast ; + Asia, commercial piracy in ; + piracy : + in Asia ; + film industry : + luxury theatres vs. video piracy in +} + +This regime of competition, with a backstop to assure that artists don't lose, +would facilitate a great deal of innovation in the delivery of content. That +competition would continue to shrink type A sharing. It would inspire an +extraordinary range of new innovators - ones who would have a right to the +content, and would no longer fear the uncertain and barbarically severe +punishments of the law. + +In summary, then, my proposal is this: + +The Internet is in transition. We should not be regulating a technology in +transition. We should instead be regulating to minimize the harm to interests +affected by this technological change, while enabling, and encouraging, the +most efficient technology we can create. + +We can minimize that harm while maximizing the benefit to innovation by + +_1 1. guaranteeing the right to engage in type D sharing; + +_1 2. permitting noncommercial type C sharing without liability, and commercial +type C sharing at a low and fixed rate set by statute; + +_1 3. while in this transition, taxing and compensating for type A sharing, to +the extent actual harm is demonstrated. + +But what if "piracy" doesn't disappear? What if there is a competitive market +providing content at a low cost, but a significant number of consumers continue +to "take" content for nothing? Should the law do something then? + +Yes, it should. But, again, what it should do depends upon how the facts +develop. These changes may not eliminate type A sharing. But the real issue is +not whether it eliminates sharing in the abstract. The real issue is its effect +on the market. Is it better (a) to have a technology that is 95 percent secure +and produces a market of size /{x}/, or (b) to have a technology that is 50 +percent secure but produces a market of five times /{x}/? Less secure might +produce more unauthorized sharing, but it is likely to also produce a much +bigger market in authorized sharing. The most important thing is to assure +artists' compensation without breaking the Internet. Once that's assured, then +it may well be appropriate to find ways to track down the petty pirates. + +But we're a long way away from whittling the problem down to this subset of +type A sharers. And our focus until we're there should not be on finding ways +to break the Internet. Our focus until we're there should be on how to make +sure the artists are paid, while protecting the space for innovation and +creativity that the Internet is. + +2~5 5. Fire Lots of Lawyers +={ copyright law : + lawyers as detriment to +12 ; + lawyers : + copyright cultural balance impeded by +12 ; + legal system, attorney costs in +12 +} + +I'm a lawyer. I make lawyers for a living. I believe in the law. I believe in +the law of copyright. Indeed, I have devoted my life to working in law, not +because there are big bucks at the end but because there are ideals at the end +that I would love to live. + +Yet much of this book has been a criticism of lawyers, or the role lawyers have +played in this debate. The law speaks to ideals, but it is my view that our +profession has become too attuned to the client. And in a world where the rich +clients have one strong view, the unwillingness of the profession to question +or counter that one strong view queers the law. + +The evidence of this bending is compelling. I'm attacked as a "radical" by many +within the profession, yet the positions that I am advocating are precisely the +positions of some of the most moderate and significant figures in the history +of this branch of the law. Many, for example, thought crazy the challenge that +we brought to the Copyright Term Extension Act. Yet just thirty years ago, the +dominant scholar and practitioner in the field of copyright, Melville Nimmer, +thought it obvious.~{ Lawrence Lessig, "Copyright's First Amendment" (Melville +B. Nimmer Memorial Lecture), /{UCLA Law Review}/ 48 (2001): 1057, 1069-70. }~ +={ Nimmer, Melville ; + Sonny Bono Copyright Term Extension Act (CTEA) (1998) : + Supreme Court challenge of +} + +However, my criticism of the role that lawyers have played in this debate is +not just about a professional bias. It is more importantly about our failure to +actually reckon the costs of the law. + +Economists are supposed to be good at reckoning costs and benefits. But more +often than not, economists, with no clue about how the legal system actually +functions, simply assume that the transaction costs of the legal system are +slight.~{ A good example is the work of Professor Stan Liebowitz. Liebowitz is +to be commended for his careful review of data about infringement, leading him +to question his own publicly stated position - twice. He initially predicted +that downloading would substantially harm the industry. He then revised his +view in light of the data, and he has since revised his view again. Compare +Stan J. Liebowitz, /{Rethinking the Network Economy: The True Forces That Drive +the Digital Marketplace}/ (New York: Amacom, 2002), 173 (reviewing his original +view but expressing skepticism) with Stan J. Liebowitz, "Will MP3s Annihilate +the Record Industry?" working paper, June 2003, available at link #86. +Liebowitz's careful analysis is extremely valuable in estimating the effect of +file-sharing technology. In my view, however, he underestimates the costs of +the legal system. See, for example, /{Rethinking,}/ 174-76. }~ They see a +system that has been around for hundreds of years, and they assume it works the +way their elementary school civics class taught them it works. + +But the legal system doesn't work. Or more accurately, it doesn't work for +anyone except those with the most resources. Not because the system is corrupt. +I don't think our legal system (at the federal level, at least) is at all +corrupt. I mean simply because the costs of our legal system are so +astonishingly high that justice can practically never be done. + +These costs distort free culture in many ways. A lawyer's time is billed at the +largest firms at more than $400 per hour. How much time should such a lawyer +spend reading cases carefully, or researching obscure strands of authority? The +answer is the increasing reality: very little. The law depended upon the +careful articulation and development of doctrine, but the careful articulation +and development of legal doctrine depends upon careful work. Yet that careful +work costs too much, except in the most high-profile and costly cases. + +The costliness and clumsiness and randomness of this system mock our tradition. +And lawyers, as well as academics, should consider it their duty to change the +way the law works - or better, to change the law so that it works. It is wrong +that the system works well only for the top 1 percent of the clients. It could +be made radically more efficient, and inexpensive, and hence radically more +just. + +But until that reform is complete, we as a society should keep the law away +from areas that we know it will only harm. And that is precisely what the law +will too often do if too much of our culture is left to its review. + +Think about the amazing things your kid could do or make with digital +technology - the film, the music, the Web page, the blog. Or think about the +amazing things your community could facilitate with digital technology - a +wiki, a barn raising, activism to change something. Think about all those +creative things, and then imagine cold molasses poured onto the machines. This +is what any regime that requires permission produces. Again, this is the +reality of Brezhnev's Russia. + +The law should regulate in certain areas of culture - but it should regulate +culture only where that regulation does good. Yet lawyers rarely test their +power, or the power they promote, against this simple pragmatic question: "Will +it do good?" When challenged about the expanding reach of the law, the lawyer +answers, "Why not?" + +We should ask, "Why?" Show me why your regulation of culture is needed. Show me +how it does good. And until you can show me both, keep your lawyers away. + +:B~ NOTES + +1~webnotes Notes~# + +Throughout this text, there are references to links on the World Wide Web. As +anyone who has tried to use the Web knows, these links can be highly unstable. +I have tried to remedy the instability by redirecting readers to the original +source through the Web site associated with this book. For each link below, you +can go to http://free-culture.cc/notes and locate the original source by +clicking on the number after the # sign. If the original link remains alive, +you will be redirected to that link. If the original link has disappeared, you +will be redirected to an appropriate reference for the material. + +:B~ ACKNOWLEDGMENTS + +1~acknowledgements [Acknowledgments]-# + +This book is the product of a long and as yet unsuccessful struggle that began +when I read of Eric Eldred's war to keep books free. Eldred's work helped +launch a movement, the free culture movement, and it is to him that this book +is dedicated. I received guidance in various places from friends and academics, +including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark +Rose, and Kathleen Sullivan. And I received correction and guidance from many +amazing students at Stanford Law School and Stanford University. They included +Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica +Goldberg, Robert Hall- man, Andrew Harris, Matthew Kahn, Brian Link, Ohad +Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine +Crump and Harry Surden, who helped direct their research, and to Laura Lynch, +who brilliantly managed the army that they assembled, and provided her own +critical eye on much of this. Yuko Noguchi helped me to understand the laws of +Japan as well as its culture. I am thankful to her, and to the many in Japan +who helped me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, +Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I +am thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University +Business Law Center, for giving me the chance to spend time in Japan, and to +Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was +there. These are the traditional sorts of help that academics regularly draw +upon. But in addition to them, the Internet has made it possible to receive +advice and correction from many whom I have never even met. Among those who +have responded with extremely helpful advice to requests on my blog about the +book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as well as +a long list of those who had specific ideas about ways to develop my argument. +They included Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob +Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger, Vaughn +Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt, K. L. Mann, Mark +Manning, Nora McCauley, Jeffrey McHugh, Evan McMullen, Fred Norton, John +Pormann, Pedro A. D. Rezende, Shabbir Safdar, Saul Schleimer, Clay Shirky, Adam +Shostack, Kragen Sitaker, Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, +Sean Walsh, Matt Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da +Jazz," and Richard Yanco. (I apologize if I have missed anyone; with computers +come glitches, and a crash of my e-mail system meant I lost a bunch of great +replies.) Richard Stallman and Michael Carroll each read the whole book in +draft, and each provided extremely helpful correction and advice. Michael +helped me to see more clearly the significance of the regulation of derivitive +works. And Richard corrected an embarrassingly large number of errors. While my +work is in part inspired by Stallman's, he does not agree with me in important +places throughout this book. Finally, and forever, I am thankful to Bettina, +who has always insisted that there would be unending happiness away from these +battles, and who has always been right. This slow learner is, as ever, grateful +for her perpetual patience and love. + +1~about ABOUT THE AUTHOR + +{lessig.jpg 151x227 "Lawrence Lessig" }http://www.lessig.org/ + +LAWRENCE LESSIG ( http://www.lessig.org ), professor of law and a John A. +Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the +Stanford Center for Internet and Society and is chairman of the Creative +Commons ( http://creativecommons.org ). The author of The Future of Ideas +(Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, +1999), Lessig is a member of the boards of the Public Library of Science, the +Electronic Frontier Foundation, and Public Knowledge. He was the winner of the +Free Software Foundation's Award for the Advancement of Free Software, twice +listed in BusinessWeek's "e.biz 25," and named one of Scientific American's "50 +visionaries." A graduate of the University of Pennsylvania, Cambridge +University, and Yale Law School, Lessig clerked for Judge Richard Posner of the +U.S. Seventh Circuit Court of Appeals. + +1~misc Other Works and REVIEWS of FreeCulture + +http://www.lessig.org/blog/archives/001840.shtml + +http://www.free-culture.cc/reviews/ + +1~jacket JACKET + +"FREE CULTURE is an entertaining and important look at the past and future of +the cold war between the media industry and new technologies." + +-- Marc Andreessen, cofounder of Netscape + +"The twenty-first century could be the century of unprecedented creativity, but +only if we embrace the brilliantly articulated messages in Lawrence Lessig's +FREE CULTURE. This book is beautifully written, crisply argued, and deeply +provocative. Please read it!" + +-- John Seely Brown, coauthor of THE SOCIAL LIFE OF INFORMATION and former +Chief Scientist, Xerox PARC + +"America needs a national conversation about the way in which so-called +'intellectual property rights' have come to dominate the rights of scholars, +researchers, and everyday citizens. A copyright cartel, bidding for absolute +control over digital worlds, music, and movies, now has a veto over +technological innovation and has halted most contributions to the public domain +from which so many have benefited. The patent system has spun out of control, +giving enormous power to entrenched interests, and even trademarks are being +misused. Lawrence Lessig's latest book is essential reading for anyone who want +to join this conversation. He explains how technology and the law are robbing +us of the public domain; but for all his educated pessimism, Professor Lessig +offers some solutions, too, because he recognizes that technology can be the +catalyst for freedom. If you care about the future of innovation, read this +book." + +-- Dan Gillmor, author of MAKING THE NEWS, an upcoming book on the collision of +media and technology + +"FREE CULTURE goes beyond illuminating the catastrophe to our culture of +increasing regulation to show examples of how we can make a different future. +These new-style heroes and examples are rooted in the traditions of the +founding fathers in ways that seem obvious after reading this book. Recommended +reading to those trying to unravel the shrill hype around 'intellectual +property.'" + +-- Brewster Kahle, founder of the Internet Archive + +%% SiSU markup sample Notes: +% SiSU http://www.jus.uio.no/sisu +% SiSU markup for 0.16 and later: +% 0.20.4 header 0~links +% 0.22 may drop image dimensions (rmagick) +% 0.23 utf-8 ß +% 0.38 or later, may use alternative notation for headers, e.g. @title: (instead of 0~title) +% 0.38 document structure alternative markup, experimental (rad) A,B,C,1,2,3 maps to 1,2,3,4,5,6 +% Output: http://www.jus.uio.no/sisu/free_culture.lawrence_lessig/sisu_manifest.html +% SiSU 0.38 experimental (alternative structure) markup used for this document |