path: root/data/samples/wrapped/en/free_culture.lawrence_lessig.sst

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@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

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: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

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