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@title: The Public Domain
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 :author: Boyle, James

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 :published: 2008

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1~ Acknowledgments

The ideas for this book come from the theoretical and practical work I have been doing for the last ten years. None of that work has been done alone. As a result, the list of people to whom I am indebted makes Oscar night acknowledgments look haiku-terse by comparison. Here I can mention only a few. I beg pardon for the inevitable omissions. First and foremost, my family has tolerated my eccentricities and fixations and moderated them with gentle and deserved mockery. “Want that insignia torn off your car, Dad? Then it would be in the public domain, right?”

My colleagues at Duke are one of the main influences on my work. I am lucky
enough to work in the only “Center for the Study of the Public Domain” in the
academic world. I owe the biggest debt of gratitude to my colleague Jennifer
Jenkins, who directs the Center and who has influenced every chapter in this
book. David Lange brought me to Duke. His work on the public domain has always
been an inspiration to mine. Arti Rai’s remarkable theoretical and empirical
studies have helped me to understand everything from software patents to
synthetic biology. Jerry Reichman has supplied energy, insight, and a spirited
and cosmopolitan focus on the multiple ways in which property can be protected.
Jed Purdy and Neil Siegel commented on drafts and provided crucial insights on
the construction of my argument. Catherine Fisk, Jim Salzman, Stuart Benjamin,
Jonathan Wiener, Mitu Gulati, Jeff Powell, Chris Schroeder, and many, many
others helped out—sometimes without knowing it, but often at the cost of the
scarcest of all resources: time. Amidst a brilliant group of research
assistants, Jordi Weinstock and David Silverstein stood out. Jordi showed a
dogged ability to track down obscure 1950s songs that was almost scary.
Additional thanks go to Jennifer Ma, Tolu Adewale, Paulina Orchard, and Emily
Sauter. Balfour Smith, the coordinator of our Center, shepherded the manuscript
through its many drafts with skill and erudition.

Duke is the most interdisciplinary university I have ever encountered and so
the obligations flow beyond the law school. Professor Anthony Kelley, a
brilliant composer, not only educated me in composition and the history of
musical borrowing but co-taught a class on musical borrowing that dramatically
influenced Chapter 6. Colleagues in the business school—particularly Jim Anton,
a great economic modeler and greater volleyball partner, and Wes Cohen, a
leading empiricist—all left their marks. Dr. Robert Cook-Deegan, leader of
Duke’s Center for Public Genomics, and my wife Lauren Dame, associate director
of the Genome Ethics, Law and Policy Center, provided crucial support to my
work with the sciences in general and synthetic biology in particular. I was
also inspired and informed by colleagues and students in computer science,
English, history, and political science.

But the work I am describing here is—as the last chapter suggests—something
that goes far beyond the boundaries of one institution. A large group of
intellectual property scholars have influenced my ideas. Most importantly,
Larry Lessig and Yochai Benkler have each given far more than they received
from me in the “sharing economy” of scholarship. If the ideas I describe here
have a future, it is because of the astounding leadership Larry has provided
and the insights into “the wealth of networks” that Yochai brings. Jessica
Litman, Pam Samuelson, Michael Carroll, Julie Cohen, Peggy Radin, Carol Rose,
Rebecca Eisenberg, Mark Lemley, Terry Fisher, Justin Hughes, Neil Netanel,
Wendy Gordon, David Nimmer, Tyler Ochoa, Tim Wu, and many others have all
taught me things I needed to know. Jessica in particular caught and corrected
(some of ) my many errors, while Pam encouraged me to think about the
definition of the public domain in ways that have been vital to this book.
Michael suggested valuable edits—though I did not always listen. Historical
work by Carla Hesse, Martha Woodmansee, and Mark Rose has been central to my
analysis, which also could not have existed but for work on the governance of
the commons by Elinor Ostrom, Charlotte Hess, and Carol Rose. Kembrew McLeod
and Siva Vaidhyanathan inspired my work on music and sampling. Peter Jaszi was
named in my last book as the person who most influenced it. That influence
remains.

Beyond the academy, my main debt is to the board members and staff of Creative
Commons, Science Commons, and ccLearn. Creative Commons, on whose board I am
proud to have served, is the brainchild of Larry Lessig and Hal Abelson;
Science Commons and ccLearn are divisions of Creative Commons that I helped to
set up which concentrate on the sciences and on education, respectively. The
practical experience of building a “creative commons” with private tools—of
allowing creative collaboration with people you have never met—has shaped this
book far beyond the chapter devoted to it. Hal Abelson, Michael Carroll, and
Eric Saltzman were on the midwife team for the birth of those organizations and
became close friends in the process. Since the entire Creative Commons staff
has made it routine to do seven impossible things before breakfast, it is hard
to single out any one individual—but without Glenn Brown at Creative Commons
and John Wilbanks at Science Commons, neither organization would exist today.
Jimmy Wales, founder of Wikipedia and another Creative Commons board member,
also provided key insights. Finally, but for the leadership of Laurie Racine
neither Creative Commons nor our Center at Duke would be where they are today,
and thus many of the experiments I describe in this book would not have
happened.

The intellectual property bar is a fascinating, brilliant, and engagingly
eccentric group of lawyers. I owe debts to many of its members. Whitney
Broussard told me the dirty secrets of the music industry. Daphne Keller—a
former student and later a colleague—helped in more ways than I can count.

A number of scientists and computer scientists made me see things I otherwise
would not have—Drew Endy and Randy Ruttenberg in synthetic biology, Nobel
laureates Sir John Sulston and Harold Varmus in genomics and biology more
generally, Paul Ginsparg in astrophysics, and Harlan Onsrud in geospatial data.
Paul Uhlir’s work at the National Academy of Sciences introduced me to many of
these issues. The work of Richard Stallman, the creator of the free software
movement, remains an inspiration even though he profoundly disagrees with my
nomenclature here—and with much else besides.

Activists, civil rights lawyers, bloggers, and librarians have actually done
much of the hard work of building the movement I describe at the end of this
book. Jamie Love has touched, sparked, or masterminded almost every benign
development I write about here, and novelist Cory Doctorow has either blogged
it or influenced it. I have worked particularly closely with Manon Ress, Fred
von Lohmann, Cindy Cohn, Jason Schultz, and Gigi Sohn. John Howkins and
Gilberto Gil have provided considerable leadership internationally. But there
are many, many others. The entire community of librarians deserves our thanks
for standing up for free public access to knowledge for over two hundred years.
Librarians are my heroes. They should be yours, too.

Some of the work contained here has been published in other forms elsewhere.
Portions of Chapters 2 and 3 appeared as “The Second Enclosure Movement and the
Construction of the Public Domain”;~{James Boyle, “The Second Enclosure
Movement and the Construction of the Public Domain,” Law and Contemporary
Problems 66 (Winter–Spring 2003): 33–74.}~ Chapter 7 shares little textually
but much in terms of inspiration with an article I co-wrote for PLoS Biology
with Arti Rai, “Synthetic Biology: Caught between Property Rights, the Public
Domain, and the Commons.”~{Arti Rai and James Boyle, “Synthetic Biology: Caught
between Property Rights, the Public Domain, and the Commons,” PLoS Biology 5
(2007): 389–393, available at
http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050058&ct=1.
}~ For several years now I have been a columnist for the Financial Times’s “New
Economy Policy Forum.” Portions of Chapter 5 and Chapter 9 had their origins in
columns written for that forum. Chapter 10 has its roots both in my article “A
Politics of Intellectual Property: Environmentalism for the Net?”~{James Boyle,
“A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law
Journal 47 (1997): 87–116, available at
http://www.law.duke.edu/journals/cite.php?47+Duke+L.+J.+87. }~ and in the
symposium, Cultural Environmentalism @ 10,~{“Cultural Environmentalism @ 10,”
Law and Contemporary Problems 70 (Spring 2007): 1–210, available at
http://www.law.duke.edu/ce10. }~ that Larry Lessig kindly organized for the
tenth anniversary of that article.

Finally, I need to thank the institutions who have supported this study. The
Rockefeller Center in Bellagio provided an inspiring beginning. The Ford,
Rockefeller, MacArthur, and Hewlett Foundations have generously supported my
work, as have Duke Law School’s research grants and Bost Fellowships. My work
on synthetic biology and the human genome was supported in part by a CEER grant
from the National Human Genome Research Institute and the Department of Energy
(P50 HG003391-02). In addition, my thanks go out to the anonymous donor whose
generous donation allowed us to found the Center for the Study of the Public
Domain, and to Bob Young and Laurie Racine, whose work made the Center
possible. Yale University Press were supportive and critical in all the right
places. I would like to thank them for agreeing to release this work under a
Creative Commons license. What could be more appropriate to the book’s theme?

I could go on and on. But I will not. This flurry of names and areas of
knowledge signifies more than just the deep thanks of a dilettante. It
signifies the emergence of an area of concern, the coming together of very
different groups around a shared problem—an imbalance in the rules that define
property in the information age. It is that problem, its history, philosophy,
and politics that I try to sketch out in the pages ahead.



1~ Preface: Comprised of at Least Jelly?

Each person has a different breaking point. For one of my students it was
United States Patent number 6,004,596 for a “Sealed Crustless Sandwich.” In the
curiously mangled form of English that patent law produces, it was described
this way:

_1 A sealed crustless sandwich for providing a convenient sandwich without an
outer crust which can be stored for long periods of time without a central
filling from leaking outwardly. The sandwich includes a lower bread portion, an
upper bread portion, an upper filling and a lower filling between the lower and
upper bread portions, a center filling sealed between the upper and lower
fillings, and a crimped edge along an outer perimeter of the bread portions for
sealing the fillings there between. The upper and lower fillings are preferably
comprised of peanut butter and the center filling is comprised of at least
jelly. The center filling is prevented from radiating outwardly into and
through the bread portions from the surrounding peanut butter.~{U.S. Patent No.
6,004,596 (filed Dec. 21, 1999), available at
http://patft.uspto.gov/netahtml/PTO/srchnum.htm (search “6,004,596”). As is
required, the patent refers extensively to the “prior art”—in this case prior
art in sealing sandwiches. It also refers to the classic scientific reference
work “50 Great Sandwiches by Carole Handslip 81–84, 86, 95, 1994.” Is this
patent ridiculous? Yes, clearly so. But not so ridiculous that its eventual
owner, Smucker’s, refrained from sending out cease and desist letters to
competing sandwich manufacturers, and, when one of those competitors
successfully requested the Patent and Trademark Office to reexamine the patent,
from appealing the resulting rejection all the way through the Board of Patent
Appeals and Interferences to the Court of Appeals for the Federal Circuit. The
judges there were less than sympathetic at oral argument. “Judge Arthur Gajarsa
noted that his wife often squeezes together the sides of their child’s peanut
butter and jelly sandwiches to keep the filling from oozing out. ‘I’m afraid
she might be infringing on your patent!’ he said.” The court found that the PTO
got it right the second time around and agreed with the Board of Patent Appeals
in rejecting the patent. Portfolio Media, “Peanut Butter and Jelly Case Reaches
Federal Circuit,” IPLaw360 (April 7, 2005), available at
http://www.iplawbulletin.com. For the Board of Patent Appeals’s learned
discussion of whether the patent was anticipated by such devices as the
“Tartmaster,” complete with disputes over expert testimony on the subjects of
cutting, crimping, and “leaking outwardly” and painstaking inquiries about what
would seem obvious to a “person having ordinary skill in the art of sandwich
making,” see http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd031754
and http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd031775. One could
conclude from this case that the system works (eventually). Or one could ask
who cares about silly patents like this—even if they are used in an attempt to
undermine competition? The larger point, however, is that an initial process of
examination that finds a crimped peanut butter and jelly sandwich is “novel and
nonobvious” is hardly going to do better when more complex technologies are at
stake. I take that point up in Chapter 2 with reference to Thomas Jefferson’s
discussion of patents and in Chapter 7 on synthetic biology. For a more general
discussion of the flaws of the patent system see Adam B. Jaffe and Josh Lerner,
Innovation and Its Discontents: How Our Broken Patent System Is Endangering
Innovation, and Progress and What To Do About It (Princeton, N.J.: Princeton
University Press, 2004).}~

“But why does this upset you?” I asked; “you’ve seen much worse than this.” And
he had. There are patents on human genes, on auctions, on algorithms.~{These
types of patents are discussed in Chapter 7.}~ The U.S. Olympic Committee has
an expansive right akin to a trademark over the word “Olympic” and will not
permit gay activists to hold a “Gay Olympic Games.” The Supreme Court sees no
First Amendment problem with this.~{San Francisco Arts & Athletics, Inc., et
al. v. United States Olympic Committee, 483 U.S. 522 (1987). See also James
Boyle, Shamans, Software, and Spleens: Law and the Construction of the
Information Society (Cambridge, Mass.: Harvard University Press, 1996),
145–148.}~ Margaret Mitchell’s estate famously tried to use copyright to
prevent Gone With the Wind from being told from a slave’s point of
view.~{SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).}~
The copyright over the words you are now reading will not expire until seventy
years after my death; the men die young in my family, but still you will allow
me to hope that this might put it close to the year 2100. Congress periodically
considers legislative proposals that would allow the ownership of facts.~{See
Samuel E. Trosow, “Sui Generis Database Legislation: A Critical Analysis,” Yale
Journal of Law & Technology 7 (2005): 534–642; Miriam Bitton, “Trends in
Protection for Informational Works under Copyright Law during the 19th and 20th
Centuries,” Michigan Telecommunications & Technology Law Review 13 (2006):
115–176.}~ The Digital Millennium Copyright Act gives content providers a whole
array of legally protected digital fences to enclose their work.~{The Digital
Millennium Copyright Act is discussed at length in Chapter 5. “Digital fences”
include password protection, encryption, and forms of digital rights
management.}~ In some cases it effectively removes the privilege of fair use.
Each day brings some new Internet horror story about the excesses of
intellectual property. Some of them are even true. The list goes on and on. (By
the end of this book, I hope to have convinced you that this matters.) With all
of this going on, this enclosure movement of the mind, this locking up of
symbols and themes and facts and genes and ideas (and eventually people), why
get excited about the patenting of a peanut butter and jelly sandwich? “I just
thought that there were limits,” he said; “some things should be sacred.”

This book is an attempt to tell the story of the battles over intellectual
property, the range wars of the information age. I want to convince you that
intellectual property is important, that it is something that any informed
citizen needs to know a little about, in the same way that any informed citizen
needs to know at least something about the environment, or civil rights, or the
way the economy works. I will try my best to be fair, to explain the issues and
give both sides of the argument. Still, you should know that this is more than
mere description. In the pages that follow, I try to show that current
intellectual property policy is overwhelmingly and tragically bad in ways that
everyone, and not just lawyers or economists, should care about. We are making
bad decisions that will have a negative effect on our culture, our kids’
schools, and our communications networks; on free speech, medicine, and
scientific research. We are wasting some of the promise of the Internet,
running the risk of ruining an amazing system of scientific innovation, carving
out an intellectual property exemption to the First Amendment. I do not write
this as an enemy of intellectual property, a dot-communist ready to end all
property rights; in fact, I am a fan. It is precisely because I am a fan that I
am so alarmed about the direction we are taking.

Still, the message of this book is neither doom nor gloom. None of these
decisions is irrevocable. The worst ones can still be avoided altogether, and
there are powerful counterweights in both law and culture to the negative
trends I describe here. There are lots of reasons for optimism. I will get to
most of these later, but one bears mentioning now. Contrary to what everyone
has told you, the subject of intellectual property is both accessible and
interesting; what people can understand, they can change—or pressure their
legislators to change.

I stress this point because I want to challenge a kind of willed ignorance.
Every news story refers to intellectual property as “arcane,” “technical,” or
“abstruse” in the same way as they referred to former attorney general Alberto
Gonzales as “controversial.” It is a verbal tic and it serves to reinforce the
idea that this is something about which popular debate is impossible. But it is
also wrong. The central issues of intellectual property are not technical,
abstruse, or arcane. To be sure, the rules of intellectual property law can be
as complex as a tax code (though they should not be). But at the heart of
intellectual property law are a set of ideas that a ten-year-old can understand
perfectly well. (While writing this book, I checked this on a ten-year-old I
then happened to have around the house.) You do not need to be a scientist or
an economist or a lawyer to understand it. The stuff is also a lot of fun to
think about. I live in constant wonder that they pay me to do so.

Should you be able to tell the story of Gone With the Wind from a slave’s point
of view even if the author does not want you to? Should the Dallas Cowboys be
able to stop the release of Debbie Does Dallas, a cheesy porno flick, in which
the title character brings great dishonor to a uniform similar to that worn by
the Dallas Cowboys Cheerleaders? (After all, the audience might end up
associating the Dallas Cowboys Cheerleaders with . . . well, commodified
sexuality.)~{Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. , 604
F.2d 200 (2nd Cir. 1979).}~

Should the U.S. Commerce Department be able to patent the genes of a Guyami
Indian woman who shows an unusual resistance to leukemia?~{“In the forests of
Panama lives a Guyami Indian woman who is unusually resistant to a virus that
causes leukemia. She was discovered by scientific ‘gene hunters,’ engaged in
seeking out native peoples whose lives and cultures are threatened with
extinction. Though they provided basic medical care, the hunters did not set
out to preserve the people, only their genes—which can be kept in cultures of
‘immortalized’ cells grown in the laboratory. In 1993, the U.S. Department of
Commerce tried to patent the Guyami woman’s genes—and only abandoned the
attempt in the face of furious protest from representatives of indigenous
peoples.” Tom Wilkie, “Whose Gene Is It Anyway?” Independent (London, November
19, 1995), 75.}~ What would it mean to patent someone’s genes, anyway?
Forbidding scientific research on the gene without the patent holder’s consent?
Forbidding human reproduction? Can religions secure copyrights over their
scriptures? Even the ones they claim to have been dictated by gods or aliens?
Even if American copyright law requires “an author,” presumably a human
one?~{See Christina Rhee, “Urantia Foundation v. Maaherra,” Berkeley Technology
Law Journal 13 (1998): 69–81.}~ Can they use those copyrights to discipline
heretics or critics who insist on quoting the scripture in full?

Should anyone own the protocols—the agreed-upon common technical standards—that
make the Internet possible? Does reading a Web page count as “copying” it?~{See
James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,”
Harvard Journal of Law & Technology 10 (1996): 83–94.}~ Should that question
depend on technical “facts” (for example, how long the page stays in your
browser’s cache) or should it depend on some choice that we want to make about
the extent of the copyright holder’s rights?

These questions may be hard, because the underlying moral and political and
economic issues need to be thought through. They may be weird; alien scriptural
dictation might qualify there. They surely aren’t uninteresting, although I
admit to a certain prejudice on that point. And some of them, like the design
of our telecommunications networks, or the patenting of human genes, or the
relationship between copyright and free speech, are not merely interesting,
they are important. It seems like a bad idea to leave them to a few lawyers and
lobbyists simply because you are told they are “technical.”

So the first goal of the book is to introduce you to intellectual property, to
explain why it matters, why it is the legal form of the information age. The
second goal is to persuade you that our intellectual property policy is going
the wrong way; two roads are diverging and we are on the one that doesn’t lead
to Rome.

The third goal is harder to explain. We have a simple word for, and an
intuitive understanding of, the complex reality of “property.” Admittedly,
lawyers think about property differently from the way lay-people do; this is
only one of the strange mental changes that law school brings. But everyone in
our society has a richly textured understanding of “mine” and “thine,” of
rights of exclusion, of division of rights over the same property (for example,
between tenant and landlord), of transfer of rights in part or in whole (for
example, rental or sale). But what about the opposite of property—property’s
antonym, property’s outside? What is it? Is it just stuff that is not worth
owning—abandoned junk? Stuff that is not yet owned—such as a seashell on a
public beach, about to be taken home? Or stuff that cannot be owned—a human
being, for example? Or stuff that is collectively owned—would that be the radio
spectrum or a public park? Or stuff that is owned by no one, such as the deep
seabed or the moon? Property’s outside, whether it is “the public domain” or
“the commons,” turns out to be harder to grasp than its inside.

To the extent that we think about property’s outside, it tends to have a
negative connotation; we want to get stuff out of the lost-and-found office and
back into circulation as property. We talk of “the tragedy of the
commons,”~{Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968):
1243–1248.}~ meaning that unowned or collectively owned resources will be
managed poorly; the common pasture will be overgrazed by the villagers’ sheep
because no one has an incentive to hold back.

When the subject is intellectual property, this gap in our knowledge turns out
to be important because our intellectual property system depends on a balance
between what is property and what is not. For a set of reasons that I will
explain later, “the opposite of property” is a concept that is much more
important when we come to the world of ideas, information, expression, and
invention. We want a lot of material to be in the public domain, material that
can be spread without property rights. “The general rule of law is, that the
noblest of human productions—knowledge, truths ascertained, conceptions, and
ideas—become, after voluntary communication to others, free as the air to
common use.”~{International News Service v. Associated Press, 248 U.S. 215, 250
(1918) (Brandeis, J., dissenting); Yochai Benkler, “Free as the Air to Common
Use: First Amendment Constraints on Enclosure of the Public Domain,” New York
University Law Review 74 (1999): 354–446.}~ Our art, our culture, our science
depend on this public domain every bit as much as they depend on intellectual
property. The third goal of this book is to explore property’s outside,
property’s various antonyms, and to show how we are undervaluing the public
domain and the information commons at the very moment in history when we need
them most. Academic articles and clever legal briefs cannot solve this problem
alone.

Instead, I argue that precisely because we are in the information age, we need
a movement—akin to the environmental movement—to preserve the public domain.
The explosion of industrial technologies that threatened the environment also
taught us to recognize its value. The explosion of information technologies has
precipitated an intellectual land grab; it must also teach us about both the
existence and the value of the public domain. This enlightenment does not
happen by itself. The environmentalists helped us to see the world differently,
to see that there was such a thing as “the environment” rather than just my
pond, your forest, his canal. We need to do the same thing in the information
environment.

We have to “invent” the public domain before we can save it.

A word about style. I am trying to write about complicated issues, some of
which have been neglected by academic scholarship, while others have been
catalogued in detail. I want to advance the field, to piece together the story
of the second enclosure movement, to tell you something new about the balance
between property and its opposite. But I want to do so in a way that is
readable. For those in my profession, being readable is a dangerous goal. You
have never heard true condescension until you have heard academics pronounce
the word “popularizer.” They say it as Isadora Duncan might have said “dowdy.”
To be honest, I share their concern. All too often, clarity is achieved by
leaving out the key qualification necessary to the argument, the sualso include
a short guide to further reading. I have used citations sparingly, but more
widely than an author of a popular book normally does, so that the scholarly
audience can trace out my reasoning. But the core of the argument is in the
text.

The second balance I have struggled to hit is that between breadth and depth.
The central thesis of the book is that the line between intellectual property
and the public domain is important in every area of culture, science, and
technology. As a result, it ranges widely in subject matter. Yet readers come
with different backgrounds, interests, and bodies of knowledge. As a result,
the structure of the book is designed to facilitate self-selection based on
interest. The first three chapters and the conclusion provide the theoretical
basis. Each chapter builds on those themes, but is also designed to be largely
freestanding. The readers who thrill to the idea that there might be
constitutional challenges to the regulation of digital speech by copyright law
may wallow in those arguments to their hearts’ content. Others may quickly
grasp the gist and head on for the story of how Ray Charles’s voice ended up in
a mashup attacking President Bush, or the discussion of genetically engineered
bacteria that take photographs and are themselves the subject of intellectual
property rights. To those readers who nevertheless conclude that I have failed
to balance correctly between precision and clarity, or breadth and depth, I
offer my apologies. I fear you may be right. It was not for want of trying.

1~ Chapter 1: Why Intellectual Property?

Imagine yourself starting a society from scratch. Perhaps you fought a
revolution, or perhaps you led a party of adventurers into some empty land,
conveniently free of indigenous peoples. Now your task is to make the society
work. You have a preference for democracy and liberty and you want a vibrant
culture: a culture with a little chunk of everything, one that offers hundreds
of ways to live and thousands of ideals of beauty. You don’t want everything to
be high culture; you want beer and skittles and trashy delights as well as
brilliant news reporting, avant-garde theater, and shocking sculpture. You can
see a role for highbrow, state-supported media or publicly financed artworks,
but your initial working assumption is that the final arbiter of culture should
be the people who watch, read, and listen to it, and who remake it every day.
And even if you are dubious about the way popular choice gets formed, you
prefer it to some government funding body or coterie of art mavens.

At the same time as you are developing your culture, you want a flourishing
economy—and not just in literature or film. You want innovation and invention.
You want drugs that cure terrible diseases, and designs for more fuel-efficient
stoves, and useful little doodads, like mousetraps, or Post-it notes, or
solar-powered backscratchers. To be exact, you want lots of innovation but you
do not know exactly what innovation or even what types of innovation you want.

Given scarce time and resources, should we try to improve typewriters or render
them obsolete with word processors, or develop functional voice recognition
software, or just concentrate on making solar-powered backscratchers? Who knew
that they needed Post-it notes or surgical stents or specialized rice planters
until those things were actually developed? How do you make priorities when the
priorities include things you cannot rationally value because you do not have
them yet? How do you decide what to fund and when to fund it, what desires to
trade off against each other?

The society you have founded normally relies on market signals to allocate
resources. If a lot of people want petunias for their gardens, and are willing
to pay handsomely for them, then some farmer who was formerly growing soybeans
or gourds will devote a field to petunias instead. He will compete with the
other petunia sellers to sell them to you. Voila! We do not need a state
planner to consult the vegetable five-year plan and decree “Petunias for the
People!” Instead, the decision about how to deploy society’s productive
resources is being made “automatically,” cybernetically even, by rational
individuals responding to price signals. And in a competitive market, you will
get your petunias at very close to the cost of growing them and bringing them
to market. Consumer desires are satisfied and productive resources are
allocated efficiently. It’s a tour de force.

Of course, there are problems. The market measures the value of a good by
whether people have the ability and willingness to pay for it, so the whims of
the rich may be more “valuable” than the needs of the destitute. We may spend
more on pet psychiatry for the traumatized poodles on East 71st Street than on
developing a cure for sleeping sickness, because the emotional wellbeing of the
pets of the wealthy is “worth more” than the lives of the tropical world’s
poor. But for a lot of products, in a lot of areas, the market works—and that
is a fact not to be taken for granted.

Why not use this mechanism to meet your cultural and innovation needs? If
people need Madame Bovary or The New York Times or a new kind of antibiotic,
surely the market will provide it? Apparently not. You have brought economists
with you into your brave new world—perhaps out of nostalgia, or because a lot
of packing got done at the last minute. The economists shake their heads.~{As
the suggested further reading indicates, this light-hearted account of the
economic basis of intellectual property conceals considerable complexity. On
the other hand, the core argument is presented here—and a compelling argument
it is.}~ The petunia farmer is selling something that is “a rivalrous good.” If
I have the petunia, you can’t have it. What’s more, petunias are “excludable.”
The farmer only gives you petunias when you pay for them. It is these factors
that make the petunia market work. What about Madame Bovary, or the antibiotic,
or The New York Times? Well, it depends. If books have to be copied out by
hand, then Madame Bovary is just like the petunia. But if thousands of copies
of Madame Bovary can be printed on a printing press, or photocopied, or
downloaded from www.flaubertsparrot.com, then the book becomes something that
is nonrival; once Madame Bovary is written, it can satisfy many readers with
little additional effort or cost. Indeed, depending on the technologies of
reproduction, it may be very hard to exclude people from Madame Bovary.

Imagine a Napster for French literature; everyone could have Madame Bovary and
only the first purchaser would have to pay for it. Because of these “nonrival”
and “nonexcludable” characteristics, Flaubert’s publisher would have a more
difficult time coming up with a business plan than the petunia farmer. The same
is true for the drug company that invests millions in screening and testing
various drug candidates and ends up with a new antibiotic that is both safe and
effective, but which can be copied for pennies. Who will invest the money,
knowing that any product can be undercut by copies that don’t have to pay the
research costs? How are authors and publishers and drug manufacturers to make
money? And if they can’t make money, how are we to induce people to be authors
or to be the investors who put money into the publishing or pharmaceutical
business?

It is important to pause at this point and inquire how closely reality hews to
the economic story of “nonexcludable” and “nonrival” public goods. It turns out
that the reality is much more complex. First, there may be motivations for
creation that do not depend on the market mechanism. People sometimes create
because they seek fame, or out of altruism, or because an inherent creative
force will not let them do otherwise. Where those motivations operate, we may
not need a financial incentive to create. Thus the “problem” of cheap copying
in fact becomes a virtue. Second, the same technologies that make copying
cheaper may also lower the costs of advertising and distribution, cutting down
on the need to finance expensive distribution chains. Third, even in situations
that do require incentives for creativity and for distribution, it may be that
being “first to market” with an innovation provides the innovator with enough
of a head start on the competition to support the innovation.~{See Jack
Hirshleifer, “The Private and Social Value of Information and the Reward to
Inventive Activity,” American Economic Review 61 (1971): 561–574.}~ Fourth,
while some aspects of the innovation may truly be nonrival, other aspects may
not. Software is nonrival and hard to exclude people from, but it is easy to
exclude your customers from the help line or technical support. The CD may be
copied cheaply; the concert is easy to police. The innovator may even be
advantaged by being able to trade on the likely effects of her innovation. If I
know I have developed the digital camera, I may sell the conventional film
company’s shares short. Guarantees of authenticity, quality, and ease of use
may attract purchasers even if unauthorized copying is theoretically cheaper.

In other words, the economic model of pure public goods will track our reality
well in some areas and poorly in others—and the argument for state intervention
to fix the problems of public goods will therefore wax and wane
correspondingly. In the case of drug patents, for example, it is very strong.
For lots of low-level business innovation, however, we believe that adequate
incentives are provided by being first to market, and so we see no need to give
monopoly power to the first business to come up with a new business plan—at
least we did not until some disastrous patent law decisions discussed later in
this book. Nor does a lowering of copying costs hurt every industry equally.
Digital copies of music were a threat to the traditional music business, but
digital copies of books? I am skeptical. This book will be freely and legally
available online to all who wish to copy it. Both the publisher and I believe
that this will increase rather than decrease sales.

Ignore these inconvenient complicating factors for a moment. Assume that
wherever things are cheap to copy and hard to exclude others from, we have a
potential collapse of the market. That book, that drug, that film will simply
not be produced in the first place—unless the state steps in somehow to change
the equation. This is the standard argument for intellectual property rights.
And a very good argument it is. In order to solve the potentially
“market-breaking” problem of goods that are expensive to make and cheap to
copy, we will use what my colleague Jerry Reichman calls the “market-making”
device of intellectual property. The state will create a right to exclude
others from the invention or the expression and confer it on the inventor or
the author. The most familiar rights of this kind are copyrights and patents.
(Trademarks present some special issues, which I will address a little later.)
Having been given the ability to forbid people to copy your invention or your
novel, you can make them pay for the privilege of getting access. You have been
put back in the position of the petunia farmer.

Pause for a moment and think of what a brilliant social innovation this is—at
least potentially. Focus not on the incentives alone, but on the
decentralization of information processing and decision making that a market
offers. Instead of having ministries of art that define the appropriate culture
to be produced this year, or turning the entire path of national innovation
policy over to the government, intellectual property decentralizes the choices
about what creative and innovative paths to pursue while retaining the
possibility that people will actually get paid for their innovation and
creative expression.

The promise of copyright is this: if you are a radical environmentalist who
wants to alert the world to the danger posed by climate change, or a passionate
advocate of homeschooling, or a cartoonist with a uniquely twisted view of
life, or a musician who can make a slack key guitar do very strange things, or
a person who likes to take amazingly saccharine pictures of puppies and put
them on greeting cards—maybe you can quit your day job and actually make a
living from your expressive powers. If the market works, if the middlemen and
distributors are smart enough, competitive enough, and willing to take a chance
on expression that competes with their in-house talent, if you can make it
somehow into the public consciousness, then you can be paid for allowing the
world to copy, distribute, and perform your stuff. You risk your time and your
effort and your passion and, if the market likes it, you will be rewarded. (At
the very least, the giant producers of culture will be able to assemble vast
teams of animators and musicians and software gurus and meld their labors into
a videotape that will successfully anesthetize your children for two hours; no
small accomplishment, let me tell you, and one for which people will certainly
pay.)

More importantly, if the system works, the choices about the content of our
culture—the mix of earnest essays and saccharine greeting cards and scantily
clad singers and poetic renditions of Norse myths—will be decentralized to the
people who actually read, or listen to, or watch the stuff. This is our
cultural policy and it is driven, in part, by copyright.

The promise of patent is this: we have a multitude of human needs and a
multitude of individuals and firms who might be able to satisfy those needs
through innovation. Patent law offers us a decentralized system that, in
principle, will allow individuals and firms to pick the problem that they wish
to solve. Inventors and entrepreneurs can risk their time and their capital
and, if they produce a solution that finds favor in the marketplace, will be
able to reap the return provided by the legal right to exclude—by the legal
monopoly over the resulting invention. The market hints at some unmet need—for
drugs that might reduce obesity or cure multiple sclerosis, or for Post-it
notes or windshield wipers that come on intermittently in light rain—and the
innovator and her investors make a bet that they can meet that need. (Not all
of these technologies will be patentable—only those that are novel and
“nonobvious,” something that goes beyond what any skilled person in the
relevant field would have done.)

In return for the legal monopoly, patent holders must describe the technology
well enough to allow anyone to replicate it once the patent term ends. Thus
patent law allows us to avert two dangers: the danger that the innovation will
languish because the inventor has no way to recover her investment of time and
capital, and the danger that the inventor will turn to secrecy instead, hiding
the details of her innovation behind black box technologies and restrictive
contracts, so that society never gets the knowledge embedded in it. (This is a
real danger. The medieval guilds often relied on secrecy to maintain the
commercial advantage conveyed by their special skills, thus slowing progress
down and sometimes simply stopping it. We still don’t know how they made
Stradivarius violins sound so good. Patents, by contrast, keep the knowledge
public, at least in theory;~{Unfortunately, the reality turns out to be less
rosy. James Bessen, “Patents and the Diffusion of Technical Information,”
Economics Letters 86 (2005): 122: “[S]urvey evidence suggests that firms do not
place much value on the disclosed information. Moreover, those firms that do
read patents do not use them primarily as a source of information on
technology. Instead, they use them for other purposes, such as keeping track of
competitors or checking for infringement. There are, in fact, sound theoretical
reasons why the disclosed information may not be very valuable. [Fritz] Machlup
and [Edith] Penrose report that the argument about diffusion is an old one,
popular since the mid-19th century. They also point out that, at least through
the 1950s, economists have been skeptical about this argument. The problem,
also recognized in the mid-19th century, is that ‘only unconcealable inventions
are patented,’ so patents reveal little that could not be otherwise learned. On
the other hand, ‘concealable inventions remain concealed.’ ” [Citations
omitted.]}~ you must describe it to own it.) And again, decisions about the
direction of innovation have been largely, though not entirely, decentralized
to the people who actually might use the products and services that result.
This is our innovation policy and it is increasingly driven by patent.

What about the legal protection of trademarks, the little words or symbols or
product shapes that identify products for us? Why do we have trademark law,
this “homestead law for the English language”?~{Felix S. Cohen, “Transcendental
Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 817.}~
Why not simply allow anyone to use any name or attractive symbol that they want
on their products, even if someone else used it first? A trademark gives me a
limited right to exclude other people from using my mark, or brand name, or
product shape, just as copyright and patent law give me a limited right to
exclude other people from my original expression or my novel invention. Why
create such a right and back it with the force of law?

According to the economists, the answer is that trademark law does two things.
It saves consumers time. We have good reason to believe that a soap that says
“Ivory” or a tub of ice cream that says “Häagen-Dazs” will be made by the same
manufacturer that made the last batch of Ivory soap or Häagen-Dazs ice cream.
If we liked the good before and we see the symbol again, we know what we are
getting. I can work out what kind of soap, ice cream, or car I like, and then
just look for the appropriate sign rather than investigating the product all
over again each time I buy. That would be wasteful and economists hate waste.
At the same time, trademarks fulfill a second function: they are supposed to
give manufacturers an incentive to make good products—or at least to make
products of consistent quality or price—to build up a good brand name and
invest in consistency of its key features, knowing that no other firm can take
their name or symbol. (Why produce a high-quality product, or a reliable cheap
product, and build a big market share if a free rider could wait until people
liked the product and then just produce an imitation with the same name but of
lower quality?) The promise of trademark is that quality and commercial
information flow regulate themselves, with rational consumers judging among
goods of consistent quality produced by manufacturers with an interest in
building up long-term reputation.

So there we have the idealized vision of intellectual property. It is not
merely supposed to produce incentives for innovation by rewarding creators,
though that is vital. Intellectual property is also supposed to create a
feedback mechanism that dictates the contours of information and innovation
production. It is not an overstatement to say that intellectual property rights
are designed to shape our information marketplace. Copyright law is supposed to
give us a self-regulating cultural policy in which the right to exclude others
from one’s original expression fuels a vibrant public sphere indirectly driven
by popular demand. At its best, it is supposed to allow a decentralized and
iconoclastic cultural ferment in which independent artists, musicians, and
writers can take their unique visions, histories, poems, or songs to the
world—and make a living doing so if their work finds favor. Patent law is
supposed to give us a self-regulating innovation policy in which the right to
exclude others from novel and useful inventions creates a cybernetic and
responsive innovation marketplace. The allocation of social resources to
particular types of innovation is driven by guesses about what the market
wants. Trademark law is supposed to give us a self-regulating commercial
information policy in which the right to exclude others from one’s trade name,
symbol, or slogan produces a market for consumer information in which firms
have incentives to establish quality brand names and consumers can rely on the
meaning and the stability of the logos that surround them. Ivory soap will
always mean Ivory soap and Coke will mean Coke, at least until the owners of
those marks decide to change the nature of their products.

Some readers will find my use of the term “intellectual property” mistaken and
offensive. They will argue, and I agree, that the use of the term “property”
can cause people mistakenly to conflate these rights with those to physical
property. (I outline that process and its negative consequences in the next
chapter.) They will argue, and again I agree, that there are big differences
between the three fields I have described. Should we not just list the specific
rights about which we are speaking—copyright, patent, or trademark? Both of
these concerns are real and well-founded, but I respectfully disagree with the
conclusion that we should give up the term “intellectual property.”

First, as I have tried to show above, while there are considerable differences
between the three fields I discussed, there is also a core similarity—the
attempt to use a legally created privilege to solve a potential “public goods
problem.” That similarity can enlighten as well as confuse. Yes, copyright
looks very different from patent, just as a whale looks very different from a
mouse. But we do not condemn the scientist who notes that they are both
“mammals”—a socially constructed category—so long as he has a reason for
focusing on that commonality. Second, the language of intellectual property
exists. It has political reality in the world. Sometimes the language confuses
and misleads. There are two possible reactions to such a reality. One can
reject it and insist on a different and “purified” nomenclature, or one can
attempt to point out the misperceptions and confusions using the very language
in which they are embedded. I do not reject the first tactic. It can be useful.
Here, though, I have embraced the second.

I have provided the idealized story of intellectual property. But is it true?
Did the law really develop that way? Does it work that way now? Does this story
still apply in the world of the Internet and the Human Genome Project? If you
believed the idealized story, would you know what kind of intellectual property
laws to write? The answer to all of these questions is “not exactly.”

Like most social institutions, intellectual property has an altogether messier
and more interesting history than this sanitized version of its functioning
would suggest. The precursors of copyright law served to force the
identification of the author, so that he could be punished if he proved to be a
heretic or a revolutionary. The Statute of Anne—the first true copyright
statute—was produced partly because of publishers’ fights with booksellers; the
authorial right grew as an afterthought.~{For contrasting views of the sequence
of events, see John Feather, “Publishers and Politicians: The Remaking of the
Law of Copyright in Britain 1775–1842,” pt. 2, “The Rights of Authors,”
Publishing History 25 (1989): 45–72; Mark Rose, Authors and Owners: The
Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993).}~
The history of patents includes a wealth of attempts to reward friends of the
government and restrict or control dangerous technologies. Trademark law has
shuttled uneasily between being a free-floating way to police competition so as
to prohibit actions that courts thought were “unfair” and an absolute property
right over an individual word or symbol.

But does intellectual property work this way now, promoting the ideal of
progress, a transparent marketplace, easy and cheap access to information,
decentralized and iconoclastic cultural production, self-correcting innovation
policy? Often it does, but distressingly often it does the reverse. The rights
that were supposed to be limited in time and scope to the minimum monopoly
necessary to ensure production become instead a kind of perpetual corporate
welfare—restraining the next generation of creators instead of encouraging
them. The system that was supposed to harness the genius of both the market and
democracy sometimes subverts both. Worse, it does so inefficiently, locking up
vast swaths of culture in order to confer a benefit on a tiny minority of
works. But this is too abstract. A single instance from copyright law will
serve as a concrete example of what is at stake here. Later in the book I will
give other examples.

2~ You’ll Get My Library of Congress When . . .

Go to the Library of Congress catalogue. It is online at
http://catalog.loc.gov/. This is an astounding repository of material—not just
books and periodicals, but pictures, films, and music. The vast majority of
this material, perhaps as much as 95 percent in the case of books, is
commercially unavailable.~{Tim O’Reilly points out that there are 32 million
titles in the Online Computer Library Center’s “WorldCat” catalogue—this is a
reasonable proxy for the number of books in U.S. libraries. Nielsen’s Bookscan
shows that 1.2 million books sold at least one copy in 2005. This yields a
ratio of books commercially available to books ever published of about 4
percent. But of those 1.2 million books, many are in the public domain—think of
Shakespeare, Dickens, Austen, Melville, Kipling. Thus the percentage of books
that are under copyright and commercially available may actually be
considerably lower than 4 percent. See
http://radar.oreilly.com/archives/2005/11/oops_only_4_of_titles_are_bein.html.
For a lucid account of the statistics in the context of the Google Book Search
Project, see
http://lessig.org/blog/2006/01/google_book_search_the_argumen.html. }~ The
process happens comparatively quickly. Estimates suggest that a mere
twentyeight years after publication 85 percent of the works are no longer being
commercially produced. (We know that when U.S. copyright required renewal after
twenty-eight years, about 85 percent of all copyright holders did not bother to
renew. This is a reasonable, if rough, guide to commercial viability.)~{See
Barbara Ringer, “Study Number 31: Renewal of Copyright,” reprinted in U.S.
Senate Committee on the Judiciary, Subcommittee on Patents, Trademarks, and
Copyrights, Copyright Law Revision, 86th Cong., 1st Sess., Committee Print
(1960), 187. See also HR Rep. 94-1476 (1976), 136; William M. Landes and
Richard A. Posner, The Economic Structure of Intellectual Property Law
(Cambridge, Mass.: Belknap Press, 2003), 210–212.}~

Yet because the copyright term is now so long, in many cases extending well
over a century, most of twentieth-century culture is still under
copyright—copyrighted but unavailable. Much of this, in other words, is lost
culture. No one is reprinting the books, screening the films, or playing the
songs. No one is allowed to. In fact, we may not even know who holds the
copyright. Companies have gone out of business. Records are incomplete or
absent. In some cases, it is even more complicated. A film, for example, might
have one copyright over the sound track, another over the movie footage, and
another over the script. You get the idea. These works—which are commercially
unavailable and also have no identifiable copyright holder—are called “orphan
works.” They make up a huge percentage of our great libraries’ holdings. For
example, scholars estimate that the majority of our film holdings are orphan
works.~{Details of the orphan works problem can be found in the proposals
presented to the copyright office by the Center for the Study of the Public
Domain; Orphan Works: Analysis and Proposal: Submission to the Copyright
Office—March 2005, available at
http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf, and Access to Orphan Films:
Submission to the Copyright Office—March 2005, available at
http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf. Two recent bills, in the
Senate and House, respectively, attempt to address the orphan works problems.
The Shawn Bentley Orphan Works Act of 2008, S 2913, 110th Cong. (2008), would
add a new section to the Copyright Act limiting remedies for infringement of
orphan works and requiring the establishment of a database of pictorial,
graphic, and sculptural works. The House bill, The Orphan Works Act of 2008, HR
5889, 110th Cong. (2008), is similar but not identical. While these bills are a
good start, the eventual remedy will need to be more sweeping.}~ For books, the
estimates are similar. Not only are these works unavailable commercially, there
is simply no way to find and contact the person who could agree to give
permission to digitize the work or make it available in a new form.

Take a conservative set of numbers. Subtract from our totals the works that are
clearly in the public domain. In the United States, that is generally work
produced before 1923. That material, at least, we can use freely. Subtract,
too, the works that are still available from the copyright holder. There we can
gain access if we are willing to pay. Yet this still leaves a huge proportion
of twentieth- and twenty-first-century culture commercially unavailable but
under copyright. In the case of books, the number is over 95 percent, as I said
before; with films and music, it is harder to tell, but the percentages are
still tragically high. A substantial proportion of that total is made up of
orphan works. They cannot be reprinted or digitized even if we were willing to
pay the owner to do so. And then comes the Internet. Right now, you can search
for those books or films or songs and have the location of the work instantly
displayed, as well as a few details about it. And if you live in Washington,
D.C., or near some other great library, you can go to a reading room, and if
the work can be found and has not been checked out, and has not deteriorated,
you can read the books (though you probably will not be able to arrange to see
the movies unless you are an accredited film scholar).

I was searching the Library of Congress catalogue online one night, tracking
down a seventy-year-old book about politics and markets, when my son came in to
watch me. He was about eight years old at the time but already a child of the
Internet age. He asked what I was doing and I explained that I was printing out
the details of the book so that I could try to find it in my own university
library. “Why don’t you read it online?” he said, reaching over my shoulder and
double-clicking on the title, frowning when that merely led to another
information page: “How do you get to read the actual book?” I smiled at the
assumption that all the works of literature were not merely in the Library of
Congress, but actually on the Net: available to anyone with an Internet
connection anywhere in the world—so that you could not merely search for, but
also read or print, some large slice of the Library’s holdings. Imagine what
that would be like. Imagine the little underlined blue hyperlink from each
title—to my son it made perfect sense. The book’s title was in the catalogue.
When you clicked the link, surely you would get to read it. That is what
happened in his experience when one clicked a link. Why not here? It was an old
book, after all, no longer in print. Imagine being able to read the books, hear
the music, or watch the films—or at least the ones that the Library of Congress
thought it worthwhile to digitize. Of course, that is ridiculous.

I tried to explain this to my son. I showed him that there were some works that
could be seen online. I took him to the online photograph library, meaning to
show him the wealth of amazing historical photographs. Instead, I found myself
brooding over the lengthy listing of legal restrictions on the images and the
explanation that reproduction of protected items may require the written
permission of the copyright owners and that, in many cases, only indistinct and
tiny thumbnail images are displayed to those searching from outside the Library
of Congress “because of potential rights considerations.” The same was true of
the scratchy folk songs from the twenties or the early film holdings. The
material was in the Library, of course—remarkable collections in some cases,
carefully preserved, and sometimes even digitized at public expense. Yet only a
tiny fraction of it is available online. (There is a fascinating set of
Edison’s early films, for example.)

Most of the material available online comes from so long ago that the copyright
could not possibly still be in force. But since copyright lasts for seventy
years after the death of the author (or ninety-five years if it was a corporate
“work for hire”), that could be a very, very long time indeed. Long enough, in
fact, to keep off limits almost the whole history of moving pictures and the
entire history of recorded music. Long enough to lock up almost all of
twentieth-century culture.

But is that not what copyright is supposed to do? To grant the right to
restrict access, so as to allow authors to charge for the privilege of
obtaining it? Yes, indeed. And this is a very good idea. But as I argue in this
book, the goal of the system ought to be to give the monopoly only for as long
as necessary to provide an incentive. After that, we should let the work fall
into the public domain where all of us can use it, transform it, adapt it,
build on it, republish it as we wish. For most works, the owners expect to make
all the money they are going to recoup from the work with five or ten years of
exclusive rights. The rest of the copyright term is of little use to them
except as a kind of lottery ticket in case the work proves to be a
one-in-a-million perennial favorite. The one-in-a-million lottery winner will
benefit, of course, if his ticket comes up. And if the ticket is “free,” who
would not take it? But the ticket is not free to the public. They pay higher
prices for the works still being commercially exploited and, frequently, the
price of complete unavailability for the works that are not.

Think of a one-in-a-million perennial favorite—Harry Potter, say. Long after J.
K. Rowling is dust, we will all be forbidden from making derivative works, or
publishing cheap editions or large-type versions, or simply reproducing it for
pleasure. I am a great admirer of Ms. Rowling’s work, but my guess is that
little extra incentive was provided by the thought that her copyright will
endure seventy rather than merely fifty years after her death. Some large costs
are being imposed here, for a small benefit. And the costs fall even more
heavily on all the other works, which are available nowhere but in some
moldering library stacks. To put it another way, if copyright owners had to
purchase each additional five years of term separately, the same way we buy
warranties on our appliances, the economically rational ones would mainly
settle for a fairly short period.

Of course, there are some works that are still being exploited commercially
long after their publication date. Obviously the owners of these works would
not want them freely available online. This seems reasonable enough, though
even with those works the copyright should expire eventually. But remember, in
the Library of Congress’s vast, wonderful pudding of songs and pictures and
films and books and magazines and newspapers, there is perhaps a handful of
raisins’ worth of works that anyone is making any money from, and the vast
majority of those come from the last ten years. If one goes back twenty years,
perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to
the whole pudding in order to give the owners of the raisin slivers their due.
But this pudding is almost all of twentieth-century culture, and we are
restricting access to it when almost of all of it could be available.

If you do not know much about copyright, you might think that I am
exaggerating. After all, if no one has any financial interest in the works or
we do not even know who owns the copyright, surely a library would be free to
put those works online? Doesn’t “no harm, no foul” apply in the world of
copyright? In a word, no. Copyright is what lawyers call a “strict liability”
system. This means that it is generally not a legal excuse to say that you did
not believe you were violating copyright, or that you did so by accident, or in
the belief that no one would care, and that your actions benefited the public.
Innocence and mistake do not absolve you, though they might reduce the
penalties imposed. Since it is so difficult to know exactly who owns the
copyright (or copyrights) on a work, many libraries simply will not reproduce
the material or make it available online until they can be sure the copyright
has expired—which may mean waiting for over a century. They cannot afford to
take the risk.

What is wrong with this picture? Copyright has done its job and encouraged the
creation of the work. But now it acts as a fence, keeping us out and
restricting access to the work to those who have the time and resources to
trudge through the stacks of the nation’s archives. In some cases, as with
film, it may simply make the work completely unavailable.

So far I have been talking as though copyright were the only reason the
material is not freely available online. But of course, this is not true.
Digitizing costs money (though less every year) and there is a lot of rubbish
out there, stuff no one would ever want to make available digitally (though it
must be noted that one man’s rubbish is another man’s delight). But that still
leaves vast amounts of material that we would want, and be willing to pay, to
have digitized. Remember also that if the material were legally free, anyone
could get in on the act of digitizing it and putting it up. Google’s
much-heralded effort to scan the books in major libraries is just the kind of
thing I mean. But Google is being sued for violating copyright—even though it
allows any author to “opt out” of its system, and even though under the Google
system you cannot click to get the book if it is still under copyright, merely
a snippet a few sentences long from the book.

If you are shaking your head as you read this, saying that no one would bother
digitizing most of the material in the archives, look at the Internet and ask
yourself where the information came from the last time you did a search. Was it
an official and prestigious institution? A university or a museum or a
government? Sometimes those are our sources of information, of course. But do
you not find the majority of the information you need by wandering off into a
strange click-trail of sites, amateur and professional, commercial and not,
hobbyist and entrepreneur, all self-organized by internal referrals and search
engine algorithms? Even if Google did not undertake the task of digitization,
there would be hundreds, thousands, maybe millions of others who would—not with
Google’s resources, to be sure. In the process, they would create something
quite remarkable.

The most satisfying proofs are existence proofs. A platypus is an existence
proof that mammals can lay eggs. The Internet is an existence proof of the
remarkable information processing power of a decentralized network of
hobbyists, amateurs, universities, businesses, volunteer groups, professionals,
and retired experts and who knows what else. It is a network that produces
useful information and services. Frequently, it does so at no cost to the user
and without anyone guiding it. Imagine that energy, that decentralized and
idiosyncratically dispersed pattern of interests, turned loose on the cultural
artifacts of the twentieth century. Then imagine it coupled to the efforts of
the great state archives and private museums who themselves would be free to do
the same thing. Think of the people who would work on Buster Keaton, or the
literary classics of the 1930s, or the films of the Second World War, or
footage on the daily lives of African-Americans during segregation, or the
music of the Great Depression, or theremin recordings, or the best of
vaudeville. Imagine your Google search in such a world. Imagine that Library of
Congress. One science fiction writer has taken a stab. His character utters the
immortal line, “Man, you’ll get my Library of Congress when you pry my cold
dead fingers off it!”~{Bruce Sterling, Heavy Weather (New York: Bantam, 1994):
73.}~

Familiar with the effect of this kind of train of thought on his father, my son
had long since wandered off in search of a basketball game to watch. But I have
to admit his question was something of an epiphany for me: Where do you click
to get the actual book?

The response I get from a lot of people is that this vision of the Library of
Congress is communism, pure and simple. Such people view Google’s attempt to
digitize books as simple theft. Surely it will destroy the incentives necessary
to produce the next beach novel, the next academic monograph, the next teen
band CD, the next hundred-million-dollar movie? But this mistakes my
suggestion. Imagine a very conservative system. First, let us make people
demonstrate that they want a copyright, by the arduous step of actually writing
the word copyright or the little © on the work. (At the moment, everyone gets a
copyright as soon as the work is written down or otherwise fixed, whether they
want one or not.) But how long a copyright? We know that the majority of works
are only valuable for five or ten years. Let us give copyright owners more than
double that, say twenty-eight years of exclusive rights. If prior experience is
any guide, 85 percent of works will be allowed to enter the public domain after
that period. If that isn’t generous enough, let us say that the small
proportion of owners who still find value in their copyright at the end of
twenty-eight years can extend their copyright for another twenty-eight years.
Works that are not renewed fall immediately into the public domain. If you
check the register after twenty-eight years and the work has not been renewed,
it is in the public domain. Works that are renewed get the extra time.

Now this is a conservative suggestion, too conservative in my view, though
still better than what we have now. Is it feasible? It would be hard to argue
that it is not. This pretty much was the law in the United States until 1978.
(My system is a little simpler, but the broad strokes are the same.) Since that
point, in two broad stages, we have moved away from this system at the very
moment in history when the Internet made it a particularly stupid idea to do
so.

How have we changed the system? We have given copyrights to the creator of any
original work as soon as it is fixed, so that you, reader, are the author of
thousands of copyrighted works. Almost everything up on the Internet is
copyrighted, even if its creators do not know that and would prefer it to be in
the public domain. Imagine that you want to make a documentary and use a film
clip that a student filmmaker has put up on his home page. Perhaps you want to
adapt the nifty graphics that a high school teacher in Hawaii created to teach
her calculus class, thinking that, with a few changes, you could use the
material for your state’s K-12 physics program. Perhaps you are a collage
artist who wishes to incorporate images that amateur artists have put online.
None of the works are marked by a copyright symbol. Certainly they are up on
the Internet, but does that mean that they are available for reprinting,
adaptation, or incorporation in a new work?

In each of these cases, you simply do not know whether what you are doing is
legal or not. Of course, you can take the risk, though that becomes less
advisable if you want to share your work with others. Each broadening of the
circle of sharing increases the value to society but also the legal danger to
you. What if you want to put the course materials on the Net, or publish the
anthology, or display the movie? Perhaps you can try to persuade your publisher
or employer or distributor to take the risk. Perhaps you can track down the
authors of every piece you wish to use and puzzle through the way to get a
legal release from them stating that they give you permission to use the work
they did not even know they had copyright over. Or you can give up. Whatever
happens, you waste time and effort in trying to figure out a way of getting
around a system that is designed around neither your needs nor the needs of
many of the people whose work you want to use.

Apart from doing away with the need to indicate that you want your works to be
copyrighted, we have lengthened the copyright term. We did this without any
credible evidence that it was necessary to encourage innovation. We have
extended the terms of living and even of dead authors over works that have
already been created. (It is hard to argue that this was a necessary incentive,
what with the works already existing and the authors often being dead.) We have
done away with the need to renew the right. Everyone gets the term of life plus
seventy years, or ninety-five years for corporate “works for hire.” All
protected by a “strict liability” system with scary penalties. And, as I said
before, we have made all those choices just when the Internet makes their costs
particularly tragic.

In sum, we have forgone the Library of Congress I described without even
apparently realizing we were doing so. We have locked up most of
twentieth-century culture and done it in a particularly inefficient and
senseless way, creating vast costs in order to convey proportionally tiny
benefits. (And all without much complaint from those who normally object to
inefficient government subsidy programs.) Worst of all, we have turned the
system on its head. Copyright, intended to be the servant of creativity, a
means of promoting access to information, is becoming an obstacle to both.

That, then, is one example of the stakes of the debate over intellectual
property policy. Unfortunately, the problem of copyright terms is just one
example, one instance of a larger pattern. As I will try to show, this pattern
is repeated again and again in patents, in trademarks, and elsewhere in
copyright law. This is not an isolated “glitch.” It is a complicated but
relentless tendency that has led to a hypertrophy of intellectual property
rights and an assault on the public domain. In fact, in many cases, the reality
is even worse: there appears to be a complete ignorance about the value of the
public domain. Property’s opposite, its outside, is getting short shrift.

To paraphrase a song from my youth, “how did we get here?” Where should we turn
to understand the role of intellectual property in the era of the Internet and
the decoding of the human genome? We could turn to the cutting edge of
technology or to economics or information theory. But none of those would be as
useful a starting place as a letter that was written about two hundred years
ago, using a high-tech quill pen, about a subject far from the digital world.

2~ Chapter 1: Further Reading

This chapter argues that at least one goal we have in an intellectual property
system is the attempt to solve various “public goods problems.” (Subsequent
chapters defend that view historically and normatively, discuss the ideas of
moral right and natural right, the tradition of the droits d’auteur, and the
similarities and dissimilarities between the arguments for tangible and
intellectual property rights. Further reading on those issues can be found in
the relevant chapter.)

The single best starting point for someone who wishes to understand an economic
perspective on intellectual property is William M. Landes and Richard A.
Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.:
Belknap Press, 2003). The story laid out in this chapter is one largely (but
not entirely) focused on the idea of intellectual property rights offered as
incentives—the carrot that induces the author to write, the inventor to
research, the investor to fund that research, and the corporation to develop
attractive and stable brand names that convey reliable information to
consumers. This is conventionally known as the ex ante perspective. But as the
chapter also hints, intellectual property rights, like property rights in
general, have a role after the innovation has occurred—facilitating its
efficient exploitation, allowing inventors to disclose their inventions to
prospective licensees without thereby losing control of them, and providing a
state-constructed, neatly tied bundle of entitlements that can be efficiently
traded in the market. Readers interested in these perspectives will benefit
from looking at these articles: Edmund Kitch, “The Nature and Function of the
Patent System,” Journal of Law and Economics 20 (1977): 265–290; Paul J. Heald,
“A Transaction Costs Theory of Patent Law,” Ohio State Law Journal 66 (2005):
473–509; and Robert Merges, “A Transactional View of Property Rights,” Berkeley
Technology Law Journal 20 (2005): 1477–1520. Of course, just as the incentives
account of intellectual property has its skeptics, so these ex post theories
attract skepticism from those who believe that, in practice, the rights will
not be clear and well-delineated but vague and potentially overlapping, that
the licensing markets will find themselves entangled in “patent thickets” from
which the participants can escape only at great cost or by ignoring the law
altogether. It is worth comparing Michael A. Heller and Rebecca S. Eisenberg,
“Can Patents Deter Innovation? The Anticommons in Biomedical Research,” Science
280 (1998): 698–701, with John Walsh, Ashish Arora, and Wesley Cohen, “Effects
of Research Tool Patents and Licensing on Biomedical Innovation,” in Patents in
the Knowledge-Based Economy (Washington D.C.: National Academies Press, 2003),
285–340. There is a nice irony to imagining that the necessary mechanism of the
efficient market is “ignore the property rights when they are inconvenient.”

The skeptics argue that the alternative to a deeply commodified world of
invention and innovation, with hundreds of thousands of licensing markets, is a
rich information and innovation commons, from which all can draw freely,
supporting a thin and well-defined layer of intellectual property rights close
to the ultimate commercially viable innovation. The rhetorical structure of the
debate—replete with paradox and inversion—is laid out in James Boyle, “Cruel,
Mean, or Lavish? Economic Analysis, Price Discrimination and Digital
Intellectual Property,” Vanderbilt Law Review 53 (2000): 2007–2039. For some of
the difficulties in the attempt to arrive at a coherent economic theory of
intellectual property, see James Boyle, Shamans, Software, and Spleens: Law and
the Construction of the Information Society (Cambridge, Mass.: Harvard
University Press, 1996), 35–46. Finally, while I urge that at the outset we
must care about the actual effects and economic incentives provided by
intellectual property rights, I am by no means asserting that we should stop
there. Indeed to do so would dramatically impoverish our view of the world.
James Boyle, “Enclosing the Genome: What Squabbles over Genetic Patents Could
Teach Us,” in Perspectives on Properties of the Human Genome Project, ed. F.
Scott Kieff (San Diego, Calif.: Elsevier Academic Press, 2003), 97, 107–109.

In other words, as all this suggests, this chapter is only an introduction to a
rich and complex debate.

1~ Chapter 2: Thomas Jefferson Writes a Letter

On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac
McPherson.~{Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813),
in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.:
The Thomas Jefferson Memorial Association of the United States, 1907), vol.
XIII, 326–338 (hereinafter Letter to McPherson), available at
http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html (follow
“May 1, 1812” hyperlink, then navigate to image 1057).}~ It was a quiet week in
Jefferson’s correspondence. He wrote a letter to Madison about the appointment
of a tax assessor, attempted to procure a government position for an
acquaintance, produced a fascinating and lengthy series of comments on a new
“Rudiments of English Grammar,” discussed the orthography of nouns ending in
“y,” accepted the necessary delay in the publication of a study on the anatomy
of mammoth bones, completed a brief biography of Governor Lewis, and, in
general, confined himself narrowly in subject matter.~{For example, attempting
to procure a former stable master a position (letter from Thomas Jefferson to
Samuel H. Smith [August 15, 1813], available at
http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow
“May 1, 1812” hyperlink, then navigate to image 1070]), comments on “Rudiments
of English Grammar” (letter from Thomas Jefferson to John Waldo [August 16,
1813], in Writings of Thomas Jefferson, vol. XIII, 338–347), orthography of the
plurals of nouns ending in “y” (letter from Thomas Jefferson to John Wilson
[August 17, 1813], Writings of Thomas Jefferson, vol. XIII, 347–348), accepting
the necessary delay in the publication of a study on the anatomy of mammoth
bones (letter from Thomas Jefferson to Caspar Wistar [August 17, 1813],
available at
http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [follow
“May 1, 1812” hyperlink, then navigate to image 1095]), and discussing the
Lewis biography (excerpt of a letter from Thomas Jefferson to Paul Allen
[August 18, 1813], Letters of the Lewis and Clark Expedition with Related
Documents 1783–1854, ed. Donald Jackson (Urbana: University of Illinois Press,
1962), 586). \\ It is easy, in fact, reading this prodigious outpouring of
knowledge and enthusiasm, to forget the other side of Jefferson and the social
system that gave him the leisure to write these letters. Just a few weeks
before he wrote to McPherson, he wrote a letter to Jeremiah Goodman about a
slave called Hercules who had been imprisoned as a runaway. \\ “The folly he
has committed certainly justifies further punishment, and he goes in
expectation of receiving it. . . .” Letter from Thomas Jefferson to Jeremiah A.
Goodman (July 26, 1813), in Thomas Jefferson’s Farm Book, ed. Edwin Morris
Betts (Charlottesville, Va.: American Philosophical Society, 1999), 36. While
leaving the matter up to Goodman, Jefferson argues for leniency and for
refraining from further punishment. In that sense, it is a humane letter. But
this is one of the authors of the Declaration of Independence, full of glorious
principles—unalienable rights; life, liberty, and the pursuit of
happiness—enunciated in the context of indignation at relatively mild colonial
policies of taxation and legislation. How could a man who thought that taxing
tea was tyranny, and that all men had an unalienable right to liberty, believe
that it was “folly” justifying “further punishment” for a slave to run away?
Reading the letter—a curiously intimate, almost voyeuristic act—one finds
oneself saying “What was he thinking?”}~ But on the 13th of August, Jefferson’s
mind was on intellectual property, and most specifically, patents.

Jefferson’s writing is, as usual, apparently effortless. Some find his
penmanship a little hard to decipher. To me, used to plowing through the
frenzied chicken tracks that law students produce during exams, it seems
perfectly clear. If handwriting truly showed the architecture of the soul, then
Jefferson’s would conjure up Monticello or the University of Virginia. There
are a few revisions and interlineations, a couple of words squeezed in with a
caret at the bottom of the line, but for the most part the lines of handwriting
simply roll on and on—“the fugitive fermentation of an individual
brain,”~{Letter to McPherson, 333.}~ to quote a phrase from the letter, caught
in vellum and ink, though that brain has been dust for more than a century and
a half. I love libraries. I love the mushroom smell of gently rotting paper,
the flaky crackle of manuscripts, and the surprise of matching style of
handwriting with style of thought. Today, though, I am viewing his letter over
the Internet on a computer screen. (You can too. The details are [in the
footnotes].)

I think Jefferson would have been fascinated by the Internet. After all, this
was the man whose library became the Library of Congress,~{See Letter from
Thomas Jefferson to Abraham Baldwin (April 14, 1802), in Writings of Thomas
Jefferson, vol. XIX, 128–129.}~ who exemplifies the notion of the brilliant
dabbler in a hundred fields, whose own book collection was clearly a vital and
much consulted part of his daily existence, and whose vision of politics
celebrates the power of an informed citizenry. Admittedly, the massive
conflicts between Jefferson’s announced principles and his actions on the issue
of slavery have led some, though not me, to doubt that there is any sincerity
or moral instruction to be found in his words.~{See Paul Finkelman, Slavery and
the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (Armonk, N.Y.:
M. E. Sharpe, 2001), ix; Annette Gordon-Reed, Thomas Jefferson and Sally
Hemings: An American Controversy (Charlottesville: University Press of
Virginia, 1997) 1, 40–43, 60–61, 222.}~ But even those who find him a sham can
hardly fail to see the continual and obvious joy he felt about knowledge and
its spread.

In the letter to Isaac McPherson, a letter that has become very famous in the
world of the digerati,~{Letter to McPherson, 336, quoted in John Perry Barlow,
“Economy of Ideas,” Wired (March 1994): 84. For a careful scholarly explanation
of the antimonopolist origins of eighteenth-century ideas such as Jefferson’s,
see Tyler T. Ochoa and Mark Rose, “The Anti-Monopoly Origins of the Patent and
Copyright Clause,” Journal of the Copyright Society of the U.S.A. 49 (2002):
675–706. One scholar has offered a thoughtful critique that suggests
Jefferson’s views were not, in fact, representative either of the times or of
the attitudes of the other framers toward intellectual property. See Adam
Mossoff, “Who Cares What Thomas Jefferson Thought about Patents? Reevaluating
the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007):
953–1012.}~ this joy becomes manifest. The initial subject of the
correspondence seems far from the online world. McPherson wrote to Jefferson
about “elevators, conveyers and Hopper-boys.” Specifically, he wanted to know
Jefferson’s opinion of a patent that had been issued to Mr. Oliver Evans.
Jefferson devotes a paragraph to a recent retrospective extension of patent
rights (he disapproves) and then turns to Evans’s elevators.

Patents then, as now, were only supposed to be given for inventions that were
novel, nonobvious, and useful. Jefferson had considerable doubt whether Evans’s
device, essentially a revolving string of buckets used to move grain, actually
counted as “an invention.” “The question then whether such a string of buckets
was invented first by Oliver Evans, is a mere question of fact in mathematical
history. Now, turning to such books only as I happen to possess, I find
abundant proof that this simple machinery has been in use from time
immemorial.” Jefferson cites from his library example after example of
references to the “Persian wheel”—a string of buckets to move water. The
display of scholarship is effortless and without artifice. If the device
existed to move water, he declares, Mr. Evans can hardly patent it to move
grain. “If one person invents a knife convenient for pointing our pens, another
cannot have a patent right for the same knife to point our pencils. A compass
was invented for navigating the sea; another could not have a patent right for
using it to survey land.”~{Letter to McPherson, 328.}~

So far as we can tell, this was the only part of the letter that interested
McPherson. Later correspondence indicates that he had a pamphlet printed
questioning the patent.~{Letter from Thomas Jefferson to Dr. Thomas Cooper
(February 10, 1814), in Thomas Jefferson, Writings, ed. Merrill D. Peterson
(New York: Library of America, 1984), 1321.}~ But while it is impressive to see
Jefferson’s easy command of historical evidence or his grasp of the importance
of limiting the subject matter, scope, and duration of patents, these qualities
alone would not have given the letter the fame it now has. It is when Jefferson
turns to the idea of intellectual property itself that the letter becomes more
than a historical curiosity. In a couple of pages, quickly jotted down on a
humid August day in 1813, he frames the issue as well as anyone has since.

He starts by dismissing the idea “that inventors have a natural and exclusive
right to their inventions, and not merely for their own lives, but inheritable
to their heirs.” In lines that will sound strange to those who assume that the
framers of the Constitution were property absolutists, Jefferson argues that
“stable ownership” of even tangible property is “a gift of social law.”
Intellectual property, then, has still less of a claim to some permanent,
absolute, and natural status.

_1 [W]hile it is a moot question whether the origin of any kind of property is
derived from nature at all, it would be singular to admit a natural and even an
hereditary right to inventors. It is agreed by those who have seriously
considered the subject, that no individual has, of natural right, a separate
property in an acre of land, for instance. By an universal law, indeed,
whatever, whether fixed or movable, belongs to all men equally and in common,
is the property for the moment of him who occupies it, but when he relinquishes
the occupation, the property goes with it. Stable ownership is the gift of
social law, and is given late in the progress of society. It would be curious
then, if an idea, the fugitive fermentation of an individual brain, could, of
natural right, be claimed in exclusive and stable property.~{Letter to
McPherson, 333.}~

Jefferson’s point here may seem obscure to us. We are not used to starting
every argument from first principles. But it is in fact quite simple. It is
society that creates property rights that go beyond mere occupancy. It does so
for several reasons—reasons of both practicality and natural justice.
(Elsewhere in his writings, Jefferson expands on this point at greater length.)
One of those reasons has to do with the difficulty, perhaps even the
impossibility, of two different people having full and unfettered ownership of
the same piece of property simultaneously. Another linked reason comes from the
practicality of excluding others from our property, so that we can exploit it
secure from the plunder or sloth of others. The economists you encountered in
Chapter 1 have, with their usual linguistic felicity, coined the terms
“rivalrous” and “excludable” to describe these characteristics.

With rivalrous property, one person’s use precludes another’s. If I drink the
milk, you cannot. Excludable property is, logically enough, property from which
others can easily be excluded or kept out. But ideas seem to have neither of
these characteristics.

_1 If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an idea,
which an individual may exclusively possess as he keeps it to himself; but the
moment it is divulged, it forces itself into the possession of every one, and
the receiver cannot dispossess himself of it. Its peculiar character, too, is
that no one possess the less, because every other possess the whole of it. 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.
That ideas should freely spread from one to another over the globe, for the
moral and mutual instruction of man, and improvement of his condition, seems to
have been peculiarly and benevolently designed by nature, when she made them,
like fire, expansible over all space, without lessening their density in any
point, and like the air in which we breathe, move, and have our physical being,
incapable of confinement or exclusive appropriation. Inventions then cannot, in
nature, be a subject of property.~{Ibid., 333–334.}~

Those who quote the passage sometimes stop here, which is a shame, because it
leaves the impression that Jefferson was unequivocally against intellectual
property rights. But that would be a considerable overstatement. When he says
that inventions can never be the subject of property, he means a permanent and
exclusive property right which, as a matter of natural right, no just
government could abridge. However, inventions could be covered by temporary
state-created monopolies instituted for the common good. In the lines
immediately following the popularly quoted excerpt, Jefferson goes on:

_1 Society may give an exclusive right to the profits arising from
[inventions], as an encouragement to men to pursue ideas which may produce
utility, but this may or may not be done, according to the will and convenience
of the society, without claim or complaint from any body. Accordingly, it is a
fact, as far as I am informed, that England was, until we copied her, the only
country on earth which ever, by a general law, gave a legal right to the
exclusive use of an idea. In some other countries it is sometimes done, in a
great case, and by a special and personal act, but, generally speaking, other
nations have thought that these monopolies produce more embarrassment than
advantage to society; and it may be observed that the nations which refuse
monopolies of invention, are as fruitful as England in new and useful
devices.~{Ibid.}~

Jefferson’s message was a skeptical recognition that intellectual property
rights might be necessary, a careful explanation that they should not be
treated as natural rights, and a warning of the monopolistic dangers that they
pose. He immediately goes on to say something else, something that is, if
anything, more true in the world of patents on Internet business methods and
gene sequences than it was in the world of “conveyers and Hopper-boys.”

_1 Considering the exclusive right to invention as given not of natural right,
but for the benefit of society, I know well the difficulty of drawing a line
between the things which are worth to the public the embarrassment of an
exclusive patent, and those which are not.~{Ibid., 335.}~

So Jefferson gives us a classic set of cautions, cautions that we should be
required to repeat, as police officers repeat the Miranda Warning to a suspect.
In this case, they should be repeated before we rush off into the world of
intellectual property policy rather than before we talk to the police without
our lawyers present.

2~ The Jefferson Warning

Like the Miranda Warning, the Jefferson Warning has a number of important
parts.

_* First, the stuff we cover with intellectual property rights has certain
vital differences from the stuff we cover with tangible property rights. Partly
because of those differences, Jefferson, like most of his successors in the
United States, does not see intellectual property as a claim of natural right
based on expended labor. Instead it is a temporary state-created monopoly given
to encourage further innovation.

_* Second, there is no “entitlement” to have an intellectual property right.
Such rights may or may not be given as a matter of social “will and
convenience” without “claim or complaint from any body.”

_* Third, intellectual property rights are not and should not be permanent; in
fact they should be tightly limited in time and should not last a day longer
than necessary to encourage the innovation in the first place.

_* Fourth, a linked point, they have considerable monopolistic dangers—they may
well produce more “embarrassment than advantage.” In fact, since intellectual
property rights potentially restrain the benevolent tendency of “ideas . . .
[to] freely spread from one to another over the globe, for the moral and mutual
instruction of man,” they may in some cases actually hinder rather than
encourage innovation.

_* Fifth, deciding whether to have an intellectual property system is only the
first choice in a long series.~{See ibid., 333–335.}~ Even if one believes that
intellectual property is a good idea, which I firmly do, one will still have
the hard job of saying which types of innovation or information are “worth to
the public the embarrassment” of an exclusive right, and of drawing the limits
of that right. This line-drawing task turns out to be very difficult. Without
the cautions that Jefferson gave us it is impossible to do it well.

Jefferson’s message was famously echoed and amplified thirty years later in
Britain by Thomas Babington Macaulay.~{Readers interested in learning more
about this fascinating man could begin with George Otto Trevelyan, The Life and
Letters of Lord Macaulay, London ed. (Longmans, 1876).}~ Macaulay’s speeches to
the House of Commons in 1841 on the subject of copyright term extension still
express better than anything else the position that intellectual property
rights are necessary evils which must be carefully circumscribed by law. In
order for the supply of valuable books to be maintained, authors “must be
remunerated for their literary labour. And there are only two ways in which
they can be remunerated. One of those ways is patronage; the other is
copyright.” Patronage is rejected out of hand. “I can conceive no system more
fatal to the integrity and independence of literary men than one under which
they should be taught to look for their daily bread to the favour of ministers
and nobles.”~{Thomas Babington Macaulay, speech delivered in the House of
Commons (February 5, 1841), in The Life and Works of Lord Macaulay: Complete in
Ten Volumes, Edinburgh ed. (Longmans, 1897), vol. VIII, 198 (hereinafter
Macaulay Speech).}~

_1 We have, then, only one resource left. We must betake ourselves to
copyright, be the inconveniences of copyright what they may. Those
inconveniences, in truth, are neither few nor small. Copyright is monopoly, and
produces all the effects which the general voice of mankind attributes to
monopoly. . . . I believe, Sir, that I may safely take it for granted that the
effect of monopoly generally is to make articles scarce, to make them dear, and
to make them bad. And I may with equal safety challenge my honorable friend to
find out any distinction between copyright and other privileges of the same
kind; any reason why a monopoly of books should produce an effect directly the
reverse of that which was produced by the East India Company’s monopoly of tea,
or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is
good that authors should be remunerated; and the least exceptionable way of
remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of
the good we must submit to the evil; but the evil ought not to last a day
longer than is necessary for the purpose of securing the good.~{Ibid., 199.}~

Notice that it is the monopolistic quality of intellectual property that really
disturbs Macaulay. His was a generation of thinkers for whom the negative
effect of monopolies of any kind (and state-granted monopolies in particular)
was axiomatic. He becomes almost contemptuous when one of the supporters of
copyright extension declared that it was merely “a theory” that monopoly makes
things expensive. Macaulay agrees, tongue in cheek. “It is a theory in the same
sense in which it is a theory, that day and night follow each other, that lead
is heavier than water, that bread nourishes, that arsenic poisons, that alcohol
intoxicates.”~{Ibid., 198–199.}~

These words from Jefferson and Macaulay encapsulate an eighteenth- and
nineteenth-century free-trade skepticism about intellectual property, a
skepticism that is widely, but not universally, believed to have played an
important role in shaping the history of intellectual property in both the
United States and the United Kingdom. Certainly the U.S. Supreme Court has
offered support for that position,~{Graham v. John Deere, 383 U.S. 1, 7–11
(1966).}~ and, with one significant recent exception,~{Adam Mossoff, “Who Cares
What Thomas Jefferson Thought about Patents? Reevaluating the Patent
‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1012. In
a thoughtful, carefully reasoned, and provocative article, Professor Mossoff
argues that Jefferson’s views have been misused by the courts and legal
historians, and that if we understand the use of the word “privilege” in
historical context, we see that the “patent privilege” was influenced by a
philosophy of natural rights as well as the antimonopolist utilitarianism
described here. I both agree and disagree. \\ Professor Mossoff’s central
point—that the word “privilege” was not understood by eighteenth-century
audiences as the antonym of “right”—is surely correct. To lay great stress on
the linguistic point that the patent right is “merely” a “privilege” is to rest
one’s argument on a weak reed. But this is not the only argument. One could
also believe that intellectual property rights have vital conceptual and
practical differences with property rights over tangible objects or land, that
the framers of the Constitution who were most involved in the intellectual
property clause were deeply opposed to the confusion involved in conflating the
two, and that they looked upon this confusion particularly harshly because of
an intense concern about state monopolies. One can still disagree with this
assessment, of course; one can interpret Madison’s words this way or that, or
interpret subsequent patent decisions as deep statements of principle or
commonplace rhetorical flourishes. Still it seems to me a much stronger
argument than the one based on the privilege–right distinction. I am not sure
Professor Mossoff would disagree. \\ Professor Mossoff is also correct to point
out that a “legal privilege” did sometimes mean to an eighteenth-century reader
something that the state was duty-bound to grant. There was, in fact, a wide
range of sources from which an eighteenth-century lawyer could derive a state
obligation to grant a privilege. Eighteenth-century legal talk was a normative
bouillabaisse—a rich stew of natural right, common law, utility, and
progress—often thrown together without regard to their differences. Some
lawyers and judges thought the common law embodied natural rights, others that
it represented the dictates of “progress” and “utility,” and others, more
confusingly still, seemed to adopt all of those views at once. \\ Nevertheless,
I would agree that some eighteenth-century writers saw claims of common-law
right beneath the assertion of some “privileges” and that a smaller number of
those assumed common-law right and natural right to be equivalent, and thus saw
a strong state obligation to grant a particular privilege based on natural
right, wherever that privilege had been recognized by English or U.S. common
law. But here is where I part company with Professor Mossoff. \\ First, I do
not believe that the most important architects of the intellectual property
clause shared that view when it came to patents and copyrights. Jefferson, of
course, was not one of those who believed the state was so bound. “Society may
give an exclusive right to the profits arising from [inventions], as an
encouragement to men to pursue ideas which may produce utility, but this may or
may not be done, according to the will and convenience of the society, without
claim or complaint from any body” (Letter to McPherson, 334, emphasis added).
More importantly, Jefferson’s thinking about patents was infused by a deeply
utilitarian, antimonopolist tinge. So, I would argue, was Madison’s. \\ The
quotations from Madison which I give later show clearly, to me at least, that
Madison shared Jefferson’s deeply utilitarian attitude toward patent and
copyright law. I think there is very good reason to believe that this attitude
was dominant among the Scottish Enlightenment thinkers whose writings were so
influential to the framers. I do not think it is an exaggeration to say that
the American Revolution was violently against the world of monopoly and
corruption that was the supposed target of the English Statute of Monopolies
(itself hardly a natural rights document). Yes, those thinkers might fall back
into talking about how hard an inventor had worked or construing a patent
expansively. Yes, they might think that within the boundaries of settled law,
it would be unjust to deny one inventor a patent when the general scheme of
patent law had already been laid down. But that did not and does not negate the
antimonopolist and, for that matter, utilitarian roots of the Constitution’s
intellectual property clause. \\ Second, while I agree that there were strands
of natural right thinking and a labor theory of value in the U.S. intellectual
property system, and that they continue to this day—indeed, these were the very
views that the Feist decision discussed in Chapter 9 repudiated, as late as
1991—I think it is easy to make too much of that fact. Is this signal or noise?
There are conceptual reasons to think it is the latter. Later in this chapter I
discuss the evolution of the droits d’auteur tradition in France. Here, at the
supposed heart of the natural rights tradition, we find thinkers driven
inexorably to consider the question of limits. How far does the supposed
natural right extend—in time, in space, in subject matter? It is at that moment
that the utilitarian focus and the fear of monopoly represented by Jefferson
and Madison—and, for that matter, Locke and Condorcet—become so important. \\
Professor Mossoff is correct to criticize the focus on the word “privilege,”
and also correct that the ideas of natural right and the labor theory of value
always color attitudes toward intellectual property claims. But it would be an
equal and opposite mistake to ignore two points. First, intellectual property
rights are profoundly different from physical property rights over land in ways
that should definitively shape policy choices. Second, partly because of those
differences, and because of the influence of free-trade Scottish Enlightenment
thought on the American Revolution in particular, there was a powerful
antimonopolist and free-trade sentiment behind the copyright and patent clause.
Simply read the clause. Congress is given 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.” Does this
really read like the work of a group of believers in natural right? On the
contrary, it reads like a limited grant of power to achieve a particular
utilitarian goal. That sentiment—nicely encapsulated in but by no means limited
to the words of Jefferson—is still a good starting place for an understanding
of intellectual property.}~ historians of intellectual property have
agreed.~{See, e.g., Ochoa and Rose, “Anti-Monopoly Origins,” and Edward C.
Walterscheid, The Nature of the Intellectual Property Clause: A Study in
Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002). Ochoa, Rose, and
Walterscheid stress the antimonopolist concerns that animated some of those who
were most active in the debates about intellectual property. They also point
out the influence of the English Statute of Monopolies of 1623, which attacked
monopolies in general, while making an exception for periods of legal
exclusivity for a limited time granted over “sole Working or Making of any
Manner of new Manufacture within this Realm, to the first true Inventor or
Inventors of such Manufactures which others at the time of the Making of such
Letters Patents Grants did not use, so they be not contrary to the Law, nor
mischievous to the State, by Raising of the Prices of Commodities at home, or
Hurt by Trade, or generally inconvenient.”}~ Jefferson himself had believed
that the Constitution should have definite limits on both the term and the
scope of intellectual property rights.~{For example, in a letter to Madison
commenting on the draft of the Constitution: “I like it, as far as it goes; but
I should have been for going further. For instance, the following alterations
and additions would have pleased me: . . . Article 9. Monopolies may be allowed
to persons for their own productions in literature, and their own inventions in
the arts, for a term not exceeding . . . years, but for no longer term, and no
other purpose.” Letter from Thomas Jefferson to James Madison (August 28,
1789), in Writings of Thomas Jefferson, vol. 7, 450–451.}~ James Madison
stressed the costs of any intellectual property right and the need to limit its
term and to allow the government to end the monopoly by compulsory purchase if
necessary.~{“Monopolies tho’ in certain cases useful ought to be granted with
caution, and guarded with strictness against abuse. The Constitution of the
U.S. has limited them to two cases—the authors of Books, and of useful
inventions, in both which they are considered as a compensation for a benefit
actually gained to the community as a purchase of property which the owner
might otherwise withhold from public use. There can be no just objection to a
temporary monopoly in these cases: but it ought to be temporary because under
that limitation a sufficient recompence and encouragement may be given. The
limitation is particularly proper in the case of inventions, because they grow
so much out of preceding ones that there is the less merit in the authors; and
because, for the same reason, the discovery might be expected in a short time
from other hands. . . . Monopolies have been granted in other Countries, and by
some of the States in this, on another principle, that of supporting some
useful undertaking, until experience and success should render the monopoly
unnecessary, and lead to a salutary competition . . . But grants of this sort
can be justified in very peculiar cases only, if at all; the danger being very
great that the good resulting from the operation of the monopoly, will be
overbalanced by the evil effect of the precedent; and it being not impossible
that the monopoly itself in its original operation, may produce more evil than
good. In all cases of monopoly, not excepting those in favor of authors and
inventors, it would be well to reserve to the State, a right to extinguish the
monopoly by paying a specified and reasonable sum. . . . Perpetual monopolies
of every sort are forbidden not only by the Genius of free Governments, but by
the imperfection of human foresight.” James Madison, “Monopolies, Perpetuities,
Corporations, Ecclesiastical Endowments” (1819), in “Aspects of Monopoly One
Hundred Years Ago,” Harper’s Magazine, ed. Galliard Hunt, 128 (1914), 489–490;
also in “Madison’s ‘Detatched Memoranda,’ ” ed. Elizabeth Fleet, William & Mary
Quarterly, 3rd series, 3 no. 4 (1946): 551–552, available at
http://www.constitution.org/jm/18191213_monopolies.htm.}~ Adam Smith expressed
similar views. Monopolies that carry on long after they were needed to
encourage some socially beneficial activity, he said, tax every other citizen
“very absurdly in two different ways: first, by the high price of goods, which,
in the case of a free trade, they could buy much cheaper; and, secondly, by
their total exclusion from a branch of business which it might be both
convenient and profitable for many of them to carry on.”~{Adam Smith, The
Wealth of Nations, pt. 3, Of the Expenses of Public Works and Public
Institutions, 2nd ed. (Oxford: Oxford University Press, 1880), 2:339: “When a
company of merchants undertake, at their own risk and expense, to establish a
new trade with some remote and barbarous nation, it may not be unreasonable to
incorporate them into a joint-stock company, and to grant them, in case of
their success, a monopoly of the trade for a certain number of years. It is the
easiest and most natural way in which the state can recompense them for
hazarding a dangerous and expensive experiment, of which the public is
afterwards to reap the benefit. A temporary monopoly of this kind may be
vindicated, upon the same principles upon which a like monopoly of a new
machine is granted to its inventor, and that of a new book to its author. But
upon the expiration of the term, the monopoly ought certainly to determine; the
forts and garrisons, if it was found necessary to establish any, to be taken
into the hands of government, their value to be paid to the company, and the
trade to be laid open to all the subjects of the state. By a perpetual
monopoly, all the other subjects of the state are taxed very absurdly in two
different ways: first, by the high price of goods, which, in the case of a free
trade, they could buy much cheaper; and, secondly, by their total exclusion
from a branch of business which it might be both convenient and profitable for
many of them to carry on.”}~

It is important to note, though, that the eighteenth- and nineteenth-century
writers I have quoted were not against intellectual property. All of
them—Jefferson, Madison, Smith, and Macaulay—could see good reason why
intellectual property rights should be granted. They simply insisted on
weighing the costs and benefits of a new right, each expansion of scope, each
lengthening of the copyright term. Here is Macaulay again, waxing eloquently
sarcastic about the costs and benefits of extending the copyright term so that
it would last many years after the author’s death:

_1 I will take an example. Dr. Johnson died fifty-six years ago. If the law
were what my honourable and learned friend wishes to make it, somebody would
now have the monopoly of Dr. Johnson’s works. Who that somebody would be it is
impossible to say; but we may venture to guess. I guess, then, that it would
have been some bookseller, who was the assign of another bookseller, who was
the grandson of a third bookseller, who had bought the copyright from Black
Frank, the Doctor’s servant and residuary legatee, in 1785 or 1786. Now, would
the knowledge that this copyright would exist in 1841 have been a source of
gratification to Johnson? Would it have stimulated his exertions? Would it have
once drawn him out of his bed before noon? Would it have once cheered him under
a fit of the spleen? Would it have induced him to give us one more allegory,
one more life of a poet, one more imitation of Juvenal? I firmly believe not. I
firmly believe that a hundred years ago, when he was writing our debates for
the Gentleman’s Magazine, he would very much rather have had twopence to buy a
plate of shin of beef at a cook’s shop underground.~{Macaulay Speech,
200–201.}~

Again, I am struck by how seamlessly Macaulay coupled beautiful, evocative
writing and careful, analytic argument. Admittedly, he was remarkable even in
his own time, but it is hard to imagine a contemporary speechwriter, let alone
a politician, coming up with Dr. Johnson “cheered . . . under a fit of the
spleen” or buying a “plate of shin of beef at a cook’s shop underground.”
Almost as hard as it is to imagine any of them engaging in Jefferson’s
correspondence about mammoth bones, orthography, and the practicalities of the
nautical torpedo. But I digress.

Macaulay is not against using a lengthened copyright term to give an extra
reward to writers, even if this would dramatically raise the price of books.
What he objects to is dramatically raising the price of books written by
long-dead authors in a way that benefits the authors hardly at all.

_1 Considered as a reward to him, the difference between a twenty years’ and a
sixty years’ term of posthumous copyright would have been nothing or next to
nothing. But is the difference nothing to us? I can buy Rasselas for sixpence;
I might have had to give five shillings for it. I can buy the Dictionary, the
entire genuine Dictionary, for two guineas, perhaps for less; I might have had
to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson?
Not at all. Show me that the prospect of this boon roused him to any vigorous
effort, or sustained his spirits under depressing circumstances, and I am quite
willing to pay the price of such an object, heavy as that price is. But what I
do complain of is that my circumstances are to be worse, and Johnson’s none the
better; that I am to give five pounds for what to him was not worth a
farthing.~{Ibid., 201.}~

Though Macaulay won the debate over copyright term extension, it is worth
noting here that his opponents triumphed in the end. As I pointed out in the
last chapter, the copyright term in most of Europe and in the United States now
lasts for the life of the author and an additional seventy years afterward, ten
years more than the proposal which made Macaulay so indignant. In the United
States, corporate owners of “works-for-hire” get ninety-five years.~{17 U.S.C.
§ 304 (1998).}~ The Supreme Court recently heard a constitutional challenge to
the law which expanded the term of copyrights by twenty years to reach this
remarkable length.~{Eldred v. Ashcroft, 537 U.S. 186 (2003).}~ (Full
disclosure: I helped prepare an amicus brief in that case.)~{See Brief for Hal
Roach Studios and Michael Agee as Amici Curiae Supporting Petitioners, Eldred
v. Ashcroft.}~ This law, the Sonny Bono Copyright Term Extension Act, also
extended existing copyrights over works which had already been created.~{Sonny
Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827
(1998).}~ As I observed earlier, this is particularly remarkable if the idea is
to give an incentive to create. Obviously the authors of existing works were
given sufficient incentive to create; we know that because they did. Why do we
need to give the people who now hold their copyrights another twenty years of
monopoly? This is all cost and no benefit. Macaulay would have been furious.

When the Supreme Court heard the case, it was presented with a remarkable
friend-of-the-court brief from seventeen economists, several of them Nobel
laureates.~{Brief of George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan,
James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R.
Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan,
Roger G. Noll, Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard
J. Zeckhauser as Amici Curiae In Support of Petitioners, Eldred v. Ashcroft,
available at
http://cyber.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/economists.pdf.
}~ The economists made exactly Macaulay’s argument, though in less graceful
language. They pointed out that copyright extension imposed enormous costs on
the public and yet conveyed tiny advantages, if any, to the creator. Such an
extension, particularly over works that had already been written, hardly fit
the limits of Congress’s power under the Constitution “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.”~{U.S. Constitution, art. I, § 8, cl. 8. }~ Macaulay doubted that
these enormously long terms would encourage the living. Surely they would do
little to encourage the dead, while imposing considerable costs of access on
the living? Thus they could hardly be said to “promote the progress” of
knowledge as the Constitution requires. The Court was unmoved by this and other
arguments. It upheld the law. I will return to its decision at the end of the
book.

The intellectual property skeptics had other concerns. Macaulay was
particularly worried about the power that went with a transferable and
inheritable monopoly. It is not only that the effect of monopoly is “to make
articles scarce, to make them dear, and to make them bad.” Macaulay also
pointed out that those who controlled the monopoly, particularly after the
death of the original author, might be given too great a control over our
collective culture. Censorious heirs or purchasers of the copyright might
prevent the reprinting of a great work because they disagreed with its
morals.~{“These are strong cases. I have shown you that, if the law had been
what you are now going to make it, the finest prose work of fiction in the
language, the finest biographical work in the language, would very probably
have been suppressed. But I have stated my case weakly. The books which I have
mentioned are singularly inoffensive books, books not touching on any of those
questions which drive even wise men beyond the bounds of wisdom. There are
books of a very different kind, books which are the rallying points of great
political and religious parties. What is likely to happen if the copyright of
one of these books should by descent or transfer come into the possession of
some hostile zealot?” Macaulay Speech, 199, 206. }~ We might lose the works of
Found them distasteful and used the power of the copyright to suppress them.
This is no mere fantasy, Macaulay tells us. After praising the novels of Samuel
Richardson in terms that, to modern eyes, seem a little fervid (“No writings,
those of Shakespeare excepted, show more profound knowledge of the human
heart”), Macaulay recounts the story of Richardson’s grandson, “a clergyman in
the city of London.” Though a “most upright and excellent man,” the grandson
“had conceived a strong prejudice against works of fiction,” “thought all
novel-reading not only frivolous but sinful,” and “had never thought it right
to read one of his grandfather’s books.”~{Ibid., 205.}~ Extended copyright
terms might hand over the copyright to such a man. The public would lose, not
because they had to pay exorbitant prices that denied some access to the work,
but because the work would be altogether suppressed. Richardson’s
novels—Pamela, Clarissa Harlowe, and so on—are now the preserve of the
classroom rather than the drawing room, so this might not seem like much of a
loss. But Macaulay’s next example is not so easy to dismiss.

_1 One of the most instructive, interesting, and delightful books in our
language is Boswell’s Life of Johnson. Now it is well known that Boswell’s
eldest son considered this book, considered the whole relation of Boswell to
Johnson, as a blot in the escutcheon of the family. He thought, not perhaps
altogether without reason, that his father had exhibited himself in a ludicrous
and degrading light. And thus he became so sore and irritable that at last he
could not bear to hear the Life of Johnson mentioned. Suppose that the law had
been what my honourable and learned friend wishes to make it. Suppose that the
copyright of Boswell’s Life of Johnson had belonged, as it well might, during
sixty years, to Boswell’s eldest son. What would have been the consequence? An
unadulterated copy of the finest biographical work in the world would have been
as scarce as the first edition of Camden’s Britannia.~{Ibid., 206.}~

From more recent examples we can see that outright suppression is not the only
thing to fear. The authors’ heirs, or the corporations which have purchased
their rights, may keep policing the boundaries of the work long after the
original author is dead. In 2001, Alice Randall published The Wind Done Gone.
As its title might indicate, The Wind Done Gone was a 220-page “critique of and
reaction to” the world of Gone With the Wind by Margaret Mitchell.~{Margaret
Mitchell, Gone With the Wind (New York: Macmillan, 1936).}~ Most crucially,
perhaps, it was a version of Gone With the Wind told from the slaves’ point of
view. Suddenly the actions of Rhett (“R”), Scarlett (“Other”), and an obviously
gay Ashley (“Dreamy Gentleman”) come into new perspective through the eyes of
Scarlett’s “mulatto” half-sister. Mitchell’s estate wanted to prevent
publication of the book. At first they were successful.~{SunTrust Bank v.
Houghton Mifflin Co. , 136 F. Supp. 2d 1357 (N.D.Ga. 2001). For thoughtful
commentary see Jed Rubenfeld, “The Freedom of Imagination: Copyright’s
Constitutionality,” Yale Law Journal 112 (2002): 1–60. Robert S. Boynton
provides a beautifully readable account of copyright’s restrictions in “The
Tyranny of Copyright?” The New York Times Magazine (January 25, 2004): 40–45,
available at
http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html?ex=1390366800&en=9eb265b1f26e8b14&ei=5007∂ner=USERLAND.
}~ As Yochai Benkler puts it,

_1 Alice Randall, an African American woman, was ordered by a government
official not to publish her criticism of the romanticization of the Old South,
at least not in the words she wanted to use. The official was not one of the
many in Congress and the Administration who share the romantic view of the
Confederacy. It was a federal judge in Atlanta who told Randall that she could
not write her critique in the words she wanted to use—a judge enforcing
copyright law.~{Yochai Benkler, “Through the Looking Glass: Alice and
Constitutional Foundations of the Public Domain,” Law and Contemporary Problems
66 (Winter–Spring 2003): 173.}~

“They killed Miss Scarlett!” the astonished trial judge said after reading
Randall’s book. My colleague Jennifer Jenkins, one of the lawyers in the case,
recounts that the judge saw the case in relentlessly physical terms, seeing the
parody as a “bulldozer” and Gone With the Wind as a walled country estate into
which the bulldozer had violently trespassed. He was consequently unimpressed
with the claim that this “bulldozer” was protected by the First Amendment.
Eventually, the court of appeals overturned the district court’s
judgment.~{SunTrust Bank v. Houghton Mifflin Co. , 268 F.3d 1257 (11th Cir.
2001).}~ Fifty-two years after Margaret Mitchell’s death, it was a hotly
debated point how much leeway co others to comment upon, critique, embellish
upon, and parody the cultural icon she had conjured up.

2~ A Natural Right?

To some people, my argument so far—and Jefferson’s and Macaulay’s—will seem to
miss the point. They see intellectual property rights not as an incentive, a
method of encouraging the production and distribution of innovation, but as a
natural or moral right. My book is mine because I wrote it, not because society
or the law gives me some period of exclusivity over allowing the copying of its
contents. My invention is mine because it came from my brain, not because the
law declares a twenty-year monopoly over its production or distribution. My
logo is mine because I worked hard on it, not because the state grants me a
trademark in order to lower search costs and prevent consumer confusion. One
answer is simply to say “In the United States, the framers of the Constitution,
the legislature, and the courts have chosen to arrange things otherwise. In
copyright, patent, and trademark law—despite occasional deviations—they have
embraced the utilitarian view instead.”

Broadly speaking, that answer is correct.~{See note 19 of this chapter for a
discussion of the most recent and thoughtful challenge to this claim.}~ It also
holds, to a lesser extent, in Britain. Even in the droits d’auteur countries,
which have a markedly different copyright law regime, it largely holds for
their patent and trademark law systems, and utilitarian strands suffuse even
“the sacred rights of authors.” So, on a national level, we have rejected or
dramatically limited the natural rights view, and on an international level, we
have rejected it in “industrial property”—patent and trademark—and modified it
in copyright.

I think this answer is correct and important, but we have an obligation to go
further. Partly that is because intuitions about ownership coming naturally
with labor or discovery continue to influence the law. Partly it is because
those moral intuitions are important and appealing. Partly it is because we
might wish to modify or criticize our current system. Using the views of the
framers, or current law, to preempt discussion is unsatisfactory—even though
those views are of particular importance for the legal policy decisions we face
in the short run, the issues on which much of my argument is concentrated.

There are varying stated grounds for natural or moral rights in intellectual
creations. Some people may think the book is mine because I worked on it—a
Lockean conception where I mix my sweat with these words and receive a property
right in the process.

For all its attractions, there are considerable difficulties with such a view.
Even within the world of tangible property, Locke’s theory is more complicated
than a simple equation of labor with property right. Jefferson’s account of
property is actually closer to Locke’s than many would realize. When Jefferson
points out the difficulty in justifying a natural right even in an acre of
land, let alone a book, his premises are not radically different from Locke’s.
The same is true when Jefferson says that “[s]table ownership is the gift of
social law, and is given late in the progress of society.” Even if natural
right does create the ground for the property claim, it is “social law” that
shapes its contours and guarantees its stability. Jefferson, of course, thought
that was particularly true for intellectual property rights. In that context,
he felt the natural rights argument was much weaker and the need for socially
defined purposive contours and limitations stronger.

Locke’s own views on what we would think of as copyright are hard to determine.
We do know that he had a strong antipathy to monopolies—particularly those
affecting expression. He believed, for example, that giving publishers
monopolies over great public domain books caused a disastrous fall in quality.
Instead, he argued, such books should be open for all to compete to produce the
best edition. Of course, he was writing in the context of monopolistic printing
privileges—to which he was strongly opposed—rather than of individual authorial
rights. Yet he went further and suggested that even for contemporary works,
after a particular time in print—say fifty years—books could be printed by
anyone.

_1 I demand whether, if another act for printing should be made, it be not
reasonable that nobody should have any peculiar right in any book which has
been in print fifty years, but any one as well as another might have liberty to
print it: for by such titles as these, which lie dormant, and hinder others,
many good books come quite to be lost.~{Lord King, The Life of John Locke with
Extracts from His Correspondence, Journals and Common-Place Books vol. 1
(London: Henry Colburn, 1830), 379–380.}~

This sounds like a strongly utilitarian argument, rather than one based on
labor and natural right. Of course, we are not bound by what Locke or Jefferson
thought. Still it is striking to see the turn to a utilitarian conception from
both of them.

The Lockean tradition is not the only one, of course. Others believe that the
property right stems from the unique personality of each individual—the
configurations of your individual genius made manifest in the lines of your
sonnet. (Some limit the natural right to literary and expressive work; can a
mousetrap or a drug molecule express the riddle and wonder of the human
spirit?) Whatever their moral basis or their ambit, the common ground between
these positions is the belief in a rationale for intellectual property rights
beyond the utilitarian concerns of Jefferson or Macaulay.

The norms embodied in the moral rights or natural rights tradition are deeply
attractive—at least to me. Many of us feel a special connection to our
expressive creations—even the humble ones such as a term paper or a birthday
poem. It is one of the reasons that the central moral rights in the French
droits d’auteur, or author’s rights, tradition resonate so strongly with us.
The entitlement of an author to be correctly attributed, to have some control
over the integrity of his work, seems important regardless of its utilitarian
functions.

Yet even as we find this claim attractive, we become aware of the need to find
limiting principles to it. It gives us pause to think that Margaret Mitchell or
her heirs could forbid someone parodying her work. Are there no free-speech
limitations? When other forms of authorship, such as computer programs, are
brought into copyright’s domain, does the power of the moral right decrease,
while the need to limit its scope intensifies?

Then there is the question of length. How long is a natural right in expression
or invention supposed to last? It seems absurd to imagine that Shakespeare’s or
Mozart’s heirs, or those who had bought their copyrights, would still be
controlling the performance, reproduction, and interpretation of their works
hundreds of years after their death. If the rights are truly formed for a
nonutilitarian purpose, after all, why should they expire? The person who first
acquires property rights in land by work or conquest passes those rights down
to heirs and buyers with the chain of transmission reaching to the present day.
Should copyright follow suit? Even in France, the home of the strongest form of
the droits d’auteur and of the “moral rights” tradition, the answer to this
question was in the negative.

We owe a large part of the literary moral rights tradition to the immediate
aftermath of the French Revolution. In France before the Revolution, as in
England before the Statute of Anne, the first true copyright legislation, the
regulation of publishing was through a set of “privileges” given to printers,
not rights given to authors. Publishers would have a guild-enforced monopoly
over certain titles. Their right was against competing publishers printing the
list of titles over which they had the privilege. The Revolution abolished
these privileges and, at first, put nothing in their place. On the other hand,
as Carla Hesse’s fascinating work reveals, there was intermittent interference
by the Prefecture of Police with those who copied most flagrantly. One such
publisher was sternly instructed by the police in these terms:

_1 [A]ccording to the Declaration of the Rights of Man, liberty means only the
freedom to do what does not harm others; and that it harms others to
appropriate the work of an author, because it is an infringement of the sacred
right of property; and that such an enterprise, if it were to remain
unpunished, would deprive citizens of the instruction they await from
celebrated authors like M. Bernardin de St. Pierre, because no author would
want to consecrate his labors to the instruction of his age if piracy were ever
authorized.~{Archives de la Préfecture de Police de Paris, ser. AA, carton 200,
feuilles 182–183, “Procès-verbal de police, section de St. Geneviève, 23–24
octobre 1791.” Quoted in Carla Hesse, Publishing and Cultural Politics in
Revolutionary Paris, 1789–1810 (Berkeley: University of California Press,
1991), 91.}~

Note the interesting mixture of the language of the “sacred rights of property”
and the strong utilitarian justification which cites effects on future literary
production and the “instruction” of citizens.

More expansive conceptions of the rights of authors and, particularly, of
publishers were also offered. Even before the Revolution, publishers had been
making the arguments that their privileges were a form of property rights and
had the very good sense to hire the young Diderot to make those arguments.
Hesse quotes his words:

_1 What form of wealth could belong to a man, if not a work of the mind, . . .
if not his own thoughts, . . . the most precious part of himself, that will
never perish, that will immortalize him? What comparison could there be between
a man, the very substance of man, his soul, and a field, a tree, a vine, that
nature has offered in the beginning equally to all, and that an individual has
only appropriated through cultivating it?~{Quoted in Hesse, Publishing and
Cultural Politics, 100.}~

Diderot’s theme is that authors’ rights should actually be stronger than other
property rights for two reasons. First, they relate to the very essence of the
person, the most “precious part of himself.” Second, they are the only property
rights over something that has been added to the existing store of wealth
rather than taken from it. Authorial property, unlike property in land, adds to
the common store rather than detracting from it. Locke believed that a just
assertion of property rights must leave “enough and as good” for others in the
society. What could better satisfy this condition than a property right over a
novel that did not exist before I wrote it? One hundred years later Victor Hugo
echoed the same thoughts in a speech to the Conseil d’Etat and pointed out at
the same time that literary property rights could potentially “reconcile”
troublesome authors to society and state.

_1 You feel the importance and necessity of defending property today. Well,
begin by recognising the first and most sacred of all properties, the one which
is neither a transmission nor an acquisition but a creation, namely literary
property . . . reconcile the artists with society by means of property.~{Victor
Hugo, speech to the Conseil d’Etat, September 30, 1849, quoted in Bernard
Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (London:
Routledge & Kegan Paul, 1979), 41.}~ Diderot wanted perpetual copyrights for
authors and, agreeably to his employers, a correspondingly perpetual printing
privilege. If the author’s heirs could not be traced, the copyright would
devolve to the current publisher.

But as Hesse points out, there was another view of literary property—a much
more skeptical one put forward best by Condorcet. This view is also an
influential part of the heritage of the droits d’auteur, even if it is
downplayed in its contemporary rhetoric. Condorcet began by framing the
question of literary property as one of political liberty. “Does a man have the
right to forbid another man to write the same words that he himself wrote
first? That is the question to resolve.”~{Oeuvres de Condorcet, ed. A.
Condorcet O’Connor and M. F. Arago, vol. 11 (Paris: Firmin Didot Frères, 1847),
308, available at http://books.google.com/books?id—ZoGAAAAQAAJ. }~ Like
Jefferson, Condorcet is utterly unconvinced that property rights in a book can
be compared to those in a field or a piece of furniture which can be occupied
or used by only one man. The type of property is “based on the nature of the
thing.” He concluded, again in language strikingly similar to Jefferson’s and
Macaulay’s, that literary property was not a real property right but a
privilege, and one which must be assessed on a utilitarian basis in terms of
its contribution to enlightenment.~{Ibid., 308–309: “En effet, on sent qu’il ne
peut y avoir aucun rapport entre la propriété d’un ouvrage et celle d’un champ,
qui ne peut être cultivé que par un homme; d’un meuble qui ne peut servir qu’à
un homme, et dont, par conséquent, la propriété exclusive est fondée sur la
nature de la chose. Ainsi ce n’est point ici une propriété dérivée de l’ordre
naturel, et défendue par la force sociale; c’est une propriété fondée par la
société même. Ce n’est pas un véritable droit, c’est un privilége, comme ces
jouissances exclusives de tout ce qui peut être enlevé au possesseur unique
sans violence.”}~

_1 Any privilege therefore imposes a hindrance on freedom, placing a
restriction on the rights of other citizens; As such it is not only harmful to
the rights of others who want to copy, but the rights of all those who want
copies, and that which increases the price is an injustice. Does the public
interest require tother words, are [literary] privileges needed and useful or
harmful to the progress of enlightenment?~{Ibid., 309: “Tout privilége est donc
une gêne imposée à la liberté, une restriction mise aux droits des autres
citoyens; dans ce genre il est nuisible non-seulement aux droits des autres qui
veulent copier, mais aux droits de tous ceux qui veulent avoir des copies, et
pour qui ce qui en augmente le prix est une injustice. L’intérêt public
exige-t-il que les hommes fassent ce sacrifice? Telle est la question qu’il
faut examiner; en d’autres termes, les priviléges sont-ils nécessaires, utiles
ou nuisibles au progrès des lumières?”}~

Condorcet’s conclusion was that they were not necessary and that they could be
harmful. “The books that most furthered the progress of enlightenment, the
Encyclopédie, the works of Montesquieu, Voltaire, Rousseau, have not enjoyed
the benefits of a privilege.” Instead he seemed to favor a combination of
“subscriptions” to authors with a trademark-like protection which allowed an
author to identify a particular edition of his work as the genuine one, but
which also allowed competing editions to circulate freely. In such a market, he
believed that the price of the competing editions would fall to “natural”
levels—today we would call it marginal cost—but the original author would still
be able to charge a modest premium for the edition he authorized or certified
because readers would prefer it as both more accurate and more authentic. One
possible analogy is to the history of the fashion industry in the United
States. It operates largely without design protection but relies heavily on the
trademarks accorded to favored designers and brands. There are “knockoffs” of
Armani or Balenciaga, but the wealthy still pay an enormous premium for the
real thing.

Condorcet also insisted that whatever protection was accorded to literary works
must not extend to the ideas within them. It is the truths within books that
make them “useful”—a word that does not have the same luminance and importance
for us today as it did for the philosophers of the Enlightenment or the French
Revolution. He argued that any privilege given the author could not extend to
“preventing another man from exhibiting the same truths, in perfectly the same
order, from the same evidence” or from extending those arguments and developing
their consequences. In a line that Hesse rightly highlights, he declares that
any privileges do not extend over facts or ideas. “Ce n’est pas pour les
choses, les idées; c’est pour les mots, pour le nom de l’auteur.”

In sum, Condorcet favors a limited privilege, circumscribed by an inquiry into
its effects in promoting progress and enlightenment. The privilege only applies
to expression and to “the author’s name,” rather than to facts and ideas. This
is very much within the tradition of Jefferson and Macaulay.

Hesse argues, correctly I think, that two warring ideas shaped—or are at least
useful ways of understanding—the development of the droits d’auteur tradition.
On one side were Diderot and the publishers promoting an expansive and
perpetual natural authorial right, which nevertheless was supposed to vest
suspiciously easily in publishers. On the other was Condorcet, looking
skeptically at authorial privileges as merely one type of state interference
with free markets and the free circulation of books and ideas. In place of
Diderot’s perpetual natural right, Condorcet sketched out a regime that
encourages production and distribution by granting the minimum rights necessary
for progress.

Different as they are, these two sides share a common ground. They both focus,
though for different reasons, on “expression”—the imprimatur of the author’s
unique human spirit on the ideas and facts that he or she transmits. It is this
“original expression” that modern copyright and the modern droits d’auteur
actually cover. In today’s copyright law, the facts and ideas in an author’s
work proceed immediately into the public domain. In other work, I have argued
that by confining the property right tightly to the “original expression”
stemming from the unique personality of an individual author the law seems to
accomplish a number of things simultaneously. It provides

_1 a conceptual basis for partial, limited property rights, without completely
collapsing the notion of property into the idea of a temporary, limited,
utilitarian state grant, revocable at will. [At the same time it offers] a
moral and philosophical justification for fencing in the commons, giving the
author property in something built from the resources of the public
domain—language, culture, genre, scientific community, or what have you. If one
makes originality of spirit the assumed feature of authorship and the
touchstone for property rights, one can see the author as creating something
entirely new—not recombining the resources of the commons.~{James Boyle,
Shamans, Software, and Spleens: Law and the Construction of the Information
Society (Cambridge, Mass.: Harvard University Press, 1996), 55–57.}~

That is an account of the romantic theory of authorship in the context of
contemporary Anglo-American copyright law. But when one looks at the history of
the French droits d’auteur tradition, it is striking how well those words
describe that system as well. When the French legislature finally produced a
law of authors’ rights it turned out, in Hesse’s words, to reflect “an
epistemologically impure and unstable legal synthesis that combined an
instrumentalist notion of the public good with a theory of authorship based on
natural rights.”

_1 Although it drew on a Diderotist rhetoric of the sanctity of individual
creativity as an inviolable right, it did not rigorously respect the
conclusions Diderot drew from this position. In contrast to the privilège
d’auteur of 1777, the law did not recognize the author’s claim beyond his
lifetime but consecrated the notion, advanced first by Pierre Manuel to defend
his edition of Mirabeau, that the only true heir to an author’s work was the
nation as a whole. This notion of a public domain, of democratic access to a
common cultural inheritance on which no particular claim could be made, bore
the traces not of Diderot, but of Condorcet’s faith that truths were given in
nature and, although mediated through individual minds, belonged ultimately to
all. Progress in human understanding depended not on private knowledge claims,
but on free and equal access to enlightenment. An author’s property rights were
conceived as recompense for his service as an agent of enlightenment through
publication of his ideas. The law of 1793 accomplished this task of synthesis
through political negotiation rather than philosophical reasoning—that is, by
refashioning the political identity of the author in the first few years of the
Revolution from a privileged creature of the absolutist police state into a
servant of public enlightenment.~{Hesse, Publishing and Cultural Politics,
121–122. As Hesse points out, this legal legerdemain also produced an
interesting transformation in the status of the great authors of the French
tradition. “If the Old Regime first accorded Voltaire, Rousseau, or Mirabeau
the possibility of legal status as privileged authors with perpetual private
lineages for their texts, the Revolution relocated these figures in the public
domain, the legal parallel to the civic rituals that unearthed them from
private gravesites and reposed their bodily remains in the public temple of the
Pantheon.” Ibid., 123. One of the central features of the debates described in
this book is a starkly different set of characterizations of the public domain.
Is it a communist repossession of the sacred rights of authors? The noble
common store of knowledge from which all future creators can build? The
worthless remainder of material that is no longer worth protecting?}~

Hesse argues that this instability would continue through the revolutionary
period. I agree; indeed I would argue that it does so to the present day. Why?
The answer is simple. The moral rights view simply proved too much. Without a
limiting principle—of time, or scope, or effect—it seemed to presage a
perpetual and expansive control of expressive creations, and perhaps of
inventions. Our intuition that this is a bad idea comes from our intuitive
understanding that “Poetry can only be made out of other poems; novels out of
other novels. All of this was much clearer before the assimilation of
literature to private enterprise.”~{Northrop Frye, Anatomy of Criticism: Four
Essays (Princeton, N.J.: Princeton University Press, 1957), 96–97.}~

This is the flip side of the arguments that Diderot and later Hugo put forward.
Perhaps the romantic author does not create out of thin air. Perhaps he or she
is deeply embedded in a literary, musical, cultural, or scientific tradition
that would not flourish if treated as a set of permanently walled private
plots. Even within the droits d’auteur tradition, we see a recognition that the
continuing progress of enlightenment and the sacred genius of authors might
both require a certain level of freedom in knowledge inputs and a certain level
of control over knowledge outputs. We see also the recognition that these two
requirements are in fundamental tension. When it comes to reconciling that
tension we must turn in part to utilitarian effects. In short, we should pay
attention to Jefferson and Macaulay and Condorcet, not just because their
thoughts shaped the legal and philosophical traditions in which we now
work—though that is particularly true in the case of the United States—but
because they were right, or at least more right than the alternative.

Of course, we could build a culture around a notion of natural, absolute, and
permanent rights to invention and expression. It is not a world many of us
would want to live in. There are exceptions of course. In a recent New York
Times op-ed, Mark Helprin—author of Winter’s Tale—argued that intellectual
property should become perpetual.~{Mark Helprin, “A Great Idea Lives Forever.
Shouldn’t Its Copyright?” New York Times editorial (May 20, 2007), A12.}~ After
all, rights in real estate or personal property do not expire—though their
owners might. Why is it that copyrights should “only” last for a lifetime plus
seventy additional years, or patents for a mere twenty? Mr. Helprin expresses
respect for the genius of the framers, but is unmoved by their firm command
that rights be granted only for “limited times.” He concludes that it was a
misunderstanding. Jefferson did not realize that while ideas cannot be owned,
their expression can. What’s more, the framers were misled by their rustic
times. “No one except perhaps Hamilton or Franklin might have imagined that
services and intellectual property would become primary fields of endeavor and
the chief engines of the economy. Now they are, and it is no more rational to
deny them equal status than it would have been to confiscate farms, ropewalks
and other forms of property in the 18th century.” Poor Jefferson. How lucky we
are to have Mr. Helprin to remedy the consequences of his lack of vision.

Or perhaps not. Think of the way that Jefferson traced the origins of the
mechanical arts used in the elevators and hopper-boys all the way back to
ancient Persia. (In Mr. Helprin’s utopia, presumably, a royalty stream would
run to Cyrus the Great’s engineers.) Jefferson’s point was that for the process
of invention to work, we need to confine narrowly the time and scope of the
state-provided monopoly, otherwise further inventions would become impossible.
Each process or part of a new invention would risk infringing a myriad of prior
patents on its subcomponents. Innovation would strangle in a thicket of
conflicting monopolies with their roots vanishing back in time. Presumably the
title of Mr. Helprin’s excellent novel would require clearance from
Shakespeare’s heirs.

Of course, one could construct a more modest Lockean idea of intellectual
property~{The two most influential and brilliant examples are Justin Hughes,
“The Philosophy of Intellectual Property,” Georgetown Law Journal 77 (1988):
287–366, and Wendy J. Gordon, “A Property Right in Self-Expression: Equality
and Individualism in the Natural Law of Intellectual Property,” Yale Law
Journal 102 (1993): 1533–1610. Both of these articles attempt not to use Locke
as the basis for a world of absolute right, but instead to focus on the Locke
whose world of private property coexisted with a commons—albeit one much
diminished after the invention of money. If one goes far enough into the
Lockean conception—fine-tuning “enough and as good” so as to allow for a
vigorous commons, and the claims of labor so as to take account of the
importance of the embedded contributions of culture and science—then the
differences between the Jeffersonian view and the Lockean view start to recede
in significance. Academics have found the Lockean view attractive, noting,
correctly, that Locke is commonly brandished as a rhetorical emblem for
property schemes that he himself would have scorned. Yet when one looks at the
actual world of intellectual property policy discourse, and the difficulty of
enunciating even the simple Jeffersonian antimonopolist ideas I lay out here,
it is hard to imagine the nuanced Lockean view flourishing. Consider this
comment of Jeremy Waldron’s and ask yourself—is this result more likely from
within the Jeffersonian or the Lockean view? \\ Our tendency of course is to
focus on authors when we think about intellectual property. Many of us are
authors ourselves: reading a case about copyright we can empathize readily with
a plaintiff’s feeling for the effort he has put in, his need to control his
work, and his natural desire to reap the fruits of his own labor. In this
Essay, however, I shall look at the way we think about actual, potential and
putative infringers of copyright, those whose freedom is or might be
constrained by others’ ownership of songs, plays, words, images and stories.
Clearly our concept of the author and this concept of the copier are two sides
of the same coin. If we think of an author as having a natural right to profit
from his work, then we will think of the copier as some sort of thief; whereas
if we think of the author as beneficiary of a statutory monopoly, it may be
easier to see the copier as an embodiment of free enterprise values. These are
the connections I want to discuss, and my argument will be that we cannot begin
to unravel the conundrums of moral justification in this area unless we are
willing to approach the matter even-handedly from both sides of the question.
\\ After a magisterial study of justifications for the existing world of
intellectual property, Waldron concludes, “[t]he fact is, however, that whether
or not we speak of a burden of proof, an institution like intellectual property
is not self-justifying; we owe a justification to anyone who finds that he can
move less freely than he would in the absence of the institution. So although
the people whose perspective I have taken—the copiers—may be denigrated as
unoriginal plagiarists or thieves of others’ work, still they are the ones who
feel the immediate impact of our intellectual property laws. It affects what
they may do, how they may speak, and how they may earn a living. Of course
nothing is settled by saying that it is their interests that are particularly
at stake; if the tables were turned, we should want to highlight the
perspective of the authors. But as things stand, the would-be copiers are the
ones to whom a justification of intellectual property is owed.” See Jeremy
Waldron, “From Authors to Copiers: Individual Rights and Social Values in
Intellectual Property,” Chicago-Kent Law Review 68 (1993): 841, 842, 887. That
justification seems more plausibly and practically to come from the perspective
I sketch out here. See also William Fisher, “Theories of Intellectual
Property,” in New Essays in the Legal and Political Theory of Property, ed.
Stephen R. Munzer (Cambridge: Cambridge University Press, 2001), 168–200.}
—building on the notion of “enough and as good” left over for others and
drawing the limits tightly enough to avoid the worst of Mr. Helprin’s excesses.
But as one attempts to do this systematically, the power of the Jeffersonian
vision becomes all the more apparent—at least as a starting place.

The Jefferson Warning will play an important role in this book. But my
arguments here have implications far beyond Jefferson’s time, country, or
constitutional tradition. In the last analysis, I hope to convince you of the
importance of the Jefferson Warning or the views of Macaulay not because they
are famous authorities and revered thinkers or because they framed
constitutions or debated legislation. I wish to convince you that their views
are important because they encapsulate neatly an important series of truths
about intellectual property. We should listen to the Jefferson Warning not
because it is prestigious but because of its insight. As the Diderot-Condorcet
debates point out, the questions on which Jefferson and Macaulay focused do not
disappear merely because one embraces a philosophy of moral rights—if anything,
they become more pressing, particularly when one comes to define the limits of
intellectual property in scope and time. I ask that those readers who remain
leery of the Jeffersonian focus concentrate on that last issue. In an era when
we have been expanding intellectual property rights relentlessly, it is a
crucial one. If the Jefferson Warning produces in my unconvinced reader even a
slight queasiness about the likely effects of such a process of expansion, it
will have done its job—though in fact the tradition it represented was much
richer than a simple utilitarian series of cautions.

2~ A Tradition of Skeptical Minimalism

Eighteenth- and nineteenth-century intellectual property debates went beyond
Macaulay’s antimonopolist focus on price, access, quality, and control of the
nation’s literary heritage. While Macaulay is the best-remembered English
skeptic from the 1840s, there were other, more radical skeptics who saw
copyright primarily as a “tax on literacy” or a “tax on knowledge,” identical
in its effects to the newspaper stamp taxes.~{Catherine Seville, Literary
Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright
Act (Cambridge: Cambridge University Press, 1999), 46–48.}~ This was a time
when mass literacy and mass education were the hotly debated corollaries to the
enlargement of the franchise. The radical reformers looked with hostility on
anything that seemed likely to raise the cost of reading and thus continue to
restrict political and social debate to the wealthier classes. Macaulay worried
about a world in which “a copy of Clarissa would . . . [be] as rare as an Aldus
or a Caxton.”~{Macaulay Speech, 256.}~ His more radical colleagues saw
copyright—to use our ugly jargon rather than theirs—as one of the many ways in
which state communications policy is set and the communicative landscape tilted
to favor the rich and powerful.~{This point is made today by a number of
authors. See Yochai Benkler, The Wealth of Networks: How Social Production
Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006),
available at http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf; Neil
Weinstock Netanel, “Locating Copyright Within the First Amendment Skein,”
Stanford Law Review 54 (2001): 1–86; Netanel, “Copyright and a Democratic Civil
Society,” Yale Law Journal 106 (1996): 283–388; David McGowan, “Why the First
Amendment Cannot Dictate Copyright Policy,” available at
http://lawreview.law.pitt.edu/issues/65/65.2/McGowan.pdf [Ed. note: originally
published as: David McGowan, “First Amendment & Copyright Policy,” available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=460280; the new link is to
the final published version of the article]; Randal Picker, “Copyright as Entry
Policy: The Case of Digital Distribution,” Antitrust Bulletin 47 (2002): 423,
424.}~ Macaulay worried about the effects of monopoly on literature and
culture. All of them worried about the effects of copyright on democracy, on
speech, on education. In the world of the Internet, these skeptics too have
their contemporary equivalents.

Patent law also attracted its share of attacks in the mid-nineteenth century. A
fusillade of criticism, often delivered by economists and cast in the language
of free trade, portrayed the patent system as actively harmful.

_1 At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden,
September 1863, the following resolution was adopted “by an overwhelming
majority”: “Considering that patents hinder rather than further the progress of
invention; that they hamper the prompt general utilization of useful
inventions; that on balance they cause more harm than benefit to the inventors
themselves and, thus, are a highly deceptive form of compensation; the Congress
of German Economists resolves: that patents of invention are injurious to
common welfare.”~{Quoted in Fritz Machlup and Edith Penrose, “The Patent
Controversy in the Nineteenth Century,” Journal of Economic History 10, no. 1
(1950): 4, n8.}~

In the Netherlands, the patent system was actually abolished in 1869 as a
result of such criticisms. Observers in a number of other countries, including
Britain, concluded that their national patent systems were doomed. Various
proposals were made to replace patents, with state-provided prizes or bounties
to particularly useful inventions being the most popular.~{Ironically,
contemporary economists are rediscovering the attractions of patent
alternatives. A paper by Steven Shavell and Tanguy Van Ypersele is particularly
interesting in this regard: “Rewards versus Intellectual Property Rights,” NBER
Working Paper series, no. 6956, available at http://www.nber.org/papers/w6956.
}~

These snippets are hardly sufficient to constitute any kind of survey of
critical reactions to intellectual property systems, but I believe that
nevertheless they give us some sense of typical debates. What do these debates
tell us? From the early days of intellectual property as we know it now, the
main objections raised against it were framed in the language of free trade and
“anti-monopoly.” In the United States, the founding generation of intellectuals
had been nurtured on the philosophy of the Scottish Enlightenment and the
history of the struggle against royal monopolies. They saw the arguments in
favor of intellectual property but warned again and again of the need to
circumscribe both its term and its scope. This is the point at the heart of
Jefferson’s letter. This is why he insisted that we understand the policy
implications of the differences between tangible property and ideas, which
“like fire” are “expansible over all space, without lessening their density in
any point.”

What were the concerns of these early critics? They worried about intellectual
property producing artificial scarcity, high prices, and low quality. They
insisted that the benefits of each incremental expansion of intellectual
property be weighed against its costs. Think of Macaulay discussing Johnson’s
preference for a shin of beef rather than another slice of postmortem copyright
protection. They worried about its justice; given that we all learn from and
build on the past, do we have a right to carve out our own incremental
innovations and protect them by intellectual property rights?~{“Governor Thomas
was so pleased with the construction of this stove . . . that he offered to
give me a patent for the sole vending of them for a term of years; but I
declined it from a principle which has ever weighed with me on such occasions,
viz.: That, as we enjoy great advantages from the inventions of others, we
should be glad of an opportunity to serve others by any invention of ours; and
this we should do freely and generously.” Benjamin Franklin, Autobiography, in
The Works of Benjamin Franklin, ed. John Bigelow, vol. 1 (New York: G. P.
Putnam’s Sons, 1904), 237–238.}~ Price aside, they also worried that
intellectual property (especially with a lengthy term) might give too much
control to a single individual or corporation over some vital aspect of science
and culture. In more muted fashion, they discussed the possible effects that
intellectual property might have on future innovation. The most radical among
them worried about intellectual property’s effects on political debate,
education, and even control of the communications infrastructure, though they
did not use that particular phrase. But the overwhelming theme was the
promotion of free trade and a corresponding opposition to monopolies. Now if we
were to stop here and simply require that today’s policy makers, legislators,
and judges recite the Jefferson Warning before they rush off to make new
intellectual property rules for the Internet and the genome, we would have
accomplished a great deal. National and international policy makers are keen to
set the “rules of the road for the digital age.” If they would momentarily
pause their excited millenarian burbling and read the points scratched out with
a quill pen in 1813, or delivered (without PowerPoint support) on the floor of
the House of Commons in the 1840s, we would be better off. Everyone is
beginning to understand that in the world of the twenty-first century the rules
of intellectual property are both vital and contentious. How good it would be
then if our debate on intellectual property policy were as vigorous and as
informed as the debates of the nineteenth century. (Though we might hope it
would also be more democratic.)

And yet . . . there is much that is missing from the skepticism of the
eighteenth and nineteenth centuries and much that remains unclear. Look at the
structure of these comments; they are framed as criticisms of intellectual
property rather than defenses of the public domain or the commons, terms that
simply do not appear in the debates. There is no real discussion of the world
of intellectual property’s outside, its opposite. Most of these critics take as
their goal the prevention or limitation of an “artificial” monopoly; without
this monopoly our goal is to have a world of—what? The assumption is that we
will return to a norm of freedom, but of what kind? Free trade in expression
and innovation, as opposed to monopoly? Free access to expression and
innovation, as opposed to access for pay? Or free access to innovation and
expression in the sense of not being subject to the right of another person to
pick and choose who is given access, even if all have to pay some flat fee? Or
is it common ownership and control that we seek, including the communal right
to forbid certain kinds of uses of the shared resource? The eighteenth- and
nineteenth-century critics brushed over these points; but to be fair, we
continue to do so today. The opposite of property, or perhaps we should say the
opposites of property, are much more obscure to us than property itself.

For the most part, the antimonopolist view of intellectual property makes a
simple case. Monopolies are bad. Have as few as possible and make them as
narrow and as short as possible. This is a fine principle, but it falls short
of an affirmative explanation and defense of the role of the public domain or
the commons in enabling creativity, culture, and science. That is a shame
because just as intellectual property is different from tangible property, so
too is its opposite, its outside.

What are those opposites? The two major terms in use are “the public domain”
and “the commons.” Both are used in multiple ways—probably a good thing. The
public domain is material that is not covered by intellectual property rights.
Material might be in the public domain because it was never capable of being
owned. Examples would be the English language or the formulae of Newtonian
physics. Alternatively, something might be in the public domain because rights
have expired. The works of Shakespeare or the patents over powered flight are
examples.

Some definitions of the public domain are more granular. They focus not only on
complete works but on the reserved spaces of freedom inside intellectual
property. The public domain would include the privilege to excerpt short
quotations in a review. This vision is messier, but more instructive. If one
uses a spatial metaphor, the absolutist vision is a tessellated map. Areas of
private property are neatly delineated from areas of the public domain.
Mozart’s plot sits next to that of Britney Spears; one public, the other
private. In the granular view, the map is more complex. Ms. Spears’ plot is cut
through with rights to make fair use, as well as with limitations on ownership
of standard themes. Instead of the simple tiled map, the granular vision has
private plots with public roads running through them.

In popular discussion, we tend to use the absolutist view of both property and
the public domain. Lawyers prefer the more complex view of property and are
coming slowly to have a similarly complex view of the public domain. That is
the definition I will be using.

The term “commons” is generally used to denote a resource over which some group
has access and use rights—albeit perhaps under certain conditions. It is used
in even more ways than the term “public domain.” The first axis along which
definitions of the term “commons” vary is the size of the group that has access
rights. Some would say it is a commons only if the whole society has access.
That is the view I will take here.

The other difference between public domain and commons is the extent of
restrictions on use. Material in the public domain is free of property rights.
You may do with it what you wish. A commons can be restrictive. For example,
some open source software makes your freedom to modify the software contingent
on the condition that your contributions, too, will be freely open to others. I
will discuss this type of commons in Chapter 8.

So these are working definitions of public domain and commons. But why should
we care? Because the public domain is the basis for our art, our science, and
our self-understanding. It is the raw material from which we make new
inventions and create new cultural works. Why is it so important? Let us start
with the dry reasons.

Information and innovation are largely nonrival and nonexcludable goods. This
is Jefferson’s point, though expressed in less graceful language. It has some
interesting corollaries. Information is hard to value until you have it, but
once you have it, how can you dispossess yourself of it? The apple can be taken
back by the merchant if you decide not to buy. The facts or the formulae
cannot. The moment when you might have decided to pay or not to pay is already
over. The great economist Kenneth Arrow formalized this insight about
information economics,~{Kenneth Arrow, “Economic Welfare and the Allocation of
Resources for Invention,” in National Bureau of Economic Research, The Rate and
Direction of Inventive Activity: Economic and Social Factors (Princeton, N.J.:
Princeton University Press, 1962), 609–626.}~ and it profoundly shapes
intellectual property policy. (To a large extent, for example, the requirement
of “patent disclosure” attempts to solve this problem. I can read all about
your mousetrap but I am still forbidden from using it. I can decide whether or
not to license your design at that point.) But for all the material in the
public domain, where no intellectual property right is necessary, this point is
solved elegantly by having the information be “free as the air to common use.”
All of us can use the same store of information, innovation, and free culture.
It will be available at its cost of reproduction—close to zero—and we can all
build upon it without interfering with each other. Think of the English
language, basic business methods, tables of logarithms, the Pythagorean
theorem, Shakespeare’s insights about human nature, the periodic table, Ohm’s
law, the sonnet form, the musical scale.

Would you have paid to purchase access to each of these? I might tell you that
English was a superior communication tool—a really good command language for
your cognitive operating system. There could be levels of access with
corresponding prices. Would you pay to get access to “English Professional
Edition”? We can certainly imagine such a way of organizing languages. (To some
extent, scribal conventions operated this way. The languages of the professions
still do. One paid for access to “law French” in the common law courts of
England. One pays for an interpreter of contemporary legal jargon in today’s
legal system. But even there the language is free to the autodidact.) We can
imagine language, scientific knowledge, basic algebra, the tonic scale, or the
classics of four-hundred-year-old literature all being available only as
property. Those who had the highest “value for use” would purchase them. Those
who did not value them highly—whether because they could not know what could be
built with them until they had done so or because they did not have the
money—would not. What would this world, this culture, this science, this market
look like?

It would probably be very inefficient, the economists tell us. Perfect
information is a defining feature of the perfect market. The more commodified
and restricted our access to information, the less efficient the operation of
the market, the more poorly it allocates resources in our society. (The
permanent and in some sense insoluble tension between the need to provide
incentives to generate information, thus raising its cost, and the need to have
access to perfect information for efficiency is the central feature of our
intellectual property policy.)~{Sanford J. Grossman and Joseph E. Stiglitz, “On
the Impossibility of Informationally Efficient Markets,” American Economic
Review 70 (1980), 393–408; Boyle, Shamans, 35–42.}~ When we commodify too much
we actually undermine creativity, since we are raising the price of the inputs
for future creations—which might themselves be covered by intellectual property
rights. But “inefficient” is too bloodless a way to describe this world. It
would be awful.

Our markets, our democracy, our science, our traditions of free speech, and our
art all depend more heavily on a public domain of freely available material
than they do on the informational material that is covered by property rights.
The public domain is not some gummy residue left behind when all the good stuff
has been covered by property law. The public domain is the place we quarry the
building blocks of our culture. It is, in fact, the majority of our culture. Or
at least it has been.

I deliberately gave easy examples. It is obvious how unnecessary but also how
harmful it would be to extend property rights to language, to facts, to
business methods and scientific algorithms, to the basic structures of music,
to art whose creators are long dead. It is obvious that this would not produce
more innovation, more debate, more art, more democracy. But what about the
places where the value of the public domain is not obvious?

What if we were actually moving to extend patents to business methods, or
intellectual property rights to unoriginal compilations of facts? What if we
had locked up most of twentieth-century culture without getting a net benefit
in return? What if the basic building blocks of new scientific fields were
being patented long before anything concrete or useful could be built from
them? What if we were littering our electronic communication space with digital
barbed wire and regulating the tiniest fragments of music as if they were stock
certificates? What if we were doing all this in the blithe belief that more
property rights mean more innovation? The story of this book is that we are.

The Jefferson Warning is important. It is, however, just a warning. While it
would be excellent to print it on pocket cards and hand it to our elected
representatives, that alone will not solve the most pressing problems we face.
In the chapters that follow, I shall try to go further. In Chapter 3, I set the
process of expansion we are engaged in—our “second enclosure movement”—in
perspective by comparing it to the original enclosures of the grassy commons of
old England. In Chapter 4, I jump from the world of the fifteenth or nineteenth
century to the world of the twenty-first, from elevators and grain hoppers to
video recorders, the Internet, and file-sharing services. I use the story of
several key legal disputes to illustrate a broader history—the history of
intellectual property’s struggle with communications technologies that allow
people to copy more cheaply. Strangely enough, the Jefferson Warning will be
crucial in understanding the debate over copyright online and, in particular,
in understanding the fear that drives our current policy making, a fear I refer
to as the Internet Threat.

2~ Chapter 2: Further Reading

In this chapter I offered a snapshot of the historical debate over copyright,
patent and—to a lesser extent—trademark law. The argument is partly a matter of
intellectual history: a claim about what various individuals and groups
actually believed about intellectual property rights, and the way those beliefs
shaped the policies they supported and the legal structures they created. But
it is also a normative argument—a claim that this vision of intellectual
property is better than the more “physicalist” and “absolutist” alternatives I
described or, at the very least, that it is an important corrective to our
current excesses. This dual character complicates the task of providing a guide
to further reading: books could be written on either portion alone.

My own understanding of the history of “intellectual property”—itself a
relatively recently invented and contentious category—has been profoundly
influenced by more scholars than I can list here. Edward C. Walterscheid, The
Nature of the Intellectual Property Clause: A Study in Historical Perspective
(Buffalo, N.Y.: W. S. Hein, 2002), gives a magisterial account of the origins
of the U.S. Constitution’s intellectual property clause. Tyler T. Ochoa and
Mark Rose, “The Anti-Monopoly Origins of the Patent and Copyright Clause,”
Journal of the Patent & Trademark Office Society 84 (2002): 909–940, offer a
vision of the history that is closest to the one I put forward here. In
addition, Tyler T. Ochoa, “Origins and Meanings of the Public Domain,”
University of Dayton Law Review 28 (2002): 215–267, provides the same service
for the concept of the public domain. Malla Pollack provides a useful
historical study of the contemporary understanding of the word “progress” at
the time of the American Constitution in Malla Pollack, “The Democratic Public
Domain: Reconnecting the Modern First Amendment and the Original Progress
Clause (a.k.a. Copyright and Patent Clause),” Jurimetrics 45 (2004): 23–40. A
rich and thought-provoking account of the way that ideas of intellectual
property worked themselves out in the context of the corporate workplace can be
found in Catherine Fisk, Working Knowledge: Employee Innovation and the Rise of
Corporate Intellectual Property, 1800–1930 (Chapel Hill: University of North
Carolina Press, forthcoming 2009).

Of course, the history of copyright or of intellectual property cannot be
confined to the two figures I focus on principally here—Jefferson and
Macaulay—nor cannot it be confined to the Anglo-American tradition or to the
debates in which Jefferson and Macaulay were participating. Carla Hesse,
Publishing and Cultural Politics in Revolutionary Paris, 1789–1810 (Berkeley:
University of California Press, 1991), is vital reading to understand the
parallels between the Anglo-American and droits d’auteur tradition. It is also
fascinating reading. For studies of the broader intellectual climate, I
recommend Martha Woodmansee, The Author, Art, and the Market: Rereading the
History of Aesthetics (New York: Columbia University Press, 1994); Peter Jaszi,
“Toward a Theory of Copyright: The Metamorphoses of ‘Authorship,’ ” Duke Law
Journal 1991, no. 2: 455–502; Mark Rose, Authors and Owners: The Invention of
Copyright (Cambridge, Mass.: Harvard University Press, 1993); Lyman Ray
Patterson, Copyright in Historical Perspective (Nashville, Tenn.: Vanderbilt
University Press, 1968). The British debates at the time of Macaulay are
beautifully captured in Catherine Seville, Literary Copyright Reform in Early
Victorian England: The Framing of the 1842 Copyright Act (Cambridge, U.K.:
Cambridge University Press, 1999). (It should be noted that, while sympathetic,
she is less moved than I by Macaulay’s arguments.)

Any collection of historical works this rich and complex resists summary
description—nevertheless, I think it is fair to say that the vast majority of
these works stress the centrality of the skeptical “antimonopolist” attitudes I
use Jefferson and Macaulay to represent to the history of intellectual
property. This does not mean there is unanimity or anything close to it. In
particular, Adam Mossoff, “Who Cares What Thomas Jefferson Thought about
Patents? Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell
Law Review 92 (2007): 953–1012, which came to light late in the writing of this
book, offers a thoughtful historical account that criticizes the tendency to
use Jefferson’s views as representative of a dominant strand in American
intellectual property. My agreements and disagreements with Mossoff’s arguments
are discussed fully later in the notes to this chapter. The central point,
however, and the single strongest argument against those who would instead
attempt to construct a more absolutist, physicalist or labor-based theory of
intellectual property, is the problem of limits. Where does one stop? How can
one put a limit on the potentially absolute claim over some intellectual
creation? How can one specify the limits on prior creators that actually give
me ownership over what I create, for I surely have built on the works of
others? How can one circumscribe the negative effects on speech, life, and
culture that the absolutist or maximalist tradition threatens to generate? My
ultimate argument is that the purpose-driven, skeptical, antimonopolistic
tendencies of Jefferson and Macaulay answer those questions far better than any
contending theory, that they represent not merely an intellectual history sadly
neglected in today’s political debates, but a practical solution to the
inevitable question, “where do you draw the line?”

1~ Chapter 3: The Second Enclosure Movement

poem{

The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.
The poor and wretched don’t escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.

[Anon.]~{Apart from being anonymous, this poem is extremely hard to date. It probably originates in the enclosure controversies of the eighteenth century. However, the earliest reference to it that I have been able to discover is from 1821. Edward Birch was moved to compose some (fairly poor) verses in response when he reported “seeing the following jeu d’esprit in a Handbill posted up in Plaistow, as a ‘CAUTION’ to prevent persons from supporting the intended inclosure of Hainault or Waltham Forest.” He then quotes a version of the poem. Edward Birch, Tickler Magazine 3 (February 1821), 45. In 1860, “Exon,” a staff writer for the journal Notes and Queries, declares that “the animosity excited against the Inclosure Acts and their authors . . . was almost without precedent: though fifty years and more have passed, the subject is still a sore one in many parishes. . . . I remember some years ago, in hunting over an old library discovering a box full of printed squibs, satires and ballads of the time against the acts and those who were supposed to favor them,—the library having belonged to a gentleman who played an active part on the opposition side.” “Exon,” “Ballads Against Inclosures,” Notes and Queries 9, 2nd series (February 1860): 130–131. He reports finding the poem in that box, and quotes a verse from it. The context of the article makes it appear that the poem itself must date from the late eighteenth century. In other sources, the poem is sometimes dated at 1764, and said to be in response to Sir Charles Pratt’s fencing of common land. See, e.g., Dana A. Freiburger, “John Thompson, English Philomath—A Question of Land Surveying and Astronomy,” n. 15, available at http://www.nd.edu/~histast4/exhibits/papers/Freiburger/. This attribution is widespread and may well be true, but I have been able to discover no contemporary source material that sustains it. By the end of the nineteenth century, the poem was being quoted, sometimes with amusement and sometimes with agreement, on both sides of the Atlantic. See Ezra S. Carr, “Aids and Obstacles to Agriculture on the Pacific-Coast,” in The Patrons of Husbandry on the Pacific Coast (San Francisco: A. L. Bancroft and Co., 1875), 290–291; Edward P. Cheyney, An Introduction to the Industrial and Social History of England (New York: Macmillan, 1901), 219.}~

}poem

In fits and starts from the fifteenth to the nineteenth century, the English
“commons” was “enclosed.”~{Although we refer to it as the enclosure movement,
it was actually a series of enclosures that started in the fifteenth century
and went on, with differing means, ends, and varieties of state involvement,
until the nineteenth. See, e.g., J. A. Yelling, Common Field and Enclosure in
England, 1450–1850 (Hamden, Conn.: Archon Books, 1977).}~ Enclosure did not
necessarily mean physical fencing, though that could happen. More likely, the
previously common land was simply converted into private property, generally
controlled by a single landholder.

The poem that begins this chapter is the pithiest condemnation of the process.
It manages in a few lines to criticize double standards, expose the
controversial nature of property rights, and take a slap at the legitimacy of
state power. And it does this all with humor, without jargon, and in rhyming
couplets. Academics should take note. Like most criticisms of the enclosure
movement, the poem depicts a world of rapacious, state-aided “privatization,” a
conversion into private property of something that had formerly been common
property or perhaps had been outside the property system altogether. One kind
of “stealing” is legal, says the poet, because the state changes the law of
property to give the “lords and ladies” a right over an area formerly open to
all. But let a commoner steal something and he is locked up.

The anonymous author was not alone in feeling indignant. Thomas More (one of
only two saints to write really good political theory) made similar points,
though he used sheep rather than geese in his argument. Writing in the
sixteenth century, he had argued that enclosure was not merely unjust in itself
but harmful in its consequences: a cause of economic inequality, crime, and
social dislocation. In a wonderfully bizarre passage he argues that sheep are a
principal cause of theft. Sheep? Why, yes.

_1 [Y]our sheep that were wont to be so meek and tame, and so small eaters,
now, as I hear say, be become so great devourers and so wild, that they eat up,
and swallow down the very men themselves. They consume, destroy, and devour
whole fields, houses, and cities.

Who were these sheep? Bizarre Dolly-like clones? Transgenic killer rams? No.
More meant only that under the economic lure of the wool trade, the “noblemen
and gentlemen” were attempting their own enclosure movement.

_1 [They] leave no ground for tillage, they enclose all into pastures; they
throw down houses; they pluck down towns, and leave nothing standing, but only
the church to be made a sheep-house. . . . Therefore that one covetous and
insatiable cormorant and very plague of his native country may compass about
and enclose many thousand acres of ground together within one pale or hedge,
the husbandmen be thrust out of their own.~{Thomas More, Utopia (New York: W.
J. Black, 1947), 32.}~

The sheep devour all. The dispossessed “husbandmen” now find themselves without
land or money and turn instead to theft. In More’s vision, it is all very The
Second Enclosure Movement simple. Greed leads to enclosure. Enclosure disrupts
the life of the poor farmer. Disruption leads to crime and violence.

Writing 400 years later, Karl Polanyi echoes More precisely. He calls the
enclosure movement “a revolution of the rich against the poor” and goes on to
paint it in the most unflattering light. “The lords and nobles were upsetting
the social order, breaking down ancient law and custom, sometimes by means of
violence, often by pressure and intimidation. They were literally robbing the
poor of their share in the common. . . .”~{Karl Polanyi, The Great
Transformation: The Political and Economic Origins of Our Time (Boston: Beacon
Press, 1957), 35. Polanyi continues in the same vein. “The fabric of society
was being disrupted. Desolate villages and the ruins of human dwellings
testified to the fierceness with which the revolution raged, endangering the
defenses of the country, wasting its towns, decimating its population, turning
its overburdened soil into dust, harassing its people and turning them from
decent husbandmen into a mob of beggars and thieves.” Ibid. See also E. P.
Thompson, The Making of the English Working Class (London: V. Gollancz, 1963),
218.}~ And turning them to “beggars and thieves.” The critics of enclosure saw
other harms too, though they are harder to classify. They bemoaned the
relentless power of market logic to migrate to new areas, disrupting
traditional social relationships and perhaps even views of the self, or the
relationship of human beings to the environment. Fundamentally, they mourned
the loss of a form of life.

So much for the bad side of the enclosure movement. For many economic
historians, everything I have said up to now is the worst kind of sentimental
bunk, romanticizing a form of life that was neither comfortable nor noble, and
certainly not very egalitarian. The big point about the enclosure movement is
that it worked; this innovation in property systems allowed an unparalleled
expansion of productive possibilities.~{See generally Lord Ernle, English
Farming Past and Present, 6th ed. (Chicago: Quadrangle Books, 1961).}~ By
transferring inefficiently managed common land into the hands of a single
owner, enclosure escaped the aptly named “tragedy of the commons.” It gave
incentives for large-scale investment, allowed control over exploitation, and
in general ensured that resources could be put to their most efficient use.
Before the enclosure movement, the feudal lord would not invest in drainage
systems, sheep purchases, or crop rotation that might increase yields from the
common—he knew all too well that the fruits of his labor could be appropriated
by others. The strong private property rights and single-entity control that
were introduced in the enclosure movement avoid the tragedies of overuse and
underinvestment: more grain will be grown, more sheep raised, consumers will
benefit, and fewer people will starve in the long run.~{For an excellent
summary of the views of Hobbes, Locke, and Blackstone on these points, see
Hannibal Travis, “Pirates of the Information Infrastructure: Blackstonian
Copyright and the First Amendment,” Berkeley Technology Law Journal 15 (2000):
789–803.}~

If the price of this social gain is a greater concentration of economic power,
the introduction of market forces into areas where they previously had not been
so obvious, or the disruption of a modus vivendi with the environment—then,
enclosure’s defenders say, so be it! In their view, the agricultural surplus
produced by enclosure helped to save a society devastated by the mass deaths of
the sixteenth century. Those who weep over the terrible effects of private
property should realize that it literally saves lives.

Now it is worth noting that while this view was once unchallenged,~{More recent
accounts which argue that enclosure led to productivity gains tend to be more
qualified in their praise. Compare the more positive account given in Ernle,
English Farming, with Michael Turner, “English Open Fields and Enclosures:
Retardation or Productivity Improvements,” Journal of Economic History 46
(1986): 688: “Enclosure cannot be seen as the automatic open door to this cycle
of agricultural improvement, but the foregoing estimates do suggest that
perhaps it was a door which opened frequently, and with profit.”}~ recent
scholarship has thrown some doubts on the effects of enclosure on agricultural
production.~{Most notably work by Robert C. Allen: “The Efficiency and
Distributional Consequences of Eighteenth Century Enclosures,” The Economic
Journal 92 (1982): 937–953; Enclosure and The Yeoman (New York: Oxford
University Press, 1992). Allen argues that the enclosure movement produced
major distributional consequences, but little observable efficiency gain. The
pie was carved up differently, to the advantage of the landlords, but made no
larger. In contrast, Turner sees enclosure as one possible, though not a
necessary, route to productivity gains (“English Open Fields,” 688). Donald
McCloskey’s work also argues for efficiency gains from enclosure, largely from
the evidence provided by rent increases. Donald N. McCloskey, “The Enclosure of
Open Fields: Preface to a Study of Its Impact on the Efficiency of English
Agriculture in the Eighteenth Century,” Journal of Economic History 32 (1972):
15–35; “The Prudent Peasant: New Findings on Open Fields,” Journal of Economic
History 51 (1991): 343–355. In Allen’s view, however, the increase in rents was
largely a measure of the way that changes in legal rights altered the
bargaining power of the parties and the cultural context of rent negotiations;
enclosure allowed landlords to capture more of the existing surplus produced by
the land, rather than dramatically expanding it. “[T]he enclosure movement
itself might be regarded as the first state sponsored land reform. Like so many
since, it was justified with efficiency arguments, while its main effect
(according to the data analysed here) was to redistribute income to already
rich landowners.” Allen, “Eighteenth Century Enclosures,” 950–951.}~ Some
scholars argue that the commons was actually better run than the defenders of
enclosure admit.~{The possibility of producing “order without law” and thus
sometimes governing the commons without tragedy has also fascinated scholars of
contemporary land use. Robert C. Ellickson, Order without Law: How Neighbors
Settle Disputes (Cambridge, Mass.: Harvard University Press, 1991); Elinor
Ostrom, Governing the Commons: The Evolution of Institutions for Collective
Action (Cambridge: Cambridge University Press, 1990).}~ Thus, while enclosure
did produce the changes in the distribution of wealth that so incensed an
earlier generation of critical historians, they argue that there are
significant questions about whether it led to greater efficiency or innovation.
The pie was carved up differently, but did it get bigger? The debate about
these issues is little known, however, outside the world of economic
historians. “Everyone” knows that a commons is by definition tragic and that
the logic of enclosure is as true today as it was in the fifteenth century. I
will not get involved in this debate. Assume for the sake of argument that
enclosure did indeed produce a surge in agriculture. Assume, in other words,
that converting the commons into private property saved lives. This is the
logic of enclosure. It is a powerful argument, but it is not always right.

This is all very well, but what does it have to do with intellectual property?
I hope the answer is obvious. The argument of this book is that we are in the
middle of a second enclosure movement. While it sounds grandiloquent to call it
“the enclosure of the intangible commons of the mind,” in a very real sense
that is just what it is.~{The analogy to the enclosure movement has been too
succulent to resist. To my knowledge, Ben Kaplan, Pamela Samuelson, Yochai
Benkler, David Lange, Christopher May, David Bollier, and Keith Aoki have all
employed the trope, as I myself have on previous occasions. For a particularly
thoughtful and careful development of the parallel between the two enclosure
movements, see Travis, “Pirates of the Information Infrastructure.”}~ True, the
new state-created property rights may be “intellectual” rather than “real,” but
once again things that were formerly thought of as common property, or as
“uncommodifiable,” or outside the market altogether, are being covered with
new, or newly extended, property rights.

Take the human genome as an example. Again, the supporters of enclosure have
argued that the state was right to step in and extend the reach of property
rights; that only thus could we guarantee the kind of investment of time,
ingenuity, and capital necessary to produce new drugs and gene therapies.~{See,
e.g., William A. Haseltine, “The Case for Gene Patents,” Technology Review
(September 2000): 59, available at
http://www.technologyreview.com/articles/haseltine0900.asp; cf. Alexander K.
Haas, “The Wellcome Trust’s Disclosures of Gene Sequence Data into the Public
Domain & the Potential for Proprietary Rights in the Human Genome,” Berkeley
Technology Law Journal 16 (2001): 145–164.}~ To the question, “Should there be
patents over human genes?” the supporters of enclosure would answer that
private property saves lives.~{See, e.g., Haseltine, “The Case for Gene
Patents”; Biotechnology Industry Association, “Genentech, Incyte Genomics Tell
House Subcommittee Gene Patents Essential for Medical Progress,” available at
http://www.bio.org/news/newsitem.asp?id=2000_0713_01. }~ The opponents of
enclosure have claimed that the human genome belongs to everyone, that it is
literally the common heritage of humankind, that it should not and perhaps in
some sense cannot be owned, and that the consequences of turning over the human
genome to private property rights will be dreadful, as market logic invades
areas which should be the farthest from the market. In stories about stem cell
and gene sequence patents, critics have mused darkly about the way in which the
state is handing over monopoly power to a few individuals and corporations,
potentially introducing bottlenecks and coordination costs that slow down
innovation.~{See, e.g., Howard Markel, “Patents Could Block the Way to a Cure,”
New York Times (August 24, 2001), A19. For the general background to these
arguments, see Rebecca S. Eisenberg, “Patenting the Human Genome,” Emory Law
Journal 39 (1990): 740–744.}~

Alongside these accounts of the beneficiaries of the new property scheme run
news stories about those who were not so fortunate, the commoners of the
genetic enclosure. Law students across America read Moore v. Regents of
University of California, a California Supreme Court case deciding that Mr.
Moore had no property interest in the cells derived from his spleen.~{793 P.2d
479, 488–497 (Cal. 1990).}~ The court tells us that giving private property
rights to “sources” would slow the freewheeling practice researchers have of
sharing their cell lines with all and sundry.~{Ibid., 493–494. One imagines
Styrofoam coolers criss-crossing the country by FedEx in an orgy of communistic
flesh-swapping.}~ The doctors whose inventive genius created a billion-dollar
cell line from Mr. Moore’s “naturally occurring raw material,” by contrast, are
granted a patent. Private property rights here, by contrast, are a necessary
incentive to research.~{Ibid., 493.}~ Economists on both sides of the enclosure
debate concentrate on the efficient allocation of rights. Popular discussion,
on the other hand, doubtless demonstrating a reprehensible lack of rigor,
returns again and again to more naturalistic assumptions such as the
essentially “common” quality of the property involved or the idea that one owns
one’s own body.~{I might be suspected of anti-economist irony here. In truth,
neither side’s arguments are fully satisfying. It is easy to agree with Richard
Posner that the language of economics offers a “thin and unsatisfactory
epistemology” through which to understand the world. Richard Posner, The
Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990):
xiv (quoting Paul Bator, “The Judicial Universe of Judge Richard Posner,”
University of Chicago Law Review 52 (1985): 1161). On the other hand,
explaining what it means to “own one’s own body,” or specifying the
noncommodifiable limits on the market, turns out to be a remarkably tricky
business, as Margaret Jane Radin has shown with great elegance in Contested
Commodities (Cambridge, Mass.: Harvard University Press, 1996).}~

The genome is not the only area to be partially “enclosed” during this second
enclosure movement. The expansion of intellectual property rights has been
remarkable—from business method patents, to the Digital Millennium Copyright
Act, to trademark “anti-dilution” rulings, to the European Database Protection
Directive.~{Directive 96/9/EC of the European Parliament and of the Council of
11 March 1996 on the Legal Protection of Databases, 1996 Official Journal of
the European Union (L 77) 20, available at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML
[Ed. note: originally published as
http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html, the link has been
changed].}~ The old limits to intellectual property rights—the antierosion
walls around the public domain—are also under attack. The annual process of
updating my syllabus for a basic intellectual property course provides a nice
snapshot of what is going on. I can wax nostalgic looking back to a
five-year-old text, with its confident list of subject matter that intellectual
property rights could not cover, the privileges that circumscribed the rights
that did exist, and the length of time before a work falls into the public
domain. In each case, the limits have been eaten away.

2~ How Much of the Intangible Commons Should We Enclose?

So far I have argued that there are profound similarities between the first
enclosure movement and our contemporary expansion of intellectual property,
which I call the second enclosure movement. Once again, the critics and
proponents of enclosure are locked in battle, hurling at each other
incommensurable claims about innovation, efficiency, traditional values, the
boundaries of the market, the saving of lives, the loss of familiar liberties.
Once again, opposition to enclosure is portrayed as economically illiterate:
the beneficiaries of enclosure telling us that an expansion of property rights
is needed in order to fuel progress. Indeed, the post-Cold War “Washington
consensus” is invoked to claim that the lesson of history itself is that the
only way to get growth and efficiency is through markets; property rights,
surely, are the sine qua non of markets.~{The phrase “Washington consensus”
originated in John Williamson, “What Washington Means by Policy Reform,” in
Latin American Adjustment: How Much Has Happened? ed. John Williamson
(Washington, D.C.: Institute for International Economics, 1990). Over time it
has come to be used as shorthand for a neoliberal view of economic policy that
puts its faith in deregulation, privatization, and the creation and defense of
secure property rights as the cure for all ills. (See Joseph Stiglitz, “The
World Bank at the Millennium,” Economic Journal 109 [1999]: 577–597.) It has
thus become linked to the triumphalist neoliberal account of the end of history
and the victory of unregulated markets: see Francis Fukuyama, The End of
History and the Last Man (New York: Free Press, 1992). Neither of these two
results are, to be fair, what its creator intended. See John Williamson, “What
Should the Bank Think about the Washington Consensus?” Institute for
International Economics (July 1999), available at
http://www.iie.com/publications/papers/paper.cfm?ResearchID=351. }~

This faith in enclosure is rooted in a correspondingly deep pessimism about the
possibility of managing resources that are either commonly owned or owned by no
one. If all have the right to graze their herds on common land, what incentive
does anyone have to hold back? My attempt to safeguard the future of the
pasture will simply be undercut by others anxious to get theirs while the
getting is good. Soon the pasture will be overgrazed and all our flocks will go
hungry. In a 1968 article, Garrett Hardin came up with the phrase that would
become shorthand for the idea that there were inherent problems with
collectively managed resources: “the tragedy of the commons.”~{Garrett Hardin,
“The Tragedy of the Commons,” Science 162 (1968): 1243–1248.}~ The phrase, more
so than the actual arguments in his article, has come to exercise considerable
power over our policies today. Private property—enclosure—is portrayed as the
happy ending for the tragedy of the commons: when policy makers see a resource
that is unowned, they tend to reach reflexively for “the solving idea of
property.” According to this view, enclosure is not a “revolution of the rich
against the poor,” it is a revolution to save the waste of socially vital
resources. To say that some social resource is not owned by an individual, that
it is free as the air to common use, is automatically to conjure up the idea
that it is being wasted.

But if there are similarities between our two enclosures, there are also
profound dissimilarities; the networked commons of the mind has many different
characteristics from the grassy commons of Old England.~{The differences are
particularly strong in the arguments over “desert”—are these property rights
deserved or are they simply violations of the public trust, privatizations of
the commons? For example, some would say that we never had the same traditional
claims over the genetic commons that the victims of the first enclosure
movement had over theirs; this is more like newly discovered frontier land, or
perhaps even privately drained marshland, than it is like well-known common
land that all have traditionally used. In this case, the enclosers can claim
(though their claims are disputed) that they discovered or perhaps simply made
usable the territory they seek to own. The opponents of gene patenting, on the
other hand, turn more frequently than the farmers of the eighteenth century to
religious and ethical arguments about the sanctity of life and the
incompatibility of property with living systems. These arguments, or the
appeals to free speech that dominate debates over digital intellectual
property, have no precise analogue in debates over hunting or pasturage, though
again there are common themes. For example, we are already seeing nostalgic
laments of the loss of the immemorial rights of Internet users. At the same
time, the old language of property law is turned to this more evanescent
subject matter; a favorite title of mine is I. Trotter Hardy, “The Ancient
Doctrine of Trespass to Web Sites,” 1996, art. 7, Journal of Online Law art. 7,
available at http://www.wm.edu/law/publications/jol/95_96/hardy.html. }~ I want
to concentrate here on two key differences between the intellectual commons and
the commons of the first enclosure movement, differences that should lead us to
question whether this commons is truly tragic and to ask whether stronger
intellectual property rights really are the solution to our problems. These
differences are well known, indeed they are the starting point for most
intellectual property law, a starting point that Jefferson and Macaulay have
already laid out for us. Nevertheless, reflection on them might help to explain
both the problems and the stakes in the current wave of expansion.

Unlike the earthy commons, the commons of the mind is generally “nonrival.”
Many uses of land are mutually exclusive: if I am using the field for grazing,
it may interfere with your plans to use it for growing crops. By contrast, a
gene sequence, an MP3 file, or an image may be used by multiple parties; my The
Second Enclosure Movement use does not interfere with yours. To simplify a
complicated analysis, this means that the threat of overuse of fields and
fisheries is generally not a problem with the informational or innovational
commons.~{The exceptions to this statement turn out to be fascinating. In the
interest of brevity, however, I will ignore them entirely.}~ Thus, one type of
tragedy of the commons is avoided.

The concerns in the informational commons have to do with a different kind of
collective action problem: the problem of incentives to create the resource in
the first place. The difficulty comes from the assumption that information
goods are not only nonrival (uses do not interfere with each other), but also
nonexcludable (it is impossible, or at least hard, to stop one unit of the good
from satisfying an infinite number of users at zero marginal cost). Pirates
will copy the song, the mousetrap, the drug formula, the brand. The rest of the
argument is well known. Lacking an ability to exclude, creators will be unable
to charge for their creations; there will be inadequate incentives to create.
Thus, the law must step in and create a limited monopoly called an intellectual
property right.

How about the argument that the increasing importance of information-intensive
products to the world economy means that protection must increase? Must the
information commons be enclosed because it is now a more important sector of
economic activity?~{Remember, I am talking here about increases in the level of
rights: protecting new subject matter for longer periods of time, criminalizing
certain technologies, making it illegal to cut through digital fences even if
they have the effect of foreclosing previously lawful uses, and so on. Each of
these has the effect of diminishing the public domain in the name of national
economic policy.}~ This was certainly one of the arguments for the first
enclosure movement. For example, during the Napoleonic Wars enclosure was
defended as a necessary method of increasing the efficiency of agricultural
production, now a vital sector of a wartime economy.

Here we come to another big difference between the commons of the mind and the
earthy commons. As has frequently been pointed out, information products are
often made up of fragments of other information products; your information
output is someone else’s information input.~{James Boyle, Shamans, Software,
and Spleens: Law and the Construction of the Information Society (Cambridge,
Mass.: Harvard University Press, 1996), 29; William M. Landes and Richard A.
Posner, “Economic Analysis of Copyright Law,” Journal of Legal Studies 18
(1989): 325; Pamela Samuelson and Suzanne Scotchmer, “The Law & Economics of
Reverse Engineering,” Yale Law Journal 111 (2002): 1575–1664; Jessica Litman,
“The Public Domain,” Emory Law Journal 39 (1990): 1010–1011.}~ These inputs may
be snippets of code, discoveries, prior research, images, genres of work,
cultural references, or databases of single nucleotide polymorphisms—each is
raw material for future innovation. Every increase in protection raises the
cost of, or reduces access to, the raw material from which you might have built
those future products. The balance is a delicate one; one Nobel Prize-winning
economist has claimed that it is actually impossible to strike that balance so
as to produce an informationally efficient market.~{Sanford J. Grossman and
Joseph E. Stiglitz, “On the Impossibility of Informationally Efficient
Markets,” American Economic Review 70 (1980): 404.}~

Whether or not it is impossible in theory, it is surely a difficult problem in
practice. In other words, even if enclosure of the arable commons always
produced gains (itself a subject of debate), enclosure of the information
commons clearly has the potential to harm innovation as well as to support
it.~{For a more technical account, see James Boyle, “Cruel, Mean, or Lavish?
Economic Analysis, Price Discrimination and Digital Intellectual Property,”
Vanderbilt Law Review 53 (2000): 2007–2039.}~ More property rights, even though
they supposedly offer greater incentives, do not necessarily make for more and
better production and innovation—sometimes just the opposite is true. It may be
that intellectual property rights slow down innovation, by putting multiple
roadblocks in the way of subsequent innovation.~{The most recent example of
this phenomenon is multiple legal roadblocks in bringing GoldenRice™ to market.
For a fascinating study of the various issues involved and the strategies for
working around them, see R. David Kryder, Stanley P. Kowalski, and Anatole F.
Krattiger, “The Intellectual and Technical Property Components of Pro-Vitamin A
Rice (GoldenRice™): A Preliminary Freedom-to-Operate Review,” ISAAA Briefs No.
20 (2000), available at http://www.isaaa.org/Briefs/20/briefs.htm. In assessing
the economic effects of patents, one has to balance the delays and increased
costs caused by the web of property rights against the benefits to society of
the incentives to innovation, the requirement of disclosure, and the eventual
access to the patented subject matter. When the qualification levels for
patents are set too low, the benefits are minuscule and the costs very high—the
web of property rights is particularly tangled, complicating follow-on
innovation, the monopoly goes to “buy” a very low level of inventiveness, and
the disclosure is of little value.}~ Using a nice inversion of the idea of the
tragedy of the commons, Heller and Eisenberg referred to these effects—the
transaction costs caused by myriad property rights over the necessary
components of some subsequent innovation—as “the tragedy of the
anticommons.”~{Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter
Innovation? The Anticommons in Biomedical Research,” Science 280 (1998):
698–701.}~

In short, even if the enclosure movement was a complete success, there are
important reasons to believe that the intangible world is less clearly a
candidate for enclosure, that we should pause, study the balance between the
world of the owned and the world of the free, gather evidence. After all, even
in physical space, “common” property such as roads increases the value of the
surrounding private tracts. If there are limits to the virtues of enclosure
even there, how much more so in a world of intangible and nonrival goods, which
develop by drawing on prior creations? Yet the second enclosure movement
proceeds confidently nevertheless—with little argument and less evidence.

To be sure, there is a danger of overstatement. The very fact that the changes
have been so one-sided makes it hard to resist exaggerating their impact. In
1918, Justice Brandeis confidently claimed that “[t]he general rule of law is,
that the noblest of human productions—knowledge, truths ascertained,
conceptions, and ideas—become, after voluntary communication to others, free as
the air to common use.”~{Int’l News Serv. v. Associated Press, 248 U.S. 215,
250 (1918) (Brandeis, J., dissenting).}~ That baseline—intellectual property
rights are the exception rather than the norm; ideas and facts must always
remain in the public domain—is still supposed to be our starting point.~{Yochai
Benkler, “Free as the Air to Common Use: First Amendment Constraints on
Enclosure of the Public Domain,” New York University Law Review 74 (1999): 354,
361, 424.}~ It is, however, under attack.

Both overtly and covertly, the commons of facts and ideas is being enclosed.
Patents are increasingly stretched to cover “ideas” that twenty years ago all
scholars would have agreed were unpatentable.~{The so-called “business method”
patents, which cover such “inventions” as auctions or accounting methods, are
an obvious example. See, e.g., State St. Bank & Trust Co. v. Signature Fin.
Group, Inc. , 149 F.3d 1368, 1373 (Fed. Cir. 1998).}~ Most troubling of all are
the attempts to introduce intellectual property rights over mere compilations
of facts.~{Database Investment and Intellectual Property Antipiracy Act of
1996, HR 3531, 104th Cong. (1996); Collections of Information Antipiracy Act, S
2291, 105th Cong. (1998).}~ If U.S. intellectual property law had an article of
faith, it was that unoriginal compilations of facts would remain in the public
domain, that this availability of the raw material of science and speech was as
important to the next generation of innovation as the intellectual property
rights themselves.~{See, e.g., Feist Publications v. Rural Tel. Serv. Co. , 499
U.S. 340, 350 (1991): “Copyright treats facts and factual compilations in a
wholly consistent manner. Facts, whether alone or as part of a compilation, are
not original and therefore may not be copyrighted.” To hold otherwise “distorts
basic copyright principles in that it creates a monopoly in public domain
materials without the necessary justification of protecting and encouraging the
creation of ‘writings’ by ‘authors.’ ” Ibid., at 354.}~ The system would hand
out monopolies in inventions and in original expression, while the facts below
(and ideas above) would remain free for all to build upon. But this premise is
being undermined. Some of the challenges are subtle: in patent law, stretched
interpretations of novelty and nonobviousness allow intellectual property
rights to move closer and closer to the underlying data layer; gene sequence
patents come very close to being rights over a particular discovered
arrangement of data—C’s, G’s, A’s, and T’s.~{See Eisenberg, “Patenting the
Human Genome”; Haas, “Wellcome Trust’s Disclosures.”}~ Other challenges are
overt: the European Database Protection Directive did (and various proposed
bills in the United States would) create proprietary rights over compilations
of facts, often without even the carefully framed exceptions of the copyright
scheme, such as the usefully protean category of fair use.

The older strategy of intellectual property law was a “braided” one: thread a
thin layer of intellectual property rights around a commons of material from
which future creators would draw.~{Those who prefer topographical metaphors
might imagine a quilted pattern of public and private land, with legal rules
specifying that certain areas, beaches say, can never be privately owned, and
accompanying rules giving public rights of way through private land if there is
a danger that access to the commons might otherwise be blocked.}~ Even that
thin layer of intellectual property rights was limited so as to allow access to
the material when that was necessary to further the goals of the system. Fair
use allows for parody, commentary, and criticism, and also for “decompilation”
of computer programs so that Microsoft’s competitors can reverse engineer
Word’s features in order to make sure their program can convert Word files. It
may sound paradoxical, but in a very real sense protection of the commons was
one of the fundamental goals of intellectual property law.

In the new vision of intellectual property, however, property should be
extended everywhere; more is better. Expanding patentable and copyrightable
subject matter, lengthening the copyright term, giving legal protection to
“digital barbed wire,” even if it is used to prevent fair use: each of these
can be understood as a vote of no confidence in the productive powers of the
commons. We seem to be shifting from Brandeis’s assumption that the “noblest of
human productions are free as the air to common use” to the assumption that any
commons is inefficient, if not tragic.

The expansion is more than a formal one. It used to be relatively hard to
violate an intellectual property right. The technologies of reproduction or the
activities necessary to infringe were largely, though not entirely, industrial.
Imagine someone walking up to you in 1950, handing you a book or a record or a
movie reel, and saying “Quick! Do something the law of intellectual property
might forbid.” (This, I admit, is a scenario only likely to come to the mind of
a person in my line of work.) You would have been hard-pressed to do so.
Perhaps you could find a balky mimeograph machine, or press a reel-to-reel tape
recorder into use. You might manage a single unauthorized showing of the
movie—though to how many people? But triggering the law of intellectual
property would be genuinely difficult. Like an antitank mine, it would not be
triggered by the footsteps of individuals. It was reserved for bigger game.

This was no accident. The law of intellectual property placed its triggers at
the point where commercial activity by competitors could undercut the
exploitation of markets by the rights holder. Copying, performance,
distribution—these were things done by other industrial entities who were in
competition with the owner of the rights: other publishers, movie theaters,
distributors, manufacturers. In practice, if not theory, the law was ptal
industry regulation of unfair competition—made by the people in the affected
industries for the people in the affected industries. The latter point is worth
stressing. Congress would, and still does, literally hand over the lawmaking
process to the industries involved, telling them to draft their intra-industry
contract in the form of a law, and then to return to Congress to have it
enacted. The public was not at the table, needless to say, and the assumption
was that to the extent there was a public interest involved in intellectual
property law, it was in making sure that the industries involved got their act
together, so that the flow of new books and drugs and movies would continue.
Members of the public, in other words, were generally thought of as passive
consumers of finished products produced under a form of intra-industry
regulation that rarely implicated any act that an ordinary person would want,
or be able, to engage in.

In the world of the 1950s, these assumptions make some sense—though we might
still disagree with the definition of the public interest. It was assumed by
many that copyright need not and probably should not regulate private,
noncommercial acts. The person who lends a book to a friend or takes a chapter
into class is very different from the company with a printing press that
chooses to reproduce ten thousand copies and sell them. The photocopier and the
VCR make that distinction fuzzier, and the networked computer threatens to
erase it altogether.

So how are things different today? If you are a person who routinely uses
computers, the Internet, or digital media, imagine a day when you do not
create—intentionally and unintentionally—hundreds of temporary, evanescent
copies. (If you doubt this, look in the cache of your browser.) Is there a day
when you do not “distribute” or retransmit fragments of articles you have read,
when you do not seek to share with friends some image or tune? Is there a day
when you do not rework for your job, for your class work, or simply for
pastiche or fun, some of the digital material around you? In a networked
society, copying is not only easy, it is a necessary part of transmission,
storage, caching, and, some would claim, even reading.~{See Jessica Litman,
Digital Copyright: Protecting Intellectual Property on the Internet (Amherst,
N.Y.: Prometheus Books, 2001).}~

As bioinformatics blurs the line between computer modeling and biological
research, digital production techniques blur the lines between listening,
editing, and remaking. “Rip, mix, and burn,” says the Apple advertisement. It
marks a world in which the old regime of intellectual property, operating
upstream as a form of industrial competition policy, has been replaced.
Intellectual property is now in and on the desktop and is implicated in routine
creative, communicative, and just plain consumptive acts that each of us
performs every day. Suddenly, the triggers of copyright—reproduction,
distribution—can be activated by individual footsteps.

Of course, we would hope that in your daily actions you scrupulously observed
the rights—all the rights—of the companies that have interests in the texts,
tunes, images of celebrities, trademarks, business method patents, and
fragments of computer code you dealt with. Did you? Can you be sure? I teach
intellectual property, but I admit to some uncertainty. I would not have
imagined that a temporary image of a Web page captured in the cache of my
browser counted as a “copy” for the purposes of copyright law.~{See James
Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,” Harvard
Journal of Law & Technology 10 (1996): 47–112.}~ I would have thought that it
was fair use for a company to photocopy articles in journals it subscribed to,
and paid for, in order to circulate them to its researchers.~{American
Geophysical Union v. Texaco, 37 F.3d 882 (2nd Cir. 1994).}~ If a conservative
Web site reposted news articles from liberal newspapers with critical
commentary, that, too, would have seemed like fair use.~{Los Angeles Times v.
Free Republic, 2000 U.S. Dist. LEXIS 5669, 54 U.S.P.Q.2D 1453 (C.D. Cal.
2000).}~ I would have thought that it was beneficial competition, and not a
trespass, for an electronic “aggregator” to gather together auction prices or
airline fares, so as to give consumers more choice.~{eBay, Inc. v. Bidder’s
Edge, Inc. , 100 F. Supp. 2d 1058 (N.D. Cal. 2000).}~ I would not have thought
that a search engine that catalogued and displayed in framed format the digital
graphics found on the Internet would be sued for infringing the copyrights of
the owners of those images.~{Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir.
2003). After initially holding that while thumbnails were fair use, inline
links that displayed pictures were not fair use, the court reversed itself and
found fair use in both instances.}~ I would not have thought that I might be
sued for violating intellectual property law if I tried to compete with a
printer company by making toner cartridges that were compatible with its
printers.~{After a District Court issued a temporary injunction telling Static
Controls that it must cease manufacturing generic toner cartridges that
operated in Lexmark printers—indicating it was likely to be found to be
violating the Digital Millennium Copyright Act’s “anti-circumvention”
provisions—the Appeals Court held that such cartridges did not in fact violate
the DMCA. Lexmark International, Inc. v. Static Control Components, Inc. , 387
F.3d 522 (6th Cir. 2004).}~

The examples go on. I know that the “research exemption” in U.S. patent law is
very tightly limited, but I would have laughed if you had told me that even a
research university was forbidden from doing research unless that research had
no conceivable practical or academic worth—in other words that even in
academia, in a project with no commercial goal, the research exemption only
covered research that was completely pointless.~{Madey v. Duke Univ. , 307 F.3d
1351 (Fed. Cir. 2003), cert. denied, 539 U.S. 958 (2003).}~ Why have an
exemption at all, in that case? I would have told an academic cryptography
researcher that he need not fear legal threats from copyright owners simply for
researching and publishing work on the vulnerabilities of copy protection
schemes.~{“When scientists from Princeton University and Rice University tried
to publish their findings [on the vulnerabilities in a copy protection scheme]
in April 2001, the recording industry claimed that the 1998 Digital Millennium
Copyright Act (DMCA) makes it illegal to discuss or provide technology that
might be used to bypass industry controls limiting how consumers can use music
they have purchased. ‘Studying digital access technologies and publishing the
research for our colleagues are both fundamental to the progress of science and
academic freedom,’ stated Princeton scientist Edward Felten. ‘The recording
industry’s interpretation of the DMCA would make scientific progress on this
important topic illegal.’ . . . \\ “SDMI sponsored the ‘SDMI Public Challenge’
in September 2000, asking Netizens to try to break their favored watermark
schemes, designed to control consumer access to digital music. When the
scientists’ paper about their successful defeat of the watermarks, including
one developed by a company called Verance, was accepted for publication, Matt
Oppenheim, an officer of both RIAA and SDMI, sent the Princeton professor a
letter threatening legal liability if the scientist published his results.”
“EFF Media Release: Princeton Scientists Sue Over Squelched Research,”
available at
http://w2.eff.org/IP/DMCA/Felten_v_RIAA/20010606_eff_felten_pr.html. After a
First Amendment challenge to the relevant provisions of the DMCA, the threats
were withdrawn.}~ I would not have thought that one could patent the idea of
having an electronic Dutch auction on the Internet, working out the daily
prices of a bundle of mutual funds through simple arithmetic, or buying
something online with one click.~{See, e.g., Robert P. Merges, “As Many as Six
Impossible Patents before Breakfast: Property Rights for Business Concepts and
Patent System Reform,” Berkeley Technology Law Journal 14 (1999): 615.}~ I
would have assumed that celebrities’ rights to control their images should end
with their deaths, and that courts would agree that those rights were tightly
limited by the First Amendment. Yet, in each of these cases, I would have been
wrong, or at least I might be wrong—enough that a sane person would worry. Not
all of the expansive claims eventually triumphed, of course, but some did.
Guessing which would and which would not was hard even for me, though, as I
said, I teach intellectual property law. You, probably, do not.

In 1950 none of this would have mattered. Unless you were in some related
business—as a publisher, broadcaster, film distributor, or what have you—it
would have been hard for you to trigger the rules of intellectual property law.
If you were in such a business, you were probably very familiar with the rules
that governed your activities and well represented by corporate counsel who
knew them even better. What’s more, the rules were neither as complex nor as
counterintuitive as they are now. They also did not reach as far. The reach of
the rights has been expanded, and their content made more difficult to
understand, at the exact moment that their practical effect has been
transformed. It is not merely that the triggers of intellectual property law
can easily be set off by individual footsteps. There are now many more triggers
and their trip wires are harder to see.

From the point of view of the content industries, of course, all this is
foolishness. It is not some undesirable accident that intellectual property has
come to regulate personal, noncommercial activity. It is absolutely necessary.
Think of Napster. When individuals engaging in noncommercial activity have the
ability to threaten the music or film industry’s business plan by engaging in
the very acts that copyright law always regulated—namely reproduction and
distribution—of course it is appropriate for them, and the networks they
“share” on, to be subject to liability. What’s more, to the extent that copying
becomes cheaper and easier, it is necessary for us to strengthen intellectual
property rights. We must meet the greater danger of copying with more expansive
rights, harsher penalties, and expanded protections, some of which may indeed
have the practical effect of reducing rights that citizens thought they had,
such as fair use, low-level noncommercial sharing among personal friends,
resale, and so on. Without an increase in private property rights, in other
words, cheaper copying will eat the heart out of our creative and cultural
industries. I call this claim the Internet Threat.

2~ Chapter 3: Further Reading

The endnotes to this chapter supply copious particular references; this page
provides the overview. Those seeking to understand the various methods by which
different aspects of common land were enclosed over a 400 year history in
England should start with J. A. Yelling, Common Field and Enclosure in England,
1450–1850 (Hamden, Conn.: Archon Books, 1977). Thomas More, Utopia (New York:
W. J. Black, 1947), provides a harsh criticism of the enclosure movement, one
that is echoed hundreds of years later by Polanyi: Karl Polanyi, The Great
Transformation: The Political and Economic Origins of Our Time (Boston: Beacon
Press, 1957). Economic historians have generally believed that the enclosure
movement yielded considerable efficiency gains—bringing under centralized
control and management, property that had previously been inefficiently managed
under a regime of common access. When efficiency gains mean higher productivity
so that fewer people starve, this is no small thing. Donald N. McCloskey, “The
Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of
English Agriculture in the Eighteenth Century,” Journal of Economic History 32
(1972): 15–35; “The Prudent Peasant: New Findings on Open Fields,” Journal of
Economic History 51 (1991): 343–355. This argument seems plausible, but it has
recently received powerful challenges, for example, that by Robert C. Allen,
Enclosure and the Yeoman (New York: Oxford University Press, 1992).

In the twentieth century, the negative effects of open access or common
ownership received an environmental gloss thanks to the work of Garrett Hardin,
“The Tragedy of the Commons,” Science 162 (1968): 1243–1248. However, work by
scholars such as Elinor Ostrom, Governing the Commons: The Evolution of
Institutions for Collective Action (Cambridge: Cambridge University Press,
1990), and Carol Rose, “The Comedy of the Commons: Custom, Commerce, and
Inherently Public Property,” University of Chicago Law Review 53 (1986):
711–781, have introduced considerable nuance to this idea. Some resources may
be more efficiently used if they are held in common. In addition, nonlegal,
customary, and norm-based forms of “regulation” often act to mitigate the
theoretical dangers of overuse or under-investment.

Beyond the theoretical and historical arguments about the effects of enclosure
on real property lie the question of how well those arguments translate to the
world of the intangible and intellectual. It is that question which this
chapter raises. Christopher May, A Global Political Economy of Intellectual
Property Rights: The New Enclosures? (London: Routledge, 2000) offers a similar
analogy—as do several other articles cited in the text. The key differences
obviously lie in the features of intellectual property identified in the
earlier chapters—its nonrivalrousness and nonexcludability—and on the ways in
which a commons of cultural, scientific, and technical information has been
central to the operation of both liberal democracy and capitalist economy. I
owe the latter point particularly to Richard Nelson, whose work on the
economics of innovation amply repays further study: Richard Nelson, Technology,
Institutions, and Economic Growth (Cambridge, Mass.: Harvard University Press,
2005).

1~ Chapter 4: The Internet Threat

The conventional wisdom is that governments respond slowly to technological
change. In the case of the Internet, nothing could be further from the truth.
In 1994 and 1995, “dot-com” was still a mystical term for many. Most stories
about the Internet dealt with sexual predation rather than possibilities of
extreme wealth. Internet commerce itself was barely an idea, and some of the
most exciting sites on the Web had pictures of coffeepots in university
departments far away. (“See,” one would proudly say to a technological neophyte
friend when introducing him to the wonders of the Net, “the pot is empty and we
can see that live from here! This changes everything!”) It was an innocent
time. Yet the U.S. government was already turning the wheels of intellectual
property policy to respond to the threat (and promise) of the Internet. More
precisely, they were trying to shape the future of the cumbersomely named
“National Information Infrastructure,” the official name for the “information
superhighway” that it was presumed would replace the “immature” technology of
the Net. The government was wrong about that, and about a lot else.

The blueprint for new intellectual property policy online came from the Patent
and Trademark Office. That office promulgated first a Green Paper and then,
after further hearings, a White Paper, on “Intellectual Property and the
National Information Infrastructure.”~{For the background to these documents
see James Boyle, “Intellectual Property Policy Online: A Young Person’s Guide,”
Harvard Journal of Law & Technology 10 (1996): 47–112; Jessica Litman, Digital
Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.:
Prometheus Books, 2001).}~ As policy and legal documents these are in one sense
long out of date. Some of their legal arguments were successfully challenged.
Some of their most important proposals were rejected, while many others have
become law. But as a starting point from which to trace the frame of mind that
has come to dominate intellectual property policy online, they are hard to
equal.

These documents contained proposals that nowadays would be seen as fairly
controversial. Internet service providers were said to be “strictly liable” for
copyright violations committed by their subscribers; that is to say, they were
legally responsible whether or not they knew about the violation or were at
fault in any way. Loading a document into your browser’s transient cache memory
while reading it was said to be making a “copy.” There was more: the beginnings
of what later became the Digital Millennium Copyright Act,~{Pub. L. No.
105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of
5,17, 28, and 35 U.S.C.).}~ making it illegal to cut through the digital fences
which content providers put around their products. The attitude toward fair use
was particularly revealing. At one point in the White Paper it was hinted that
fair use might be a relic of the inconveniences of the analog age, to be
discarded now that we could have automated fractional payments for even the
most insignificant use.~{Intellectual Property and the National Information
Infrastructure: The Report of the Working Group on Intellectual Property Rights
(Washington, D.C.: Information Infrastructure Task Force, 1995), 73 n. 227.
Hereinafter White Paper.}~ (It was noted, however, that some disagreed with
this conclusion.) At another point, fair use was described as a “tax” on rights
holders and a “subsidy” to those who benefited from it, such as educational
institutions.~{White Paper, 84.}~ The White Paper also suggested that while any
potential loss to rights holders caused by the new technology needed to be
countered with new rights and new protections, any potential gain to them
through the new technology was simply theirs. Potential gain did not offset the
need to compensate for potential loss

So what views of intellectual property were we carrying forward into the
Internet age? Intellectual property is just like other property. Rights are
presumptively absolute. Any limitations on them, such as fair use, are taxes on
property owners, subsidies to the society at large. It sounds like a perfect
time to administer the Jefferson Warning I sketched out in Chapter 2. After
all, Jefferson was specifically warning against each of these errors two
hundred years ago. To find them in a student paper would be
disappointing—irritating, even. But this document was the blueprint for the
intellectual property regime of cyberspace.

But do these mistakes matter? How important is it that we get the rules of
intellectual property right? To me, a number of my colleagues, some librarians,
and a few software gurus, the White Paper was more than just a bit of bad
policy in a technical field—like a poorly drafted statute about the witnessing
of wills, say. When you set up the property rules in some new space, you
determine much about the history that follows. Property rules have a huge
effect on power relationships and bargaining positions. Think of rules setting
out water rights or the right to drive cattle over homesteaders’ land in the
American West. But they also are part of a larger way of seeing the world;
think of the early-twentieth-century rules treating unions as “conspiracies in
restraint of trade” or the Supreme Court decisions that dispossessed the
American Indians on the theory that they did not comprehend the concept of
property and thus did not “own” the land being taken from them.~{“Congress did
not provide that one class in the community could combine to restrain
interstate trade and another class could not. . . . It provided that ‘every’
contract, combination or conspiracy in restraint of trade was illegal.” Loewe
v. Lawlor, 208 U.S. 274 (1908); “Indians inhabiting this country were fierce
savages, whose occupation was war, and whose subsistence was drawn chiefly from
the forest. To leave them in possession of their country, was to leave the
country a wilderness. . . .” Johnson v. M’Intosh, 21 U.S. 543, 590 (1823).}~ We
were at a comparable point in the history of cyberspace. What was being set up
here was a vision of economy and culture, a frame of mind about how the world
of cultural exchange operates, and eventually a blueprint for our systems of
communication. At this stage, the range of possibilities is extremely wide. A
lot of different choices could be made, but subsequent changes would be harder
and harder as people and companies built their activities around the rules that
had been laid down. This was, in short, a tipping point where it was
particularly important that we make the right decisions.

Conventional political science told us there were a lot of reasons to fear that
we would not make the right decisions. The political process was going to be
particularly vulnerable to problems of capture by established industries, many
of whom would (rightly) see the Internet as a potential threat to their role as
intermediaries between artists and creators on the one hand and the public on
the other.

Intellectual property legislation had always been a cozy world in which the
content, publishing, and distribution industries were literally asked to draft
the rules by which they would live. The law was treated as a kind of contract
between the affected industries. Rationally enough, those industries would wish
to use the law not merely to protect their legitimate existing property rights,
but to make challenges to their basic business plans illegal. (Imagine what
would have happened if we had given the lamp-oil sellers the right to define
the rules under which the newfangled electric light companies would operate.)
There would be no easy counterweight to these pressures, as Jessica Litman
points out in a wonderful set of reflections on copyright lawmaking, because
the potential competitors to existing titans were just being born and could
thus be strangled safely in their cradles.~{“As the entertainment and
information markets have gotten more complicated, the copyright law has gotten
longer, more specific, and harder to understand. Neither book publishers nor
libraries have any interest in making the library privilege broad enough so
that it would be useful to users that aren’t libraries, and neither movie
studios nor broadcast stations have any interest in making the broadcaster’s
privilege broad enough to be of some use to say, cable television or satellite
TV, so that doesn’t happen. Negotiated privileges tend to be very specific, and
tend to pose substantial entry barriers to outsiders who can’t be at the
negotiating table because their industries haven’t been invented yet. So
negotiated copyright statutes have tended, throughout the century, to be kind
to the entrenched status quo and hostile to upstart new industries.” Litman,
Digital Copyright, 25.}~ Certainly the public would have little grasp as yet of
what was at stake.

In any event, when had the public played a role in intellectual property
legislation? That kind of law affected businesses with printing presses or TV
towers, not normal citizens. It did not help that the legislators were largely
both ignorant and distrustful of the technology of the Internet—which was, at
the time, thought to be dominated by foreign hackers, suicidal cults, pirates,
and sleazy pornographers. (Terrorists and Nigerian spammers would be added to
the mix later.)

Given an area of law that legislators were happy to hand over to the affected
industries and a technology that was both unfamiliar and threatening, the
prospects for legislative insight were poor. Lawmakers were assured by
lobbyists

# that this was business as usual, that no dramatic changes were being made by
the Green or White papers; or

# that the technology presented a terrible menace to the American cultural
industries, but that prompt and statesmanlike action would save the day; or

# that layers of new property rights, new private enforcers of those rights,
and technological control and surveillance measures were all needed in order to
benefit consumers, who would now be able to “purchase culture by the sip rather
than by the glass” in a pervasively monitored digital environment.

In practice, somewhat confusingly, these three arguments would often be
combined. Legislators’ statements seemed to suggest that this was a routine
Armageddon in which firm, decisive statesmanship was needed to preserve the
digital status quo in a profoundly transformative and proconsumer way. Reading
the congressional debates was likely to give one conceptual whiplash.

To make things worse, the press was—in 1995, at least—clueless about these
issues. It was not that the newspapers were ignoring the Internet. They were
paying attention—obsessive attention in some cases. But as far as the
mainstream press was concerned, the story line on the Internet was sex:
pornography, online predation, more pornography. The lowbrow press stopped
there. To be fair, the highbrow press was also interested in Internet legal
issues (the regulation of pornography, the regulation of online predation) and
constitutional questions (the First Amendment protection of Internet
pornography). Reporters were also asking questions about the social effect of
the network (including, among other things, the threats posed by pornography
and online predators).

There were certainly important issues within the areas the press was willing to
focus on, and I do not mean to trivialize them. I worked with a couple of civil
liberties groups in opposing the hapless Communications Decency Act, one of the
most poorly drafted pieces of speech regulation ever to come out of
Congress.~{Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560, 561)
(1996).}~ It was a palpably unconstitutional statute, eventually struck down by
a unanimous Supreme Court.~{Reno v. ACLU, 521 U.S. 844 (1997).}~ Its proposals
would have burdened the speech of adults while failing to protect the interests
of minors. Reporters loved the topic of the Communications Decency Act. It was
about sex, technology, and the First Amendment. It foreshadowed the future of
online speech regulation. One could write about it while feeling simultaneously
prurient, principled, and prescient: the journalistic trifecta. For law
professors who worked on digital issues, the Communications Decency Act was an
easy topic to get the public to focus on; we had the reporters and editors
calling us, pleading for a quote or an opinion piece.

Intellectual property was something quite different. It was occasionally
covered in the business pages with the same enthusiasm devoted to changes in
derivatives rules. Presented with the proposals in the Green and White Papers,
the reporters went looking for opinions from the Software Publishers
Association, the Recording Industry Association of America, or the Motion
Picture Association of America. This was not bias or laziness—to whom else
would they go? Who was on the “other side” of these issues? Remember, all of
this occurred before Napster was a gleam in Sean Fanning’s eye. Sean Fanning
was in middle school. Amazon.com was a new company and “Google” was not yet a
verb.

In this environment, convincing the legislature or the press that fundamental
public choices were implicated in the design of intellectual property rights
for the digital world was about as easy as convincing them that fundamental
public choices were implicated in the rules of tiddlywinks. My own experience
is probably representative. I remember trying to pitch an article on the
subject to a charming but uncomprehending opinion page editor at the Washington
Post. I tried to explain that decisions about property rules would shape the
way we thought about the technology. Would the relatively anonymous and
decentralized characteristics of the Internet that made it such a powerful tool
for global speech and debate come to be seen as a bug rather than a feature,
something to be “fixed” to make the Net safe for protected content? The rules
would also shape the economic interests that drove future policy. Would we try
to build the system around the model of proprietary content dispensed in
tightly controlled chunks? Would fair use be made technologically obsolescent?
Would we undercut the various nontraditional methods of innovation, such as
free software, before they ever managed to establish themselves? What would
become of libraries in the digital world, of the ideal that access to books had
important differences from access to Twinkies? After I concluded this lengthy
and slightly incoherent cri de coeur, there was a long pause; then the editor
said politely, “Are you sure you couldn’t make some of these points about a
free speech issue, like the Communications Decency Act, maybe?”

I finally placed the piece in the Washington Times,~{James Boyle,
“Overregulating the Internet,” Washington Times (November 14, 1995), A17.}~
which was best known at the time as the only metropolitan newspaper owned by
the Unification Church, familiarly referred to as the Moonies. This hardly
counted as a direct line to the popular imagination (though the article’s mild
criticisms elicited an extraordinary reaction from the Clinton administration’s
lead official on intellectual property policy—throwing me for several weeks
into a surreal world of secondhand threats, third-party leaks, and a hilarious
back-and-forth in the letters page).~{See James Boyle, “The One Thing
Government Officials Can’t Do Is Threaten Their Critics,” Washington Times
(March 6, 1996), A16.}~

Things were not completely one-sided. An unlikely group of critics had formed:
librarians, a few software developers, law professors, some Internet
libertarians. Of particular note was the Digital Future Coalition, which grew
to represent a broad range of interested groups and industries thanks in part
to the prescient analysis and remarkable energy of one of my colleagues, Peter
Jaszi.~{“The DFC was forged in 1995 in response to the release of the Clinton
administration’s White Paper on Intellectual Property and the National
Information Infrastructure. The White Paper recommended significantly altering
existing copyright law to increase the security of ownership rights for
creators of motion pictures, publishers and others in the proprietary
community. Members of the DFC recognized that if the policy proposals
delineated in the White Paper were implemented, educators, businesses,
libraries, consumers and others would be severely restricted in their efforts
to take advantage of the benefits of digital networks.” See
http://www.dfc.org/dfc1/Learning_Center/about.html. }~ Together with Pamela
Samuelson, Jessica Litman, and a number of other distinguished legal scholars,
Peter turned his considerable intellectual talents to explaining why writers,
telecom companies, scientists, manufacturers of consumer electronics, and a
host of other groups should be interested in the rules being debated. There had
been a series of official hearings in which complaints were carefully collected
and just as carefully ignored. This became harder to do as the critics became
more numerous and better organized. Nevertheless, the currents were clearly
running against them. It would be nice to say that this was merely because of
the clubby history of intellectual property legislation, or the difficulty in
getting press attention, or the various issues of industry capture and
collective action problems. Yet this would be to miss a vital element of the
situation.

Conventional political science showed that there were structural reasons why
the legislative process was likely to succumb to industry capture.~{See the
classic account in Mancur Olson, The Logic of Collective Action: Public Goods
and the Theory of Groups, 2nd ed. (Cambridge, Mass.: Harvard University Press,
1971).}~ The reality turned out to be much worse. The real problem was not a
political process dominated by cynical power politics, nor an initial absence
of critical newspaper coverage, though both of those factors contributed. The
real problem was that most of the proponents of the White Paper’s policies
believed their own arguments so deeply and sincerely that they saw any
criticism of those positions as either godless communism or hippy digital
anarchism. (Frequently, in fact, they clung to their arguments even when there
was fairly strong evidence that they would actually be harming themselves by
putting these policies into effect. I will expand on this point later.) More
importantly, they succeeded in getting their story about the threats and
promises of the digital future accepted as the basis for all discussion of
intellectual property policy. It became the organizing set of principles, the
master narrative—call it what you will.

The heart of the story is beguilingly simple. The Internet makes copying
cheaper and does so on an unparalleled global scale. Therefore we must meet the
greater danger of illicit copying with more expansive rights, harsher
penalties, and expanded protections. True, as I pointed out before, some of
these expansions may indeed have the practical effect of reducing rights that
citizens thought they had, such as fair use, low-level noncommercial sharing
among personal friends, resale, and so on. But without an increase in private
property rights, cheaper copying will eat the heart out of our creative and
cultural industries. I call this story the Internet Threat. It is a powerful
argument and it deserves some explanation.

Think back for a moment to the first chapter and the difference between Madame
Bovary and the petunia. If the reason for intellectual property rights is the
“nonrival” and “nonexcludable” nature of the goods they protect, then surely
the lowering of copying and transmission costs implies a corresponding need to
increase the strength of intellectual property rights. Imagine a line. At one
end sits a monk painstakingly transcribing Aristotle’s Poetics. In the middle
lies the Gutenberg printing press. Three-quarters of the way along the line is
a photocopying machine. At the far end lies the Internet and the online version
of the human genome. At each stage, copying costs are lowered and goods become
both less rival and less excludable. My MP3 files are available to anyone in
the world running Napster. Songs can be found and copied with ease. The
symbolic end of rivalry comes when I am playing the song in Chapel Hill, North
Carolina, at the very moment that you are both downloading and listening to it
in Kazakhstan—now that is nonrival.

2~ The Logic of Perfect Control

My point is that there is a teleology—a theory about how intellectual property
law must develop historically—hidden inside the argument I call the Internet
Threat. The argument, which is touted endlessly by the content industries—and
not without reason—can be reduced to this: The strength of intellectual
property rights must vary inversely with the cost of copying. With high copying
costs, one needs weak intellectual property rights if any at all. To deal with
the monk-copyist, we need no copyright because physical control of the
manuscript is enough. What does it matter if I say I will copy your manuscript,
if I must do it by hand? How will this present a threat to you? There is no
need to create a legal right to exclude others from copying, no need for a
“copy right.” As copying costs fall, however, the need to exclude increases. To
deal with the Gutenberg press, we need the Statute of Anne—the first copyright
statute—and the long evolution of copyright it ushered in.

But then comes the Internet. To deal with the Internet, we need the Digital
Millennium Copyright Act,~{See note 2 above.}~ the No Electronic Theft
Act,~{Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as amended in
scattered sections of 17 and 18 U.S.C.).}~ the Sonny Bono Copyright Term
Extension Act,~{Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended
in scattered sections of 17 U.S.C.).}~ and perhaps even the Collections of
Information Antipiracy Act.~{S 2291, 105th Cong. (1998).}~ As copying costs
approach zero, intellectual property rights must approach perfect control. We
must strengthen the rights, lengthen the term of the rights, increase the
penalties, and make noncommercial illicit copying a crime. We must move outside
the traditional realm of copyright altogether to regulate the technology around
the copyrighted material. Companies are surrounding their digital materials
with digital fences. We must make it a violation of the law to cut those
digital fences, even if you do so to make a “fair use” of the material on the
other side. We must prohibit the making of things that can be used as
fence-cutters—a prospect that worries researchers on encryption. In the long
run, we must get rid of the troublesome anonymity of the Internet, requiring
each computer to have an individual ID. We must make click-wrap contracts
enforceable, even on third parties, even when you cannot read them before
clicking—so that you never actually buy the software, music, movies, and
e-books you download, merely “license” them for a narrowly defined range of
uses. We must create interlocking software and hardware systems that monitor
and control the material played on those systems—so that songs can be licensed
to particular computers at particular times. Uses that the owners wish to
forbid will actually be impossible, whether they are legal or not.

In other words, we must make this technology of the Internet, which was hailed
as the great “technology of freedom,” into a technology of control and
surveillance. The possibility of individuals circulating costless perfect
digital copies requires it. It would be facile (if tempting) to say we must
remake the Internet to make it safe for Britney Spears. The “Internet Threat”
argument is that we must remake the Net if we want digital creativity—whether
in music or software or movies or e-texts. And since the strength of the
property rights varies inversely with the cost of copying, costless copying
means that the remade Net must approach perfect control, both in its legal
regime and its technical architecture.

Like any attractive but misleading argument, the Internet Threat has a lot of
truth. Ask the software company producing expensive, specialized
computer-assisted design programs costing thousands of dollars what happens
when the program is made available on a “warez” site or a peer-to-peer
file-sharing network. The upstart computer game company pinning its hopes and
its capital on a single new game would tell you the same thing. The easy
availability of perfect, costless copies is a danger to all kinds of valuable
cultural and economic production. The story of the Internet Threat is not
wrong, it is simply dramatically incomplete in lots of ways. Here are two of
them.

2~ Costless Copying Brings Both Costs and Benefits

The Internet does lower the cost of copying and thus the cost of illicit
copying. Of course, it also lowers the costs of production, distribution, and
advertising, and dramatically increases the size of the potential market. Is
the net result a loss to rights holders such that we need to increase
protection and control in order to maintain a constant level of incentives? A
large, leaky market may actually provide more revenue than a small one over
which one’s control is much stronger. What’s more, the same technologies that
allow for cheap copying also allow for swift and encyclopedic search
engines—the best devices ever invented for detecting illicit copying. What the
Net takes away with one hand, it often gives back with the other. Cheaper
copying does not merely mean loss, it also means opportunity. Before
strengthening intellectual property rights, we would need to know whether the
loss was greater than the gain and whether revised business models and new
distribution mechanisms could avoid the losses while capturing more of the
gains.

But wait, surely theft is theft? If the new technologies enable more theft of
intellectual property, must we not strengthen the laws in order to deal with
the problem? If some new technology led to a rash of car thefts, we might
increase police resources and prison sentences, perhaps pass new legislation
creating new crimes related to car theft. We would do all of this even if the
technology in question gave car owners significant benefits elsewhere. Theft is
theft, is it not?

The answer in a word is no. Saying “theft is theft” is exactly the error that
the Jefferson Warning is supposed to guard against. We should not assume that
intellectual property and material property are the same in all regards. The
goal of creating the limited monopoly called an intellectual property right is
to provide the minimum necessary incentive to encourage the desired level of
innovation. Anything extra is deadweight loss. When someone takes your car,
they have the car and you do not. When, because of some new technology, someone
is able to get access to the MP3 file of your new song, they have the file and
so do you. You did not lose the song. What you may have lost is the opportunity
to sell the song to that person or to the people with whom they “share” the
file. We should not be indifferent to this kind of loss; it is a serious
concern. But the fact that a new technology brings economic benefits as well as
economic harm to the creation, distribution, and sale of intellectual property
products means that we should pause before increasing the level of rights,
changing the architecture of our communications networks, creating new crimes,
and so on.

Remember, many of the things that the content industries were concerned about
on the Internet were already illegal, already subject to suit and prosecution.
The question is not whether the Internet should be an intellectual
property-free zone; it should not be, is not, and never was. The question is
whether, when the content industries come asking for additional or new rights,
for new penalties, for the criminalization of certain types of technology, we
should take into account the gains that the Internet has brought them, as well
as the costs, before we accede to their requests. The answer, of course, is
that we should. Sadly, we did not. This does not mean that all of the content
industries’ attempts to strengthen the law are wrong and unnecessary. It means
that we do not know whether they are or not.

There is a fairly solid tradition in intellectual property policy of what I
call “20/20 downside” vision. All of the threats posed by any new
technology—the player piano, the jukebox, the photocopier, the VCR, the
Internet—are seen with extraordinary clarity. The opportunities, however,
particularly those which involve changing a business model or restructuring a
market, are dismissed as phantoms. The downside dominates the field, the upside
is invisible. The story of video recorders is the best-known example. When
video recorders—another technology promising cheaper copying—first appeared,
the reaction of movie studios was one of horror. Their business plans relied
upon showing movies in theaters and then licensing them to television stations.
VCRs and Betamaxes fit nowhere in this plan; they were seen merely as copyright
violation devices. Hollywood tried to have them taxed to pay for the losses
that would be caused. Their assumption? Cheaper copying demands stronger
rights.

Having lost that battle, the movie studios tried to have the manufacturers of
the recording devices found liable for contributory copyright infringement;
liable, in other words, for assisting the copyright violations that could be
carried out by the owners of Sony Betamaxes. This, of course, was exactly the
same legal claim that would be made in the Napster case. In the Sony case,
however, the movie companies lost. The Supreme Court said that recording of TV
programs to “time-shift” them to a more convenient hour was a fair use.~{Sony
Corp. of America v. Universal City Studios, Inc. , 464 U.S. 417 (1984).}~ The
movie studios’ claims were rejected.

Freed from the threat of liability, the price of video recorders continued to
fall. They flooded consumers’ houses at a speed unparalleled until the arrival
of the World Wide Web. All these boxes sitting by TVs now cried out for
content, content that was provided by an emerging video rental market. Until
the triumph of DVDs, the videocassette rental market made up more than 50
percent of the movie industry’s revenues.~{See Tina Balio, Museum of Broadcast
Communications, “Betamax Case,” Encyclopedia of TV (1997), available at
http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/betamaxcase.htm (“The
Betamax case went all the way to the Supreme Court, which reversed the appeals
court decision on 17 January 1984. By 1986, VCRs had been installed in fifty
percent of American homes and annual videocassettes sales surpassed the
theatrical box-office.”). The year 1986 was also the peak of the video rental
market: “Video’s high mark, according to studies by A. C. Nielsen Media
Research, was in late 1986, when an estimated 34.3 million households with
VCR’s took home 111.9 million cassettes a month, or an average of 3.26 movies
per household.” Peter M. Nichols, “Movie Rentals Fade, Forcing an Industry to
Change its Focus,” New York Times (May 6, 1990), A1.}~ Were losses caused by
video recorders? To be sure. Some people who might have gone to see a movie in
a theater because the TV schedule was inconvenient could instead record the
show and watch it later. Videos could even be shared with friends and
families—tattered copies of Disney movies recorded from some cable show could
be passed on to siblings whose kids have reached the appropriate age. VCRs were
also used for copying that was clearly illicit—large-scale duplication and sale
of movies by someone other than the rights holder. A cheaper copying technology
definitely caused losses. But it also provided substantial gains, gains that
far outweighed the losses. Ironically, had the movie companies “won” in the
Sony case, they might now be worse off.

The Sony story provides us with some useful lessons—first, this 20/20 downside
vision is a poor guide to copyright policy. Under its sway, some companies will
invariably equate greater control with profit and cheaper copying with loss.
They will conclude, sometimes rightly, that their very existence is threatened,
and, sometimes wrongly, that the threat is to innovation and culture itself
rather than to their particular way of delivering it. They will turn to the
legislature and the courts for guarantees that they can go on doing business in
the old familiar ways. Normally, the marketplace is supposed to provide
correctives to this kind of myopia. Upstart companies, not bound by the habits
of the last generation, are supposed to move nimbly to harvest the benefits
from the new technology and to outcompete the lumbering dinosaurs. In certain
situations, though, competition will not work:

_* if the dinosaurs are a cartel strong enough to squelch competition;

_* if they have enlisted the state to make the threatening technology illegal,
describing it as a predatory encroachment on the “rights” of the old guard
rather than aggressive competition;

_* if ingrained prejudices are simply so strong that the potential business
benefits take years to become apparent; or

_* if the market has “locked in” on a dominant standard—a technology or an
operating system, say—to which new market entrants do not have legal access.

In those situations, markets cannot be counted on to self-correct.
Unfortunately, and this is a key point, intellectual property policy frequently
deals with controversies in which all of these conditions hold true.

Let me repeat this point, because it is one of the most important ones in this
book. To a political scientist or market analyst, the conditions I have just
described sound like a rarely seen perfect storm of legislative and market
dysfunction. To an intellectual property scholar, they sound like business as
usual.

In the case of the VCR wars, none of these factors obtained. The state refused
to step in to aid the movie companies by criminalizing the new technology.
There were equally powerful companies on the other side of the issue (the
consumer electronics companies selling VCRs) who saw this new market as a
natural extension of a familiar existing market—audio recorders. There was no
dominant proprietary technological standard controlled by the threatened
industry that could be used to shut down any threats to their business model.
The market was allowed to develop and evolve without premature legal
intervention or proprietary technological lockout. Thus we know in this case
that the movie companies were wrong, that their claims of impending doom from
cheap copies were completely mistaken. The public and, ironically, the industry
itself benefited as a result. But the Sony case is the exception rather than
the rule. That is why it is so important. If competition and change can be
forbidden, we will get relatively few cases that disprove the logic that
cheaper copying must always mean stronger rights. The “natural experiments”
will never be allowed to happen. They will be squelched by those who see only
threat in the technologies that allow cheaper copies and who can persuade
legislators or judges to see the world their way. The story line I describe
here, the Internet Threat, will become the conventional wisdom. In the process,
it will make it much less likely that we will have the evidence needed to
refute it.

2~ The Holes Matter as Much as the Cheese

The Sony case is important in another way. The Supreme Court’s decision turned
on the judgment that it was a “fair use” under U.S. copyright law for consumers
to record television programs for time-shifting purposes. Since fair use comes
up numerous times in this book, it is worth pausing for a moment to explain
what it is.

The content industries like to portray fair use as a narrow and grudging
defense against an otherwise valid case for copyright infringement—as if the
claim were, “Yes, I trespassed on your land, which was wrong, I admit. But I
was starving and looking for food. Please give me a break.” This is simply
inaccurate. True, fair use is asserted as “an affirmative defense”; that is the
way it is brought up in a copyright case. But in U.S. law, fair uses are stated
quite clearly to be limitations on the exclusive rights of the copyright
holder—uses that were never within the copyright holder’s power to prohibit.
The defense is not “I trespassed on your land, but I was starving.” It is “I
did not trespass on your land. I walked on the public road that runs through
it, a road you never owned in the first place.” When society hands out the
right to the copyright holder, it carves out certain areas of use and refuses
to hand over control of them. Again, remember the Jefferson Warning. This is
not a presumptively absolute property right. It is a conditional grant of a
limited and temporary monopoly. One cannot start from the presumption that the
rights holder has absolute rights over all possible uses and therefore that any
time a citizen makes use of the work in any way, the rights holder is entitled
to get paid or to claim “piracy” if he does not get paid. Under the sway of the
story line I called the Internet Threat, legislators have lost sight of this
point. So what is “fair use”? When I am asked this question by nonlawyers, I
offer to show them the actual provision in the copyright act. They recoil,
clearly imagining they are about to be shown something the size and complexity
of the tax code. Here is the statutory fair use provision in its entirety:

_1 #{Sec. 107. - Limitations on exclusive rights: Fair use}#

_1 Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include—

_1 1. the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;

_1 2. the nature of the copyrighted work;

_1 3. the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

_1 4. the effect of the use upon the potential market for or value of the
copyrighted work.

_1 The fact that a work is unpublished shall not itself bar a finding of fair
use if such finding is made upon consideration of all the above factors.

“But this seems quite sensible,” people often say, as though they had expected
both Byzantine complexity and manifest irrationality. (Perhaps they have had
some experience with legal matters after all.) The ones who think about it a
little longer realize that these factors cannot be mechanically applied. Look
at factor 3, for example. Someone who is making a parody frequently needs to
take large chunks of the parodied work. That is the nature of a parody, after
all. They might then sell the parody, thus also getting into trouble with
factor 1. And what about factor 4? Someone might quote big chunks of my book in
a devastating review that ruined any chance the book had of selling well. Come
to think of it, even a parody might have a negative effect on the “potential
market” for the parodied work. But surely those uses would still be “fair”? (In
both instances, the Supreme Court agrees that they are fair uses.)

In coming up with these hypothetical problem cases, the copyright novice is
probably closer to having a good understanding of the purpose of fair use than
many people who have studied it for years. In fact, the novice’s questions shed
light on all of the exceptions, limitations, and defenses to proprietary
rights—the holes in the cheese of intellectual property. The scholar’s urge is
to find one theory that explains all the possible applications of the fair use
doctrine, to arrange all of the cases like targets and shoot a single arrow
through all of them. Perhaps fair use is designed to reduce the difficulty of
clearing rights when it would be uneconomical or impossibly complex to do so:
to reduce the paperwork, hassle, delay, ignorance, and aggravation that
economists refer to under the sanguine name of “transaction costs.”~{For
background, see Wendy Gordon, “Fair Use as Market Failure: A Structural and
Economic Analysis of the Betamax Case and Its Predecessors,” Columbia Law
Review 82 (1982): 1600–1657. For accounts that imagine a reduction of fair use
as transaction costs fall, see Edmund W. Kitch, “Can the Internet Shrink Fair
Use?,” Nebraska Law Review 78 (1999): 880–890; Robert P. Merges, “The End of
Friction? Property Rights and the Contract in the ‘Newtonian’ World of On-Line
Commerce,” Berkeley Technology Law Journal 12 (1997): 115–136. This argument
has hardly gone unanswered with articles pointing out that it neglects both the
social values of fair use and the actual economics of its operation. See
Jonathan Dowell, “Bytes and Pieces: Fragmented Copies, Licensing, and Fair Use
in A Digital World,” California Law Review 86 (1998): 843–878; Ben Depoorter
and Francesco Parisi, “Fair Use and Copyright Protection: A Price Theory
Explanation,” International Review of Law and Economics 21 (2002): 453–473.}~
(Though the idea that fair use is about transaction costs hardly explains some
of the types of fair use we care most about—the rights to parody, to criticize,
to reverse engineer.) Or perhaps fair use allows the rights of a transformative
author to be trumped only by a second transformative author, who is building on
the first—the parodist, reviewer, collage artist, or what have you.~{“I believe
the answer to the question of justification turns primarily on whether, and to
what extent, the challenged use is transformative. The use must be productive
and must employ the quoted matter in a different manner or for a different
purpose from the original.” Pierre N. Leval, “Toward a Fair Use Standard,”
Harvard Law Review 103 (1990): 1111.}~ (Then again, photocopying for classroom
use does not sound very “transformative.”) Could fair use be dictated by the
Constitution or by international free speech guarantees? In this view, fair use
provides a safety valve that allows copyright to coexist with the First
Amendment, property rights over speech to coexist with freedom of
expression.~{See Neil Weinstock Netanel, “Locating Copyright Within the First
Amendment Skein,” Stanford Law Review 54 (2001): 1–86; Yochai Benkler, “Free As
the Air to Common Use: First Amendment Constraints on Enclosure of the Public
Domain,” New York University Law Review 74 (1999): 354–446; Larry Lessig,
Melville B. Nimmer Memorial Lecture: “Copyright’s First Amendment” (March 1,
2001), in UCLA Law Review 48 (2001): 1057–1074; Melville B. Nimmer, “Does
Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?”
UCLA Law Review 17 (1970): 1180–1204.}~ After all, it is not entirely obvious
how it could be constitutional to forbid me, in the name of a federal law, from
translating Mein Kampf in order to warn of the dangers of fascism or parodying
some piece of art to subversive effect.

Each of these ideas about fair use has much to recommend it, as do the many
other grand theories that have been offered to explain the puzzle. And therein
lies the problem.

Intellectual property is a brilliant social invention which presents us with
great benefits but also with a multitude of dangers:

# the danger that the monopoly is unnecessary to produce the innovation, or
that it is broader or lasts for longer than is necessary to encourage future
production;

# that overly broad rights will chill speech, criticism, or scientific
progress;

# that it will restrict access in ways that discourage “follow-on” innovation;

# that it will lead to industry concentration in a way that hurts consumers or
citizens while being less subject to antitrust regulation precisely because the
monopoly or oligopoly rests on intellectual property rights;

# that it will establish strong “network effects” which cause the market to tip
over to some inefficient technology; and

# that it will give the rights holder control over some technology outside the
range of the monopoly but closely linked to it.

The list of dangers goes on and on, and so does the list of exceptions,
limitations, and restraints designed to prevent them. We restrict the length of
intellectual property rights. (At least, we used to. The framers thought it so
important to do so that they put the need to have a limited term in the
Constitution itself; nevertheless both Congress and the Supreme Court seem to
have given up on that one.) We restrict the scope of intellectual property
rights, so that they cannot cover raw facts or general ideas, only the range of
innovation and expression in between. (At least, we used to. Developments in
database protection, gene patents, and business method patents are clearly
eroding those walls.) As with fair use, we impose limitations on the rights
when we hand them out in the first place. The exclusive right conferred by
copyright does not include the right to prevent criticism, parody, classroom
copying, decompilation of computer programs, and so on. (Though as the next
chapter shows, a number of recent legal changes mean that the practical ability
to exercise fair use rights is seriously threatened.)

These limitations on intellectual property do not fit a single theory, unless
that theory is “avoiding the multiple and evolving dangers of intellectual
property itself.” Even a single limitation such as fair use clearly responds to
many different concerns about the dangers of intellectual property rights.
Indeed it will evolve to fit new circumstances. When computer programs were
first clearly covered by copyright law, software engineers wondered if this
would cripple the industry. Why? Anyone who wishes to compete with a dominant
program needs to “decompile” it in order to make their program “interoperable,”
or simply better. For example, a new word processing program, no matter how
good, would be dead on arrival unless it could read all the files people had
created with the old, dominant word processing software. But to do this, the
engineers at the upstart company would have to take apart their competitor’s
program. In the process they would have to create temporary copies of the old
program, even though the final product—the hot new software—would be completely
different from the old. Would this be a violation of copyright law?

In a series of remarkable and far-seeing cases involving such issues, the
courts said no.~{Sega Enterprises Ltd. v. Accolade, Inc. , 977 F.2d 1510 (9th
Cir. 1992); Atari Games Corp. v. Nintendo of America Inc. , 975 F.2d 832 (Fed.
Cir. 1992).}~ “Decompilation” was fair use. The law of fair use had evolved in
the context of expressive, nonfunctional, stand-alone works such as books,
poems, songs. Now it was being applied to a functional product whose economics
depended strongly on “network effects”—many types of programs are useful only
if they are widely used. Without interoperability, we could never take our
existing documents or spreadsheets or datasets and move to a new program, even
if it was better. One program would not be able to read the files created by
another. It would be as if language itself had been copyrighted. To have said
that the incidental copies created in the process of decompiling software were
actually infringements of copyright would have turned the law on its head
because of a technological accident (you needed temporarily to “copy” the
programs in order to understand how they worked and make yours work with them)
and a legal accident (copyright was now being used to regulate functional
articles of commerce: “machines” made of binary code). The difference between
copying and reading, or copying and understanding, had changed because of the
technology. The context had changed because the law was being stretched to
cover new types of products, whose economics were very different from those of
novels. Rather than let the dominant software companies use copyright to stop
others from making interoperable software, the courts used an escape hatch—fair
use—to prevent that danger and to uphold the basic goal of copyright:
encouraging progress in science and the useful arts.

This long story is told to make a simple point. The variegated and evolving
limitations on intellectual property are as important as the rights they
constrain, curtail, and define. The holes matter as much as the cheese.

What does this have to do with the Sony case? In that case, remember, the
Supreme Court had said that copying TV shows in order to time-shift was fair
use. The Court could simply have stopped there. It could have said, “since most
of what consumers do is legal, there can be no claim of contributory or
vicarious infringement. Sony is not contributing to infringement since
consumers are not infringing copyright by copying shows in the first place.”
Interestingly, though this is the heart of the ruling, the court went further.
It quoted some seemingly unrelated patent law doctrine on contributory
infringement: “A finding of contributory infringement does not, of course,
remove the article from the market altogether; it does, however, give the
patentee effective control over the sale of that item. Indeed, a finding of
contributory infringement is normally the functional equivalent of holding that
the disputed article is within the monopoly granted to the patentee.” Clearly,
the Justices were concerned that, by using copyright law, the movie studios
could actually get control of a new technology.

The fact that the Court expressed this concern through an analogy to patent law
was, at first sight, fairly surprising. Courts do not normally look at
copyrights in quite the same way as they look at patents. For one thing, patent
rights are stronger, though they are harder to obtain and last for a shorter
period of time. For another, while courts often express concern about the
dangers of a patent-driven monopoly over a particular technology, it is strange
to see that concern in the context of copyright law. An unnecessary monopoly
over a plow or a grain elevator may, as Jefferson pointed out, slow
technological development. But a monopoly over Snow White or “Ode on a Grecian
Urn”? We do not normally think of rights over expression (the realm of
copyright) threatening to sweep within their ambit an entire new technological
invention (the realm of patent).

But in the Sony case, the Supreme Court quite clearly saw that, in a world
where technological developments made copying easier, the idea of contributory
infringement in copyright could be used to suppress or control entire
technologies that seemed, in the logic of 20/20 downside vision, to pose a
threat to the copyright holder. Indeed, in some sense, the logic behind the
Internet Threat—“cheaper copying requires greater control”—demands this result,
though the Sony case antedates the World Wide Web by a considerable time. If it
is cheap copying itself that poses the threat, then the content owners will
increasingly move to gain control over the technologies of cheap copying, using
copyright as their stalking horse. That is why the Sony Court went beyond the
simple ruling on fair use to explain the consequences of the movie companies’
claim. In a footnote (the place where judges often bury their most trenchant
asides) the Court was almost snide:

_1 It seems extraordinary to suggest that the Copyright Act confers upon all
copyright owners collectively, much less the two respondents in this case, the
exclusive right to distribute VTR’s [Video Tape Recorders] simply because they
may be used to infringe copyrights. That, however, is the logical implication
of their claim. The request for an injunction below indicates that respondents
seek, in effect, to declare VTR’s contraband. Their suggestion in this Court
that a continuing royalty pursuant to a judicially created compulsory license
would be an acceptable remedy merely indicates that respondents, for their
part, would be willing to license their claimed monopoly interest in VTR’s to
Sony in return for a royalty.~{Sony 464 U.S. at 441 n. 21.}~

The real heart of the Sony case is not that “time-shifting” of TV programs is
fair use. It is an altogether deeper principle with implications for all of the
holes in the intellectual property cheese. The Sony Court declared that because
video recorders were capable of substantial noninfringing uses, the
manufacturers of those devices were not guilty of contributory infringement. If
the rights of copyright holders were absolute, if they had the authority to
prohibit any activity that appeared to pose a threat to their current business
model, then it is quite possible that video recorders would have been guilty of
contributory infringement. It is because we have, and need, multiple exceptions
and limitations on intellectual property that the Supreme Court was able to
resist the claim that copyright itself forbids technologies of cheaper copying.
To put it another way, without a robust set of exceptions and limitations on
copyright, the idea that cheaper copying requires greater control will
inexorably drive us toward the position that the technologies of cheaper
reproduction must be put under the governance of copyright holders.

Thus we have a corollary to the Jefferson Warning—call it the Sony Axiom:
cheaper copying makes the limitations on copyright more rather than less
important. Without those limitations, copyright law will bloat and metastasize
into a claim of monopoly, or at least control, over the very architectures of
our communications technology. And that is exactly where the logic of the
Internet Threat is taking us today.

2~ From Napster to Grokster

Seventeen years after the Sony decision, another court had to deal with a suit
by outraged copyright holders against the creators of a technology that allowed
individuals to copy material cheaply and easily. The suit was called A&M
Records v. Napster.~{A&M Records, Inc. v. Napster, Inc. , 239 F.3d 1004 (9th
Cir. 2001).}~ Napster was a “peer-to-peer” file sharing system. The files were
not kept on some huge central server. Instead, there was a central
directory—think of a telephone directory—which contained a constantly updated
list of the addresses of individual computers and the files they contained.
Anyone who had the software could query the central registry to find a file’s
location and then establish a direct computer-to-computer connection—anywhere
in the world—with the person who had the file they desired. This decentralized
design meant the system was extremely “robust,” very fast, and of nearly
infinite capacity. Using this technology, tens of millions of people around the
world were “sharing” music, an activity which record companies quite
understandably viewed as simple theft. In fact, it would be hard to think of a
situation that illustrated the Internet Threat better. The case ended up in
front of the U.S. Court of Appeals for the Ninth Circuit, which hears cases in
an area that includes California and thus has decided a lot of copyright cases
over the years.

There was an irony here. When the Supreme Court decided the Sony case, it was
on appeal from the Ninth Circuit Court of Appeals. Sony, with its rule about
reproductive technologies with substantial noninfringing uses, reversed the
appeals court decision. The Supreme Court was, in effect, telling the Ninth
Circuit that it was wrong, that its ruling would have required the
“extraordinary” (legal shorthand for “stupid”) conclusion that copyright law
gave copyright holders a veto on new technology. In the process, the Supreme
Court told the Ninth Circuit that it also did not understand the law of fair
use, or the freedom that should be given to individuals to make “noncommercial”
private copies. The identities of the judges had changed, but now, seventeen
years later, the same Circuit Court had another high-profile case on exactly
the same issues. In case any of the judges might have missed this irony, it
took David Boies, the lawyer for Napster, about ninety seconds to remind them
in his oral argument. “This court,” he said, adding as if in afterthought, “in
the decision that the Supreme Court ultimately reversed in Sony. . . .”~{A&M
Records v. Napster: C-SPAN Videotape 159534, Part 1 of 1 (October 2, 2000).}~
To the laypeople in the audience it probably just seemed like another piece of
legal droning. But to the lawyers in the room the message was quite clear. “The
last time you got a case about a major new technology of consumer reproduction,
you really screwed it up. Hope you can do better this time.” The judges’ mouths
quirked—not entirely in pleasure. The point had been registered.

Think for a moment of the dilemma in which the court had been placed. On the
one hand, you had tens of millions of people “sharing” music files and Napster
was the service that allowed them to do it. If this was not contributory
copyright infringement, what was? On the other hand, Napster seemed to fit very
nicely under the rule announced in the Sony case.

The argument went like this. Like the VCR, the Napster service had substantial
noninfringing uses. It allowed bands to expose their music to the world through
the “New Artists” program. It made it easy to share music which was no longer
under copyright. These uses clearly do not infringe copyright. There were also
the claims that it permitted “space-shifting” by consumers who already owned
the music or “sampling” of music by listeners as they decided whether or not to
buy. One could argue that space-shifting and sampling were fair use (though in
the end the court disagreed). But since we have two clear noninfringing uses,
the technology obviously does have substantial uses that do not violate
copyright. Thus, Napster cannot be liable as a contributory infringer, just as
Sony could not be liable for the Betamax. Supreme Court precedent covers this
case. The Ninth Circuit is bound by that precedent. All the judges can do, goes
the argument, is to apply the words of the rule laid down in Sony, say that
Napster wins, and move on to the next case. If Congress wants to make services
like Napster illegal, it is going to have to pass a new law. The boundaries of
the Sony rule are clear and Napster fits within them. (Of course, the last
point is subject to argument, but the argument for Napster on this issue was a
good one. Not overwhelming—there were more noninfringing uses in the Sony case
because the normal way consumers used the technology in question was found to
be a fair use—but certainly powerful.)

A more daring strategy was to suggest that all the copying done over Napster
was fair use, or at least presumptively fair. In Sony, the Supreme Court had
said that the law presumes that noncommercial private copying—such as taping a
show at home for future viewing—is a fair use. This presumption shifts the
burden to the copyright holder to prove that the practice caused harm to them.
Copying on Napster was done by private individuals. No money was exchanged.
Does this mean we must presume it was fair use and require the music companies
and songwriters to show clear evidence of “market harm” if they want to
convince us otherwise?

It sounds as though proving market harm would be pretty easy. How could
millions of people exchanging hundreds of millions of songs not be causing
harm? But it is more complicated. Remember the Jefferson Warning. We are not
talking about swiping shoes from a shoe store. There one merely has to show the
theft to prove the loss. By contrast, music files are copied without being
“taken” from their owner. The record companies would have to show harm to their
market—the people downloading who do not purchase music because it is available
for free. Those who download, but would not have purchased, do not count. And
we have to balance those who are deterred from purchasing against those who
purchase a whole CD because they are exposed to new music through Napster. One
very interesting empirical study on the subject indicates that the result is a
wash, with hardly any measurable effect on sales; the overall drop in CD
purchases results from larger macroeconomic issues.~{Felix Oberholzer-Gee and
Koleman Strumpf, “The Effect of File Sharing on Record Sales: An Empirical
Analysis,” Journal of Political Economy 115, no. 1 (2007): 1–42.}~ This study,
however, has been subject to detailed methodological criticism.~{Stan J.
Liebowitz, “How Reliable Is the Oberholzer-Gee and Strumpf Paper on
File-Sharing?” available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014399. }~ Another study
shows a weak effect on sales, though rather woundingly it seems to suggest that
the result is economically efficient—fewer people end up with music they do not
like.~{Rafael Rob and Joel Waldfogel, “Piracy on the High C’s: Music
Downloading, Sales Displacement, and Social Welfare in a Sample of College
Students,” available at http://bpp.wharton.upenn.edu/waldfogj/jle_piracy.pdf
[Ed. note: originally published as
http://www.law.upenn.edu/polk/dropbox/waldfogel.pdf, link has changed].  }~
Other studies, by contrast, support the record company position—suggesting that
illicit file sharing does indeed undercut sales of both CDs and authorized
digital downloads.~{M. Peitz and P. Waelbroeck, “The Effect of Internet Piracy
on Music Sales: Cross-Section Evidence,” Review of Economic Research on
Copyright Issues (December 2004): 71–79, available at
http://www.serci.org/docs_1_2/waelbroeck.pdf. For an excellent general
discussion see Rufus Pollock’s summary of the empirical evidence at
http://www.rufuspollock.org/economics/p2p_summary.html. }~ Given the
complexities of the issue, the record companies did not want to engage in a war
of dueling empirical studies.

So, if Napster’s users were not infringing copyright law in the first place—at
least until the record companies came up with convincing evidence of market
harm—because their copying was noncommercial, then Napster could hardly be
guilty of contributory infringement, could it? There would be no infringement
at all!

You could see Mr. Boies’s arguments as simple equations between the cases.

_* Noninfringing uses such as recording public domain films and “time-shifting”
programs are equivalent to noninfringing uses such as the New Artists program
or sharing public domain music (and maybe “space-shifting” one’s own music?);
or

_* Private noncommercial videotaping is equivalent to private noncommercial
file sharing. Both are presumptively fair uses.

_* Either way, Sony=Napster and Napster wins.

Napster did not win, of course, though when the judges handed down their
decision it was clear they had been paying attention to Mr. Boies, at least
enough to make them very wary of tampering with Sony. They claimed that they
were upholding that case, but that Napster could be liable anyway. How? Because
there was enough evidence here to show that the controllers of Napster had
“actual knowledge that specific infringing material is available using its
system, that it could block access to the system by suppliers of the infringing
material, and that it failed to remove the material.” There was indeed evidence
that Napster knew how its system was being used—an embarrassing amount of it,
including early memos saying that users will want anonymity because they are
trading in “pirated music.” Then there were nasty circumstantial details, like
the thousands of infringing songs on the hard drive of one particular Napster
employee—the compliance officer tasked with enforcing the Digital Millennium
Copyright Act! (The recording company lawyers waxed wonderfully sarcastic about
that.)

But despite the ludicrously dirty hands of Napster as a company, lawyers could
see that the appeals court was making a lot of new law as it struggled to find
a way to uphold Sony while still making Napster liable. The court’s ruling
sounded reasonable and clear, something that would only strike at bad actors
while paying heed to the Sony Axiom and the assurance of safety that the rule
in Sony had provided to technology developers for the previous twenty years.
But hard cases make bad law. In order to accomplish this piece of legal
legerdemain, the court had to alter or reinterpret the law in ways that are
disturbing.

The first thing the court did was to reject the argument that the “sharing” was
private and noncommercial. As to the idea that it is not private, fair enough.
Sharing one’s music with fifty-four million people does not sound that private,
even if it is done for private ends, in private spaces. What about
noncommercial? Embracing some earlier rulings on the subject, the court said a
use was “commercial” if you got for nothing something for which you would
otherwise have to pay. On the surface this sounds both clever and reasonable—a
way to differentiate home taping from global file sharing—but the argument
quickly begins to unravel. True, the Betamax owners could get TV shows for free
just by watching at the regular time. But they could not get a copy of the show
for free at the moment they wanted to watch it. That was why they taped. One
could even argue that Napster users would have access to most songs over the
radio for free. But lawyers’ quibbling about which way the rule cuts in this
case is not the point. Instead, we need to focus on the change in the
definition of “commercial,” because it illustrates a wider shift.

Remember, a finding that a use is “noncommercial” makes it more likely that a
court will find it to be legal—to be a fair use. The old test focused mainly on
whether the motive for the copying was to make money. (A different stage of the
inquiry concerned whether there was harm to the copyright holder’s market.) The
Napster court’s test concentrates on whether the person consuming the copy got
something for free. Instead of focusing on the fact that the person making the
copy is not making money out of it—think of a professor making electronic
copies of articles for his students to download—it focuses on the presumptively
dirty hands of those who are “getting something for nothing.” But lots of
copyright law is about “getting something for nothing.” To put it differently,
one central goal of copyright is to limit the monopoly given to the copyright
owner so that he or she cannot force citizens to pay for every single type of
use. The design of the law itself is supposed to facilitate that. When “getting
something for free” comes to equal “commercial” in the analysis of fair use,
things are dangerously out of balance. Think back to Jefferson’s analogy. If I
light my candle at yours, am I getting fire for free, when otherwise I would
have had to pay for matches? Does that make it a “commercial” act?

Having dismissed the claim that this was noncommercial sharing, the court then
reinterpreted the Sony decision to allow liability when there was “actual
knowledge” of specific copyright violations, an ability to block access by
infringers, and a failure to do so. Neither side was entirely happy with this
ruling, but the record companies believed—rightly—that it would allow them
effectively to shut Napster down. Yet the Napster ruling only postponed the
issue. The next set of file sharing services to be sued after Napster were even
more decentralized peer-to-peer systems; the Napster court’s reinterpretation
of Sony would not be able to reach them.

The peer-to-peer file sharing service called Grokster is a relatively typical
example. Unlike Napster, Grokster had no central registry. The system was
entirely run by the individual “peer” computers. Because the system was
designed this way, the people who made and distributed the software had no
knowledge of specific infringing files. The users were doing the searching,
indexing, and storing, and Grokster had no ability to control their behavior.
For those reasons, a court of appeals held that Grokster was not liable. As in
Sony, the system had substantial noninfringing uses. Lots of interesting
content was traded on Grokster with the copyright holder’s consent. Other
material was in the public domain. Grokster made money by streaming
advertisements to the users of its software. The movie companies and record
companies saw this as a flagrant, for-profit piracy ring. Grokster’s response
was that like the makers of the VCR, it was simply providing a technology. Its
financial interest was in people using that technology, not in using it for
illicit purposes—though, like the VCR manufacturer, it would profit either way.
The court of appeals agreed. True, the majority of the material traded on
Grokster was illicitly copied, but the court felt that it could not give the
recording or movie companies control over a technology simply because it
allowed for easier copying, even if most of that copying was illegal. As I
tried to point out in the section on the Sony Axiom, that line of thought leads
to copyright holders having a veto over technological development.

It was at this point that the Supreme Court stepped in. In the case of MGM v.
Grokster,~{MGM Studios Inc. v. Grokster, Ltd. , 545 U.S. 913 (2005).}~ the
Supreme Court followed the line of the Napster court, but went even further.
The Court created a new type of contributory copyright infringement—while
apparently denying it was doing so. Grokster and its fellow services were
liable because of three different kinds of evidence that they had “intended” to
induce copyright violation. First, they were trying “to satisfy a known demand
for copyright infringement.” This could be shown by the way that they
advertised themselves as alternatives to the “notorious file-sharing service,
Napster.” Second, the file sharing services did not try to develop filtering
software to identify and eliminate copyrighted content—though this alone would
not have been enough to make them liable. Finally, their advertising-supported
system clearly profited by high-intensity use, which they knew was driven in
the most part by illicit copying. This too would not have been enough by
itself, the Court added, but had to be seen in the context of the whole record
of the case.

Let me be clear. I wept no tears for Napster, Grokster, and their ilk. I see no
high-minded principle vindicated by middle-class kids getting access to music
they do not want to pay for. It is difficult to take seriously the
sanctimonious preening of those who cast each junior downloader of corporate
rock as a Ché Guevara, fighting heroically to bring about a new creative
landscape in music. (It is almost as hard to take seriously the record industry
executives who moralistically denounce the downloading in the name of the poor,
suffering artists, when they preside over a system of contracts with those same
artists that makes feudal indenture look benign.) The file sharing companies
themselves were also pretty unappealing. Many of the services were bloated with
adware and spyware. True, some of their software engineers started with a
dewy-eyed belief that this was a revolutionary technology that would break the
record companies and usher in a new era of musical creativity. Whether one
agrees or disagrees with them, it is hard—for me at least—to doubt their
sincerity. But even this quality did not last long. For most of the people
involved, the words “stock options” worked their normal, morally debilitating
magic. In internal company correspondence, attacks on the hypocrisy of the
music companies and defenses of a democratic communications structure
imperceptibly gave way to discussions of “customer base,” “user experience,”
and “saleable demographics.” I care little that Napster and Grokster—as
individual companies—lost their specific legal battles. There are few heroes in
this story. But if we had to rely on heroes, nothing would ever get done.

I do care about the technology behind Napster and Grokster—about the kind of
decentralized system it represents. I also care about the principle I
identified as the Sony Axiom—a principle that goes far beyond music,
peer-to-peer systems, or the Internet as a whole. The Supreme Court’s decision
in Grokster could have been much worse. But it still offers a modest threat
both to that technology and to that axiom.

What is so great about peer-to-peer systems? We talk about “cheap speech” on
the Internet, but bandwidth is actually expensive. If one is talking about
music or video files, and one wishes to speak to many people in a short period
of time, one vital way to have cheap speech is over peer-to-peer networks. If
many of your viewers or listeners are willing to become broadcasting stations
as they watch, you can cheaply reach a million people in a short period of time
with your video of abuse in Abu Ghraib or your parody of political leaders. You
do not need to rely on a broadcasting station, or even on the continued
existence of entities such as YouTube, which face their own legal worries. By
making your listeners your distributors, you can quickly reach the same number
of ears that the payola-soaked radio waves allow the record companies to reach.

One need not cheer Grokster. Much of what went on there was indeed illicit. But
there are two key things to understand about peer-to-peer networks. The first
is that they are hard to police. They have multiple nodes. That is why they
work. It means they will have both infringing and noninfringing uses, and the
noninfringing uses will be centrally connected to our deepest values of free
speech and cultural decentralization.

The second feature of peer-to-peer networks is even more basic. They are
networks and thus subject to the laws of network economics. In short, they only
work well if many people use them. A person who uses a peer-to-peer system that
no one else uses is in the position of the person who owns the only fax machine
in the world. Peer-to-peer networks provide cheap and unregulable audiovisual
or data-heavy “speech” to a mass audience. And if the past is any guide, those
networks will also carry large amounts of illicit material, just as
photocopying machines (and VCRs) are widely used to violate copyright. The
Grokster case makes it harder, but not impossible, to have successful, widely
used peer-to-peer systems that are not themselves illicit. If they are widely
used, there will be infringing content. If you try to police them and filter
them, you will know more about that infringing content and thus might be
liable—that was the point of the Napster case. If you do not, you will be
failing to take precautions. That was the point of the Grokster case. What is a
poor peer-to-peer network to do? Apart from making sure that the last four
letters of your service’s name are not “-ster,” I am hard-pressed to advise
you.

A decision does not need to make an activity illegal in order to impede it. It
only needs to make it uncertain. Already, for example, the free—and so far as I
could tell, entirely well-meaning—service “bonpoo,” which allowed you to send
large file attachments to many people at once, has shut down all of its
capabilities except photo transfer. That is simply one trivial instance of a
larger harm. Lots of new communications technologies will remain undeveloped
because of the uncertainties left by this ruling.

My colleague Jennifer Jenkins gave one useful hyperbolic illustration, drawing
on earlier work by the Electronic Frontier Foundation: if one were launching
the iPod today, it is not clear how it would fare under Grokster’s standard. Of
course, there is no danger that the iPod will be challenged. It has become
respectable and the music companies ended up sanctioning it. But how does it
fare if we simply apply the tests laid down in the Grokster case? There is
Apple’s “tainted” advertising campaign, urging users to “Rip, Mix, and Burn.”
Does this not suggest complicity, or even intent? There is the fact that the
iPod does not restrict itself solely to proprietary formats protected by
digital rights management. It also allows uncontrolled MP3 files despite the
fact that this format is “notoriously” used to transfer files against the
wishes of the copyright owner. This, surely, is a “failure to police.” And
finally, there is the fact that it would cost about $10,000 to fill an iPod
with songs downloaded from iTunes. Clearly Apple must be aware that much of the
music that fills iPods is illicitly copied. They are profiting from that fact
to drive demand for the product, just as Grokster was profiting from the
attractions of illicit traffic to drive people to use their service!

No one is going to sue Apple now, of course. In fact, established players in
the marketplace are probably fairly safe (and have better lawyers). But what if
a product as good as the iPod were being developed now by some upstart company?
What if it were no more and no less likely to be used for infringing purposes?
Would the business plan ever see the light of day? Or would it be quietly
smothered due to legal uncertainty? I have little sympathy for Grokster the
company, but the decision that doomed it is a bad piece of technology policy.

There is a second reason to dislike the Grokster decision. Despite some of the
angst-ridden announcements made when the decision was handed down, the Supreme
Court has not killed peer-to-peer systems. The concept is far too well
entrenched. But the decision will mean that there are fewer of them that are
widely used, easy to operate, and made by responsible and reputable people you
can trust. This will probably lessen, but not end, illicit copying online. But
that effect comes with a price—it makes our communications architecture a
little bit more tightly controlled, reducing but not removing the availability
of methods of mass distribution that are entirely outside centralized public or
private control. It is another—relatively small—step toward an Internet that is
more like cable TV or iTunes, a one-way flow of approved content. One might
decide that such a price was well worth paying. But where is the limiting
principle or end point of the logic that led to it?

There is no provision in U.S. statutory copyright law that imposes liability
for contributory or vicarious infringement. None. The patent statute has such a
provision; not the Copyright Act. The courts have simply made the scheme up
themselves. Then they made up limitations—such as Sony—in order to rein it in.
In Grokster, the Supreme Court went further. It made up a new type of
“inducement” liability. Fine. As I have tried to indicate here, the decision is
not as dreadful as it is reputed to be. But so long as there is any unregulated
space in our communications network, some portion of it will have illicitly
copied content on it. The more the system is free of central control, the more
it is open to use by any citizen, the cheaper it gets—all very desirable
characteristics—the more illicit content there will be. That is the premise of
the Internet Threat—the belief that control must rise as copying costs fall. I
have tried here to suggest an alternative interpretation, the Sony Axiom:
without a strong internal set of limitations over copyright, cheaper copying
and the logic of the Internet Threat will always drive us toward giving control
over our communications architecture to the content industries.

There was one particularly striking moment in the Napster oral argument. The
lawyer for the recording companies was arguing that Napster was illegal. The
judges interrupted, as they often do, and there was a back-and-forth debate
about the likely reach of any ruling that would shut down Napster. “I am not
trying to say the Internet is illegal,” said the lawyer. There was a pause as
everyone weighed those words carefully.

My response would be “Really? Why not?” The logic of the Internet Threat leads
to the position that a network is either controlled or illegal. The better and
cheaper the network, the tighter the control needed. The Internet itself could
have been designed differently. There could have been more centralized control,
filtering of content, a design based on one-way transmission, closed protocols
that allow users only a limited number of options. Indeed there were such
systems—the national French Minitel system is an example. The Internet
represents the opposite set of choices—freedom from centralized control,
absence of intervention. In a famous article, Saltzer, Reed, and Clark provided
the argument that an “end-to-end” network that is “dumb” and leaves processing
to the “ends”—the smart terminals at either end of the wires—will be stable and
robust.~{J. H. Saltzer, D. P. Reed, and D. D. Clark, “End-to-End Arguments in
System Design,” ACM Transactions on Computer Systems (November 1984): 277.}~
But it will also be remarkably uncontrolled and it will lower global copying
costs close to zero for digital content. It is that principle that has made it
successful. To put it tersely: the logic of the Internet Threat runs in exactly
the opposite direction to the Internet itself. The logic of control is not the
logic of the Net.

Here is one last thought experiment. Apply the same test I suggested for the
iPod to the Internet itself.~{Technically, this discussion fuses components of
the Internet—its transfer protocols, for example—with aspects of the World Wide
Web, the set of linked hypertext documents assembled on top of it.}~ Imagine
you knew nothing of the Net. (Those of you who are over twenty-five may
actually be able to remember when you knew nothing of the Net.) Imagine that
you are sitting in a room somewhere discussing—perhaps with a group of
government bureaucrats or some policy analysts from the Commerce
Department—whether to develop this particular network. The scientists are
enthusiastic. They talk of robustness and dumb networks with smart terminals.
They talk of TCP/IP and HTML and decentralized systems that run on open
protocols, so that anyone can connect to this network and use it any way they
want to. You, of course, know nothing about the truly astounding outburst of
creativity and communication that would actually flower on such a system, that
would flower precisely because it is so open and no one country or company
controls it or the protocols that run it. You do not know that millions of
people worldwide will assemble the greatest factual reference work the world
has ever seen on this network—often providing their information for free out of
some bizarre love of sharing. You do not know about Amazon.com or Hotornot.com
or the newspapers of the world online, or search engines, automatic page
translation, plug-ins, or browsers. You cannot imagine free or open-source
software being assembled by thousands of programmers worldwide. E-mail is only
a dimly understood phenomenon to you. Teenagers in your world have never heard
of instant messaging—a nostalgic thought.

As the scientists talk, it becomes clear that they are describing a system
without centralized direction or policing. Imagine that your decision is framed
by the logic of control I have described in this chapter, by the fears that the
content industry has had for at least the last thirty years—by the logic of the
suit they brought in Sony. Imagine, in other words, that we make the up-or-down
decision to develop the Internet based on the values and fears that our
copyright policy now exhibits, and that the content industries have exhibited
for thirty years. There is no way, no way at all, that a network like it would
ever be developed. It would be strangled at birth. You would be told by the
lawyers and policy wonks that it would be a haven for piracy and illegality.
(And it would be, of course—though it would also be much, much more.) You would
be told that the system needed to be designed to be safe for commerce or it
would never attract investment, that it would need to be controlled and
centralized for it to be reliable, that it would need to be monitored to stop
it being a hotbed of crime. With the copyright lawyers in the room, you would
end up designing something that looked like cable TV or Minitel. The Internet
would never get off the ground.

The Internet is safe now, of course, because it developed so fast that it was a
reality before people had time to be afraid of it. But it should give us pause
that if we had our current guiding set of policy goals in place, our assumption
that cheaper copying means we need greater regulation, we would never have
allowed it to flourish. As Jessica Litman points out, we are increasingly
making our decisions about technology and communications policy inside
copyright law. We are doing so according to the logic of control that I have
sketched out in this chapter. But the logic of control is a partial logic. It
blinds us to certain possibilities, ones that have huge and proven
potential—look at the Internet.

The law has not been entirely one-sided, however. The Sony case drew a line in
the sand which promised to halt the inevitable drift toward greater and greater
control over communications technology by content owners. It turned out the
heavens did not fall. Indeed, the content companies thrived. Perhaps that line
was drawn in the wrong place; reasonable people can disagree about that. But
Grokster smudges the line without drawing a clear new one. If that new line is
drawn according to the logic of control, what technologies will we never see?
Could they be technologies that would transform our lives as unimaginably as
the Internet has since 1995?

I have described the story line—the cluster of metaphors and images and
concerns—that pervades our copyright policy. I labeled it “the Internet
Threat.” In the next chapter, I discuss an alternative story line, a different
way of understanding our current policies. The subject of that story line is
the best-known example of contemporary attempts to control the digital world,
the Digital Millennium Copyright Act or DMCA.

2~ Chapter 4: Further Reading

The first book to read on the history of the tension between copying
technologies and the law that regulates them is Paul Goldstein’s effortlessly
erudite Copyright’s Highway: From Gutenberg to the Celestial Jukebox, 2nd ed.
(Stanford, Calif.: Stanford University Press, 2003). Goldstein and I differ
somewhat in our optimism about current regulatory developments but his work is
an indispensable beginning for the inquiry and a pleasure to read. One
fascinating theme in the book is that the intellectual tension between
maximalists and minimalists (or optimists and pessimists as he describes them)
is actually a fundamental part of copyright law’s survival strategy—its
dialectical method of dealing with technological change. If so, in this book I
am struggling gamely to do my part by holding up my side of the dialectic. It
does not seem to be winning much recently. Perhaps copyright’s Hegel is asleep.

Much of this chapter concerns itself with copyright’s response to the Internet.
No book comes close to laying this out as well as Jessica Litman’s Digital
Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.:
Prometheus Books, 2001). Litman is a beautiful essayist and this book is both
accessible and detailed. Those readers who are interested in the history of
that dying technology, the VCR, will find a brilliant account in James Lardner,
Fast Forward: Hollywood, the Japanese & the VCR Wars (New York: Norton, 1987).
One needs only to scan its pages to pick up the eerie foreshadowing of the
Internet Threat. Litman’s article on the Sony case provides a detailed legal
history to back up Ladner’s social history. Jessica Litman, “The Sony Paradox,”
Case Western Reserve Law Review 55 (2005): 917–962. Pamela Samuelson has a fine
article exploring the jurisprudential impact of Sony’s reasoning. Pamela
Samuelson, “The Generativity of Sony v. Universal: The Intellectual Property
Legacy of Justice Stevens,” Fordham Law Review 74 (2006): 1831–1876.

The scholarly literature on Napster, copyright, and peer-to-peer technologies
generally is both wide and deep. In addition to Litman’s book, some personal
favorites include: Raymond Shih Ray Ku, “The Creative Destruction of Copyright:
Napster and the New Economics of Digital Technology,” University of Chicago Law
Review 69 (2002): 263–324; Mark A. Lemley and R. Anthony Reese, “Reducing
Digital Copyright Infringement Without Restricting Innovation,” Stanford Law
Review 56 (2003–2004): 1345–1434; Jane C. Ginsburg, “Separating the Sony Sheep
From the Grokster Goats: Reckoning the Future Business Plans of
Copyright-Dependent Technology Entrepreneurs,” University of Arizona Law Review
50 (2008): 577–609; Justin Hughes, “On the Logic of Suing One’s Customers and
the Dilemma of Infringement-Based Business Models,” Cardozo Arts and
Entertainment Law Journal 22 (2005): 725–766; Douglas Lichtman and William
Landes, “Indirect Liability for Copyright Infringement: An Economic
Perspective,” Harvard Journal of Law and Technology 16 (2003): 395–410; and
Glynn S. Lunney, Jr., “Fair Use and Market Failure: Sony Revisited,” Boston
University Law Review 82 (2002): 975–1030.

In addition to these articles, a number have focused specifically on
alternative methods of encouraging cultural production while maximizing
technological and cultural freedom. Two that have profoundly influenced my own
thinking are Neil Weinstock Netanel, “Impose a Noncommercial Use Levy to Allow
Free Peer-to-Peer File Sharing,” Harvard Journal of Law and Technology 17
(2003): 1–84; and William Fisher, Promises to Keep: Technology, Law, and the
Future of Entertainment (Palo Alto, Calif.: Stanford University Press, 2004).
Fisher, whose presentations and articles reveal a cathedral-like conceptual
structure that would have delighted the Encyclopedists, argues powerfully that
a system of levies on broadband technology, distributed in proportion to the
popularity of the music downloaded could allow us to permit “free” access to
music while still compensating musicians. His responses to the problems of
measurement, gaming of the system, privacy, and so on will not convince
everyone but they represent by far the most systematic treatment of the
subject.

1~ Chapter 5: The Farmers’ Tale: An Allegory

Imagine that a bustling group of colonists has just moved into a new area, a
huge, unexplored plain. (Again, assume the native inhabitants have conveniently
disappeared.) Some of the colonists want to farm just as they always did in the
old country. “Good fences make good neighbors” is their motto. Others, inspired
by the wide-open spaces around them, declare that this new land needs new ways.
They want to let their cattle roam as they will; their slogan is “Protect the
open range.” In practice, the eventual result is a mixture of the two regimes.
Fields under cultivation can be walled off but there is a right of passage
through the farmers’ lands for all who want it, so long as no damage is done.
This means travelers do not need to make costly and inefficient detours around
each farm. In the long run, these “public roads” actually increase the value of
the private property through which they pass. They also let the ranchers move
their cattle around from one area of pasture to another. The ranchers become
strong proponents of “public, open highways” (though some people muse darkly
that they do very well out of that rule). Still, most people want open
highways; the system seems to work pretty well, in fact.

Two new technologies are introduced. First, the automobile is developed. Now
thieves can drive through the farmers’ fields, stop quickly to grab some corn
or a lettuce, and be back on the highway before they can be caught. Of course,
the farmers’ costs have also fallen dramatically; now they have tractors to
work their fields and trucks to take their products to distant markets. The
farmers do not dwell on the benefits of the new technology, however.
Understandably, they focus more on the profits they could reap if they could
get all the advantages of the technology and none of its costs. They demand new
legal protections aimed at producing that result. “What’s good for agriculture
is good for the nation,” they say. But now comes the second technological
shock—the development of barbed wire. The cost of erecting impassable barriers
falls dramatically. The farmers begin to see the possibility of enclosing all
of their land, roads and fields alike. This will help them protect their crops
from pilfering, but it will also allow them to charge people for opening the
gates in their fences—even the gates on public roads. That is a nice extra
revenue stream which will, the farmers say, “help encourage agriculture.” After
all, more fences mean more money for farmers, and more money for farmers means
they can invest in new methods of farming, which will mean everyone is better
off, right?

What is to be done? Assume that each side presents its case to the legislature.
There are three obvious possibilities:

First, the legislature can simply tell each side to work it out amongst
themselves. The law will continue to forbid trespass, but we are neither going
to make it a crime to put up a barbed wire fence if it blocks legitimate public
rights of way nor to make it a crime to cut a barbed wire fence, unless the
fence cutter is also a trespasser. The farmers can attempt to enclose land by
putting barbed wire around it. Ranchers and drivers can legally cut those
fences when they are blocking public rights of way. Trespass remains trespass,
nothing more.

Second, the legislature could heed the ranchers’ fears that barbed wire will
permit the farmers not only to protect their own land, but to rob the public of
its existing rights of way, turning open highways into toll roads. (The
ranchers, of course, are more concerned with the rights of cattle than people,
but most drivers agree with them.) As a result, the state could forbid the
erection of a barbed wire fence where it might block a public right of
way—classing it as a kind of theft, perhaps.

Third, the legislature could take the farmers’ side. Theorizing that this new
automobile technology presents “a terrible threat to agriculture, because of
rampant crop piracy,” the state could go beyond the existing law of trespass
and make it a crime to cut barbed wire fences wherever you find them (even if
the fences are enclosing public lands as well as private, or blocking public
roads). To back up its command, it could get into the technology regulation
business—making the manufacture or possession of wire cutters illegal.

The state picks option three. Wire cutting becomes a crime, wire cutters are
classed with lock picks and other “criminals’ tools,” and the people who make
wire cutters are told their business is illegal. A storm of protest arises in
the rural driving community. The wire cutter manufacturers claim that their
products have lots of legitimate uses. All to no avail: the farmers press on.
They have two new demands. Cars should be fitted with mandatory radio beacons
and highways put under constant state surveillance in order to deter crop
theft. In addition, car trunks should be redesigned so they can hold less—just
in case the owner plans to load them up with purloined produce. Civil
libertarians unite with car manufacturers to attack the plan. The farmers
declare that the car manufacturers are only interested in making money from
potential thieves and that the civil libertarians are Nervous Nellies: no one
has anything to fear except the criminals. “What’s good for agriculture is good
for the nation,” they announce again. As the barbed wire gates swing shut
across the highways of the region, the legislature heads back into session.

2~ Between Paranoia and Reality: The DMCA

I have argued that confusing intellectual property with physical property is
dangerous. I stand by that argument. Yet analogies to physical property are
powerful. It is inevitable that we attempt to explain new phenomena by
comparing them to material with which we are more familiar. While the content
companies’ tales of “theft” and “piracy” are the most prevalent, they are by no
means the only such analogy one can make. In this chapter I try to prove that
point.

The Farmers’ Tale is my allegorical attempt to explain the struggle over the
single most controversial piece of intellectual property legislation in recent
years, the Digital Millennium Copyright Act, or DMCA.~{Pub. L. No. 105-304, 112
Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and
35 U.S.C.).}~ The DMCA did many things, but for our purposes its crucial
provisions are those forbidding the “circumvention of copyright protection
systems,” the technological measures that copyright holders can use to deny
access to their works or control our behavior once we get access. These
measures include encryption, controls on how many times a file can be copied,
password protection, and so on. Copyright protection systems are, in other
words, the digital equivalent of barbed wire, used to add an additional layer
of “physical” protection to the property owner’s existing legal protection.
But, unlike barbed wire, they can also control what we do once we get access to
the property.

The rules that forbid circumvention of these systems are logically, if not
elegantly, referred to as the anticircumvention provisions. They are to be
found in Section 1201 of the Copyright Act, an ungainly and lumpily written
portion of the law that was inserted in 1998 as part of the complex set of
amendments collectively referred to as the DMCA. I will explain the
significance of these rules in a moment. My hope is that the analogy to the
Farmers’ Tale will make them a little easier to understand—at least for those
of you for whom talk of digital rights management, anticircumvention
provisions, and network effects is not second nature.

Notice the differences between this allegory and the “Internet Threat” story
line I described in the last chapter. There are two sets of bad guys in the
Farmers’ Tale. The greedy thieves (who are still thieves in this story—not
heroes) and the greedy farmers who use a genuine if indefinite “threat” posed
by a new technology to mask a power grab. The Internet Threat is the story of
an industry devastated by piracy, in desperate need of help from the state to
protect its legitimate property interests. By contrast, the Farmers’ Tale is
the story of a self-interested attempt not only to protect property but to cut
off recognized rights of public access in a way that will actually make the
whole society worse off. The legitimate role of the state in protecting private
property has been stretched into an attempt to regulate technology so as to
pick winners in the marketplace, enriching the farmers at the expense of
consumers and other businesses. In the long run this will not be good for
business as a whole. A patchwork of private toll roads is an economic
nightmare.

That is not the most worrying part of the story: the farmers’ proposals are
moving in the direction of regulating still more technology—the mandatory radio
beacons and constantly monitored roads conjure up a police state—and all to
protect a bunch of hysterical vegetable growers whose political clout far
outweighs their actual economic importance.

Both the Internet Threat and the Farmers’ Tale are, of course, ways to
understand what is currently going on in the intellectual property wars. In the
digital realm, the part of the farmers is played by the content companies, the
recording industry associations, the movie and software trade groups. Pointing
to the threat of digital piracy, they demanded and received extra legal
protection for their copyrighted content. Unlike earlier expansions—longer
copyright terms, more stringent penalties, the shrinking of exceptions and
limitations, expansions in copyrightable subject matter—this was not a
protection of the work itself; it was a protection of the digital fences
wrapped around it, and a regulation of the technology that might threaten those
fences.

What is the significance of this? The digital revolution makes it easier to
copy copyrighted content. It also makes it easier to protect that content, and
to do so in a more granular and precisely calibrated way. Imagine being able to
sell a paperback book that could only be read by the original purchaser or a
song that could only be listened to by a particular person in a particular
room. Digital rights management technology makes it a lot easier to do these
things. Suddenly the copyright owners have considerable physical control over
their songs, e-books, and software, even after they have sold them. It is as if
the recording industry or the publishers had a representative in your living
room. They can use that control not merely to prevent illicit copying but to
control and limit usage in ways that go far beyond their exclusive rights under
copyright. All of this happens without the law or the state doing anything.
Like barbed wire, this is a technological protection measure.

Like the farmers, the content companies were not content with their barbed wire
alone. They wanted legally protected barbed wire in addition to their existing
legal rights under copyright. Under the Digital Millennium Copyright Act, it
became illegal to circumvent a technical protection measure such as
encryption—the digital barbed wire behind which content companies secrete their
work—even if what you did with the content when you got past the barbed wire
was a fair use; excerpting a fragment of a film for a school presentation, for
example, or making a copy of an encrypted audio file for personal use in
another device. In other words, by using digital barbed wire, the content
companies could prevent citizens from making the “fair uses” the copyright law
allowed. This undermines some of the limitations on their exclusive rights that
the Copyright Act explicitly carves out in Section 107, and thus shifts the
balance of power that the Copyright Act establishes. Cutting barbed wire became
a civil wrong, and perhaps a crime, even if the wire blocked a public road.
Under most circumstances, making wire cutters was also now against the law.

The ranchers—whose digital equivalents are communications companies and
hardware manufacturers—chafed under these new rules. The most powerful groups
managed to get special dispensations. Internet service providers, for example,
got a qualified immunity from copyright infringement that occurs over their
networks. But ordinary citizens, librarians, and civil libertarians also
complained, and they were not as well represented in the legislature. It is
true that the new rules may help to prevent illicit copying, but they also
strike a blow against the exercise of fair use rights—rights that are important
both to free speech and competition. Even if the content companies were
absolutely right about the threats from digital piracy, this consequence should
make us pause. But critics of the DMCA say that there is little evidence that
the content companies are right. They quote some of the empirical studies I
mentioned in the last chapter, particularly the ones that show no net negative
effect from unauthorized music downloading on CD sales. They claim—and they are
on strong ground here—that even if there are some losses from the new copying
technologies, there are also benefits. Like the farmers, the critics would
argue, the content companies take the benefits of the new technology for
granted, but wish the law to step in to ameliorate the harms it also creates.
And like the farmers, they are not yet satisfied. Their new proposals go even
further—scarily further. Thus runs the critics’ argument.

The critics of the DMCA conjure up a world in which it will be illegal to lend
each other books or songs, where it will be impossible for us to copy even
small fragments of digital work for criticism or parody, where encryption
research will be severely “chilled,” and where large quantities of the public
domain will be enclosed together with the copyrighted content that the DMCA is
supposed to protect. (The Electronic Frontier Foundation’s “Unintended
Consequences” studies give concrete examples.)~{See Electronic Frontiers
Foundation, “Unintended Consequences,” available at
http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca. }~ They
think the DMCA undoes the balance at the heart of copyright law, that it can be
used to entrench existing businesses and their business methods, that it
threatens speech, competition, privacy, and innovation itself. In short, they
think the DMCA is the worst intellectual property law Congress has ever passed
and view the adoption of similar laws around the world with a reaction little
short of horror.

Those who supported the DMCA disagree, of course, and do so honestly. They see
rampant piracy as a reality and the threat to fair use as some kind of academic
hypothetical rarely encountered in reality. What’s more, many of them do not
think fair use is that important economically or culturally. If markets work
well, users could be made to pay for the rights that fair use gives—but only if
they wanted them. One could buy expensive digital books which one was allowed
to share, quote, or copy for classroom use, and cheaper ones which one had to
keep to oneself. Remember that for many of the people who supported the DMCA,
fair use is something of a “loophole”; certainly not an affirmative right of
the public or a reserved limitation on the original property grant from the
state. (Remember the Sony Axiom from Chapter 4?) They find the analogy of fair
use to a public road ludicrous. This film, or book, or song, is mine; anything
you do with it, or to it, you do at my sufferance. (Remember the Jefferson
Warning from Chapter 2?)

How has the DMCA worked in reality? Which group’s attitudes were vindicated?
Two case studies may help us to answer these questions.

2~ Infectious Speech: The DMCA and Freedom of Expression

Jon Johansen, a 16-year-old Norwegian, was the unwitting catalyst for one of
the most important cases interpreting the DMCA. He and two anonymous helpers
wrote a program called DeCSS. Depending on whom you listen to, DeCSS is
described either as a way of allowing people who use Linux or other open source
operating systems to play DVDs on their computers, or as a tool for piracy that
threatened the entire movie industry and violated the DMCA.

A little background is in order. When you play a commercial DVD, your actions
are partly controlled by a simple encryption scheme called CSS, or the Content
Scramble System. The DVD Copy Control Association licenses the keys to this
encryption system to the manufacturers of DVD players. Without a key, most DVDs
could not be played. The manufacturer then embeds this key in its hardware
design in such a way that it is easy for your player to decode and play the
movie but hard, at least for a person of average technical competence, to copy
the decoded “stream.”

Because the DVD Copy Control Association will only license keys to
manufacturers whose DVD players conform exactly to their specifications, the
CSS scheme can also be used to control viewers in other ways. For example, DVD
players are required to have one of six “region codes,” depending on where in
the world they are sold. Region 1 is the United States and Canada. Region 2 is
Japan, Europe, South Africa, the Middle East, and—bizarrely—Greenland. Region 3
is South Korea, Taiwan, and Hong Kong; and so on. The CSS scheme can be used to
restrict a movie to a player with the appropriate region code. If you try to
play a movie coded for region 6 (China) in a DVD player from region 1, it will
not play. This allows filmmakers to distribute different versions of films to
different regions at different times based on sequential release in cinemas, or
simply to distribute DVDs with different prices to different regions without
worrying about whether the cheaper DVDs will “leak” into the more lucrative
markets. CSS and the hardware scheme that unlocks it can also be used to
prevent you from fast-forwarding through the commercials at the beginning of
the movie if the copyright owner does not want you to, or from skipping the FBI
notice. The machine will not do it. In fact, it is deliberately built so that
it cannot do it.

What we have here is a digital fence that is partly used to prevent copying.
Movie studios are understandably worried about the worldwide circulation of
perfect digital copies of their movies. CSS was supposed to help to prevent
that, or at least make it much harder. But because almost all movies are
encrypted with CSS and access to the keys comes with conditions, CSS also
allows a more fine-grained control over consumers. Manufacturers are not
allowed to make players which can view movies from all region codes or skip
portions of the DVD that the owners do not want you to skip. The licensing body
puts it this way on its Web site: “Q. Under the terms of the CSS licensing
agreement, is it legal for a licensed manufacturer to produce and sell a
product which allows a user to disable any CSS protections? A. No. Such
products are not allowed under the terms of the CSS license. They are
illegal.”~{See DVD Copy Control Association, “Frequently Asked Questions,”
available at http://www.dvdcca.org/faq.html. }~ A technology introduced to
protect intellectual property rights allows control in ways that those rights
alone do not.

Before the DMCA, the movie companies could have done exactly this. They could
have wrapped their movies in a digital fence. The consumer electronics
companies that wanted to could license a key and be allowed to use a trademark
that indicated that they were approved by the DVD Copy Control Association. But
what if a manufacturer of DVD players felt that American consumers wanted to be
able to play their Japanese anime movies without buying another DVD player to
do so? Or what if they thought people were antsy and did not want to watch the
FBI notice before every film? The manufacturer could have tried to “reverse
engineer” the CSS system, to figure out how it worked. If they succeeded, they
could make a player that was free of the restrictions that the CSS licensing
authority imposed.

Of course there were some legal limitations even before the DMCA. Our
hypothetical manufacturer could not break into the safe where the CSS code was
being held or bribe an employee to provide it. (That would be a trespass or a
violation of trade secret law.) It could not violate copyright laws over the
various types of software that controlled DVD players. It could not use the
trademarks of any of the entities involved, including any seal of approval
granted by the DVD Copy Control Association. But it could—at least in the
United States—try to reverse engineer the product so as to make a competing
product with features that the customers liked more. It would be no more
illegal than a company making a cheaper generic razor cartridge that fits my
expensive Gillette Mach 3 razor, a generic printer cartridge to replace the
expensive one in my Lexmark printer, or, for that matter, a generic remote
control for my garage door opener. In each case, of course, the original
manufacturer would prefer that I use their products rather than the unlicensed
ones. They can design their product to make it hard to use a generic
replacement or even tell me that my warranty will be void if I use one. But
they cannot say that the unlicensed product is illegal. We are back in option
one of the Farmers’ Tale, before the legislature acted. The farmers can put up
their wire, and even use it to block passage that would be otherwise legal, but
it is not a crime to figure out a way through the fence unless the fence cutter
is also a trespasser. The DMCA, however, might have changed all of that.

Let us return to Mr. Johansen, the 16-year-old Norwegian. He and his two
anonymous collaborators claimed that they were affected by another limitation
imposed by the CSS licensing body. At that time, there was no way to play DVDs
on a computer running Linux, or any other free or open source operating system.
(I will talk more about free and open source software later.) Let’s say you buy
a laptop. A Sony Vaio running Windows, for example. It has a slot in the side
for DVDs to slide in and software that comes along with it which allows the DVD
reader to decode and play the disk. The people who wrote the software have been
licensed by the DVD Copy Control Association and provided with a CSS key. But
at the time Mr. Johansen set out to create DeCSS, the licensing body had not
licensed keys to any free or open source software developers. Say Mr. Johansen
buys the Sony Vaio, but with the Linux operating system on it instead of
Windows. The computer is the same. The little slot is still there. Writing an
open source program to control the DVD player is trivial. But without the CSS
key, there is no way for the player to decode and play the movie. (The
licensing authority later did license an open source player, perhaps because
they realized its unavailability gave Mr. Johansen a strong defense, perhaps
because they feared an antitrust suit, or perhaps because they just got around
to it.)

Mr. Johansen and his supporters claimed strenuously that DeCSS was not in fact
an aid to illicit copying. In fact, they argued that CSS was not really
designed to protect DVDs against illicit copying. Commercial DVD “pirates” do
not need to crack the CSS encryption. Quite the contrary: they produce exact
copies of the DVD, CSS encryption and all, and the buyer’s player dutifully
decodes it and plays it. Mr. Johansen claimed that his goals were very
different from those of the pirates.

_1 The motivation was being able to play DVDs the way we want to. I don’t like
being forced to use a specific operating system or a specific player to watch
movies (or listen to music). Nor do I like being forced to watch commercials.
When your DVD player tells you “This operation is not allowed” when you try to
skip commercials, it becomes pretty clear that DRM really stands for Digital
Restrictions Management.~{Thomas Mennecke, “Slyck.com Interviews Jon Lech
Johansen” (April 4, 2005), available at
http://www.slyck.com/news.php?story=733. }~

In Mr. Johansen’s view, CSS was simply an attempt to control consumers, an
attempt which should be a valid target for legal reverse engineering. He has a
point. There were indeed other ways to copy DVDs which did not require DeCSS
and which gave you files of more manageable size. CSS was indeed more than a
simple anticopying device. The entire scheme—the keys, the licenses, the
hardware requirements—was designed to give movie studios greater control over
their movies in a number of ways, some of them unrelated to copying. On the
other hand, he overstated the point. One function of CSS was indeed to make it
harder for the average person playing a DVD on a computer to copy the file from
the DVD to her hard disk and give it to a friend. It is very easy for the
average 14-year-old to take a commercial music CD, change the songs into
smaller files in the MP3 format, and share them with a friend. It is not as
easy to do the same thing to a DVD—not impossible, just harder—and CSS is one
of the reasons why.

Mr. Johansen’s program, DeCSS, was quickly made available worldwide. Mirror
sites provided copies of the program and lists of such locations were easy to
find using standard search tools. One such list was provided by the online site
run by a magazine called 2600: The Hacker Quarterly. The magazine features
everything from pictures of pay phones from around the world to tips on how to
hack into computer or telephone systems. Its publisher is one Eric Corley, who
goes by the name Emmanuel Goldstein—the resistance leader in George Orwell’s
1984.

In 1999, Universal City Studios brought suit against a number of individuals
for distributing DeCSS. The case was called Universal City Studios v. Reimerdes
et al. Corley was among the defendants. The suit prominently included a claim
that the defendants were violating the DMCA. It was in this case that the DMCA
received its first major legal challenge.

Depending on the characterization of the facts, the case seems to be about very
different things. It could seem a classic First Amendment fight. (“Plucky
magazine publisher told copyright law forbids him from linking to other sites
on the Internet!”) Or it could seem the very essence of illegal activity.
(“Shadowy site which unashamedly caters to computer ‘hackers’ tries to spread
access to the burglar’s tools of cyberspace!”)

Of course, most lawsuits involve conflicts over facts. Much of what lawyers do
is put the same facts into different conceptual boxes. But here, merely
describing what Corley does, what hackers are, or what 2600 magazine is all
about involves one in a profound culture clash. The best way to capture the
clash may be to quote from an early entry about Corley in Wikipedia, the
remarkable online encyclopedia.

The encyclopedia first quotes the description of 2600 magazine from Judge Lewis
A. Kaplan, the federal district court judge who decided the Reimerdes case.

_1 “2600: The Hacker Quarterly has included articles on such topics as how to
steal an Internet domain name, how to write more secure ASP code, access other
people’s e-mail, secure your Linux box, intercept cellular phone calls, how to
put Linux on an Xbox, how to remove spyware, and break into the computer
systems at Costco stores and Federal Express. One issue contains a guide to the
federal criminal justice system for readers charged with computer hacking. In
addition, 2600 operates a web site located at 2600.com (http://www.2600.com),
which is managed primarily by Mr. Corley and has been in existence since 1995.”

The Wikipedia article then continues as follows:

_1 While the judge’s tone is clearly disapproving, others would point out that
bookstores, movies and television channels are filled with material on how to
commit murder . . . and that without the efforts of the hacker community,
however ill-intentioned, computer insecurity would be even more of a problem
than it already is.~{As is often the way, these pages have now been modified on
Wikipedia. At the time of writing, this excerpt can still be found at
http://www.indopedia.org/Eric_Corley.html. }~

In fact, Judge Kaplan was not entirely disapproving. He mentions articles in
2600 that cover laudable or innocuous tasks, as well as others about tasks that
most readers would find objectionable and rightly think to be illegal. But the
anonymous volunteer who wrote this version of Corley’s Wikipedia entry clearly
saw the issue differently. Wikipedia does not portray the hacker community as
universally benevolent (“however ill-intentioned”), but that community is also
seen as providing a useful service rather than merely a set of how-to guides
for would-be digital burglars.

To most people, pointing out vulnerabilities in computer security systems
seemed, at least in 1999, like telling the world that your neighbor has
forgotten to lock his door and all his possessions are there for the taking.
But to the online community, it is by no means so clear. From the perspective
of those who are knowledgeable in the field, there is a moral continuum. There
is clearly legitimate computer security and cryptography research, which
includes attempts to break into computer systems to test their defenses—that is
how one finds out they are secure, after all. Then there are “hackers.” This
term could be used to describe those who merely like to program. Richard
Stallman, for example, the originator of the free software movement, describes
himself thus. But the term could also be used for those who are interested in
security or interoperability—making two systems work together. That was Mr.
Johansen’s declared goal, after all. But some self-described hackers go
further. They believe that exploring and disclosing the weaknesses of
supposedly secure systems is intellectually fulfilling, practically important,
and protected by the First Amendment. They disclaim both moral and legal
responsibility for the consequences of their disclosures. (Or at least the
negative consequences; they frequently take credit for the positive
consequences, such as improved security.) Finally, there are “crackers,” whose
interest in gaining entry to computer systems is malicious or for financial
gain. At what point on this continuum does the activity become legally, or
morally, unacceptable? As the Reimerdes trial went on, it became clear that the
answer the DMCA gave might not be the same as the one given even by undeniably
legitimate computer scientists.

A large number of legal arguments were involved in the Reimerdes case, but for
our purposes here the most important ones dealt with the relationship between
copyright and the First Amendment. What is that relationship?

In one obvious sense copyright actually aids free speech. By providing an
incentive to create works, copyright “add[s] the fuel of interest to the fire
of genius,”~{Abraham Lincoln, Lecture on Discoveries and Inventions (April 6,
1858), available at
http://showcase.netins.net/web/creative/lincoln/speeches/discoveries.htm. }~
and thus helps to create the system of decentralized creative production and
distribution I described in Chapter 1. But copyright also restrains speech. At
its base, it allows an individual to call upon the state to prevent someone
from speaking or expressing themselves in a particular way. This may involve a
simple refusal to let the speaker use some text, picture, verse, or story in
their message, or it may involve a refusal to let them transform it in some
way.

Neither copyright law nor the American Constitution is blind to these dangers.
Copyright has a number of built-in safeguards. The most important of these is
that copyright only covers “original expression”—both the ideas and facts in
this book can be used by anyone without my permission. Thus, goes the theory,
the speaker’s freedom of expression is never truly restrained. The only thing I
am barred from is using your words, your exact plot, your photograph, your
music—not your facts, your ideas, your genre, the events you describe.

That is not always enough, of course. Sometimes the problem is that the speaker
cannot paraphrase around the restraints posed by copyright. He needs to use the
particular text or image in question to convey his message. The ideas, the
facts, or a mere paraphrase of the expression would not be enough. In cases
like that copyright’s answer is “fair use.” A politician could not prevent
journalists who disagree with him from quoting his autobiography in discussing
his life. If an African-American author wishes to tell the story of Gone With
the Wind from the slaves’ perspective, she may do so in the face of the
copyright holders’ attempts to stop her. Even fair use, though, may not cover
every concern about free expression. Before World War II, Alan Cranston—later a
U.S. Senator—wanted to convince American readers that the version of Hitler’s
Mein Kampf published in the United States was distorted. He believed it to be
slanted toward American sensibilities, downplaying both anti-Semitism and
German expansionism. His solution? To publish his own English translation,
taken direct and uncut from the German edition. He wanted to prove, with
Hitler’s own words, that the United States had a dangerously distorted version
of the German leader. But this is the kind of thing copyright law forbids and
it is not clear that fair use allows. (In the end he did it anyway.)~{See Neil
Weinstock Netanel, “Locating Copyright Within the First Amendment Skein,”
Stanford Law Review 54 (2001): 15 (citing Houghton Mifflin Co. v. Noram Publ’g
Co. , 28 F. Supp. 676 (S.D.N.Y. 1939); Houghton Mifflin Co. v. Stackpole Sons,
Inc. , 104 F.2d 306 (2nd Cir. 1939) (upholding the validity of the U.S.
copyright in Mein Kampf); Anthony O. Miller, “Court Halted Dime Edition of
‘Mein Kampf’: Cranston Tells How Hitler Sued Him and Won,” Los Angeles Times,
February 14, 1988, § 1, 4 (giving Cranston’s version of the case’s underlying
facts)).}~

For the moment though, it is enough to realize that copyright law is not immune
from the First Amendment or from free speech concerns more generally. If we do
not notice that most of the time, it is because the internal limitations of
copyright—fair use, the idea-expression distinction, and so on—generally take
care of the First Amendment issue, not because the issue was never there.

So what First Amendment issues did the DMCA present? Most obviously, the DMCA
gave a new right to copyright owners. By using a few simple technological
measures, they could distribute a work in a particular format and yet, because
of their new intellectual property right, they could make illegal an otherwise
lawful process of gaining access for the purposes of making fair use. Of
course, the First Amendment allows me to make fair use factually impossible. I
can do that without raising any constitutional issues by hiding my manuscript
and never letting you see it or just by using unbreakable encryption on my
digital products. It allows me to use existing conventional property rights to
make fair use illegal. If I own the only copy of the book and it is inside my
house, it would be trespass for you to enter. No First Amendment problem there.
But in passing the DMCA, Congress had created a new intellectual property right
inside copyright law itself, a law aimed directly at expression, that made it
illegal to get access for the purpose of making fair use even when you legally
bought the physical book, or the physical DVD, and now wish to quote it or
parody it. Even that is not the problem. It is that Congress cannot grant the
exclusive rights of copyright without simultaneously accompanying them by the
limitations of fair use.~{The Corley court was uncertain about this point.
(“Preliminarily, we note that the Supreme Court has never held that fair use is
constitutionally required, although some isolated statements in its opinions
might arguably be enlisted for such a requirement.”). Universal City Studios v.
Corley, 273 F.3d 429, 458 (2d Cir. 2001). In my view, both logic and those
“isolated statements” suggest that fair use is required. As I point out later,
when the Supreme Court revisited the matter in the case of Eldred v. Ashcroft,
537 U.S. 186 (2003), it stressed that it was precisely the internal limitations
such as fair use that made copyright law normally immune to First Amendment
scrutiny. The Court added “when . . . Congress has not altered the traditional
contours of copyright protection, further First Amendment scrutiny is
unnecessary.” Ibid. at 221 (citing Harper & Row, 471 U.S. at 560). Yet that is
exactly what the DMCA does: alters “the traditional contours of copyright
protection” by handing out the exclusive right at the same time as it confers a
legal power to remove the privilege of fair use.}~ Regardless of what physical
constraints and tangible property rights might do to limit my ability to make
fair uses, Congress had now, by law, allowed a copyright owner to distribute a
particular work with the exclusive rights but without some of those
limitations.

Imagine that Congress had passed the following law instead of the DMCA: “Any
copyright owner can make it illegal to make a fair use of a copyrighted work by
putting a red dot on their books, records, and films before selling them. It
shall be a crime to circumvent the red dot even if, but for the dot, the use
would have been fair.” That would be clearly unconstitutional. It gives
copyright owners a new intellectual property right to “turn off fair use” in
copyrighted works distributed to the mass market. Is the DMCA not the same
thing?

This was the issue in Reimerdes. True, if I cut through the digital fence on a
DVD in order to excerpt a small portion in a critical documentary, I would not
be violating your copyright, but I would be violating the anticircumvention
provisions. And DeCSS seemed to be a tool for doing what the DMCA forbids. By
providing links to it, Mr. Corley and 2600 were “trafficking” in a technology
that allows others to circumvent a technological protection measure. DeCSS
could, of course, be used for purposes that did not violate copyright—to make
the DVD play on a computer running Linux, for example. It enabled various
noninfringing fair uses. It could also be used to aid illicit copying. But the
alleged violation of the DMCA had nothing to do with that. The alleged
violation of the DMCA was making the digital wire cutters available in the
first place. So one First Amendment problem with the DMCA can be stated quite
simply. It appeared to make it illegal to exercise at least some of the
limitations and exceptions copyright law needs in order to pass First Amendment
scrutiny. Or did it just make it very, very difficult to exercise those rights
legally? I could, after all, make a videotape of the DVD playing on my
television, and use that grainy, blurry image in my documentary criticizing the
filmmaker. The DMCA would not be violated, though my movie might be painful to
watch.

The other possible First Amendment problem with the DMCA was that in regulating
programs such as DeCSS, the DMCA was actually regulating “speech.” The first
challenge to the DMCA was that, by making tools like DeCSS illegal, the DMCA
took away a constitutionally necessary escape hatch to copyright, thus making
copyright law as a whole violate the First Amendment’s guarantee of freedom of
speech. The second challenge was different. The problem was that the program
itself was speech and the DMCA was regulating it illicitly.

The reasoning went like this. A computer program is a form of expression and
communication. The source code can even be read by human beings. True, it is an
abstract form of communication—like musical notation and mathematical
algorithms. But those are clearly protected by the First Amendment. Congress
could not make Schoenberg’s twelve-tone scale illegal or punish mathematicians
for physics equations that seemed to support a theory of the universe’s origin
other than the creationism that is currently so popular. True, the source code
is a description of a method of doing something, and the code can, if run on a
computer, produce a result—but one could argue that those attributes do not
affect the First Amendment’s protection. Neither a recipe for hash brownies nor
a player piano roll for the Nazi “Horst Wessel” song could constitutionally be
prohibited, even though actually to make the hash brownies would be illegal,
and even though the piano roll is functional (it “makes” the player piano play
the tune). True, most people cannot read computer code, but speech does not
need to be common or accessible to be protected. In fact, the courts have even
held that the choice to communicate in a particular language is
constitutionally protected in some settings.

On the other hand, software code is undeniably functional. Lots of functional
articles can be said to have some expressive content—a gun, an airbag, a crash
helmet, a set of burglar’s tools, a computer virus. And many actions have
expressive content: a terrorist bombing, for example. Surely these could be
regulated by Congress? To the defendants, DeCSS looked like a physics equation,
a musical score, or a recipe. To the movie studios, DeCSS had all the First
Amendment significance of a crowbar, lock pick, or, for that matter, a car
bombing. The same argument was repeated over the hyperlinks that Corley and
others provided to sites which carried the DeCSS program. Speech or function?
To the defendants, forbidding 2600 to link to these sites was like preventing
the Washington Post from describing the availability of drugs on certain blocks
of 16th Street. To the movie companies, the hyperlinks were the equivalent of
loading potential buyers into a van, taking them down there, and giving them
enough money to make the purchase.

Which of the two First Amendment arguments is more convincing? That the DMCA is
a congressionally created off-switch for fair use? Or that software code is
speech and the DMCA restricts it? Like a lot of scholars, before Reimerdes went
to trial, I thought that the first argument was by far the more powerful. I
still do. I thought the odds of the court buying the “code is speech” argument
were low. About that I was wrong, though it turned out not to matter.

A number of the reports noted that after some initial skepticism, Judge Kaplan
had been impressed by the defendants’ expert witnesses, particularly those who
had testified that code was speech. When the ruling came out, this impression
was confirmed. Judge Kaplan agreed that code was a form of speech or
expression. But celebration was premature. Having done so, he disagreed with
the defendants’ claim that it could not be regulated.

_1 Computer code is expressive. To that extent, it is a matter of First
Amendment concern. But computer code is not purely expressive any more than the
assassination of a political figure is purely a political statement. Code
causes computers to perform desired functions. Its expressive element no more
immunizes its functional aspects from regulation than the expressive motives of
an assassin immunize the assassin’s action. In an era in which the transmission
of computer viruses—which, like DeCSS, are simply computer code and thus to
some degree expressive—can disable systems upon which the nation depends and in
which other computer code also is capable of inflicting other harm, society
must be able to regulate the use and dissemination of code in appropriate
circumstances. The Constitution, after all, is a framework for building a just
and democratic society. It is not a suicide pact.~{See Universal City Studios,
Inc. v. Reimerdes, 111 F. Supp. 2d 294, 304–5 (S.D.N.Y. 2000).}~

Judge Kaplan is right in saying that there cannot be a bright-line rule
immunizing computer code from regulation merely because it has expressive
elements. The First Amendment does not protect computer viruses. But the
defendants were not arguing that computer code was constitutionally inviolable,
only that any law that regulated it had to be subject to First Amendment
scrutiny. After all, the government makes the description of how to make a
nuclear weapon classified information. That is clearly “speech,” but its
regulation is also constitutional. The First Amendment is not, and never was,
an absolute guarantee of freedom of speech. Instead, the question is whether
the law is within the realm of “the freedom of speech” guarantee, which in turn
depends on what kind of a law it is. Where does it fit in the “levels of
scrutiny” that courts have constructed to discriminate between types of
legislation affecting speech? Is the DMCA a “content-based” regulation, such as
a law forbidding labor picketing but allowing other kinds of demonstrations?
Content-based regulations are given the highest and most demanding level of
scrutiny. Alternatively, is it a “content-neutral” regulation, such as a law
that forbids talking—about any subject—in a library? To Judge Kaplan, the
answer was clear, and grounds for sarcasm.

_1 The reason that Congress enacted the anti-trafficking provision of the DMCA
had nothing to do with suppressing particular ideas of computer programmers and
everything to do with functionality—with preventing people from circumventing
technological access control measures—just as laws prohibiting the possession
of burglar tools have nothing to do with preventing people from expressing
themselves by accumulating what to them may be attractive assortments of
implements and everything to do with preventing burglaries.

I agree, though it is worth noting that the burglar tool analogy is a disputed
one. Johansen claimed DeCSS was more like a screwdriver—something with both
licit and illicit uses.

So the DMCA was content-neutral regulation. That means it still has to pass a
fairly daunting legal threshold. It will only be upheld if “it furthers an
important or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.”~{Ibid., 329–30 (quoting Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1997) (quoting U.S. v.
O’Brien, 391 U.S. 367, 377 (internal quotations omitted)).}~ Judge Kaplan felt
that the DMCA satisfied that standard. I am not so sure. Yes, the governmental
interest in protecting copyright holders’ rights is important. And yes, I must
disagree with some of my friends in the civil liberties world and say that the
government’s interest is unrelated to the suppression of free expression. But
is “the incidental restriction of First Amendment freedoms no greater than is
essential to the furtherance of that interest”? In other words, could the DMCA
have achieved its goals without imposing as great a limitation on the
expression of people like Mr. Johansen and Mr. Corley?

Congress could have passed many laws less restrictive than the DMCA. It could
have only penalized the use of programs such as DeCSS for an illicit purpose.
If it wished to reach those who create the tools as well as use them, it could
have required proof that the creator intended them to be used for illegal
purposes. Just as we look at the government’s intention in creating the law, we
could make the intent of the software writer critical for the purposes of
assessing whether or not his actions are illegal. If I write a novel detailing
a clever way to kill someone and you use it to carry out a real murder, the
First Amendment does not allow the state to punish me. If I write a manual on
how to be a hit man and sell it to you, it may. First Amendment law is
generally skeptical of statutes that impose “strict liability” without a
requirement of intent. But Judge Kaplan believed that the DMCA made the motives
of Mr. Johansen irrelevant, except insofar as they were relevant to the
narrowly tailored exceptions of the DMCA, such as encryption research. In other
words, even if Mr. Johansen made DeCSS so that he and his friends could watch
DVDs they purchased legally on computers running Linux, they could still be
liable for breaking the DMCA.

The DMCA’s breadth goes further than its treatment of intent. The statute could
have only made it illegal to provide a program yourself. But Judge Kaplan
interpreted it to prohibit even linking to a site where the program is to be
found. No requirement of intent. No requirement that you actually supply the
infringing program. That is a pretty broad interpretation and one which he
admits restricts expression. How could he conclude that restrictions this broad
were “no greater than essential”? From his rhetoric, the answer is clear. Judge
Kaplan believes the story of the Internet Threat I discussed in Chapter 4. He
sees DeCSS as a poison. In fact, he thinks it is worse than a poison because it
may spread to infect others. It is a disease, a virus. The DMCA is the stern
and harsh quarantine required to control it—a digital public health measure.
His reasoning is worth quoting at length.

_1 There was a time when copyright infringement could be dealt with quite
adequately by focusing on the infringing act. . . . The copyright holder . . .
usually was able to trace the copies up the chain of distribution, find and
prosecute the infringer, and shut off the infringement at the source. In
principle, the digital world is very different. Once a decryption program like
DeCSS is written, it quickly can be sent all over the world. Every recipient is
capable not only of decrypting and perfectly copying plaintiffs’ copyrighted
DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling
every recipient to do the same. . . . The process potentially is exponential
rather than linear. Indeed, the difference is illustrated by comparison of two
epidemiological models describing the spread of different kinds of disease. In
a common source epidemic, as where members of a population contract a
non-contagious disease from a poisoned well, the disease spreads only by
exposure to the common source. If one eliminates the source, or closes the
contaminated well, the epidemic is stopped. In a propagated outbreak epidemic,
on the other hand, the disease spreads from person to person. Hence, finding
the initial source of infection accomplishes little, as the disease continues
to spread even if the initial source is eliminated.~{Ibid., 331–332.}~

This is a very good point, and one that the critics of the DMCA sometimes gloss
over too quickly. The structure of digital replication is indeed different from
the old centralized model of copying and distribution. Instead of tracing all
illicit copies back to a single infringing printing press, we face the fear
that the machinery of piracy can be copied just as fast as the copies it allows
us to make.

It is here that the defendants lose the battle of the metaphors. Yes, code is
speech, it conveys information. But viruses are codes and they convey
information too. Judge Kaplan explicitly invokes this comparison several times.
Biological viruses are tools for the replication of genetic information. They
subvert their hosts’ cellular programming to make copies of themselves, just as
a computer virus hijacks an infected computer and causes it to send out more
copies of the virus. True, DeCSS requires human intervention to download the
program and use it. Yet from Judge Kaplan’s language it is evident that he sees
the program not as an act of expression but as a virus spreading like wildfire.
Seen this way, the individual “choices” to download or redistribute are simply
the program’s method of spreading itself, like the irritation produced by the
cold virus that encourages sneezes and coughs, thereby transmitting the illness
to others. Just as in an epidemic, the harshest measures are called for. There
is no poisoned well here, no pirate with a printing press we can shut down.
Anyone is potentially an infringer. Individuals cannot be presumed to be
healthy. We cannot give their immune systems, or their motives, the benefit of
the doubt. Instead we must see them as potential carriers. The healthy must be
quarantined as well as the sick. Facing such a danger, Judge Kaplan agrees that
Congress needed to be draconian. We cannot wait for illegal copying. We must
strike preemptively at the technology that might enable it. There is no place
for inquiries into “intent” here; no way that we can restrict liability to
those who actually provide the program. Thus, though “code is speech” and the
DMCA does incidentally restrict expression, Judge Kaplan concludes that its
restraints are no greater than is necessary.

There are three questions here. The first is whether Congress was right. The
second is whether, in the context of the movie industry, we can see evidence of
the evil it needed to combat. The third question is very different: whether the
DMCA is constitutional. In my opinion, the answer to questions one and two is
no, for the reasons outlined in Chapter 4’s analysis of the Internet Threat.
Yes, cheaper copying can increase the rate of illicit copying, but it also
lowers advertising costs and offers new business models—Netflix, downloads on
demand, viral distribution of trailers, and so on. The technology helps as well
as hurts. It does not help the movie industry as much as it might help the
music industry, which can more easily distribute its products over the
Internet. But the Internet also does not pose as much danger to movies as it
does to music. The movie industry’s doomsaying aside, there is no exact movie
equivalent of Napster and there is unlikely to be one in the near future.~{One
empirical study seems to challenge this assumption, though at modest levels.
Rafael Rob and Joel Waldfogel, “Piracy on the Silver Screen,” Journal of
Industrial Economics 55 (2007): 379–395. Rob and Waldfogel surveyed college
students—traditionally a population that engages in high levels of downloading
since they have “free” and extremely high speed Internet connections, lots of
leisure time, and low disposable income. Even among this group, the authors
found that total levels of downloading were low—2.1 percent of paid
consumption. The authors also assumed that all unpaid downloading or DVD
burning was equal to piracy—an assumption that is clearly false. The Sony case
makes that clear. In fact, Rob and Waldfogel found a positive relationship
between second time unpaid viewings and future paid viewings; watching the
movie a second time on a downloaded or privately made copy burned from the
airwaves actually was associated with more paid purchases. The authors were
skeptical of any causal link, however. Ibid., 389.}~

This is not just because movies are longer and harder to download than songs.
It is because most people only watch a film once. Most people do not want a
library of two thousand films to play again and again. Music is a repeated
experience good in a way that movies simply are not, and that social fact
profoundly affects the likelihood of downloading as opposed to rental. The
transient song on a radio or an Internet stream is not an adequate substitute
for possessing the song permanently—something which costs a lot more. Apart
from kids’ movies, which can be used to induce catatonia in one’s progeny time
and again, and a few classic favorites, most people do not want to own movies.
Watching the film on television or renting it for a night is perfectly
satisfactory. Both of these involve little hassle or cost. The content
industries are fond of saying “you cannot compete with free.” But this is
simply not true. Cheap and easily acquired goods of certified quality compete
very well with free goods of uncertain quality whose acquisition involves some
difficulty. This is one of the main reasons the movie companies were wrong in
the Sony case.

Thus while Judge Kaplan’s discussion of the looming digital Black Death is
nicely apocalyptic, it does not seem very accurate. How many of your friends
download movies illicitly over the Internet, let alone movies that were ripped
from DVDs? Yes, it can be done. But the actual descriptions of the process in
the Reimerdes case smack more of bathos than terror.

_1 Although the process is computationally intensive, plaintiffs’ expert
decrypted a store-bought copy of Sleepless in Seattle in 20 to 45 minutes. . .
. The decryption of a CSS-protected DVD is only the beginning of the tale, as
the decrypted file is very large. . . . One solution to this problem, however,
is DivX, a compression utility available on the Internet that is promoted as a
means of compressing decrypted motion picture files to manageable size. . . .
While the compressed sound and graphic files then must be synchronized, a
tedious process that took plaintiffs’ expert between 10 and 20 hours, the task
is entirely feasible. . . . At trial, defendants repeated, as if it were a
mantra, the refrain that plaintiffs, as they stipulated, have no direct
evidence of a specific occasion on which any person decrypted a copyrighted
motion picture with DeCSS and transmitted it over the Internet. But that is
unpersuasive. Plaintiffs’ expert expended very little effort to find someone in
an IRC chat room who exchanged a compressed, decrypted copy of The Matrix, one
of plaintiffs’ copyrighted motion pictures, for a copy of Sleepless in Seattle.
While the simultaneous electronic exchange of the two movies took approximately
six hours, the computers required little operator attention during the interim.

So the epidemic threat that hangs over the movie industry consists of the
danger that someone will spend fifteen minutes decrypting and ten to twenty
hours tediously synchronizing a movie that is then available for a speedy
six-hour download?

Admittedly, someone only needs to do the synchronizing once. There are newer
tools that make the task easier. And we could improve the download time. But
even so, would you bother? Faced with the colossal expense and hassle of
renting the same movie at Blockbuster for $3, some consumers might prefer this
process, I suppose. But I would not sell my shares in movie studios quite yet.
In fact, the real threat to movie studios is the large-scale criminal
distribution of illicitly copied DVDs—copied bit for bit from the original. The
distributors of those do not need to use programs like DeCSS. A more distant
threat comes from legal recordings from television made on TiVo’s and
ReplayTVs—where consumers’ actions are legal and CSS is not an issue. So far as
we can tell, there is no measurable effect of illicit digital downloads on
sales or rentals of DVDs. We could go through the process Judge Kaplan
describes, I suppose, just as when the VCR was invented we could have taped
movies from television and swapped them with our friends. But as the movie
studios discovered after the Sony case, most of us would rather just rent the
movie. Because something is possible does not mean it will happen.

So in my view, Congress generally overestimated the threat posed by the digital
world and underestimated the benefits. In addition, the movie industry is a
weak place to make the case for the necessity of the DMCA. Fine, but that is
not the legal issue here. The constitutionality of the DMCA does not turn on
whether the DMCA was a good idea. That is not the court’s decision to make. The
question is not even whether the particular industry involved is, in reality,
facing much of a threat from digital downloading. The law, after all, exists
for all digital works, not just the ones at issue here. The question is whether
the restriction on speech imposed by the DMCA was “no greater than is
essential.” And that is a harder question.

I still disagree with Judge Kaplan. A more narrowly tailored statute could have
accomplished the DMCA’s legitimate goals without impinging as greatly on
expression. I think that the rhetoric of the Internet Threat blinded Judge
Kaplan to some important issues and led him to overestimate the danger and thus
the severity of the measures necessary to combat it. Thus, even under the “code
is speech” part of the analysis, I think the DMCA fails First Amendment
scrutiny. But if we are confining ourselves to the expression inherent in the
software itself, I acknowledge that it is a close call.

Sadly, Judge Kaplan spent much less time on the other First Amendment argument
against the DMCA—that it is unconstitutional because it gives copyright holders
a new intellectual property entitlement, created by Congress under the
Copyright Clause, a legal power to deprive users of a constitutionally required
limitation on copyright’s exclusive rights. In my view, he also framed the
argument wrongly when he did discuss it. To be fair, these problems can partly
be traced to the fact that the defendants spent most of their energy on the
argument that code was expression, paying less attention to everything else. As
Judge Kaplan explained it, the claim was that the DMCA might have the effect of
restricting an alleged fair use right of access to copyrighted material.
Predictably enough, he responded that there was no such right of access.
Copyright holders could always lock up the book or restrict entrance to the
gallery. In any event, while fair use of DVDs might be curtailed, he argued
that most movies are also available on videotape. Even if the film were only
available on DVD, the prospective fair user could write down the words and
quote them, or record the sound from the screen. Finally, Judge Kaplan pointed
out that even if the DMCA might allow a significant erosion of fair use to
develop over time, such a problem was not present here. Those making First
Amendment claims are sometimes allowed by courts to show that, even if the law
as it applied to them were constitutional, it would restrict the First
Amendment rights of others. Judge Kaplan declined to apply that doctrine here.
In effect, he said “come back when there is a problem.”

On appeal, the case was decided by a panel led by Judge Jon Newman. Here the
fair use argument received more attention but the result was the same: “Come
back when there is a problem.” Significantly, both courts pointed out another
concern. The DMCA could effectively make copyright perpetual because even
though the copyright term would expire, the legally protected encryption would
continue, and tools such as DeCSS, which would have allowed access to the
public domain work, would be illegal.~{Admittedly, section 1201 only affects
works protected under the copyright act, so arguably the legal protection of
the digital fence would expire with the copyright term. But even if the courts
interpreted the statute this way, two problems would remain. First, since the
DMCA prohibited the trafficking in tools which allowed the breaking of the
encryption, the law would have effectively forbidden the production of wire
cutters for gaining access to identically encrypted public domain
works—remember Judge Kaplan’s discussion of the irrelevance of Mr. Johansen’s
motives. Second, it would be trivially easy to add a trivial amount of new
copyrighted material to the work that had fallen into the public domain. Access
to the public domain work would then be prohibited for another period of life
plus seventy years. And so on. The Copyright Office holds hearings on the
question of whether there are any “classes of work” that need exemption from
the DMCA’s provisions. So far, those exemptions have been highly restrictive in
application.}~ This is a major issue because it appears to violate both the
First Amendment and the Copyright Clause’s requirement of a limited time. The
defendants did not spend adequate time on this argument, however, and the
courts again left it for later consideration.

The court of appeals saw the defendants’ argument in just the same way as Judge
Kaplan had seen it: a claim that there was a fair use right of actual access to
the finest version of every work in every medium, on which the DMCA put a
practical limitation. Such a claim was easy to dismiss. There was no such right
of guaranteed practical access. Copyright owners could restrict the practical
ability to exercise fair use in many ways without the Constitution being
involved. In addition, in a world where copyrighted content is frequently
available in both analog and digital form, the actual effects of the DMCA might
be trivial and were, in any event, constitutionally acceptable. Judge Newman
repeated Judge Kaplan’s point that one could always make fair use of the work
in a way the DMCA did not reach, such as by videotaping a picture of the
screen.

_1 The fact that the resulting copy will not be as perfect or as manipulable as
a digital copy obtained by having direct access to the DVD movie in its digital
form, provides no basis for a claim of unconstitutional limitation of fair use.
A film critic making fair use of a movie by quoting selected lines of dialogue
has no constitutionally valid claim that the review (in print or on television)
would be technologically superior if the reviewer had not been prevented from
using a movie camera in the theater, nor has an art student a valid
constitutional claim to fair use of a painting by photographing it in a museum.
Fair use has never been held to be a guarantee of access to copyrighted
material in order to copy it by the fair user’s preferred technique or in the
format of the original.

Once the issue is framed this way, the case has been lost. I would argue that
there are three baseline errors here: a focus on “affirmative rights of access”
as opposed to limits on Congress’s power in handing out exclusive rights over
expression without their constitutionally necessary limitations, a focus on
practical effects of the provisions rather than on formal constitutional
limitations on the copyright system over all classes of works, and a confusion
between intellectual property rights and physical property rights that goes to
the heart of the Jefferson Warning discussed in Chapter 2. The question is not
whether users have a constitutionally protected right of practical access to a
preferred version of a work. The question is whether it violates the First
Amendment for Congress to give to copyright holders an intellectual property
right to exempt their copyrighted works in some formats from fair use and other
provisions that are necessary for copyright law in general to be
constitutional.

Remember my earlier example. What if Congress amended Section 1201 to say “Any
copyright owner can make it illegal to make a fair use of a copyrighted work by
putting a red dot on their books, records, and films before selling them. It
shall be a crime to circumvent the red dot even if, but for the dot, the use
would have been fair”? This statute, I think, is clearly unconstitutional. It
would be no answer to say that some owners will not use the red dot, and even
for those that do, there will be older, dotless versions still available. It is
irrelevant that I might be able to copy down the crucial lines of the book over
your shoulder while you read it and thus claim that I, personally, had not
circumvented the dot. The unconstitutionality of the statute does not turn on
whether the dots might fall off because of bad adhesive, or whether there are
many secondhand bookstores in the area, in which undotted volumes can be found.
Even if the red dot rule were only to be applied to hardback books, or graphic
novels, or cassette tapes, it would still be unconstitutional. Nor do we have
to wait until the entire marketplace is dominated by red-dotted products before
considering the issue. It is no answer to say that even before the red dot
rule, copyright holders could always have hidden their works, or locked them in
safes, or even negotiated individual contracts with the purchasers that have
the effect of limiting fair use. That way of framing it just misunderstands the
issue on a fundamental level. The claim is not about the happenstance of
practical access or the way that a copyright holder can use physical control of
an object or existing tangible property rights to undercut fair use.

The point is that Congress violates the First Amendment when, with respect to
any work, it gives me an intellectual property right to prohibit copying and
distribution of an expressive work sold in the marketplace and an additional
legal power to opt out of the limitations contained in Section 107 over that
work. The bundle of rights conveyed by the DMCA does exactly that. It is not
the DMCA alone that we must analyze. The question is whether Congress can give
the exclusive rights contained in Section 106 of the Copyright Act over a
particular class of works (say digital works), if it also gives a new right to
prohibit citizens from gaining access to those works for the purposes of making
a fair use. If Judge Kaplan and Judge Newman are correct, then the DMCA gives
an entirely new intellectual property right (technically, a legal power) to the
copyright holders to do exactly that. To put it the other way around, the DMCA
subtracts from the citizen’s bundle of entitlements under federal copyright
law, the right (technically, lawyers would call it a privilege) to gain access
to a work legally in his possession for the purpose of making a fair use. It is
that rule change that is unconstitutional, I would argue, and the way Judge
Kaplan and Judge Newman frame that issue makes them miss the point.

Framing is important. The confusions that I have talked about in this book all
make an appearance. It starts with the whole controversy being framed by the
Internet Threat story line from Chapter 4. Because Judge Kaplan is convinced
that every citizen is now a potential infringer, a potentially infectious virus
carrier, he is ill disposed to listen to claims about fair use. Civil liberties
claims do not do very well in epidemics. It is only right for him to defer to
Congress’s perception of the problem and the solution, of course. But he buys
so deeply into the magnitude of the threat, the extent of the potential piracy
pandemic, that it is very hard for him to take seriously the idea that even
here there is a legitimate constitutional fair use claim.

The Sony Axiom from Chapter 4 is also ignored, or at least undervalued. As I
pointed out there, without a robust set of exceptions and limitations on
copyright, the idea that cheaper copying requires greater control will
inexorably drive us toward the position that the technologies of cheaper
reproduction must be put under the governance of copyright holders. The DMCA
continues that logic; its drafters concluded that the right to get access to
digital works for purposes of making a fair use must be taken from the bundle
of rights possessed by citizens, while the right to enjoin both access and the
technologies of access is added to those of copyright holders. Never mind the
correctness of such a conclusion as a matter of policy. Are there
constitutional limitations on Congress taking such an action? Kaplan and Newman
in effect tell us, “not yet.”

More important than the perception of the threat is the understanding of what
intellectual property is all about. In Chapter 2, Jefferson warned us that
intellectual property rights are not like physical property rights. In
analyzing the DMCA, where do we turn for analogies? To physical property,
violence, and theft. The cases analyzing the DMCA are full of analogies to
trespass, to breaking and entering, to burglars’ tools, and to safecrackers.
Private property carries a lot of baggage with it, but we know it well—it is
the place we naturally turn for insight. Even I, in order to point out some of
the difficulties with those analogies, had to turn to farmers and barbed wire
and public rights-of-way along highways. There is nothing wrong with analogies.
They help us understand things that are new by comparing them to things we
think we understand better. Analogies are only bad when they ignore the key
difference between the two things being analyzed. That is what happens here.

Jefferson reminded us that intellectual property rights are clearly artifacts
of state creation, monopolies whose internal limitations in scope, duration,
and so on are just as important as the rights themselves. Jefferson doubts
whether even property rights over land can be understood as natural and
absolute—copyrights and patents, which cover subject matter that can be
infinitely reproduced without diminishing its substance, clearly cannot. They
frequently involve a claim to control purchasers’ behavior with respect to some
aspect of an artifact after it has been sold to them in the marketplace, making
simpleminded analogies to “breaking and entering” inappropriate—the extent of
the property in question is precisely the issue in dispute. (When Johansen was
tried in Norway under the national computer crime law, the court laconically
observed that he had bought the DVDs, and one cannot break into one’s own
property—effectively turning the analogy on its head.) Jefferson starts from
the baseline that monopoly is the exception and freedom is the rule—any
limitations on that freedom have to be justified. That is why he always
discusses the right and the limitations on the right as an inseparable pair.
One cannot discuss them in isolation.

Kaplan and Newman are fine, thoughtful judges. They do not altogether ignore
those points. But look how the analysis is set up. At several points in the
discussion, there seems to be the assumption that copyright owners have
entitlements to total control as of right and that fair use is a mere lucky
loophole which, because it can be negated by the happenstance of whether one
can get physical access, can hardly have major First Amendment status. They
keep pointing out that physical control and tangible property rights frequently
allow copyright holders to make fair use impracticable. “And so what?”
Jefferson might have responded. This is a classic non sequitur. The question is
whether the Congress has the power to add a new right of access-denial to the
intellectual property monopoly it is constructing, undermining—as to some works
and some fair uses—the balance that the law sets up. The citizen is not
pleading for a new right of access, trumping all physical restraint and
tangible property rights. The citizen is claiming that Congress has no power to
give exclusive rights to restrain copying of digital content while
simultaneously taking away the citizen’s existing right to get access to that
content for the purposes of fair use—at least in those cases where access is
physically possible and violates no other property right, real or intellectual.

The Constitution does not require the United States to break into President
Nixon’s desk to get me his tapes, buy me a tape recorder, or give me a right to
18.5 minutes on the broadcast airwaves to play them. But if I can get access to
the tapes legally, it does forbid the government from giving President Nixon
the power to put a red dot on those tapes and thus claim an intellectual
property right to stop me playing them on TV or digitizing them to make the
sounds clearer. The restraints imposed by physical happenstance and tangible
property rights are different from those imposed by copyright—a congressionally
created monopoly over expression. We cannot assume because one is
constitutionally acceptable that the others are too. Jefferson understood that,
and his analysis can help us even in a constitutional conflict over a
technology he could hardly have dreamt of. (Though perhaps with Jefferson, this
is a bad bet.)

The same point comes up in a different way when the court disconnects the fair
use discussion from the exclusive rights discussion. The question is not “Do I
have a constitutionally protected right of physical access to a preferred
version of a movie, so as to make my task easy?” That gets the court caught up
in questions of when a majority of movies will only be available on DVD, or how
poor a substitute the analog version would be, or how many fair uses will
require actually cutting a digital fence. But all of these inquiries miss the
point. The question is “Can Congress hand out the exclusive rights of copyright
over digital works if it does not accompany those rights with the suite of
limitations that the court has repeatedly said “saves” copyright from violating
the First Amendment?” The proportion of digital works to the total number of
works produced in other formats is irrelevant. As to these works, the rule is
unconstitutional. But what about the number or proportion of types of fair uses
affected? That is more relevant but still not dispositive in the way Kaplan and
Newman imagined. True, not every trivial statutory modification of fair use
makes copyright unconstitutional. But this is not a trivial modification: over
an entire class of works, copyright owners are given a legal power to deprive
users of their privilege to gain otherwise lawful access for the purposes of
fair use. If you give the digital filmmaker the exclusive rights of copyright
but forbid the film professor from going through the otherwise lawful process
of parodying or quoting, that rule is unconstitutional, no matter how many
other fair uses are unaffected. If the copyright law were amended to forbid
journalists playing, on a Friday, excerpts of legally acquired red-dotted tapes
made by presidents whose last name begins with N, it would still be
unconstitutional.

The legal implementation of this conclusion would be simple. It would be
unconstitutional to punish an individual for gaining access in order to make a
fair use. However, if they cut down the digital fence to make illicit copies,
both the cutting and the copying would be illegal. But what about the
prohibition of trafficking in digital wire cutters, technologies such as DeCSS?
There the constitutional question is harder. I would argue that the First
Amendment requires an interpretation of the antitrafficking provisions that
comes closer to the ruling in the Sony case. If Mr. Johansen did indeed make
DeCSS to play DVDs on his Linux computer, and if that were indeed a substantial
noninfringing use, then it cannot be illegal for him to develop the technology.
But I accept that this is a harder line to draw constitutionally. About my
first conclusion, though, I think the argument is both strong and clear.

Ironically, there is some support for my claim and it comes from an even
higher, if not uniformly more thoughtful, set of judges than Newman and Kaplan.
In the depressing case of Eldred v. Ashcroft, the Supreme Court upheld
retrospective copyright term extensions against a variety of constitutional
challenges. (Full disclosure: I assisted in the preparation of an amicus curiae
brief in the case.) One of those challenges was based on the First Amendment.
The fairly reasonable claim was that Congress could not retroactively lock up
an entire twenty-year swathe of culture that had already been produced. Such a
law would be all restraint of expression, performance, republication, adaption,
and so on, with no incentive benefits. The Court was unconvinced. But it did
say:

_1 To the extent such assertions raise First Amendment concerns, copyright’s
built-in free speech safeguards are generally adequate to address them. We
recognize that the D.C. Circuit spoke too broadly when it declared copyrights
“categorically immune from challenges under the First Amendment.” . . . But
when, as in this case, Congress has not altered the traditional contours of
copyright protection, further First Amendment scrutiny is unnecessary.~{Eldred
v. Ashcroft, 537 U.S. 186 (2003) at 221 (citing Harper & Row, 471 U.S. at
560).}~

The DMCA, of course, does exactly this. As to digital works it alters the
“traditional contours of copyright protection” in a way that affects
“copyright’s built-in free speech safeguards.” That is what the Farmers’ Tale
was all about. Perhaps one day, in a case not involving a Norwegian teenager, a
hacker magazine run by a long-haired editor with an Orwellian nom de plume, and
an obscure technology that is accused of posing apocalyptic threats to the
American film industry, that point will come out more clearly.

But the issue of speech regulation is only half of the story. Intellectual
property rights over digital technologies affect not only speech, but the
framework of competition and markets as well, as the next example makes clear.

2~ The Apple of Forbidden Knowledge: The DMCA and Competition

You could tell it was a bizarre feud by the statement Apple issued, one
strangely at odds with the Californian Zen-chic the company normally projects.
“We are stunned that RealNetworks has adopted the tactics and ethics of a
hacker to break into the iPod, and we are investigating the implications of
their actions under the DMCA and other laws.”~{Rob Pegoraro, “RealPlayer’s
iPod-Compatible Update ‘Stunned’ Apple,” Washington Post (August 8, 2004),
F6.}~

What vile thing had RealNetworks done? They had developed a program called
Harmony that would allow iPod owners to buy songs from Real’s Music Store and
play them on their own iPods. That’s it. So why all the outrage? It turns out
that like the story of DeCSS, this little controversy has a lot to teach us
about the landscape of intellectual property disputes, about the mental
topography of the high-tech economy. But where the DeCSS case was a war of
metaphors around the boundaries of freedom of expression, the iPod story is
about ways in which intellectual property marks the limits of competition.

Apple iPods can be used to store all kinds of material, from word processing
documents to MP3 files. If you want to use these popular digital music players
to download copy-protected music, though, you have only one source: Apple’s
iTunes service, which offers songs at 99 cents a pop in the United States, 79
pence in the United Kingdom. If you try to download copy-protected material
from any other service, the iPod will refuse to play it. Or at least, that had
been the case until Real managed to make their Harmony service compatible.

Real’s actions meant that consumers had two sources of copy-protected music for
their iPods. Presumably all the virtues of competition, including improved
variety and lowered prices, would follow. The iPod owners would be happy. But
Apple was not. The first lesson of the story is how strangely people use the
metaphors of tangible property in new-economy disputes. How exactly had Real
“broken into” the iPod? It had not broken into my iPod, which is after all my
iPod. If I want to use Real’s service to download music to my own device,
where’s the breaking and entering?

What Real had done was make the iPod “interoperable” with another format. If
Boyle’s word processing program can convert Microsoft Word files into Boyle’s
format, allowing Word users to switch programs, am I “breaking into Word”?
Well, Microsoft might think so, but most of us do not. So leaving aside the
legal claim for a moment, where is the ethical foul?

Apple was saying (and apparently believed) that Real had broken into something
different from my iPod or your iPod. They had broken into the idea of an iPod.
(I imagine a small, platonic white rectangle, presumably imbued with the spirit
of Steve Jobs.) Their true sin was trying to understand the iPod so that they
could make it do things that Apple did not want it to do. As an ethical matter,
does figuring out how things work, in order to compete with the original
manufacturer, count as breaking and entering? In the strange netherworld
between hardware and software, device and product, the answer is often a
morally heartfelt “yes!” I would stress “morally heartfelt.” It is true
manufacturers want to make lots of money and would rather not have competitors.
Bob Young of Red Hat claims “every business person wakes up in the morning and
says ‘how can I become a monopolist?’ ” Beyond that, though, innovators
actually come to believe that they have the moral right to control the uses of
their goods after they are sold. This isn’t your iPod, it’s Apple’s iPod.

Yet even if they believe this, we don’t have to agree. In the material world,
when a razor manufacturer claims that a generic razor blade maker is “stealing
my customers” by making compatible blades, we simply laugh. The “hacking” there
consists of looking at the razor and manufacturing a blade that will fit. To
say this is somehow immoral seems laughable. Is the conclusion changed when the
information about compatibility is inscribed in binary code and silicon
circuits, rather than the molded plastic of a razor cartridge? What if ensuring
the “fit” between the two products is not a matter of making sure the new
blades snugly connect to the razor but of making sure the software embedded in
my generic product sends the right code to the original product in order to be
recognized? Our moral intuitions are a little less confident here. All kinds of
bad policy can flourish in that area of moral uncertainty.

This leads us to the law. Surely Apple’s suggestion that the DMCA might
prohibit what Real had done is as baseless as their moral argument? In the
United States, the answer is “probably,” at least if the courts continue in the
direction they are currently taking, but it is a closer call than you would
think. Internationally, the answer is even less certain. That is where the iPod
war provides its second new-economy lesson. Think for a moment about the way
that the law shapes the business choices in this dispute.

In a competitive market, Apple would choose whether to make the iPod an open
platform, able to work with everyone’s music service, or to try to keep it
closed, hoping to extract more money by using consumers’ loyalty to the
hardware to drive them to the tied music service. If they attempted to keep it
closed, competitors would try to make compatible products, acting like the
manufacturers of generic razor blades or printer cartridges.

The war would be fought out on the hardware (and software) level, with the
manufacturer of the platform constantly seeking to make the competing products
incompatible, to bad-mouth their quality, and to use fear, uncertainty, and
doubt to stop consumers from switching. (Apple’s actual words were: “When we
update our iPod software from time to time, it is highly likely that Real’s
Harmony technology will cease to work with current and future iPods.”)
Meanwhile the competitors would race to untangle the knots as fast as the
platform manufacturer could tie them. If the consumers got irritated enough
they could give up their sunk costs and switch to another product altogether.

All of this seems fine, even if it represents the kind of socially wasteful
arms race that led critics of capitalism to prophesy its inevitable doom.
Competition is good and competition will often require interoperability. But
what do we mean by competition? Is it competition if I assassinate your
employees or poison the food in your restaurant? If I trespass on your land in
order to sell a competing product? If I break into your safe to steal your
trade secrets, use my monopoly position in the market to impose resale price
agreements, or violate your patent? It is the law that draws the line between
competition and theft, between virtuous competitive imitation and illicit
“piracy.”

Sometimes we need to give innovators property rights that allow them to prevent
second-comers from free riding on their efforts. We have to do so because it is
necessary to encourage future innovation. On the other hand, sometimes we not
only allow the second-comer to free ride, we positively encourage it, believing
that this is an integral part of competition and that there are adequate
incentives to encourage innovation without the state stepping in. Intellectual
property policy, indeed a large part of the policy behind all property rights,
is about drawing the line between the two situations. Too far in one direction
and innovation suffers because potential investors realize good ideas will
immediately be copied. Too far in the other direction and monopolies hurt both
competition and future innovation.

Imagine you are the first person to invest in getting the public to eat
burritos for breakfast, or to place a petrol station at a certain crossroads,
or to clip papers together with a folded bit of wire. In each case we give you
some property rights. The fast-food vendor may own a trademarked phrase or
jingle that the public learns to associate with his product. Since the patent
office issued a patent for the sealed and crimped “peanut butter and jelly”
sandwich I described at the beginning of the book, even a patent is not out of
the question if your disgusting concoction is sufficiently novel and
nonobvious. But we should not allow you to have a patent over all burritos, or
burritos for breakfast, still less over the idea of fast food. As for the paper
clip maker, there might be a trademark over the particular paper clip, but the
idea of folding wire to secure paper stays in the public domain. The owner of
the petrol station gets physical ownership of the land, but cannot stop a
second-comer from setting up shop across the road, even if the first-comer’s
labor, capital, and effort proved that the location is a good one. We
positively encourage follow-on imitation in those cases.

Now how about the case in point? What does Apple get in the way of property
rights? Think back to my description of the intellectual property system in
Chapter 1. They can get patents over those aspects of the iPod—both hardware
and software—that are sufficiently innovative. Patents are what we use to
protect inventions. They also get a copyright over the various pieces of
software involved. That protects them only against someone who copies their
code, not someone who writes new software to do the same thing. Copyrights are
what we use to protect original expression. They get rights under trademark law
over the name and perhaps parts of the design of the product—maybe the
distinctive look of the iPod—though that is a bit more complex. All of these
rights, plus being the first to break into the market in a big way, the
brilliance of the design, and the tight integration between the hardware and
the service, produce a formidable competitive advantage. The iPod is a very
good product.

Now if a competitor infringes any of Apple’s rights, for example by making a
literal copy of the code, using their trademark in a way the law does not
allow, or infringing on one of their patents, then Apple can shut them down and
extract hefty damages. Quite right, too. But should they be able to prevent
someone from making an interoperable product, provided they do not violate any
of these existing rights in the process? Laws like the DMCA make that question
more complicated.

Nowadays, there is software in many, many more products than you would imagine.
Your watch, your phone, your printer, your thermostat, your garage door opener,
your refrigerator, your microwave, your television—the odds are that if you
bought them in the last ten years, they have some software component. In the
1970s the courts and Congress had concluded that software could be copyrighted
as original expression, like a song or a novel, as well as being patented when
it was novel, nonobvious, and useful. Frequently, different aspects of the same
program will be covered by copyright and by patent. But software is a machine
made of words, the machine of the digital age. That fact already causes some
problems for our competition policy. Will the exceptions and limitations
designed to deal with a copyright over a novel work adequately when they are
applied to Microsoft Windows? That issue was already unclear. With the DMCA, we
have added another crucial problem. Where there is copyrighted software there
can be digital fences around it. If the copyright owner can forbid people to
cut these fences to gain access to the software, then it can effectively
enlarge its monopoly, capture tied services, and prohibit generic competition.

It was just this line of thought that led some other companies to do more than
merely make threatening noises about the DMCA. Lexmark makes printers. But it
also makes lots of money off the replacement ink or toner cartridges for those
printers. In some cases, in fact, that is where printer companies make the
majority of their profits. As a result, they are not exactly keen on generic
replacements. Chamberlain makes garage door opener systems. But they also sell
replacements for the controllers—the little devices that you use to trigger the
door. Lawyers from both of those firms looked at the DMCA and saw a chance to
do something most companies would love to do; to make generic competition
illegal. Lexmark designed their printer program so that it would not accept a
toner cartridge unless it received the correct “checksum” or validation number.
So far, this looks no different from the razor manufacturer trying to make it
difficult to manufacture a compatible replacement blade. Generic competitors
now had to embed chips in their printer cartridges which would produce the
correct code, otherwise they would not work in Lexmark printers.

Static Control Components is a North Carolina company that manufactures chips
whose main function is to send the correct code to the printer program. With
this chip implanted in them, generic cartridges would work in Lexmark printers.
Lexmark’s response could have been to change their program, rendering the chip
obsolete, just as Apple could change the iTunes software to lock out Real
Music’s Rhapsody. Doing so would have been quite within their rights. Indeed it
is a standard part of the interoperability wars. Instead, Lexmark sued Static
Controls, claiming, among other things, a violation of the DMCA.~{Lexmark,
Int’l v. Static Control Companies, Inc. , 387 F.3d 522 (6th Cir. 2004).}~ Like
Apple in the press release I quoted earlier, Lexmark clearly saw this as a kind
of digital breaking and entering. This was their printer, their printer
program, their market for replacement cartridges. Static was just helping a
bunch of cheats camouflage their generic cartridges as authentic Lexmark
cartridges. Translated into the legal language of the DMCA the claim is a
little different, but still recognizable. Static was “trafficking” in a device
that allowed the “circumvention of a technical protection measure” used to
prevent “access to a copyrighted work”—namely the computer program inside the
printer. That is behavior that the DMCA forbids.

The garage door company, Chamberlain—who also claimed to be concerned about the
security of their garage doors—made a similar argument. In order to get the
garage door to open, the generic replacement opener had to provide the right
code to the program in the actual motor system. That program is copyrighted.
The code controls “access” to it. Suddenly, the manufacturers of generic
printer cartridges and garage door openers start to look rather like Jon
Johansen.

Surely the courts did not accept this argument? Bizarrely enough, some of them
did—at least at first. But perhaps it was not so bizarre. The DMCA was indeed a
radical new law. It did shift the boundaries of power between intellectual
property owners and others. And intellectual property rights are always about
restraining competition, defining what is legitimate and what is not—that is
what they do. There was a respectable argument that these devices did in fact
violate the DMCA. In fact, it was respectable enough to convince a federal
judge. The district court judge in the Lexmark case concluded that Lexmark was
likely to win on both the DMCA claim and on a more traditional copyright claim
and issued an injunction against Static Control. In Skylink, the case involving
garage door openers, by contrast, the district court held that the universal
garage door opener did not violate the DMCA. Both cases were appealed and both
appeals courts sided with the generic manufacturers, saying that the DMCA did
not prohibit this kind of access—merely making a computer program work the way
it was supposed to.

The U.S. Court of Appeals for the Federal Circuit (CAFC) heard the Skylink
appeal. In a remarkably far-reaching decision, the court effectively took many
of the positions that Mr. Corley’s lawyers had argued for in the DeCSS case,
but they did so not to protect speech, but to protect competition. In fact,
they implied that taking Chamberlain’s side in the case would silently overrule
the antitrust statutes. They also interpreted the new right created by the DMCA
so as to add an implicit limitation. In their construction, merely gaining
access is not illegal; only gaining access for the purpose of violating the
copyright holders’ rights violates the statute. The Reimerdes court had been
willing to accept that the new access right allows a copyright holder to
prohibit “fair uses as well as foul.” When Chamberlain made the same argument
as to their garage door opener program, the CAFC was incredulous.

_1 Such an entitlement [as the one Chamberlain claims] would go far beyond the
idea that the DMCA allows copyright owner to prohibit “fair uses . . . as well
as foul.” Reimerdes, 111 F. Supp. 2d at 304. Chamberlain’s proposed
construction would allow copyright owners to prohibit exclusively fair uses
even in the absence of any feared foul use. It would, therefore, allow any
copyright owner, through a combination of contractual terms and technological
measures, to repeal the fair use doctrine with respect to an individual
copyrighted work—or even selected copies of that copyrighted work.~{Chamberlain
Group, Inc. v. Skylink Tech., Inc. , 381 F.3d 1178 (Fed. Cir. 2004). This of
course was exactly the claim that Mr. Corley’s lawyers made, to no avail.}~

There are multiple ironies here. The CAFC rarely meets an intellectual property
right it does not like. It has presided over a twenty-year expansion of
American patent law that many scholars find indefensible. But when (for dubious
jurisdictional reasons) it sorties beyond its traditional ambit of patent law,
it is stunned by the potential expansiveness of the DMCA. Then there is the
comparison with the Reimerdes case. How interesting that the First Amendment
and concerns about free expression have comparatively little bite when applied
to the DMCA, but antitrust and concerns about competition require that we
curtail it. After all, the heart of Mr. Johansen’s argument was that he had to
write the DeCSS program in order to play his own DVDs on his own computer—to
get access to his own DVDs, just as the purchaser of a replacement garage door
control is getting access to the program that operates his own garage door.
Indeed, Mr. Johansen’s criticism of CSS was that it allowed the movie
companies, “through a combination of contractual terms and technological
measures, to repeal the fair use doctrine with respect to an individual
copyrighted work.” Mr. Corley echoed those claims.

Of course, the situations are not identical. The key limitation in Skylink is
that the court saw no threat of “foul use.” The Reimerdes court could see
little else. On the other hand, the rulings are not easily reconciled. The
Skylink court cannot imagine that Congress would want to give the copyright
holder a new “property” right to prevent access unconnected to any underlying
copyright violation.

_1 As we have seen, Congress chose to create new causes of action for
circumvention and for trafficking in circumvention devices. Congress did not
choose to create new property rights. . . . Were we to interpret Congress’s
words in a way that eliminated all balance and granted copyright owners carte
blanche authority to preclude all use, Congressional intent would remain
unrealized.

Yet, arguably, that is exactly what the Reimerdes decision does, precisely
because it focuses on enabling access alone, not access for the purpose of
violating one of the rights of the copyright holder. The Reimerdes court saw a
violation of the law just in cutting the wire or making a wire cutter. The
Skylink court focused on whether the person cutting the wire was going to
trespass once the cutting was done. In effect, the two courts disagree on which
of the options offered to the legislature in the Farmers’ Tale was actually
enacted by Congress. Which court is correct? The Skylink decision strikes me as
sensible. It also makes the statute constitutionally much more
defensible—something that the Skylink court does not consider. But in the
process, it has to rewrite the DMCA substantially. One should not presume that
it will be this interpretation that will triumph.

2~ Summing Up: Exaggerations, Half-Truths, and Bipolar Disorders in Technology
Policy

Let me return to the question with which I began the chapter. For many critics
of contemporary intellectual property law, the DMCA is the very embodiment of
all that is wrong. (I still cherish a friend’s account of British protesters
outside the American Embassy in London singing “D-M-C-A” to the tune of the
Village People’s “YMCA” and holding up signs calling for the law’s repeal—to
the great confusion of the diplomatic personnel.) The critics conjure up a
digital apocalypse—a world of perfect control achieved through legally backed
digital fences, in which both speech and competition suffer, and where citizens
lose privacy, the privilege of fair use, and the right to criticize popular
culture rather than simply consume it. In their view, the legal disaster is
only exacerbated by bumbling judges who do not understand the technology and
who are easily fooled by the doom-laden rhetoric of the content companies. The
DMCA’s supporters, on the other hand, think criticisms of the DMCA are
overblown, that the dark tales of digital control are either paranoid delusions
or tendentious exaggerations, and that far from being excessive, the DMCA’s
provisions are not sufficient to control an epidemic of illicit copying. More
draconian intervention is needed. As for fair use, as I pointed out before,
many of the DMCA’s supporters do not think fair use is that important
economically or culturally speaking. At best it is a “loophole” that copyright
owners should have the right to close; certainly not an affirmative right of
the public or a reserved limitation on the original property grant from the
state.

Who is right? Obviously, I disagree profoundly with the DMCA’s supporters. I
wrote this book partly to explain—using Jefferson and Macaulay and the Sony
case—what was wrong with their logic. It would be both convenient and
predictable for me to claim that the DMCA is the intellectual property
incarnation of the Antichrist. But it would not be true. In fact, I would not
even put the DMCA in the top three of bad intellectual property initiatives
worldwide. And many of the fears conjured up about it are indeed overblown.

Of course, the critics have a point. The DMCA is a very badly drafted law. As I
have tried to show here, its key provisions were probably unnecessary and are,
in my view, unconstitutional. If coupled with a number of other legal
“innovations” favored by the content industry, the DMCA could play a very
destructive role. In general, in fact, the Farmers’ Tale is fairly accurate in
describing both the origins of and the threats posed by the DMCA. Yet the
single largest of those threats—the idea that the DMCA could be used to fence
off large portions of the public domain and to make the fair use provisions of
the Copyright Act essentially irrelevant—is still largely a threat rather than
a reality. In some cases, fair use rights are curtailed. But for most citizens
and for the majority of media, the DMCA has had relatively little effect.
Digital rights management (DRM) certainly exists; indeed it is all around us.
You can see that every time you try to play a DVD bought in another part of the
world, open an Adobe eBook, or copy a song you have downloaded from iTunes. But
so far, the world of legally backed digital rights management has not brought
about the worst of the dystopian consequences that some people, including me,
feared might result.

In many cases, citizens simply reject digital rights management. They will not
buy products that use it. Attempts to introduce it into music CDs, for example,
have been a resounding failure. In other cases, DRM has not been used in ways
that the critics feared. There are genuine scandals, of course—cryptography
research has been chilled, the DMCA has been turned to anticompetitive ends,
and so on. It is also troubling to see federal judges issuing injunctions not
only against banned material but also against those who link to the banned
material. Somehow the blithe reassurance that this is consistent with the First
Amendment fails to comfort one. But many of the evils prophesied for the DMCA
remain as just that: prophecies.

There are also entries on the positive side of the ledger. The “safe-harbors”
that the DMCA gave Internet service providers and search services have been a
vital and positive force in the development of the Internet. It may even be
true that in some cases, such as iTunes, the DMCA did what its backers claimed
it would—encourage new provision of digital content by reassuring the record
companies that they could put their music online surrounded by legally backed
digital rights management. (Notably, however, the trend is now going the other
way. Companies are coming to realize that many consumers prefer, and will pay
more for, unprotected MP3 files.)

Of course, depending on your view of the music industry, that might seem like a
mixed blessing. One might also wonder if the same consumer benefits might have
been produced with a much less restrictive law. But with the exception of a few
important areas—such as cryptography research, where its effects are reported
to be severe—I would have to say that the criticisms focus too much on the
DMCA, to the exclusion of the rest of the intellectual property landscape. Yes,
the DMCA offers enormous potential for abuse, particularly in conjunction with
some other developments in intellectual property that I will discuss later, but
much of the abuse has not yet happened. Yet even if it never did happen, the
DMCA has important lessons to teach us.

In this section I have tried to show how legal rules—particularly intellectual
property rules—define the boundaries of legitimate competition. We used to
assume that this was principally the function of patent and trademark law, less
so of copyright. Of course, copyright would affect competition in publishing
and in the TV and movie industries, but it hardly seemed central to competition
policy in general. But once courts and legislatures accepted that software is
copyrightable, that assessment changed. The levers and cogs of the machines of
the modern economy are forged out of ones and zeros instead of steel and brass.
In that situation, copyright is central to the competition policy of a
high-tech economy.

As the Apple case shows, our moral intuitions about competition are going to be
cloudier in the world of digital content and cyberspace. The same is true of
the law. Even in the material world it can be hard to draw the line between the
legitimate and ruthless pursuit of commercial advantage and various forms of
unfair competition, antitrust violations, and so on. But in the immaterial
world, the boundaries are even harder to draw. Is this the digital equivalent
of trespass or legitimate passage on a public road that runs through your
property? As I pointed out earlier, the constant analogies to physical property
are likely to conceal as much as they reveal. Is this virtuous competitive
imitation or illicit copying? We have strong, and by no means coherent, moral
and legal intuitions about the answers to such questions. And our legal
structure often gives us the raw material to make a very good case for both
sides of the argument.

Into this already troubled situation, with a set of rules designed for original
expression in novels and poems being applied to machines made of computer code,
we add the DMCA and its new rights of uncertain extent. Copyright had a
well-developed set of exceptions to deal with anticompetitive behavior. Where
the existing exceptions did not function, courts tended to turn to fair use as
the universal method for patching the system up—the duct tape of the copyright
system. Without an evolving idea of fair use, copyright would overshoot its
bounds as it was applied to new technologies and new economic conditions.
Indeed that was the point of the Sony Axiom. The DMCA threw this system into
disarray, into a war of competing metaphors.

The Skylink court sees monopolists being handed carte blanche to abolish the
restraints on their monopolies. Competition policy demands that we construe the
DMCA narrowly. The Reimerdes court sees a virus masquerading as speech, a
digital pandemic that must be stopped at all costs by a draconian program of
electronic public health. Each proceeds to construe the statute around the
reality they have created. It is by no means certain which metaphor will win
the day, still less which resolution will triumph in other countries that have
passed versions of the DMCA. International attitudes toward speech,
competition, and the necessary exceptions in a copyright system vary widely.
Yet backed by the story of the Internet Threat, the content companies are
already saying that we need to go further both nationally and
internationally—introducing more technology mandates, requiring computers to
have hardware that will only play approved copyrighted versions, allowing
content companies to hack into private computers in search of material they
think is theirs, and so on. Remember the suggestion from the beginning of the
chapter, that all cars be assumed to be getaway vehicles for the felonious
filchers of vegetables, and thus that they should be fitted with radio beacons,
have the size of their cargo space reduced, and so on? The Farmers’ Tale
continues to evolve.

2~ Chapter 5: Further Reading

This chapter focuses primarily on the Digital Millennium Copyright Act
(“DMCA”), one of the most controversial recent pieces of intellectual property
legislation and the subject of extensive scholarship and commentary.

3~ The DMCA and DRM

Once again Jessica Litman’s Digital Copyright: Protecting Intellectual Property
on the Internet (Amherst, N.Y.: Prometheus Books, 2001) is an indispensable
introduction. David Nimmer offered one of the early, and prescient, analyses of
the conceptual problems in the statute. David Nimmer, “A Riff on Fair Use in
the Digital Millennium Copyright Act,” University of Pennsylvania Law Review
148 (2000): 673–742. His anthology, Copyright: Sacred Text, Technology, and the
DMCA (The Hague: Kluwer Law International, 2003), is also worthy reading for
those who wish to pursue the legal issues further. Tarleton Gillespie’s book
Wired Shut: Copyright and the Shape of Digital Culture (Cambridge, Mass.: MIT
Press, 2007), is an accessible but thorough introduction to the economic,
political, and cultural consequences of so-called “digital rights management”
or DRM. Legal scholars have been assiduous in pointing out the problems that
legally backed DRM brings to science, culture, policy, and economic
competition. Pamela Samuelson’s “Intellectual Property and the Digital Economy:
Why the Anti-Circumvention Regulations Need to be Revised,” Berkeley Technology
Law Journal 14 (1999): 519–566, is an early critique that proved to be
particularly accurate in its predictions. Jerome Reichman, Graeme Dinwoodie,
and Pamela Samuelson, “A Reverse Notice and Takedown Regime to Enable Public
Interest Uses of Technically Protected Copyrighted Works,” Berkeley Technology
Law Journal 22 (2007): 981–1060, provides a fascinating recent proposal for a
method to solve some of those problems. Dan Burk’s “Anticircumvention Misuse,”
UCLA Law Review 50 (2003): 1095–1140, offers a similar piece of conceptual
judo, looking at the way in which copyright’s traditional concerns with
anticompetitive and predatory misuse of intellectual property rights could be
turned on the new legally backed digital fences of cyberspace. Julie Cohen sets
the debate in the wider perspective of political theory in a way that has been
influential on my own thinking. In “Lochner in Cyberspace: The New Economic
Orthodoxy of ‘Rights Management,’ ” Michigan Law Review 97 (1998): 462–563, and
her subsequent work, she describes the ways in which digital rights management
presents fascinating echoes of the ideology of socially untrammeled property
rights that dominated the first twenty years of the twentieth century in the
United States and was eventually countered with the ideals of the New Deal.
Finally, Jane Ginsburg, “Copyright and Control over New Technologies of
Dissemination,” Columbia Law Review 101 (2001): 1613–1647, provides a more
positive account, arguing that on balance—given the dangers of illicit digital
copying—the DMCA’s benefits outweigh its costs.

3~ The DMCA and Freedom of Expression

Those who are interested in the tensions between copyright law and free
expression are the beneficiaries of an explosion of scholarship. I cannot begin
to cite it all here. Melville Nimmer’s article from 1970, “Does Copyright
Abridge the First Amendment Guarantees of Free Speech and Press?” UCLA Law
Review 17 (1970): 1180–1204, is a required starting place though its full
impact was not to be felt for some time. Lawrence Lessig, “Copyright’s First
Amendment,” UCLA Law Review 48 (2001): 1057–1074, provides a lovely reflection
of the impact of Nimmer’s arguments more than 30 years on. Neil Netanel’s book
Copyright’s Paradox (Oxford: Oxford University Press, 2008), is the single most
comprehensive work in the field and a fascinating read. Netanel’s arguments,
and those of Yochai Benkler, “Free as the Air to Common Use: First Amendment
Constraints on Enclosure of the Public Domain,” New York University Law Review
74 (1999): 354–446, and Jed Rubenfeld, “The Freedom of Imagination: Copyright’s
Constitutionality,” Yale Law Journal 112 (2002): 1–60, have been influential on
my own thinking in many areas. Bernt Hugenholtz has demonstrated that the
concern about a tension between copyright law and freedom of expression is by
no means limited to the United States. P. Bernt Hugenholtz, “Copyright and
Freedom of Expression in Europe” in Expanding the Boundaries of Intellectual
Property: Innovation Policy for the Information Society, ed. Rochelle Dreyfuss,
Diane Zimmerman, and Harry First (Oxford: Oxford University Press, 2001), at
341. (This entire volume is superb, it should be noted.) L. Ray Patterson—an
inspiration to the current generation of copyright scholars—summed up the
intellectual current well when he compared the DMCA to the methods of
censorship imposed by the seventeenth century Licensing Act. L. Ray Patterson,
“The DMCA: A Modern Version of the Licensing Act of 1662,” Journal of
Intellectual Property Law 10 (2002): 33–58.

Last, but by no means least, is the new book by my brilliant colleagues, David
Lange and H. Jefferson Powell: No Law: Intellectual Property in the Image of an
Absolute First Amendment (Stanford, Calif.: Stanford University Press,
forthcoming 2008). No Law offers a fascinating thought experiment: what would a
First Amendment jurisprudence look like that took seriously the premise that
“no law” is allowed to restrict ‘the freedom of speech’ protected by the First
Amendment and then turned its eyes on copyright? It is the answer to the
question “and what exactly does ‘the freedom of speech’ permit?” that is most
intriguing. Interestingly, though Lange and Powell find many copyright
doctrines problematic, they are inclined to view the DMCA more charitably. I
disagree for the reasons given in this chapter.

1~ Chapter 6: I Got a Mashup

So far, I have talked about the root ideas of intellectual property. I have
talked about its history, about the way it influences and is influenced by
technology. I have talked about its effects on free speech and on competition.
Until now, however, I have not described the way that it actually affects
culture. This chapter aims to rectify the omission, looking at the way
copyright law handles one specific form of cultural creation—music. It turns
out that some of the problems identified in Chapters 4 and 5 are not simply the
result of a mismatch between old law and new technology, or the difficulties
posed in applying copyright to software, to machines made of words. The same
issues appear at the heart of a much older cultural tradition.

This is the story of a song and of that song’s history. But it is also a story
about property and race and art, about the way copyright law has shaped,
encouraged, and prohibited music over the last hundred years, about the lines
it draws, the boundaries it sets, and the art it forbids.

Music is hard for copyright law to handle. If one had to represent the image of
creativity around which copyright law and patent law, respectively, are built,
patent law’s model of creativity would be a pyramid and copyright law’s a
fountain, or even an explosion.

In patent law, the assumption is that technological development converges. Two
engineers from two different countries tend to produce similar ways of catching
mice or harnessing the power of steam. There are a limited number of good ways
of accomplishing a technical task. In addition, technological progress is
assumed to be incremental. Each development builds on the ones behind it. Based
on this image, patent law makes a series of decisions about what gets covered
by property rights, for how long, how to handle “subsequent improvements,” and
so on. Patent rights last for a short time, not only to lower costs to
consumers, but because we want to build on the technology inventors have
created as soon as possible, without getting their permission. Even during the
patent term, subsequent “improvers” get their own rights and can bargain with
the original patent holder to share the profits.

Copyright’s assumptions are different. Copyright began with texts, with
creative expression. Here the assumption is (generally) that there are infinite
possibilities, that two writers will not converge on the same words, and that
the next generation of storytellers does not need to take the actual “stuff”
that copyright covers in order to make the next play or novel. (It may be
because of this image that so few policy makers seem to worry that copyright
now lasts for a very long time.) Subsequent “improvements” of copyrighted
material are called derivative works, and without the rights holder’s
permission, they are illegal. Again, the assumption seems to be that you can
just write your own book. Do not claim you need to build on mine.

Of course, each of these pictures is a caricature. The reality is more complex.
Copyright can make this assumption more easily because it does not cover ideas
or facts—just their expression. “Boy meets girl, falls in love, girl dies” is
not supposed to be owned. The novel Love Story is. It is assumed that I do not
need Erich Segal’s copyrighted expression to write my own love story. Even if
literary creativity does converge around standard genres, plots, and
archetypes, it is assumed that those are in the public domain, leaving future
creators free to build their own work without using material that is subject to
copyright. We could debate the truth of that matter for literature: the
expansion of copyright’s ambit to cover plotlines and characters makes it more
questionable. Certainly many recognized forms of creativity, such as the
pastiche, the collage, the literary biography, and the parody need extensive
access to prior copyrighted work. But regardless of how well we think the image
of individual creativity fits literature, it fits very poorly in music where so
much creativity is recognizably more collective and additive, and where much of
the raw material used by subsequent creators is potentially covered by
copyright.

So how does the accretive process of musical creativity fare in the modern law
and culture of copyright? How would the great musical traditions of the
twentieth century—jazz, soul, blues, rock—have developed under today’s
copyright regime? Would they have developed at all? How does the law apply to
the new musicians, remixers, and samplers who offer their work on the Internet?
Do the lines it draws fit with our ethics, our traditions of free speech and
commentary, our aesthetic judgments? It would take a shelf of books to answer
such questions definitively. In this chapter, all I can do is suggest some
possibilities—using the history of a single song as my case study.

% ---

On August 29th, 2005, a hurricane made landfall in Louisiana. The forecasters
called it “Hurricane Katrina,” quickly shortened to “Katrina” as its story took
over the news. The New Orleans levees failed. Soon the United States and then
most of the world was watching pictures of a flooded New Orleans, seeing
pleading citizens—mainly African-American—and a Keystone Cops response by the
Federal Emergency Management Agency. The stories from New Orleans became more
and more frightening. There were tales not only of natural disaster—drownings,
elderly patients trapped in hospitals—but of a collapse of civilization:
looting, murder and rape, stores being broken into with impunity, rescue
helicopters fired upon, women and children sexually assaulted in the convention
center where many of the refugees huddled. Later, it would turn out that many,
perhaps most, of these reports were untrue, but one would not have guessed that
from the news coverage.

The television played certain images over and over again. People—again, mainly
African-Americans—were portrayed breaking into stores, pleading from rooftops,
or later, when help still had not arrived, angrily gesturing and shouting
obscenities at the camera.

As the disaster unfolded in slow motion, celebrities began appearing in
televised appeals to raise money for those who had been affected by the storm.
Kanye West, the hip hop musician, was one of them. Appearing on NBC on
September 2, with the comedian Mike Myers, West started out seeming quietly
upset. Finally, he exploded.

_1 I hate the way they portray us in the media. You see a black family, it
says, “They’re looting.” You see a white family, it says, “They’re looking for
food.” And, you know, it’s been five days [waiting for federal help] because
most of the people are black. . . . So anybody out there that wants to do
anything that we can help—with the way America is set up to help the poor, the
black people, the less well-off, as slow as possible. I mean, the Red Cross is
doing everything they can. We already realize a lot of people that could help
are at war right now, fighting another way—and they’ve given them permission to
go down and shoot us!

Myers, who, according to the Washington Post, “looked like a guy who stopped on
the tarmac to tie his shoe and got hit in the back with the 8:30 to LaGuardia,”
filled in with some comments about the possible effect of the storm on the
willingness of Louisiana citizens to live in the area in the future. Then he
turned back to West, who uttered the line that came to epitomize Katrina for
many people around the world, and to infuriate a large number of others.
“George Bush doesn’t care about black people!” Myers, the Post wrote, “now
look[ed] like the 8:30 to LaGuardia turned around and caught him square between
the eyes.”~{Lisa de Moraes, “Kanye West’s Torrent of Criticism, Live on NBC,”
Washington Post (September 3, 2005), C1, available at
http://www.washingtonpost.com/wp-dyn/content/article/2005/09/03/AR2005090300165.html.
}~ In truth, he did appear even more stunned than before, something I would not
have thought possible.

In Houston, Micah Nickerson and Damien Randle were volunteering to help New
Orleans evacuees at the Astrodome and Houston Convention Center during the
weekend of September 3. They, too, were incensed both by the slowness of the
federal response to the disaster and by the portrayal of the evacuees in the
media. But Mr. Nickerson and Mr. Randle were not just volunteers, they were
also a hip-hop duo called “The Legendary K.O.” What better way to express their
outrage than through their art? An article in the New York Times described
their response.

_1 “When they got to Houston, people were just seeing for the first time how
they were portrayed in the media,” said Damien Randle, 31, a financial adviser
and one half of the Legendary K.O. “It was so upsetting for them to be up on a
roof for two days, with their kids in soiled diapers, and then see themselves
portrayed as looters.” In response, Mr. Randle and his partner, Micah
Nickerson, wrote a rap based on the stories of the people they were helping. On
Sept. 6, Mr. Nickerson sent Mr. Randle an instant message containing a music
file and one verse, recorded on his home computer. Mr. Randle recorded an
additional verse and sent it back, and 15 minutes later it was up on their Web
site: www.k-otix.com.~{John Leland, “Art Born of Outrage in the Internet Age,”
New York Times (September 25, 2005), D3.}~

The song was called “George Bush Doesn’t Care About Black People” (also
referred to as “George Bush Doesn’t Like Black People”). Appropriately, given
that Mr. West was the one to come up with the phrase, the song was built around
Mr. West’s “Gold Digger.” Much of the melody was sampled directly from the
recording of that song. Yet the words were very different. Where “Gold Digger”
is about a predatory, sensual, and materialist woman who “take[s] my money when
I’m in need” and is a “triflin’ friend indeed,” The Legendary K.O.’s song is a
lyrical and profane condemnation of the response to Katrina by both the
government and the media. Here is a sample:

poem{

Five days in this motherf__ attic
Can’t use the cellphone I keep getting static
Dying ’cause they lying instead of telling us the truth
Other day the helicopters got my neighbors off the roof
Screwed ’cause they say they coming back for us too
That was three days ago, I don’t see no rescue
See a man’s gotta do what a man’s gotta do
Since God made the path that I’m trying to walk through
Swam to the store, tryin’ to look for food
Corner store’s kinda flooded so I broke my way through
I got what I could but before I got through
News say the police shot a black man trying to loot
(Who!?) Don’t like black people
George Bush don’t like black people
George Bush don’t like black people

}poem

This chapter is the story of that song. “George Bush Doesn’t Care About Black
People” is the end (for the moment) of a line of musical borrowing. That
borrowing extends far beyond Kanye West’s song “Gold Digger.” “Gold Digger” is
memorable largely because it in turn borrows from an even older song, a very
famous one written half a century before and hailed by many as the birth of
soul music. It is in the origins of that song that we will start the trail.

2~ I Got A Woman

In 1955, Ray Charles Robinson, better known as Ray Charles, released a song
called “I Got a Woman.” It was a defining moment in Charles’s musical
development. Early in his career he had unashamedly modeled himself on Nat King
Cole.

_1 I knew back then that Nat Cole was bigger than ever. Whites could relate to
him because he dealt with material they understood, and he did so with great
feeling. Funny thing, but during all these years I was imitating Nat Cole, I
never thought twice about it, never felt bad about copying the cat’s licks. To
me it was practically a science. I worked at it, I enjoyed it, I was proud of
it, and I loved doing it. He was a guy everyone admired, and it just made sense
to me, musical and commercial sense, to study his technique. It was something
like when a young lawyer—just out of school—respects an older lawyer. He tries
to get inside his mind, he studies to see how he writes up all his cases, and
he’s going to sound a whole lot like the older man—at least till he figures out
how to get his own shit together. Today I hear some singers who I think sound
like me. Joe Cocker, for instance. Man, I know that cat must sleep with my
records. But I don’t mind. I’m flattered; I understand. After all, I did the
same thing.~{Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story
(Cambridge, Mass.: Da Capo Press, 1978), 86.}~

In the early 50s Charles decided that he needed to move away from Cole’s style
and find his own sound, “sink, swim or die.” But as with any musician, “his own
sound” was the product of a number of musical traditions—blues and gospel
particularly. It is out of those traditions that “I Got a Woman” emerged;
indeed it is that combination that causes it to be identified as one of the
birthplaces of soul music.

According to the overwhelming majority of sources, “I Got a Woman” stems from a
fairly overt piece of musical borrowing—Charles reworded the hymn “Jesus Is All
the World to Me”—sometimes referred to as “My Jesus Is All the World to Me.”

_1 Musically, soul denotes styles performed by and for black audiences
according to past musical practices reinterpreted and redefined. During its
development, three performers played significant roles in shaping its sound,
messages, and performance practice: Ray Charles, James Brown, and Aretha
Franklin. If one can pinpoint a moment when gospel and blues began to merge
into a secular version of gospel song, it was in 1954 when Ray Charles recorded
“My Jesus Is All the World to Me,” changing its text to “I Got A
Woman.”~{Robert W. Stephens, “Soul: A Historical Reconstruction of Continuity
and Change in Black Popular Music,” The Black Perspective in Music 12, no. 1
(Spring 1984): 32.}~

That story is repeated in the biography on Charles’s Web site. “Charles
reworded the gospel tune ‘Jesus Is All the World to Me’ adding deep church
inflections to the secular rhythms of the nightclubs, and the world was never
the same.”~{Forever Ray, available at
http://www.raycharles.com/the_man_biography.html. }~ Michael Lydon, Charles’s
most impressive biographer, simply reports that “Jesus Is All the World to Me”
is described as the song’s origin in another published source,~{Michael Lydon,
Ray Charles (New York: Routledge, 2004), 419: “Arnold Shaw, in The Rockin’ 50’s
says that ‘I Got a Woman’ is based on Jesus is All the World to Me. Because
Renald Richard left Ray’s band before the song was recorded, he was not at
first properly credited: some record labels list [Ray Charles] alone as the
songwriter. Richard, however, straightened that out with Atlantic, and he has
for many years earned a substantial income from his royalties.”}~ and this
origin is cited repeatedly elsewhere in books, newspaper articles, and
online,~{See Stephens, “Soul,” 32. The standard biographical literature also
repeats the same story: \\ In 1954 an historic recording session with Atlantic
records fused gospel with rhythm-and-blues and established Charles’ “sweet new
style” in American music. One number recorded at that session was destined to
become his first great success. Secularizing the gospel hymn “My Jesus Is All
the World to Me,” Charles employed the 8- and 16-measure forms of gospel music,
in conjunction with the 12-measure form of standard blues. Charles contended
that his invention of soul music resulted from the heightening of the intensity
of the emotion expressed by jazz through the charging of feeling in the
unbridled way of gospel. \\ “Ray Charles,” Encyclopedia of World Biography, 2nd
ed., vol. 3 (Detroit, Mich.: Gale Research, 1998), 469. Popular accounts offer
the same story: \\ This young, blind, black, gravelly-voiced singer brought
together the most engaging aspects of black music into one form and began the
process of synthesis that led to soul and, ultimately, funk a decade later. He
would turn around gospel standards like “My Jesus Is All the World to Me,”
recreating it as “I Got a Woman[.]” \\ Ricky Vincent, Funk: The Music, The
People, and the Rhythm of the One (New York: St. Martin’s Griffin, 1996), 121.
See also Joel Hirschhorn, The Complete Idiot’s Guide to Songwriting (New York:
Alpha Books, 2004), 108: “I Got a Woman was Ray’s rewrite of ‘My Jesus Is All
the World to Me.’ ” \\ Charles himself was more equivocal about the origins of
the song: \\ So I was lucky. Lucky to have my own band at this point in my
career. Lucky to be able to construct my musical building to my exact
specifications. And lucky in another way: While I was stomping around New
Orleans, I had met a trumpeter named Renolds [sic] Richard who by thus time was
in my band. One day he brought me some words to a song. I dressed them up a
little and put them to music. The tune was called “I Got a Woman,” and it was
another of those spirituals which I refashioned in my own way. I Got a Woman
was my first real smash, much bigger than [“]Baby Let Me Hold Your Hand[.]”
This spiritual-and-blues combination of mine was starting to hit. \\ Charles
and Ritz, Brother Ray, 150.}~ though the most detailed accounts also mention
Renald Richard, Charles’s trumpeter, who is credited with co-writing the
song.~{See Lydon, Ray Charles, 419.}~

To secular ears, “Jesus Is All the World to Me” is a plodding piece of music
with a mechanical, up-and-down melodic structure. It conjures up a bored (and
white) church audience, trudging through the verses, a semitone flat, while
thinking about Sunday lunch rather than salvation. It is about as far removed
as one could be from the syncopated beat and amorous subject matter of “I Got a
Woman.” The hymn was the product of Will Lamartine Thompson—a severe-looking
fellow with a faint resemblance to an elderly Doc Holliday—who died in 1909 and
is buried in the same place he was born, East Liverpool, Ohio. But the words
have an earnestness to them that gives life to the otherwise uninspired verse.

poem{

Jesus is all the world to me, my life, my joy, my all;
He is my strength from day to day, without Him I would fall.
When I am sad, to Him I go, no other one can cheer me so;
When I am sad, He makes me glad, He’s my Friend.

}poem

Reading those words, one can understand the sincerity that made Mr. Thompson
spurn commercial publishers for his devotional music, instead founding his own
publishing house (also in East Liverpool) to make sure that his hymns reached
the people. I can quote as much of the song as I want without worrying about
legal consequences because the copyright on Mr. Thompson’s lyrics has expired.
So has the copyright over the music. The song was published in 1904. Copyright
had only been extended to musical compositions in 1881. Like all copyrights
back then, copyright over music lasted for only twenty-eight years, with a
possible extension for another fourteen. If Ray Charles did indeed reword it
fifty years later, he was doing nothing illegal. It had been in the public
domain for at least eight years, and probably for twenty. Now maybe Charles’s
genius was to hear in this hymn, or in a syncopated gospel version of this
hymn, the possibility of a fusion of traditions which would itself become a new
tradition—soul. Or perhaps his genius was in knowing a good idea—Richard’s—when
he heard it, and turning that idea into the beginnings of its own musical
genre.

Soul is a fusion of gospel on the one hand and rhythm and blues on the other.
From gospel, soul takes the call-and-response pattern of preacher and
congregation and the wailing vocals of someone “testifying” to their faith.
From rhythm and blues it takes the choice of instruments, some of the upbeat
tempo, and the distinctly worldly and secular attitude to the (inevitable)
troubles of life. Musicologists delight in parsing the patterns of influence
further; R&B itself had roots in “jump music” and the vocal style of the “blues
shouters” who performed with the big bands. It also has links to jazz. Gospel
reaches back to spirituals and so on.

As with all music, those musical traditions can be traced back or forward in
time, the net of influence and borrowing widening as one goes in either
direction. In each, one can point to distinctive musical motifs—the chords of
the twelve-bar blues, or the flattened fifth in bebop. But musical traditions
are also defined by performance styles and characteristic sounds: the warm
guitar that came out of the valve amplifiers of early funk, the thrashing (and
poorly miked) drums of ’80s punk, or the tinny piano of honky-tonk. Finally,
styles are often built around “standards”—classic songs of the genre to which
an almost obligatory reference is made. My colleague, the talented composer
Anthony Kelley, uses Henry Louis Gates’s term “signifyin’ ” to describe the
process of showing you are embedded in your musical tradition by referring back
to its classics in your playing. In jazz, for example, one demonstrates one’s
rootedness in the tradition by quoting a standard, but also one’s virtuosity in
being able to trim it into a particular eight-bar solo, beginning and ending on
the right note for the current moment in the chord progression. “I Got Rhythm”
and “Round Midnight” are such songs for jazz. (The chord changes of “I Got
Rhythm” are so standard, they are referred to as “the rhythm changes”—a
standard basis for improvisation.) And to stretch the connections further, as
Kelley points out, the haunting introduction to “Round Midnight” is itself
remarkably similar to Sibelius’s Fifth Symphony.

Through all these layers of musical borrowing and reference, at least in the
twentieth century in the United States, runs the seam of race. When white
musicians “borrowed” from soul to make “blue-eyed soul,” when Elvis took songs
and styles from rhythm and blues and turned them into rockabilly, a process of
racial cleansing went on. Styles were adapted but were cleansed of those
elements thought inappropriate for a larger white audience. Generally, this
involved cutting some of the rawer sensuality, removing racially specific
verbal and musical references, and, for much of the century, cutting the
African-American artists out of the profits in the process.

There is another irony here. Styles formed by patterns of gleeful borrowing,
formed as part of a musical commons—the blues of the Mississippi Delta, for
example—were eventually commercialized and “frozen” into a particular form by
white artists. Sometimes those styles were covered with intellectual property
rights which denied the ability of the original community to “borrow back.” In
the last thirty or forty years of the century, African-American artists got
into the picture too, understandably embracing with considerable zeal the
commercial opportunities and property rights that had previously been denied to
them. But aside from the issue of racial injustice, one has to consider the
question of sustainability.

In other work, I have tried to show how a vision of intellectual property
rights built around a notion of the romantic author can sometimes operate as a
one-way valve vis-à-vis traditional and collective creative work.~{James
Boyle, Shamans, Software, and Spleens: Law and the Construction of the
Information Society (Cambridge, Mass.: Harvard University Press, 1996).}~ There
is a danger that copyright will treat collectively created musical traditions
as unowned raw material, but will then prevent the commercialized versions of
those traditions—now associated with an individual artist—from continuing to
act as the basis for the next cycle of musical adaptation and development. One
wonders whether jazz, blues, R&B, gospel, and soul would even have been
possible as musical styles if, from their inception, they had been covered by
the strong property rights we apply today. That is a question I want to return
to at the end of this chapter.

Musical styles change over time and so do their techniques of appropriation.
Sometimes musical generations find their successors are engaging in different
types of borrowing than they themselves engaged in. They do not always find it
congenial. It is striking how often musicians condemn a younger generation’s
practice of musical appropriation as theft, while viewing their own musical
development and indebtedness as benign and organic. James Brown attacked the
use of his guitar licks or the drum patterns from his songs by hip-hop
samplers, for example, but celebrated the process of borrowing from gospel
standards and from rhythm and blues that created the “Hardest Working Man in
Show Business”—both the song and the musical persona. To be sure, there are
differences between the two practices. Samplers take a three-second segment off
the actual recording of “Funky Drummer,” manipulate it, and turn it into a
repeating rhythm loop for a hip-hop song. This is a different kind of borrowing
than the adaptation of a chord pattern from a gospel standard to make an R&B
hit. But which way does the difference cut as a matter of ethics, aesthetics,
or law?

Charles himself came in for considerable criticism for his fusion of gospel
intonations and melodic structures with the nightclub sound of rhythm and
blues, but not because it was viewed as piracy. It was viewed as sacrilegious.

_1 Charles totally removed himself from the polite music he had made in the
past. There was an unrestrained exuberance to the new Ray Charles, a fierce
earthiness that, while it would not have been unfamiliar to any follower of
gospel music, was almost revolutionary in the world of pop. Big Bill Broonzy
was outraged: “He’s crying, sanctified. He’s mixing the blues with the
spirituals. He should be singing in a church.”~{James Henke, Holly
George-Warren, Anthony Decurtis, and Jim Miller, The Rolling Stone Illustrated
History of Rock and Roll: The Definitive History of the Most Important Artists
and Their Music (New York: Random House, 1992), 130.}~

Charles disagreed. “You can’t run away from yourself. . . . What you are inside
is what you are inside. I was raised in the church and was around blues and
would hear all these musicians on the jukeboxes and then I would go to revival
meetings on Sunday morning. So I would get both sides of music. A lot of people
at the time thought it was sacrilegious but all I was doing was singing the way
I felt.”~{Great American Country, “Ray Charles Biography,” available at
http://www.gactv.com/gac/ar_artists_a-z/article/0,,GAC_26071_4888297,00.html.
}~ Why the charge of sacrilege? Because beyond the breach of stylistic
barriers, the relationships Charles described did not seem to belong in church.

“I Got a Woman” tells of a woman, “way over town,” who is good to the
singer—very good, in fact. She gives him money when he is in need, is a “kind
of friend indeed,” even saves her “early morning loving” just for him (and it
is tender loving at that). In the third verse we learn she does not grumble,
fuss, or run in the streets, “knows a woman’s place is right there now in the
home,” and in general is a paragon of femininity. Gender roles aside, it is a
fabulous song, from the elongated “We-e-ell . . .” in Charles’s distinctive
tones, to the momentary hesitation that heightens the tension, all the way
through the driving beat of the main verses and the sense that a gospel choir
would have fit right in on the choruses, testifying ecstatically to the virtues
of Charles’s lady friend. Charles liked women—a lot of women, according to his
biographers—and a lot of women liked him right back. That feeling comes through
very clearly from this song.

I would like to quote the song lyrics for you, just as I did the words of the
hymn, but that requires a little more thought. Charles’s song was released in
1955. By that time, the copyright term for a musical composition was
twenty-eight years, renewable for another twenty-eight if the author wished.
(Later, the twenty-eight-year second term would be increased to forty-seven
years. Still later, the copyright term would be extended to life plus seventy
years, or ninety-five years for a “work for hire.” Sound recordings themselves
would not be protected by federal law until the early 1970s.) Anyone who wrote
or distributed a song under the “28+28” system was, in effect, saying “this is
a long enough protection for me,” enough incentive to create. Thus, we could
have assumed that “I Got a Woman” would enter the public domain in either 1983
or, if renewed, 2011. Unfortunately for us, and for a latter-day Ray Charles,
the copyright term has been extended several times since then, and each time it
was also extended retrospectively. Artists, musicians, novelists, and
filmmakers who had created their works on the understanding that they had
twenty-eight or fifty-six or seventy-five years of protection now have
considerably more. This was the point raised in Chapter 1. Most of the culture
of the twentieth century, produced under a perfectly well-functioning system
with much shorter copyright terms, is still locked up and will be for many
years to come.

In the case of “I Got a Woman,” it is now about fifty years since the song’s
release—the same length of time as between Thompson’s hymn and Charles’s
alleged “rewording.” If the words and music were properly copyrighted at the
time of its publication, and renewed when appropriate, the copyright still has
forty-five years to run. No one will be able to “reword” “I Got a Woman” and
use it to found a new genre, or take substantial portions of its melody, until
the year 2050. The freedoms Ray Charles says he used to create his song are
denied to his successors until nearly a century after the song’s release. (As
we will see in a moment, this put certain constraints on Kanye West.)

Would it truly be a violation of copyright for me to quote the middle stanza in
a nonfiction book on copyright policy? Not at all. It is a classic “fair use.”
In a moment I will do so. But it is something that the publisher may well fuss
over, because copyright holders are extremely aggressive in asking for payments
for the slightest little segment. Copyright holders in music and song lyrics
are among the most aggressive of the lot. Year after year academics, critics,
and historians pay fairly substantial fees (by our standards) to license tiny
fragments of songs even though their incorporation is almost certainly fair
use. Many of them do not know the law. Others do, but want to avoid the hassle,
the threats, the nasty letters. It is simpler just to pay.

Unfortunately, these individual actions have a collective impact. One of the
factors used to consider whether something is a fair use is whether or not
there is a market for this particular use of a work. If there is, it is less
likely to be a fair use to quote or incorporate such a fragment. As several
courts have pointed out, there is a powerful element of circularity here. You
claim you have a right to stop me from doing x—quoting two lines of your
three-verse song in an academic book, say. I say you have no such right and it
is a fair use. You say it is not a fair use because it interferes with your
market—the market for selling licenses for two-sentence fragments. But when do
you have such a market? When you have a right to stop me quoting the
two-sentence fragment unless I pay you. Do you have such a right? But that is
exactly what we are trying to decide! Is it a fair use or not? The existence of
the market depends on it not being a fair use for me to quote it without
permission. To say “I would have a market if I could stop you doing it, so it
cannot be a fair use, so I can stop you” is perfectly circular.

How do we get out of the circle? Often the court will look to customs and
patterns in the world outside. Do people accept this as a market? Do they
traditionally pay such fees? Thus, if a lot of people choose to pay for quotes
that actually should have been fair use, the “market” for short quotes will
begin to emerge. That will, in turn, affect the boundaries of fair use for the
worse. Slowly, fair use will constrict, will atrophy. The hypertrophied
permissions culture starts as myth, but it can become reality.

In any event, Ray Charles had no need of fair use to make “I Got a Woman”
because the hymn his biography claims it is based on was in the public domain.
But is that the real source? I can hear little resemblance. As I researched the
origins of “I Got a Woman,” I found claims that there was a different source, a
mysterious song by the Bailey Gospel Singers, or the Harold Bailey Gospel
Singers, called “I’ve Got a Savior.”~{“His 1955 smash ‘I’ve Got a Woman,’ for
example, was adapted from a gospel number he’d liked called ‘I’ve Got a
Savior.’ ” Chip Deffaa, Blue Rhythms: Six Lives in Rhythm and Blues (Urbana:
University of Illinois Press, 1996), 161.}~ The Columbia Records gospel
catalogue even provided a catalogue number.~{Columbia Catalog Number CO45097,
available at http://settlet.fateback.com/COL30000.htm. }~ There was such a
song, or so it seemed. But there the research stalled. The exemplary librarians
at Duke University Music Library could find no trace. Catalogues of published
records showed nothing. Inquiries to various music librarian listservs also
produced no answer. There was a man called Harold Bailey, who sang with a group
of gospel singers, but though several Internet postings suggested he was
connected to the song, his biography revealed he would have been only thirteen
at the time. The Library of Congress did not have it. Eventually, Jordi
Weinstock—a great research assistant who demonstrated willingness to pester
anyone in the world who might conceivably have access to the recording—hit
gold. The Rodgers and Hammerstein Archives of Recorded Sound at the New York
Public Library for the Performing Arts had a copy—a 78 rpm vinyl record by the
Bailey Gospel Singers with “Jesus Is the Searchlight” on the B-side. Our
library was able to obtain a copy on interlibrary loan from the helpful
curator, Don McCormick.

It sounds like the same song. Not the same words, of course: the introduction
is different and the Bailey Gospel Singers lack the boom-chicky-boom backing of
Charles’s version, but the central melody is almost exactly the same. When the
Bailey Gospel Singers sing “Keeps me up / Keeps me strong / Teach me right /
When I doing wrong / Well, I’ve got a savior / Oh what a savior / yes I have,”
the melody, and even the intonation, parallel Charles singing the equivalent
lines: “She gimme money / when I’m in need / Yeah she’s a kind of / friend
indeed / I’ve got a woman / way over town / who’s good to me.”

True, some of the lyrical and rhythmic patterns of “I’ve Got a Savior” are
older still. They come from a spiritual called “Ain’t That Good News,” dating
from 1940, which rehearses all the things the singer will have in the Kingdom
of Heaven—a harp, a robe, slippers (!), and, finally, a savior. The author of
“I’ve Got a Savior” was, like all the artists discussed here, taking a great
deal from a prior musical tradition. Nevertheless, Charles’s borrowing is
particularly overt and direct. The term “rewording” is appropriate. So far as I
can see, whether or not he also relied on a fifty-year-old hymn, Ray Charles
appears to have taken both the melody and lyrical pattern of his most famous
hit from a song that was made a mere three or four years earlier.

Like many 78 rpm records, this one was sold without liner notes. The center of
the record provides the only details. It gives the name of the track and the
band and a single word under the song title, “Ward”—presumably the composer.
“Ward” might be Clara Ward of the Ward Singers, a talented gospel singer and
songwriter who became Aretha Franklin’s mentor and who had her own music
publishing company.

There is a particular reason to think that she might have written the song: Ray
Charles clearly liked to adapt her music to secular ends. We know that he
“reworked” Ward’s gospel classic “This Little Light of Mine” into “This Little
Girl of Mine.” Ward reportedly was irritated by the practice. So far as we
know, the copying of the music did not annoy her because she viewed it as
theft, but because she viewed it as an offense against gospel music.

_1 Charles is now starting to get criticism from some gospel music performers
for secularizing gospel music and presenting it in usual R&B venues. Most
adamant in her misgivings is Clara Ward who complains about “This Little Girl
Of Mine” being a reworking of “This Little Light Of Mine” (which it is), as a
slap against the gospel field.~{J. C. Marion, “Ray Charles: The Atlantic
Years,” JammUpp 2 no. 32 (2004): 32,
http://home.earthlink.net/~v1tiger/jammuppvol2.html. }~

This stage of Charles’s career is described, rightly, hy and sensual style that
becomes his trademark—his own sound. That is true enough; there had been
nothing quite like this before. Yet it was hardly original creation out of
nothing. Both Charles himself and the musicological literature point out that
“his own sound,” “his style,” is in reality a fusion of two prior genres—rhythm
and blues and gospel. But looking at the actual songs that created soul as a
genre shows us that the fusion goes far beyond merely a stylistic one. Charles
makes some of his most famous songs by taking existing gospel classics and
reworking or simply rewording them. “I’ve Got a Savior” becomes “I Got a
Woman.” “This Little Light of Mine” becomes “This Little Girl of Mine.”

The connection is striking: two very recent gospel songs, probably by the same
author, from which Charles copies the melody, structure, pattern of verses,
even most of the title—in each case substituting a beloved sensual woman for
the beloved deity. Many others have noticed just how closely Charles based his
songs on gospel tunes, although the prevalence of the story that “I Got a
Woman” is derived from an early-twentieth-century hymn caused most to see only
the second transposition, not the first.~{“If one can pinpoint a moment when
gospel and blues began to merge into a secular version of gospel song, it was
in 1954 when Ray Charles recorded ‘My Jesus Is All the World to Me,’ changing
its text to ‘I Got A Woman.’ The following year, he changed Clara Ward’s ‘This
Little Light of Mine’ to ‘This Little Girl of Mine.’ ” Stephens, “Soul,” 32.}~
Borrowing from a fifty-year-old hymn and changing it substantially in the
process seems a little different from the repeated process of “search and
replace” musical collage that Charles performed on the contemporary works of
Clara Ward.

If I am right, Charles’s “merger” of gospel and blues relied on a very direct
process of transposition. The transposition was not just of themes: passion for
woman substituted for passion for God. That is a familiar aspect of
soul.~{Robert Lashley, “Why Ray Charles Matters,” Blogcritics Magazine,
December 17, 2005, http://blogcritics.org/archives/2005/12/17/032826.php: \\
But it was the staggering, nearly byzantine ambition that encompassed Charles’
musical mind which is the foundation for his art. You can hear it in his first
imprint on the pop music world, 1955’s I Got A Woman. The shuffling big beat
borrows from Louis Jordan’s big band fusion, the backbeat is 2/4 gospel. The
arrangement is lucid, not quite jazz, not quite blues, definitely not rock and
roll but something sophisticated altogether. The emotions are feral, but not
quite the primitiveness of rock and roll. It is the sound of life, a place
where there is an ever flowing river of cool. It, you might ask? Rhythm and
Blues, Ray Charles’ invention. \\ A volcano bubbling under the surface, Ray
spent the mid 50’s crafting timeless songs as if there were cars on an
assembly[.] Start with the blasphemous fusion of Hallelujah I [L]ove Her So and
This Little Girl of Mine, where Ray changes the words from loving god to loving
a woman, yet, in the intensity of his performance, raises the question if he’s
still loving the same thing. \\ The anonymous encyclopedists at Wikipedia
agree: \\ Many of the most prominent soul artists, such as Aretha Franklin,
Marvin Gaye, Wilson Pickett and Al Green, had roots in the church and gospel
music and brought with them much of the vocal styles of artists such as Clara
Ward and Julius Cheeks. Secular songwriters often appropriated gospel songs,
such as the Pilgrim Travelers’ song “I’ve Got A New Home,” which Ray Charles
turned into “Lonely Avenue,” or “Stand By Me,” which Ben E. King and Lieber and
Stoller adapted from a well-known gospel song, or Marvin Gaye’s “Can I Get A
Witness,” which reworks traditional gospel catchphrases. In other cases secular
musicians did the opposite, attaching phrases and titles from the gospel
tradition to secular songs to create soul hits such as “Come See About Me” for
the Supremes and “99½ Won’t Do” for Wilson Pickett. \\ “Urban Contemporary
Gospel,” Wikipedia, http://en.wikipedia.org/wiki/urban_contemporary_gospel. }~
It is what allows it to draw so easily from gospel’s fieriness and yet coat the
religion with a distinctly more worldly passion. Sex, sin, and syncopation—what
more could one ask? But Charles’s genius was to take particular songs that had
already proved themselves in the church and on the radio, and to grab large
chunks of the melody and structure. He was not just copying themes, or merging
genres, he was copying the melodies and words from recent songs.

Was this mere musical plagiarism, then? Should we think less of Ray Charles’s
genius because we find just how closely two of the canonical songs in the
creation of soul were based on the work of his contemporaries? Hardly. “I Got a
Woman” and “This Little Girl of Mine” are simply brilliant. Charles does in
fact span the worlds of the nightclub at 3 a.m. on Sunday morning and the
church later that day, of ecstatic testimony and good old-fashioned sexual
infatuation. But the way he does so is a lot more like welding, or bricolage,
than it is like designing out of nothing or creating anew while distantly
tugged by mysterious musical forces called “themes” or “genres.” Charles takes
bits that have been proven to work and combines them to make something new.
When I tell engineers or software engineers this story, they nod. Of course
that is how creation works. One does not reinvent the wheel, or the method of
debugging, so why should one reinvent the hook, the riff, or the melody? And
yet Charles’s creation does not have the degraded artistic quality that is
associated with “mere” cut-and-paste or collage techniques. The combination is
greater than the sum of its parts. If Charles’s songs do not fit our model of
innovative artistic creativity, perhaps we need to revise the model—at least
for music—rather than devaluing his work.

When I began this study, it seemed to me that the greatest challenge to
copyright law in dealing with music was preventing rights from “creeping,”
expanding from coverage of a single song or melody to cover essential elements
of genre, style, and theme. In effect, we needed to apply the Jefferson Warning
to music, to defeat the constant tendency to confuse intellectual property with
real property, and to reject the attempts to make the right holder’s control
total. My assumption was that all we needed to do was to keep open the “common
space” of genre and style, and let new artists create their new compositions
out of the material in that commons and gain protection over them. In many
ways, Charles’s work lies at the very core of the stuff copyright wishes to
promote. It is not merely innovative and expressive itself, it also helped form
a whole new genre in which other artists could express themselves. But to
create this work, Charles needed to make use of a lot more than just genres and
styles created by others. He needed their actual songs. If the reactions of
Clara Ward and Big Bill Broonzy are anything to go by, they would not have
given him permission. To them, soul was a stylistic violation, a mingling of
the sacred with the profane. If given a copyright veto over his work, and a
culture that accepts its use, Ward might well have exercised it. Like the
disapproving heirs that Macaulay talked about, she could have denied us a vital
part of the cultural record. Control has a price.

Did Ray Charles commit copyright infringement? Perhaps. We would have to find
if the songs are substantially similar, once we had excluded standard forms,
public domain elements, and so on. I would say that they are substantially
similar, but was the material used copyright-protected expression?

The Copyright Office database shows no entry for “I’ve Got a Savior.” This is
not conclusive, but it seems to indicate that no copyright was ever registered
in the work. In fact, it is quite possible that the song was first written
without a copyright notice. Nowadays that omission would be irrelevant. Works
are copyrighted as soon as they are fixed in material form, regardless of
whether any copyright notice is attached. In 1951, however, a notice was
required when the work was published, and if one was not put on the work, it
passed immediately into the public domain. However, later legislation decreed
that the relevant publication was not of the record, but of the notation. If
the record were pressed and sold without a copyright notice, the error could be
corrected. If a lead sheet or a sheet music version of “I’ve Got a Savior” had
been published without notice or registration, it would enter the public
domain. It is possible that this happened. Intellectual property rights simply
played a lesser role in the 1950s music business than they do today, both for
better and for worse. Large areas of creativity operated as copyright-free
zones. Even where copyrights were properly registered, permission fees were not
demanded for tiny samples. While bootlegged recordings or direct note-for-note
copies might well draw legal action, borrowing and transformation were
apparently viewed as a normal part of the creative process. In some cases,
artists simply did not use copyright. They made money from performances. Their
records might receive some kind of protection from state law. These protections
sufficed.

But the lack of protection also had a less attractive and more racially skewed
side. African-American artists were less likely to have the resources and
knowledge necessary to navigate the system of copyright. For both black and
white artists, whatever rights there were moved quickly away from the actual
creators toward the agents, record companies, and distributors. They still do.
But African-American musicians got an even worse deal than their white
counterparts. True, the copyright system was only an infinitesimal part of that
process. A much larger part was the economic consequences of segregation and
racial apartheid. But copyright was one of the many levers of power that were
more easily pulled by white hands. This is an important point because the need
to end that palpable racial injustice is sometimes used to justify every aspect
of our current highly legalized musical culture. About that conclusion, I am
less convinced.

In any event, it is possible that the musical composition for “I’ve Got a
Savior” went immediately into the public domain. If that were the case, Ray
Charles could draw on it, could change it, could refine it without permission
or fee. Certainly there is no mention of seeking permission or paying fees in
any of the histories of “I Got a Woman.” Indeed, the only question of rectitude
Charles was focused on was the stylistic one. Was it appropriate to mix gospel
and R&B, devotional music and secular desire? Charles and Richard seemed to see
the process of rewording and adapting as just a standard part of the musician’s
creative process. The only question was whether these two styles were
aesthetically or morally suited, not whether the borrowing itself was illegal
or unethical. So, whether they drew on a hymn that had fallen into the public
domain after the expiration of its copyright term, or a gospel song for which
copyright had never been sought, or whether they simply took a copyrighted song
and did to it something that no one at the time thought was legally
inappropriate, Renald Richard and Ray Charles were able to create “I Got a
Woman” and play a significant role in founding a new musical genre—soul.

One thing is clear. Much of what Charles and Richard did in creating their song
would be illegal today. Copyright terms are longer. Copyright protection itself
is automatic. Copyright policing is much more aggressive. The musical culture
has changed into one in which every fragment must be licensed and paid for. The
combination is fatal to the particular pattern of borrowing that created these
seminal songs of soul.

That should give us pause. I return to the ideas of the Jefferson Warning from
Chapter 2 and the Sony Axiom from Chapter 4. Copyright is not an end in itself.
It has a goal: to promote the progress of cultural and scientific creativity.
That goal requires rights that are less than absolute. As Jessica Litman points
out, building in the intellectual space is different from building in the
physical space. We do not normally dismantle old houses to make new ones. This
point is not confined to music. Earlier I quoted Northrop Frye: “Poetry can
only be made out of other poems; novels out of other novels. All of this was
much clearer before the assimilation of literature to private
enterprise.”~{Northrop Frye, Anatomy of Criticism: Four Essays (Princeton,
N.J.: Princeton University Press, 1957), 96–97.}~ The question is, how big are
the holes we need to leave in the private rights? How large a commons do we
need to offer to future creators?

Ray Charles’s creation of “I Got a Woman” is only one case. By itself, it
proves nothing. Yet, if we find that the seminal, genre-creating artworks of
yesteryear would be illegal under the law and culture of today, we have to ask
ourselves “is this really what we want?” What will the music of the future look
like if the Clara Wards and Will Lamartine Thompsons of today can simply refuse
to license on aesthetic grounds or demand payment for every tiny fragment?
Tracing the line further back, it is fascinating to wonder whether gospel,
blues, and jazz would have developed if musical motifs had been jealously
guarded as private property rather than developed as a kind of melodic and
rhythmic commons. Like most counterfactuals, that one has no clear answer, but
there is substantial cause for skepticism. If copyright is supposed to be
promoting innovation and development in culture, is it doing its job?

2~ An Industry of Gold Diggers

Fifty years after “I Got a Woman” was written, Kanye West released “Gold
Digger” on the album Late Registration. Mr. West is an interesting figure in
rap. At first he was shunned because his clean-cut looks and preppy clothing
ran against the gangster image that often dominates the music. It is just hard
imagining Mr. West delivering a line like Rakim’s “I used to be a stick-up kid,
so I think of all the devious things I did” with a straight face. (Still less
“Stop smiling, ain’t nothin’ funny, nothing moves but the money.”) Perhaps
partly as a result, his lyrics are oddly bipolar in their views about
exaggerated masculinity and the misogyny that sometimes accompanies it.

For the song, Mr. West recruited Jamie Foxx, who had played Ray Charles in the
movie Ray. Showing an impressive expanse of oiled chest, Mr. Foxx imitates
Charles’s style and the melody of “I Got a Woman” to provide the lyrical chorus
to “Gold Digger.” “I Got a Woman” anchors West’s song. It provides its melodic
hook. It breaks up the rap with a burst of musical nostalgia. But Mr. West’s
gold digger is very different from Ray Charles’s woman friend. This woman does
not give money when the singer is in need. She takes his money when he is in
need and is a “triflin’ friend indeed.” Mr. Charles had a friend who gave him
tender morning loving. Jamie Foxx sings of a mercenary gold digger who digs on
him. When Mr. West adds the rap verses to the song, we get a perfect caricature
of such a person, uninterested in any man who is broke, dragging around four
kids and an entourage, insisting all of them be entertained at her boyfriend’s
expense, and wielding unfounded paternity suits like a proprietary business
method. Mr. West’s repeated disclaimer “I ain’t sayin’ she’s a gold digger” is
unconvincing, because both the words of the introduction and the implicit
message of the rap tell us she is. We even get the absurd image of a man who is
playing on the winning side in the Super Bowl but driving a Hyundai, so
financially demanding is his girlfriend. At several points the song descends
into ludicrous—and perhaps conscious—self-mockery, as it explores the concerns
of the rich African-American celebrity male. My favorite line is “If you ain’t
no punk, holler ‘We want prenup!!’ ” The audience obliges. It sounds like
assertiveness training for show business millionaires.

It would be hard to get a feminist role model out of either “I Got a Woman” or
“Gold Digger.” One offers the feminine virtues of modesty and fidelity, but
magically combines them with wantonness where the singer is concerned and an
open checkbook. The other is a parody of the self-assertive economic actor, as
rapacious as any multinational, who uses her sexuality for profit. Put them
together and you have bookends—male fantasy and male nightmare. Was that Mr.
West’s point? Perhaps. The song itself takes several sly turns. The gold digger
dogging Mr. West is used as part of a homily to black women on how to treat
their (noncelebrity) black men. They should stick with their man because his
ambition is going to take him from mopping floors to the fryers, from a Datsun
to a Benz. It seems that Mr. West is getting a little preachy, while slamming
the actual social mobility available to black men. Moving from floor cleaning
to frying chicken is not actually going to provide a Mercedes. But he
immediately undercuts that tone twice, once by acknowledging the boyfriend’s
likely infidelity and again by saying that even if the black woman follows his
homily, “once you get on, he leave yo’ ass for a white girl.”

Mr. West has a tendency to make sudden turns like this in his lyrics—ironically
upsetting the theme he has just set up. So it is not hard to imagine that he
deliberately used a fragment of Charles’s song, not just because it sounded
good but to contrast the image of the fantasy woman from Charles’s 1950s soul,
who is faithful, sensual, and always willing to offer a loan, with an image
from today’s rap—sexually predatory and emasculating women who are uninterested
in men except as a source of money. Even the retro cover of the single, with
its 1950s-style pinup drawing of a white model, seems to draw the connection.
Did he use Charles’s song precisely because of these clashing cultural
snapshots? Perhaps, or perhaps he just liked the tune. In any event, the
contrast is striking. When it was released, Charles’s song was seen as a
sacrilegious depiction of sensuality and the woman was decried as a harlot.
Compared to the woman in Mr. West’s song, she sounds like a Girl Scout. It is
also a little depressing. Ray Charles was neither an egalitarian metrosexual
nor a Prince Charming where women were concerned—anything but. But as I said
before, you do get a sense that he liked women—however unrealistic or
two-dimensional their portrayal. It is hard to get that sense from “Gold
Digger.”

Was Mr. West legally required to ask permission—and pay, if necessary—to use a
fragment of “I Got a Woman” for his chorus? The longest single piece of
borrowing occurs in the introduction: twenty-six words and their accompanying
music. “She takes my money, when I’m in need, oh she’s a triflin’ friend
indeed. Oh she’s a gold digger, way over town, who digs on me.” As I pointed
out, the lyrics from Charles’s song present a very different story. “She gimme
money / when I’m in need / Yeah she’s a kind of / friend indeed / I’ve got a
woman / way over town / who’s good to me.” But even if the message is the
opposite, the musical borrowing is direct. It is also extensive. During Mr.
West’s rap, the entire background melody is a loop of Jamie Foxx singing the
Ray Charles-inspired melody in the background. During the song, Mr. Foxx
returns to words that are closer to Charles’s original: “She gimme money, when
I’m in need,” a refrain that is conspicuously at odds with the woman being
described by Mr. West. That eight-bar loop of a Ray Charles melody runs
throughout Kanye West’s song.

Mr. West is very successful, so the fragment of the song was “cleared”—payment
was made to Charles’s estate. It is fascinating to think of what might have
happened if Charles’s heirs had refused. After all, one could see West’s song
as a crude desecration of Charles’s earlier work, rather than a good-humored
homage. Since this is not a “cover version” of the song—one which does not
change its nature and thus operates under the statutory licensing
scheme—Charles’s heirs would have the right to refuse a licensing request.
Unlike Clara Ward, it is clear that Charles’s heirs have the legal power to say
no, to prevent reuse of which they disapprove.

Was West legally required to license? Would all this amount to a copyright
violation? It is worth running through the analysis because it gives a
beautiful snapshot of the rules with which current law surrounds musical
creation.

Today, a song is generally covered by at least two copyrights. One covers the
musical composition—the sheet music and the lyrics—and the other the particular
sound recording of that composition. Just as there are two kinds of copyrights,
so there are at least two kinds of borrowings that copyright might be concerned
with. First, one musical composition might infringe another. Thus, for example,
a court found that George Harrison “subconsciously” based his song “My Sweet
Lord” on the melody of “He’s So Fine” by the Chiffons.

How much does it take to infringe? That is a difficult question. The law’s
standard is “substantial similarity,” but not every kind of similarity counts.
Minimal or de minimis copying of tiny fragments is ignored. Certain styles or
forms have become standards; for example, the basic chord structure of the
twelve-bar blues or the habit of introducing instruments one at a time, from
quietest to loudest. There are only so many notes—and so many ways to rearrange
them; inevitably any song will be similar to some other. Yet that cannot mean
that all songs infringe copyright. Finally, even where there is substantial
similarity of a kind that copyright is concerned with, the second artist may
claim “fair use”—for parody or criticism, say. Copyright law, in other words,
has tried to solve the problem with which I began the chapter. Because much of
musical creativity is organic and collective and additive, because it does use
prior musical expression, some copyright decisions have tried to carve out a
realm of freedom for that creativity, using doctrines with names such as scènes
à faire, merger, and fair use. This is yet another example of judges trying to
achieve the balance that this book is all about—between the realm of the
protected and the public domain—recognizing that it is the balance, not the
property side alone, that allows for new creativity.

The second type of potential infringement comes when someone uses a fragment of
the earlier recording as part of the later one, actually copying a portion of
the recording itself and using it in a new song. One might imagine the same
rules would be applied—de minimis copying irrelevant, certain standard forms
unprotected, and so on. And one would be wrong. In a case called Bridgeport
Music, which I will discuss in a moment, the Court of Appeals ruled that taking
even two notes of a musical recording counts as potentially actionable copying.
Where recordings are concerned, in other words, there is almost no class of
copying so minimal that the law would ignore it. This is a terrible decision,
at least in my opinion, likely to be rejected by other Circuits and perhaps
even eventually by the Supreme Court. But for the moment, it is a case that
samplers have to deal with.

How does Kanye West fare under these rules? He may sample from the actual
recording of Mr. Charles’s song. It is hard to tell. He certainly copies
portions of the melody. That means we have to look at the copyright in the
musical composition—the words and the music of “I Got a Woman.” For a copyright
infringement, one needs a valid copyright and evidence of copying, the amount
copied needs to be more than an insignificant fragment, substantial similarity
is required, and the similarity has to be between the new work and the elements
of the original that are actually protected by copyright. Elements taken from
the public domain, standard introductions, musical clichés, and so forth, do
not get included in the calculation of similarity. Finally, the copier can
claim “fair use”—that his borrowing is legally privileged because it is
commentary, criticism, parody, and so on.

Does Charles, or his record company, have a valid copyright in the musical
composition? One huge problem in copyright law is that it is remarkably hard to
find this out. Even with the best will in the world, it is hard for an artist,
musician, or teacher to know what is covered by copyright and what is not.
Nowadays, all works are copyrighted as soon as they are fixed, but at the time
“I Got a Woman” was written one had to include a copyright notice or the song
went immediately into the public domain. The Copyright Office database shows no
copyright over the words and music of “I Got a Woman.” There are copyrights
over a variety of recordings of the song. If Mr. West is using a fragment of
the recording, these would affect him. But the melody? It is possible that the
underlying musical composition is in the public domain. Finding out whether it
is or is not would probably cost one a lot of money.

Suppose that Mr. Charles has complied with all the formalities. The words and
music were published with a copyright notice. A copyright registration was
filed and renewed. Does Mr. West infringe this copyright? That is where the
discovery of the Bailey Gospel Singers recording is potentially so important.
Charles only gets a copyright in his original creation. Those elements taken
from the public domain (if “I’ve Got a Savior” was indeed in the public domain)
or from other copyrighted songs do not count. The irony here is that the
elements that Kanye West borrows from Ray Charles are almost exactly the same
ones Ray Charles borrows from the Bailey Gospel Singers. “I’ve got a savior, Oh
what a savior” becomes “I got a woman, way over town” becomes “There’s a Gold
Digger, way over town.” And of course, the music behind those words is even
more similar. When The Legendary K.O. reached for Kanye West’s song in order to
criticize Mr. Bush, they found themselves sampling Jamie Foxx, who was copying
Ray Charles, who was copying the Bailey Gospel Singers, who themselves may have
borrowed their theme from an older spiritual.

2~ George Bush Doesn’t Care . . .

poem{

Five damn days, five long days
And at the end of the fifth he walking in like “Hey!”
Chilling on his vacation, sitting patiently
Them black folks gotta hope, gotta wait and see
If FEMA really comes through in an emergency
But nobody seem to have a sense of urgency
Now the mayor’s been reduced to crying
I guess Bush said, “N———’s been used to dying!”
He said, “I know it looks bad, just have to wait”
Forgetting folks was too broke to evacuate
N———’s starving and they dying of thirst
I bet he had to go and check on them refineries first
Making a killing off the price of gas
He would have been up in Connecticut twice as fast . . .
After all that we’ve been through nothing’s changed
You can call Red Cross but the fact remains that . . .
George Bush ain’t a gold digger,
but he ain’t f——ing with no broke n———s

}poem

“George Bush Doesn’t Care About Black People,” The Legendary K.O.

The song “George Bush Doesn’t Care About Black People” was an immediate
sensation. Hundreds of thousands of people downloaded it. Within days two
different video versions had been made, one by Franklin Lopez and another by a
filmmaker called “The Black Lantern.” Both synchronized the lyrics of the song
with news clips of the disaster and unsympathetic footage of President Bush
apparently ignoring what was going on. The effect was both hilarious and
tragic. The videos were even more popular than the song alone. The blogosphere
was fascinated—entries were posted, e-mails circulated to friends with the
usual “you have to see this!” taglines. In fact, the song was so popular that
it received the ultimate recognition of an Internet fad: the New York Times
wrote a story on it, setting the practice in historical context.

_1 In the 18th century, songwriters responded to current events by writing new
lyrics to existing melodies. “Benjamin Franklin used to write broadside ballads
every time a disaster struck,” said Elijah Wald, a music historian, and sell
the printed lyrics in the street that afternoon. This tradition of responding
culturally to terrible events had almost been forgotten, Mr. Wald said, but in
the wake of Hurricane Katrina, it may be making a comeback, with the obvious
difference that, where Franklin would have sold a few song sheets to his fellow
Philadelphians, the Internet allows artists today to reach the whole
world.~{John Leland, “Art Born of Outrage in the Internet Age,” New York Times
(September 25, 2005), D3.}~

Mr. Nickerson’s and Mr. Randle’s song started with Kanye West’s words—taken
from the fundraiser with Mike Myers. “George Bush doesn’t care about black
people.” From there it launched into the song. The background melody comes
almost entirely from a looped, or infinitely repeated, version of the hook that
Kanye West and Jamie Foxx had in turn taken from Ray Charles: “She gimme money,
when I’m in need. I gotta leave.” Against that background, The Legendary K.O.
provide their profane and angry commentary, part of which is excerpted above,
with a chorus of “George Bush don’t like black people,” in case anyone had
missed the point.

The videos differ in the issues they stress. Franklin Lopez’s movie is, rather
pointedly given its theme, just black and white. He uses ornate captions pages,
reminiscent of silent film from the 1920s, to make political points against the
background of the song and the news footage. As the captions read “Katrina
Rapidly Approaches,” we cut to a shot of the hurricane. “The President Ponders
on What to Do.” We have a shot of Mr. Bush playing golf. “I Think I’ll Ride
This One Out.” Mr. Bush is shown relaxing on a golf cart, juxtaposed against
pictures of African-Americans wading through the floods. The captions add, as
an afterthought, “And Keep Dealing with the Brown People.” (Pictures of
soldiers shooting.) When FEMA’s Michael Brown is shown—at the moment when Bush
said “Brownie, you are doing a hell of a job”—the captions comment mockingly,
“The Horse Judge to the Rescue.”

Mr. Lopez’s video obviously tries to use The Legendary K.O.’s song to make
larger political arguments about the country. For example, it asserts that “in
2004 Bush diverted most of the funds for the levees to the war in Iraq.” Scenes
reminiscent of a Michael Moore documentary are shown. There are pictures of the
Iraq war, Halliburton signs, and shots of the president with a member of the
Saudi royal family. The captions accuse the president of showing insensitivity
and disdain to racial minorities. One summarizes the general theme: “Since he
was elected president, George Bush’s policies have been less than kind toward
Africans and Hispanics.” Issues ranging from the response to the Darfur
massacres, No Child Left Behind, and the attempted privatization of Social
Security also make their appearance. The video concludes by giving the donation
information for the Red Cross and saying that we are “onto” Bush. A picture of
a Klansman removing his hood is shown, with the image manipulated so that the
face revealed is Mr. Bush’s.

The Black Lantern’s video is just as angry, and it uses some of the same
footage, but the themes it picks up are different. It starts with a logo that
parodies the FBI copyright warning shown at the beginning of movies: “WARNING:
Artist supports filesharing. Please distribute freely.” That dissolves into a
picture of Kanye West and Mike Myers. West is speaking, somewhat awkwardly as
he goes “off script,” and at first Mr. Myers is nodding, though he starts to
look increasingly worried. West says, “I hate the way they portray us in the
media. You see a black family it says they are looting. You see a white family,
it says they are looking for food.” Finally, West says “George Bush doesn’t
care about black people” and the camera catches Myers’s mute, appalled
reaction. Then the song begins. The film cuts repeatedly between a music video
of Mr. Foxx as he sang the lines for “Gold Digger” and the news coverage of the
debacle in New Orleans. At one point the music pauses and a news anchor says,
“You simply get chills when you look at these people. They are so poor. And so
black.” The song resumes. Here the message is simpler. The media coverage is
biased and governmental attention slowed because of negative racial stereotypes
and lack of concern about black people.

Some readers will find that this song and these videos capture their own
political perspectives perfectly. They will love the bitterly ironic and
obscene outrage at the government’s failure, the double standards of the press,
and the disproportionate and callously disregarded impact on the poor and
black. Others will find both song and films to be stupid, insulting, and
reductionist—an attempt to find racial prejudice in a situation that, at worst,
was an example of good old-fashioned governmental incompetence. Still others
will find the language just too off-putting to even think about the message.
Whatever your feelings about the content, I urge you to set them aside for a
moment. For better or worse, Mr. Bush just happened to be president at the
moment when the Internet was coming into its own as a method of distributing
digitally remixed political commentary, which itself has recently become
something that amateurs can do for pennies rather than an expensive activity
reserved to professionals. The point is that whatever rules we apply to deal
with “George Bush Doesn’t Care About Black People” will also apply to the next
video that alleges corruption in a Democratic administration or that attacks
the sacred cows of the left rather than the right. How should we think about
this kind of activity, this taking the songs and films and photos of others and
remixing them to express political, satirical, parodic, or simply funny points
of view?

2~ Sampling

Let us begin with the music. Unlike the other songs I have discussed here, with
the possible exception of Mr. West’s, “George Bush Doesn’t Care About Black
People” makes use of digital samples of the work of others. In other words,
this is not merely about copying the tune or the lyrics. The reason that Mr.
Nickerson and Mr. Randle could make and distribute this song so fast (and so
cheaply) is that they took fragments from the recording of “Gold Digger” and
looped them to form the background to their own rap. That was also part of the
reason for the positive public reaction. Kanye West (and Ray Charles and Clara
Ward) are very talented musicians. West’s song was already all over the
airwaves. The Legendary K.O. capitalized on that, just as Benjamin Franklin
capitalized on the familiarity of the songs he reworded. But where Franklin
could only take the tune, The Legendary K.O. could take the actual ones and
zeros of the digital sound file.

As I mentioned earlier, there are two types of copyright protection over music.
There is the copyright over the musical composition and, a much more recent
phenomenon, the copyright over the actual recording. This song potentially
infringes both of them.

Readers who came of age in the 1980s might remember the music of Public Enemy
and N.W.A.—a dense wall of sound on which rap lyrics were overlaid. That wall
of sound was in fact made up of samples, sometimes hundreds of tiny samples in
a single track. Rap and hip-hop musicians proceeded under the assumption that
taking a fragment of someone else’s recording was as acceptable legally (and
aesthetically) as a jazz musician quoting a fragment of another tune during a
solo. In both cases, the use of “quotation” is a defining part of the genre, a
harmless or even complimentary homage. Or so they thought.

In a 1991 case called Grand Upright, that idea was squashed.~{Grand Upright
Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991).}~
The rap artist Biz Markie had extensively sampled Gilbert O’Sullivan’s song
“Alone Again (Naturally)” for his own song “Alone Again.” The court could have
applied the rules described earlier in this chapter, decided whether or not
this was a large enough usage to make the second song substantially similar to
the original, discussed whether or not it counted as a fair use, whether
Markie’s use was transformative or parodic, whether it was going to have a
negative impact on the market for the original, weighed the issues, and ruled
either way. In doing so, there would have been some nice points to discuss
about whether or not the breadth of fair use depends in part on the practice in
the relevant artistic community, how to understand parodic reference, or the
relevant markets for the work. (Biz Markie’s lawyers had asked for permission
to use the sample, but the Supreme Court has made clear that seeking permission
does not weigh against a defense of fair use.) There were also some tricky
issues about the breadth of legal rights over recordings—the right was of
relatively recent creation and had some interesting limitations. Underlying it
all was a more fundamental question: how do we interpret the rules of copyright
so as to encourage musical creativity? After all, as this chapter has shown,
borrowing and reference are a fundamental part of musical practice. We ought to
think twice before concluding they are illegal. Are we to criminalize jazz?
Condemn Charles Ives? And if not, what is the carefully crafted line we draw
that allows some of those uses but condemns this one?

Judge Duffy, however, was uninterested in any of these subtleties.

_1 “Thou shalt not steal” has been an admonition followed since the dawn of
civilization. Unfortunately, in the modern world of business this admonition is
not always followed. Indeed, the defendants in this action for copyright
infringement would have this court believe that stealing is rampant in the
music business and, for that reason, their conduct here should be excused. The
conduct of the defendants herein, however, violates not only the Seventh
Commandment, but also the copyright laws of this country.~{Ibid., 183.}~

If this were a law school exam, it would get a “D.” (Maybe a C given grade
inflation.) Duffy makes all of the errors Jefferson warned us against. Tangible
property is the same as intellectual property. Songs are the same as sheep and
the same rules can apply to both. Theft is theft. The prior injunctions of the
framers and the courts notwithstanding, we do not need to think carefully about
the precise boundaries of intellectual property rights or worry that
interpreting them too broadly is as bad as making them too narrow. So far as
Judge Duffy is concerned, the tablets on Mount Sinai were inscribed with an
absolute injunction against digital sampling. (The font must have been small.)
But to say all this is merely to scratch the surface of how regrettable a
decision it is. In the narrowest and most formalistic legal terms it is also
very poor.

Judge Duffy gives not a single citation to the provisions of the Copyright Act.
He ignores issues of de minimis copying, substantial similarity, fair use, and
the differences between the right over the recording and that over the
composition. In fact, he quotes the Bible more, and more accurately, than he
does Title 17 of the U.S. Code—the Copyright Act. The one mention he makes of
actual copyright law is at the end of the opinion, when he refers the case for
criminal prosecution! When I first read this case, I seriously wondered for a
moment if it were a crude parody of a legal opinion written by someone who had
never been to law school.

Is the result in this case wrong? Personally, I do not think so. It is
possible, even probable, that a conscientious judge who bothered to read the
law could go through a careful analysis and find that Markie’s use went beyond
de minimis copying, that it was neither creative, parodic, nor short enough to
count as a fair use. The judge might have presumed a negative effect on the
market for Mr. O’Sullivan’s song and thus could have ruled that it was a
copyright infringement. In doing so, the judge would have to give some guidance
to future courts about digital sampling. The most likely guidance would be “the
sample here is so extensive and so unchanged, that this case says little about
the wider musical practice of sampling.” Judge Duffy’s opinion was poor not
because of the result he reached, but because he reached it in an overly broad
and judicially inappropriate way that became a guideline for future cultural
creation. Worse still, the industry listened to him.

In excellent books on this issue, Kembrew McLeod and Siva Vaidhyanathan each
argue that Grand Upright was a disaster for rap music.~{Kembrew McLeod, Owning
Culture: Authorship, Ownership and Intellectual Property Law (New York: Peter
Lang, 2001), and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of
Intellectual Property and How It Threatens Creativity (New York: New York
University Press, 2001).}~ The industry’s practice turned full circle almost
overnight. Now every sample, no matter how tiny, had to be “cleared”—licensed
from the owners of the recording. As they tell the story, this “legal” change
caused an aesthetic change. The number of samples in an average song dropped
precipitously. The engaging complexity of the Public Enemy “wall of sound” gave
way to the simplistic thumping beat and unimaginative synthesizer lines of
modern rap. I must admit to sharing McLeod’s and Vaidhyanathan’s musical
prejudices. The causal claim is harder to substantiate, but industry lawyers
and musicians both agree that changes in the industry’s understanding of the
law had a major role in transforming the practice of sampling.

If we disregard the Jefferson Warning and assume the recording artist has
absolute property rights over his work, then we could ignore the idea that
forcing people to pay for stuff they take might have a negative effect on
future art and culture. Theft is theft. I might be able to make art much more
easily if I did not have to pay for the paint and canvas, but that is not
commonly held to excuse shoplifting from art stores. But if we take the
Jefferson Warning seriously, then intellectual property’s job is to balance the
need to provide incentives for production and distribution with the need to
leave future creators free to build upon the past. Reasonable minds will differ
on where this line is to be drawn, but the process of drawing it is very
different from the process Judge Duffy had in mind.

For fifteen years, critics of the decision waited for an appeals court to fix
the law in this area. When the case of Bridgeport Music, Inc. v. Dimension
Films came up, they thought they had what they wanted. The band NWA had used a
tiny fragment (less than two seconds) consisting of three notes of a guitar
solo from the George Clinton song “Get Off Your Ass and Jam.” The fragment was
an arpeggiated chord, which simply means that you strike the notes of the chord
individually and in sequence. It was, in fact, a pretty standard “deedly”
sound, familiar from many guitar solos. NWA then heavily distorted this
fragment and looped it so that it played in the background of one part of the
song—so faintly that it is almost impossible to hear and completely impossible
to recognize. (With the distortion it sounds like a very faint and distant
police siren.) A company called Bridgeport Music owned the sound recording
copyright over the Clinton song. They sued. NWA’s response was predictable—this
was classic de minimis copying, which the law did not touch. One did not even
have to get to the issue of fair use (though this surely would be one).

The appeals court did not waste any time attempting to dignify Judge Duffy’s
decision in Grand Upright.

_1 Although Grand Upright applied a bright-line test in a sampling case, we
have not cited it as precedent for several reasons. First, it is a district
court opinion and as such has no binding precedential value. Second, although
it appears to have involved claims for both sound recording and musical
composition copyright infringement, the trial judge does not distinguish which
he is talking about in his ruling, and appears to be addressing primarily the
musical composition copyright. Third, and perhaps most important, there is no
analysis set forth to indicate how the judge arrived at his ruling, which has
resulted in the case being criticized by commentators.~{Bridgeport Music, Inc.
v. Dimension Films, 410 F.3d 792, 804n16 (6th Cir. 2005).}~

They did like one thing about the decision, however: its bright-line rule,
“Thou Shalt Not Steal.” (Lawyers use the term “bright-line rule” to refer to a
rule that is very easy to apply to the facts. A 55 mph speed limit is a
bright-line rule.) The Bridgeport court rejected the idea that sound recording
copyrights and music composition copyrights should be analyzed in the same way.
They wanted to set a clear rule defining how much of a sound recording one
could use without permission. How much? Nothing. To be precise, the court
suggests in a footnote that taking a single note might be acceptable since the
copyright protection only covers a “series.” Anything more, however, is clearly
off limits.

Though they come to a conclusion that, if anything, is more stringent than
Judge Duffy’s, they do so very differently. In their words, “Get a license or
do not sample.” Effectively, the court concludes that the sound recording
copyright is different enough from the composition copyright that a court could
reasonably conclude that a different analysis is required. The judges are fully
aware that copyright must balance encouraging current creators and leaving raw
material to future creators—the Jefferson Warning holds no novelty for them.
But they conclude that a clear “one-note rule” will do, because if the costs of
licenses are too high, samplers can simply recreate the riff themselves, and
this will tend to keep prices reasonable.

This is an interesting idea. Why does this not happen more often? Why do
samplers not simply recreate James Brown’s drumbeat from “Funky Drummer,” or
George Clinton’s solo from “Get Off Your Ass and Jam”? Musicians offer lots of
different answers. They do not understand the distinction the court is drawing,
so the market never develops. The samples themselves cannot be replicated,
because the music has all kinds of overtones from the historical equipment used
and even the methods of recording. Fundamentally, though, the answer seems to
be one of authenticity, ironically enough. The original beats have a totemic
significance—like the great standard chord sequences in jazz. One cannot
substitute replicas for James Brown’s funkiness. It just would not be the same.
As Walter Benjamin pointed out long ago in “The Work of Art in the Age of
Mechanical Reproduction,” cheap copying actually increases the demand for
authenticity.~{Walter Benjamin, “The Work of Art in the Age of Mechanical
Reproduction,” in Illuminations: Essays and Reflections, ed. Hannah Arendt,
trans. Harry Zohn (New York: Harcourt, Brace & World, 1968), 217–42.}~ The
court’s economic analysis—which imagines a world of fungible beats produced for
music as a consumer good—deals poorly with such motivations.

When the court first released its decision, it was greeted with concern even by
recording industry representatives who might have been expected to favor it,
because it appeared to do away with not only the de minimis limitation on
copyright (some portions are just too small to count as “copying”) but the fair
use provisions as well. The court took the very unusual step of rehearing the
case and amending the opinion, changing it in a number of places and adding a
paragraph that stated that when the case went back to the district court, the
judge there was free to consider the fair use defense. Of course, if one takes
this seriously—and, for the constitutional reasons given in Chapter 5, I agree
that the court has no power to write fair use out of the statute—it undermines
the supposedly clear rule. If the factors of fair use are seriously applied,
how can a three-note excerpt ever fail to be fair use? And if we always have to
do a conventional fair use analysis, then the apparent clarity of the one-note
rule is an illusion.

The Bridgeport decision is a bad one, I believe. Among other things, it fails
to take seriously the constitutional limitations on copyright—including the
originality requirement and the First Amendment. (A three-note sample is not
original enough to be protected under copyright law, in my view. There are also
more speech-related issues in sampling than the court seems to realize.) The
competitive licensing market the court imagines seems more like economic
fantasy than reality. I think the ruling sets unnecessary barriers on musical
creation and ends up with a rule that is just as blurry as the one it
criticizes. I think the court’s reading of the statute and legislative history
is wrong—though I have not bored you with the full details of that argument.
But I want to be clear that it is a very different kind of bad decision from
Judge Duffy’s.

The court in Bridgeport does see copyright as a balance. It does understand the
need for future creators to build on the past, but it also shows that a simple
willingness to look upon intellectual property protections in a utilitarian way
does not solve all problems. It certainly does not proceed from Jefferson’s
presumption that intellectual property protections should be interpreted
narrowly. Though it claims to have a “literal” reading of the statute, the real
driving force in the analysis is an unconsummated desire for bright-line rules
and a belief that the market will solve these problems by itself. The court
also suggests that “[i]f this is not what Congress intended or is not what they
would intend now, it is easy enough for the record industry, as they have done
in the past, to go back to Congress for a clarification or change in the law.”
Note the assumption that “the record industry” is the most reliable guide to
Congress’s intentions or that it is the only entity affected by such a rule.
This is truly the image of copyright law as a contract among affected
industries. Of course, digital artists such as The Legendary K.O. hardly fit
within such a model.

Under the rule in Bridgeport—“Get a license or do not sample”—Mr. Randle and
Mr. Nickerson appear to be breaking the law. They did not get a license and
they most definitely did sample. What about fair use? Under fair use, copyright
allows a very specific (and possibly lengthy) use of another’s material when
the purpose is parody of that prior work itself. The Supreme Court gave parody
a unique status in the Acuff-Rose case. The (extremely profane) rap group 2
Live Crew had asked for permission to produce a version of Roy Orbison’s
“Pretty Woman.” But where Orbison sang about the pretty woman walking down the
street whom he would like to meet, 2 Live Crew wrote about a “big hairy woman”
(“with hair that ain’t legit, ’cause you look like Cousin It”). They sang about
a “bald headed” woman with a “teeny weeny afro.” They sang about group sex with
both women. Finally, they told a “two timin’ woman,” “now I know the baby ain’t
mine.” Justice Souter showed the characteristic sangfroid of a Supreme Court
justice faced with raunchy rap music.

_1 While we might not assign a high rank to the parodic element here, we think
it fair to say that 2 Live Crew’s song reasonably could be perceived as
commenting on the original or criticizing it, to some degree. 2 Live Crew
juxtaposes the romantic musings of a man whose fantasy comes true, with
degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal
responsibility. The later words can be taken as a comment on the naiveté of
the original of an earlier day, as a rejection of its sentiment that ignores
the ugliness of street life and the debasement that it signifies. It is this
joinder of reference and ridicule that marks off the author’s choice of parody
from the other types of comment and criticism that traditionally have had a
claim to fair use protection as transformative works.~{Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 583 (1994).}~ [emphasis added]

Truly, the law can confront and master all cultural forms. The heart of parody
as the Supreme Court described it is that one is taking aim at the original.
Because 2 Live Crew could be seen as directing their song at Orbison’s
original, rather than using Orbison’s song to make some other political or
social point, the court was willing to give it the favorable consideration that
parody receives as a fair use.

Does “George Bush Doesn’t Care About Black People” fit that model? The
Legendary K.O. were not “taking aim” at “Gold Digger.” True, they quoted West’s
actual words from the television broadcast (also copyrighted). They even used
them as their title. But they were not taking aim at his song. (Ironically,
Kanye West has a better claim that he was taking aim at Ray Charles’s picture
of womanhood, in just the way described in the 2 Live Crew case.) Rather, The
Legendary K.O. were using the sample of the song as the backing to an entirely
different rap that expressed, in familiar and popular musical form, a more
expansive version of his condemnation of both press and president. That does
not end the inquiry. Parody is not the only form of protected criticism or
commentary. But it makes it much harder for them to succeed, particularly in
light of the hostility toward sampling betrayed by both Grand Upright and
Bridgeport.

The videos made by The Black Lantern and Franklin Lopez present an even more
complex set of questions. On top of the music copyright issues, we also have
fair use claims for the extensive news footage and footage of Mr. Foxx. The
Black Lantern also used some fragments of a popular video by JibJab, which had
a cartoon Bush and Kerry singing dueling parodied versions of Woody Guthrie’s
“This Land.” When JibJab’s video first came out, the Guthrie estate claimed
copyright infringement over the song. Assisted by a number of public interest
legal groups, JibJab claimed fair use. (It eventually came out that the
copyright over the song was no longer valid.) What did Jib- Jab do when The
Black Lantern sampled them in their turn? In a move that both wins the prize
for hypocrisy and serves to sum up the intersection of law and culture I have
been describing, they sent him a cease and desist letter. The video was taken
down for a week and he was eventually forced to remove the segment of their
video from his work. Fair use for me, but not for thee.

2~ Conclusion

The Legendary K.O. samples Kanye West, who uses a fragment from Ray Charles,
who may have taken material from Will Lamartine Thompson or, more likely, from
Clara Ward (who herself borrowed from a gospel standard). The chain of
borrowing I describe here has one end in the hymns and spirituals of the early
1900s and the other in the twenty-first century’s chaotic stew of digital
sampling, remix, and mashup. Along the way, we have the synthesis of old and
the invention of new musical genres—often against the wishes of those whose
work is serving as the raw material. One way of viewing this story is that each
of these musicians (except for some imaginary original artist, the musical
source of the Nile) is a plagiarist and a pirate. If they are licensing their
material or getting it from the public domain, then they may not be lawbreakers
but they are still unoriginal slavish imitators. If one’s image of creativity
is that of the romantic, iconoclastic creator who invents the world anew with
each creation, those conclusions seem entirely appropriate. The borrowing here
is rampant. Far from building everything anew, these musicians seem quite
deliberately to base their work on fragments taken from others.

It is important to remember that copyright does not subscribe completely to the
idea of romantic creation where music is concerned. As I pointed out earlier,
musical genres develop out of other genres: soul from gospel and rhythm and
blues; gospel from spirituals; rhythm and blues from jazz, jump music, and
Delta blues; and so on. When it comes to genres, we can play the game of
musicological “six degrees of separation” all day long. Copyright is supposed
to leave “holes” in its coverage so that the genre is not covered, only the
specific form of creativity within the genre. I mentioned before the need to
keep the lines of genre and form open, to keep them free from private property
rights in order to allow musicians to develop the form by using them as common
property, the “highways” of musical progress. So, for example, the twelve-bar
blues uses the first, fourth, and fifth chords in a scale. That sequence cannot
be owned, unless blues is to become impossible or illegal. Bebop is
characterized by copious use of the flattened fifth—a sound which was jarring
to audiences when it was first introduced and which marked the break with the
more accessible jazz of swing and the big bands. The flattened fifth is not
owned. These characteristic genre-creating sequences or sounds are supposed to
be left in the public domain, though increasingly some scholars—including
me—are coming to believe that we have managed to make the copyright holder’s
control so complete and so granular as to close those common areas and impede
the development of future musical forms. The Bridgeport court might extend its
logic and imagine that the entire musical commons could be licensed, of course.
The presence of other chord sequences would keep the price down! But up to now,
we have not gone that far. In theory at least, copyright is not supposed to
stop the next Ray Charles, the person who wants to fuse two older forms of
music to create a third.

Yet the chain of borrowing that links The Legendary K.O., Kanye West, Ray
Charles, and the Bailey Gospel Singers is of a different kind. This borrowing
involves taking chunks of prior musicians’ melodies, their words, their lyrical
patterns. This is not just copying the genre. It is copying the lines of the
song within the genre. This is the kind of stuff copyright is supposed to
regulate even when it is working well. And yet, listening to the sequence, it
is hard to deny that at each stage something artistic and innovative, something
remarkable, has been created. In fact, the story of this song is the striking
ability of each set of artists to impose their own sound, temperament,
spirituality, humor, vision of women, or, in the case of The Legendary K.O.,
their intense and profane political anger, onto the musical phrases they have
in common.

The postmodern conclusion here is “there is nothing new under the sun”—that all
creation is re-creation, that there is no such thing as originality, merely
endless imitation. If this is meant to be a comment about how things get
created, at least in music, I think there is some truth to it. But if it is a
claim about aesthetic worth, a denial that there are more and less creative
individuals in the arts, I find it as facile and unconvincing as its romantic
authorial opposite.

What is fascinating about the artists I describe here is that, while they do
not fit neatly into either the aesthetic ideal of independent creation or the
legal model for how creative expression gets made, they each have a remarkable,
palpable creativity. Each leaves us with something new, even if formed partly
from the fragments of the past. One could describe Ray Charles as the merest
plagiarist—making “search and replace” songs by substituting a woman for the
deity in already-established hits. But if that is our conclusion, it merely
proves that our theories of aesthetics are poorer than the creativity they seek
to describe. So much the worse for the theories.

As Jefferson pointed out, the lines surrounding intellectual property are hard
to draw—something the Bridgeport court got right. When we draw them, whether
legally or as a matter of aesthetic morality, we do so partly with standard
instances in mind. “Well, that can’t be wrong,” we think to ourselves, and
reason by analogy accordingly. Yet the process of analogy fails us sometimes,
because the types of borrowing change over time.

Ray Charles was frank about the way he copied the style and licks of Nat King
Cole like an apprentice learning from a lawyer. But he and his estate
assiduously guarded his copyrights against more modern borrowing they found to
be inappropriate. Judge Duffy thunderously denounces Biz Markie. It is harder
to imagine him leveling the same condemnation at Dizzy Gillespie, Charles Ives,
Oscar Peterson, or, for that matter, Beethoven, though all of them made copious
use of the works of others in their own. It is bizarre to imagine a
Bridgeport-like rule being extended to composition copyrights and applied to
music such as jazz. “Get a license or do not solo”? I think not. Does it make
any more sense for sampling?

If there is a single reason I told the story of these songs it is this: to most
of us, certainly to me, the idea that copyright encourages creativity and
discourages the reuse of material created by others seems reasonable. Of
course, I would want to apply the correctives implied by the Jefferson
Warning—to make sure the rights were as short and as narrow as possible. But at
least when it comes to copying chunks of expression still covered by copyright,
our intuitions are to encourage people to create “their own work,” rather than
to rely on remix. What does that mean in the world of music? As the story I
have told here seems to illustrate, even musicians of unquestioned
“originality,” even those who can make a claim to having created a new musical
genre, sometimes did so by a process rather more like collage than creation out
of nothing, taking chunks of existing work that were proven to work well and
setting them in a new context or frame.

Imagine Ray Charles trying to create “I Got a Woman” today. Both of his
possible sources would be strongly and automatically protected by copyright.
The industries in which those works were produced would be much more legalistic
and infinitely more litigious. The owners of those copyrights could use them to
stop him from “desecrating their work”—which is literally what he is doing. We
know Clara Ward objected to Charles’s other borrowings from gospel. I cannot
imagine Will Lamartine Thompson or his worthy neighbors in East Liverpool
looking kindly on the sweet “early morning loving” outside of wedlock described
in “I Got a Woman,” still less the use of sacred music to glorify it. And
copyright gives them the power to say no. Remember Macaulay’s description of
how Richardson’s novels might have been censored by a moralistic heir? Even if
the objections were not vetoes, but simple demands for payment, would we get “I
Got a Woman” and “This Little Girl of Mine”? Given the extent of the borrowing
that jump-started this particular genre-bridging effort, would we be likely to
see the birth of soul music?

Congress assures us that the many increases in copyright protection have been
in the name of encouraging creativity. The music industry says the same thing
when its pettifogging clearance procedures and permission culture are
criticized. But do we really think we are more likely to get a
twenty-first-century Ray Charles, or a fusion of styles to create a new genre,
in the world we have made? Do we really think that the formalist ignorance of
Judge Duffy or the market optimism of the Bridgeport court, in which thick
markets offer fungible sets of samples to be traded like commodities, are good
guides for the future of music? Are we in fact killing musical creativity with
the rules that are supposed to defend it?

An Internet optimist would tell us that is precisely the point. True, because
of the errors described in the chapter on the Jefferson Warning, and the
mistakes catalogued in the chapters on the Internet Threat and the Farmers’
Tale, we have dramatically expanded the scope, length, and power of the rights
that are supposed to shape our creative culture. But technology cures all. Look
at The Legendary K.O., The Black Lantern, or Franklin Lopez. They are all
probably breaking the law as it is currently interpreted by the courts. But
their work can be created for pennies and distributed to millions. The
technology allows people to circumvent the law. Admittedly, some of the
copyright holders will police their rights assiduously—think of JibJab’s
newfound dislike of fair use and their power to alter The Black Lantern’s
video. But others either cannot or will not. Kanye West’s representatives in
particular are unlikely to be stupid enough to sue The Legendary K.O. in the
first place. Internet distribution becomes a demimonde in which the rules of
the rest of the society either cannot or will not be enforced. Art gets its
breathing room, not from legal exceptions, but from technological enforcement
difficulties. Finally, as more and more people can create and distribute
digital culture, they are less likely to understand, believe in, or accept
rules that are strongly at variance with their aesthetic and moral assumptions.

There is a lot to these points. The technology does transform the conditions of
creativity, and sometimes it runs right over the law in the process. Thousands,
even millions, can be reached outside of conventional distribution channels
with work that is technically illegal. And attitudes toward creative propriety
do not track legal rules. When I wrote to Mr. Randle and Mr. Nickerson, I found
that they realized Mr. West probably had a legal right to get their work taken
down, but they felt he would not use it, and they had a very commonsensical
conception of what they ought to be allowed to do. They were not making any
money from this. They were making a political point, drawing attention to a
political and human problem. That made it okay. They would have liked more
formal permission so that they could actually distribute CDs through
conventional for-profit channels, perhaps with some portion of the proceeds
going to disaster relief, but they understood they were unlikely to get it.

Despite all this, I am uncomfortable with the argument “do not worry,
technology will allow us to evade the rules where they are stupid.” A system
that can only function well through repeated lawbreaking is an unstable and
dangerous one. It breeds a lack of respect for the law in those who should be
its greatest supporters and beneficiaries. It blurs civil disobedience and
plain old lawbreaking. Sitting in on the segregated lunch counter and being
willing to face the consequences is very different from parking in the disabled
space and hoping you can get away with it. It also blurs our judgment of
conduct. Whatever one thinks of them, The Legendary K.O. are doing something
very different than a college student who just does not want to pay for music
and downloads thousands of tracks for free from file sharing networks.

The problem is not simply one of blurring. Technology-based “freedoms” are not
reliable (though legal ones, too, may fail). In a pinch, the technology may not
save you, as thousands of those same downloaders have found out when sued by
the RIAA and forced to pay thousands of dollars for an activity they thought to
be private and anonymous. The Internet “solution” also leaves certain types of
artistic creation dependent on the vagaries of the current technology, which
may well change, eliminating some of the zone of freedom we currently rely on.
But more worrisome is the fact that this “solution” actually confines certain
types of art to the world of the Internet.

The video of “George Bush Doesn’t Care About Black People” could be seen by
many, but only if they were wired to the right technological and social
network. (After all, someone has to tell you to watch.) It was a searing
intervention in the national debate on Katrina. But it appeared on no
television station. Like most of the mashups created online, the fact that the
rights could never be cleared keeps it off mass media. Copyright acts as the
barbed wire around mass media outlets. That is a shame, I think. Not because
that video is so good—you may love it or hate it. But because this kind of
artwork has something important to contribute to our national culture. Imagine
a world in which Ray Charles could create “I Got a Woman,” but could only
circulate it to a narrow group of the file-trading digerati because of a
flagrant violation of Clara Ward’s copyright. Do we still get soul? The blues?
Jazz? Or do we just get a precious and insular digital subculture, whose
cultural experiments never reach the mainstream?

Throughout his life, Charles described an intimate relationship with his
audience, with the public. He described their tastes as a check, as a
corrective; he thought they would actually be “ahead” of the artists. He wanted
to make songs that would be listened to by tens of millions of people. And he
wanted to make art and lots of money. I am all for the person who wants to
create as an “amateur-professional” and distribute outside the chains of
commerce. I have worked with organizations that make it easier to do this. But
I also believe in the power and creativity of commercial culture and political
speech carried on mass media. Ironically, our current copyright system serves
it poorly.

What is the solution to all of this? The music business runs on compulsory
licenses, a legally granted ability to use music in certain ways without
permission, though with a fee. The system seems to function pretty well. One
solution is to extend that system to the world of mashups and derivative works.
If you merely copy the whole of my work and circulate it on file sharing
networks or on CDs, we apply the current rules and penalties. If, on the other
hand, you make a “derivative” work, mixing your work with mine, then there are
two alternatives. If you stay in the world of nonprofit exchange, you get a
heightened presumption in favor of fair use (perhaps administered through a
quicker and cheaper system of arbitration). If you move into the for-profit
world, then you must pay a flat licensing fee or percentage of profits to the
copyright holder.

A second solution would be to curtail the hypertrophy of protectionism that
made all this happen in the first place. The copyright term could be shortened
or we could require renewal every twenty-eight years. (There are international
treaties that currently forbid the latter alternative.) We could cut back on
excesses like the Bridgeport decision, create incentives to make the music
industry less legalistically insistent on policing the most atomic level of
creation. We could exempt samples shorter than five seconds from copyright
liability, clarify the boundaries of fair use, and extend it beyond parody to
other genre-smashing forms such as satire and collage.

There are enormous obstacles to all these proposals. In particular, while
artists fare very poorly under the current clearance culture—paying but not
receiving the benefits of payments—the middlemen who profit from transaction
costs are not keen on abolishing them. Certainly if, as the Bridgeport court
assumed, the recording industry is the party responsible for fine-tuning
copyright law, we are hardly likely to see any reforms that threaten current
modes of doing business. Yet there is a ray of hope. It is getting harder and
harder to pretend that the rules ostensibly designed to encourage creativity
are actually working. At the same time, more and more people are creating and
distributing cultural objects—becoming “subjects” of intellectual property law
in the process, often to their dismay and irritation. It is in that
conjunction—a far cry from the industry contract envisioned by the Bridgeport
court—that hope for the future of copyright law’s treatment of culture might
lie.

2~ Chapter 6: Further Reading

Musical borrowing is the subject of the next “graphic novel”—which is to say
comic book—produced by me, Keith Aoki, and Jennifer Jenkins: Theft!: A History
of Music (Durham, N.C.: Center for the Study of the Public Domain, forthcoming
2009). Our earlier effort to make intellectual property accessible to film
makers and mashup artists can be found in Bound By Law (Durham, N.C.: Center
for the Study of the Public Domain, 2006), available in full at
http://www.law.duke.edu/cspd/comics. An expanded edition of Bound By Law will
be published in the Fall of 2008 by Duke University Press. However, neither
graphic novel can provide a sense of the scholarly literature in music,
musicology, law, and biography that enabled me to write this chapter.

3~ Musical History

The indispensable guide to music history is J. Peter Burkholder, Donald Jay
Grout, and Claude V. Palisca, A History of Western Music, 7th ed. (New York: W.
W. Norton, 2006). For those who have access through a university or library the
Grove Music database is the single most comprehensive computer-aided source:
[recenlty moved to] Oxford Music Online,
http://www.oxfordmusiconline.com/public/ [Ed. note: originally published as
http://www.grovemusic.com/index.html; link has changed]. A fascinating book by
Frederic Scherer, Quarter Notes and Bank Notes: The Economics of Music
Composition in the Eighteenth and Nineteenth Centuries (Princeton, N.J.:
Princeton University Press, 2004), explores different incentive systems—such as
patronage or markets enabled by intellectual property rights—and their
respective effect on musical aesthetics and musical production. Scherer is one
of the foremost contemporary economists of innovation. To have him writing
about the practices of court composers and manuscript publishers is completely
fascinating. At the end of the day, he diplomatically refuses to say whether
patronage or market mechanisms produced “better” music but the careful reader
will pick up indications of which way he leans.

3~ Musical Borrowing

There is a vast scholarly literature on musical borrowing—indeed the discipline
of musicology takes the study of borrowing, in its largest sense, as one of its
main organizing themes. Beyond a personal tour provided by Professor Anthony
Kelley of Duke University, I found a number of books particularly useful.
Burkholder’s History (J. Peter Burkholder, Donald J. Grout, and Claude V.
Palisca, A History of Western Music, 7th ed. (New York: W. W. Norton, 2006)) is
full of examples of borrowing and influence—whether of style, notation, musical
conventions, or melody itself. But it is Burkholder’s book on Charles Ives—that
fertile early-twentieth-century borrower—that was most influential: J. Peter
Burkholder, All Made of Tunes: Charles Ives and the Uses of Musical Borrowing
(New Haven, Conn.: Yale University Press, 1995). Ives’s own thoughts on his
mashup of prior American musical forms can be found in Charles Ives, Memos, ed.
John Kirkpatrick (New York: W. W. Norton, 1991), 10–25. David Metzer’s
Quotation and Cultural Meaning in Twentieth-Century Music (Cambridge: Cambridge
University Press, 2003), throws light on the way that quotations or borrowings
came to have a particular cultural meaning in different musical traditions.
Honey Meconi’s collection Early Musical Borrowing, ed. Honey Meconi (New York:
Routledge, 2004), discusses—among many other things—the issue of borrowing
between the secular and religious musical traditions, something that helped me
work through that issue in this chapter. Finally, “Musical Borrowing: An
Annotated Bibliography” (http://www.chmtl.indiana.edu/borrowing/) provides a
searchable database of articles about musical borrowing.

3~ Music and Copyright Law

I was particularly influenced by two books and two articles. The books are
Kembrew McLeod, Owning Culture: Authorship, Ownership and Intellectual Property
Law (New York: Peter Lang, 2001), and Siva Vaidhyanathan, Copyrights and
Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity
(New York: New York University Press, 2001). McLeod and Vaidhyanathan are the
authors who sounded the alarm about the cultural and aesthetic effects of the
heavy-handed legal regulation of musical borrowing. Together with the work of
Larry Lessig (particularly his writing on the “permissions culture”) Lawrence
Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New
York: Random House, 2001), their scholarship has defined the field.

The two articles that influenced me the most focus more specifically on the
details of the evolution of music on the one hand and music copyright on the
other. Both of them are by Michael Carroll: “The Struggle for Music Copyright,”
Florida Law Review 57 (2005): 907–961, and “Whose Music Is It Anyway?: How We
Came to View Musical Expression as a Form of Property,” University of
Cincinnati Law Review 72 (2004): 1405–1496. But these two pieces by no means
exhaust the literature. Olufunmilayo Arewa has written memorably on copyright
and musical borrowing in “Copyright on Catfish Row: Musical Borrowing, Porgy &
Bess and Unfair Use,” Rutgers Law Journal 37 (2006): 277–353, and “From J. C.
Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context,” North
Carolina Law Review 84 (2006): 547–645. I also recommend K. J. Greene,
“Copyright, Culture & Black Music: A Legacy of Unequal Protection,” Hastings
Communications & Entertainment Law Journal 21 (1999): 339–392. There is much,
much more. Finally, Joanna Demers’s recent book Steal This Music: How
Intellectual Property Law Affects Musical Creativity (Athens: University of
Georgia Press, 2006), provides a more comprehensive coverage than I can hope to
in a single chapter.

Beyond the scholarly literature, two websites allow you to experiment with
these issues online. The History of Sampling created by Jesse Kriss,
http://jessekriss.com/projects/samplinghistory/, allows you to explore visually
exactly which hip-hop samplers borrowed from which older songs and to trace the
process backwards or forwards. Extremely cool. The Copyright Infringement
Project, sponsored by the UCLA Intellectual Property Project and Columbia Law
School, http://ccnmtl.columbia.edu/projects/law/library/caselist.html, is an
extremely useful educational site that gives examples of cases alleging musical
copyright infringement, including the relevant sound files. The older version
of this project confusingly referred to these cases as “plagiarism”
cases—something that judges themselves also frequently do. Plagiarism is the
moral, academic, or professional sin of taking ideas, facts or expression and
passing them off as your own. If I take the central arguments from your book
and completely reword them, or if I present a series of facts you uncovered as
an historian and include them in my own book without attribution, you may
accuse me of plagiarism, though not of copyright infringement. If I take the
words of Shakespeare or Dickens and pass them off as my own, I am committing
plagiarism but certainly not copyright infringement, for even under today’s
rules those works have long since entered the public domain. If I credit T. S.
Eliot but then proceed to reprint the entire of “The Love Song of J. Alfred
Prufrock” without the permission of the copyright holders, I am committing
copyright infringement, but certainly not plagiarism. At best, plagiarism and
copyright infringement overlap to some extent, but each regulates large areas
about which the other is indifferent. We sap the strength of both norm systems
by confusing them. The new incarnation of the project, at UCLA, has removed the
word “plagiarism” from its title.

3~ The People and the Music

A brief biography of Will Lamartine Thompson can be found in C. B. Galbreath,
“Song Writers of Ohio (Will Lamartine Thompson),” Ohio Archaeological and
Historical Quarterly 14 (January, 1905): 291–312. Since the copyright has
expired you can read it in full, and see the picture of Thompson, at
http://books.google.com/books?id=3N-WqdvA6T4C&printsec=titlepage#PRA1-PA291,M1.

The best book on Clara Ward is Willa Ward-Royster, Toni Rose, and Horace
Clarance Boyer, How I Got Over: Clara Ward and the World Famous Ward Singers
(Philadelphia, Penn.: Temple University Press, 1997).

The best biography of Ray Charles is Michael Lydon, Ray Charles: Man and Music
(New York: Routledge, 2004). Charles’s autobiography is also a fascinating
read. Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story
(Cambridge, Mass.: Da Capo Press, 1992). Charles’s website, which contains
useful biographical and discographical information, is at www.raycharles.com.
There is much more, of course, but these resources provide a good starting
place.

There are several hagiographic biographies of Mr. West, but none worth reading.
Those who have not already been inundated with information through the popular
press could do worse than to start with his rather breathless Wikipedia entry
http://en.wikipedia.org/wiki/Kanye_West.

The main source of information on The Legendary K.O.—a name they now use
intermittently—is their website is www.k-otix.com. (I am grateful to Mr.
Nickerson and Mr. Randle for confirming additional portions of the story by
e-mail.) The song “George Bush Doesn’t Like Black People” is no longer
available on their website, however an audio version of it is currently
available at http://www.ourmedia.org/node/53964. The Black Lantern’s video can
be found at http://www.theblacklantern.com/george.html. Franklin Lopez’s video
can currently be found at http://www.youtube.com/watch?v=UGRcEXtLpTo. Whether
any of those sites will be available in a year’s time is hard to tell. Those
who plan to listen or view are reminded that the lyrics are ‘explicit.’

The songs by Clara Ward, Ray Charles, and Kanye West are widely available
through a variety of commercial outlets, as are several commercial versions of
“Jesus is All the World to Me” by Mr. Thompson.

I would recommend The Clara Ward Singers, Meetin’ Tonight (Vanguard Records,
1994), compact disc. It includes a version of “Meetin’ Tonight: This Little
Light of Mine” in which the human limits on the ability to sustain a note are
broken repeatedly. Any Ray Charles compilation will feature some of the songs
discussed here. The most economical is probably Ray Charles, I’ve Got a Woman &
Other Hits by Ray Charles (Rhino Flashback Records, 1997), compact disc. It
includes “I Got a Woman” and “This Little Girl of Mine.” Kanye West, Late
Registration (Roc-a-Fella Records, 2005), compact disc, contains the full
version of “Gold Digger.”

Finally, I would love to be able to play you the full version of the Bailey
Gospel Singers “I Got a Savior” (B-Side: “Jesus is the Searchlight”) (Columbia
Records, 1951), 78 rpm phonograph record. Unfortunately, given the legal
uncertainties I am forbidden from doing so, and I know of no licit way—for free
or for pay—that you can listen to it, short of traveling to the Rodgers and
Hammerstein Archives of Recorded Sound at the New York Public Library for the
Performing Arts yourself and asking to hear the original 78. Perhaps that
simple fact is the most elegant encapsulation of my argument here.

1~ Chapter 7: The Enclosure of Science and Technology: Two Case Studies

Over the last forty years, much has changed in the way that scientific research
and technological development are organized, funded, and institutionally
arranged. Much has also changed in the type of scientific and technical
material that is covered by intellectual property rights, the ways that
material is covered, the parties who hold the rights, and the state of research
and development at which rights claims are made. Many academics who study both
science’s organizational structure and the intellectual property claims that
surround it are concerned about the results. To say this is not to conjure up a
tragically lost world of pure research science, untainted by property claims or
profit motives. That world never existed and it is probably a good thing too.
Intellectual property rights, and the profit motive more generally, have a
vital and beneficial role in moving innovations from lab bench to bedside, from
computer simulation to actual flight. The question is not whether intellectual
property rights are useful as part of scientific and technological development.
The question is what type of rights they should be, where in the research
process those rights are best deployed, how they should coexist with state
funded basic scientific and technological research, how broad they should be,
how they should deal with new technologies, how long they should last, how they
should treat follow-on innovations.

I cannot hope here to answer all those questions, though some fascinating
research has begun the process. Instead, as with the music chapter, I will
offer a case study—actually two case studies—that try to illuminate the process
I am describing, to illustrate its pitfalls and its strange and unintended
consequences.

The two defining technologies of the last thirty years are biotechnology and
the networked computer. Each is both product and platform. Innovations
themselves, they are also constitutive technologies that enable still more
innovations. But at several historical moments in the development of each we
came perilously close to breaking technology with law.~{See, e.g., Pamela
Samuelson, Randall Davis, Mitchell D. Kapor, and J. H. Reichman, “A Manifesto
Concerning the Legal Protection of Computer Programs,” Columbia Law Review 94
(1994): 2308–2431; Michael A. Heller and Rebecca S. Eisenberg, “Can Patents
Deter Innovation? The Anticommons in Biomedical Research,” Science 280 (1998):
698–701.}~ Some would say that it was not just a close shave: we actually have
hampered or limited the full potential of technology, slowing down its dynamism
with a host of overbroad software patents, gene patents, and materials transfer
agreements. Others are more optimistic. They think that a series of rapid
improvisations by courts, scientists, programmers, and businesspeople has
largely mitigated any problems caused by the process of legal expansion.~{Wes
Cohen’s empirical studies, for example, suggest that some of the potential
dangers from overbroad gene patents have been offset by widespread lawbreaking
among academic research scientists, who simply ignore patents that get in their
way, and by more flexible licensing practices than the anticommons theorists
had predicted. John P. Walsh, Ashish Arora, and Wesley Cohen, “Effects of
Research Tool Patents and Licensing on Biomedical Innovation,” in Patents in
the Knowledge-Based Economy, ed. W. Cohen and S. A. Merrill (National Research
Council, 2003), 285–340.}~ But if mistakes were made, it is important to know
what they were lest we continue or repeat them. If there were “fixes,” it is
important to know if they can be replicated.

So were there mistakes? If so, have they been fixed, and how? Drawing on an
article I co-wrote with my brilliant colleague Arti Rai,~{Arti Rai and James
Boyle, “Synthetic Biology: Caught between Property Rights, the Public Domain,
and the Commons,” PLoS Biology 5 (2007): 389–393, available at
http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050058&ct=1.
}~ this chapter suggests some answers to those questions by sketching out some
details of the legal history of those technologies, concluding with a
discussion of a single promising new technology that shares aspects of
both—synthetic biology. The answers are important. Behind the abstract words
“innovation” or “technological development” there are lives saved or lost,
communicative freedoms expanded or contracted, communities enabled or stunted,
wealth generated or not. The subject would benefit from informed,
sophisticated, democratic attention. It is not something you want to leave a
host of lawyers and lobbyists to decide among themselves.

2~ A Machine that Contains All Other Machines

Imagine a person staring at an infinite roll of paper tape. On the paper are
symbols in some alphabet or number system. The reader carries out simple, The
Enclosure of Science and Technology operable instructions on the basis of that
data. “Add together the next two digits you are presented with and write down
the answer. If the answer is odd, go to step 2. If the answer is even, go to
step 3.” Now replace the person with a mechanical head that can “read” the
instructions, carry out the desired operations, and write the answer down. The
British mathematician Alan Turing imagined something like this—a little more
complicated, perhaps, but fairly similar. What is it? We have the reading head,
the set of instructions, the data on which the instructions are to be
performed, the record of the result, and some kind of “state table” that tells
the machine where it is in the process. These are the component parts of Turing
machines—or as we know them better, computers. More accurately, Turing machines
are a method of simulating the operation of computers, a metaphor that enables
us to imitate their logical processes. In the words of Wikipedia, “despite
their simplicity—[they] can be adapted to simulate the logic of any computer
that could possibly be constructed.” And to give lawyers fits. But that is
getting ahead of ourselves.

In Greek mythology, Procrustes had a bed to which he fitted its prospective
occupants, whether they liked it or not. The tall were trimmed down. The short
stretched on the rack. Intellectual property lawyers have many similarities to
Procrustes. The technologies that are brought before them are made to fit the
conceptual boxes the law provides, boxes with names such as “copyright” and
“patent.” Occasionally, new conceptual boxes are made, but—for very good
reasons—most of the time we stick with the boxes we have. As with Procrustes,
things do not always fit and the process can be distressing for its subjects.

It is important to realize that the process of trimming and stretching can be
done well or badly. If it is done really badly, the technology is stunted,
deformed, even destroyed. If it is done well, the law aids the development of
the technology in exactly the happy way described in Chapter 1. What did our
Procrustean legal system do with computers and computer science?

I will focus on software—the set of instructions the machine is to perform. How
should we think of it? Software is written down by programmers. It is recorded
first in a form readable to humans, or at least geeks. Then, through a series
of transformations, it is turned into the machine code, the ones and zeros that
will operate the computer. But at its root it can be understood through the
metaphor of the simple list of instructions to be carried out in order, just as
with the Turing machine and its infinite tape.

How should we fit software into the categories of intellectual property? We
have “writing,” fixation in some medium of symbols that can be read by
others—both machine and human. Writing is normally the domain of copyright. Are
computer programs copyrightable? All kinds of problems present themselves. At
least in the United States, copyright covers expression. As I pointed out in a
previous book, at its base is the conception of the romantic author impressing
her uniqueness of spirit on the work at the moment of writing. It is that
expressive choice, not the facts or ideas on which the work is based, that
copyright covers. And it is only original expression that copyright covers. It
does not cover purely functional objects, systems, processes, or methods of
operation. One cannot copyright the coat hanger, the mousetrap, or long
division. One cannot even copyright a “sculpture” if the main function of its
design is to serve as a bicycle rack. Admittedly, one can copyright some
expressive works that serve a practical purpose. A book about how to do
double-entry bookkeeping is copyrightable. Yet copyright covers only the
expressive choices used in selecting the words to explain the method, and the
images to represent it, not the methods it describes or the facts or ideas it
contains. Can copyright cover computer programs? Should we see them as
copyrightable how-to books or as uncopyrightable machines made of words?

Machines and other functional innovations are normally the domain of patent
rights. One can patent the mousetrap, and then one gets an exclusive right to
the actual mechanically enabled method of catching mice, not just the artistic
flourishes on the blueprint. Patents have more demanding criteria than
copyrights. The invention needs to be novel and have utility, or usefulness; I
cannot get a patent over something that would have been an obvious idea to an
insider in the relevant field of technology, a “person having ordinary skill in
the art,” or PHOSITA, in the jargon of patent lawyers. But once I get my
patent, it gives me a very strong power to exclude others from the
invention—even if they came up with it independently. The right lasts for
twenty years. Follow-on innovators who improve on my idea can get a patent on
that improvement. They can block me from using the improvement. I can block
them from using the original invention. Thus we have an incentive to negotiate
if either of us wants to bring the improved innovation to market.

So where did software fit? Was it copyrightable writing or patentable
invention? There are two issues here. The first is whether there should be any
intellectual property rights over software at all. The basic case for that
proposition is simple, a classic example of the public goods problem described
in the first chapter. Software costs money to create, but is cheap to copy.
When a youthful The Enclosure of Science and Technology Bill Gates wrote his
1976 letter to the wonderfully named Dr. Dobb’s Journal of Computer
Calisthenics & Orthodontia, he put the point clearly.

_1 Who can afford to do professional work for nothing? What hobbyist can put
3-man years into programming, finding all the bugs, documenting his product and
distribute it for free? The fact is, no one besides us has invested a lot of
money into hobby software. We have written 6800 BASIC, and are writing 8080 APL
and 6800 APL, but there is very little incentive to make this software
available to hobbyists. Most directly, the thing you do is theft.~{William
Gates III, An Open Letter to Hobbyists, February 3, 1976, quoted in Wallace
Wang, Steal This Computer Book 4.0: What They Won’t Tell You About the Internet
(San Francisco: No Starch Press, 2006), 73.}~

He signed the letter “Bill Gates, General Partner, Micro-Soft.” The hyphen
would disappear in time. The philosophy stuck around.

Though there are quibbles about the facts in Gates’s letter—critics claim he
himself did a lot of free riding on public domain code and government-funded
computer time—his basic point is that software needs to be protected by
(enforceable) property rights if we expect it to be effectively and sustainably
produced. Some software developers disagree. But assuming one concedes the
point for the sake of argument, there is a second question: should software be
covered by copyright or patent, or some unidentified third option? In practice,
software ended up being covered by both schemes, partly because of actions by
Congress, which included several references to software in the Copyright Act,
and partly as a result of decisions by the Copyright Office, the Patent and
Trademark Office, and judges. One could copyright one’s code and also gain a
patent over the “nonobvious,” novel, and useful innovations inside the
software.

At first, it was the use of copyright that stirred the most concern. As I
explained in the last chapter, copyright seems to be built around an assumption
of diverging innovation—the fountain or explosion of expressive activity.
Different people in different situations who sit down to write a sonnet or a
love story, it is presumed, will produce very different creations rather than
being drawn to a single result. Thus strong rights over the resulting work are
not supposed to inhibit future progress. I can find my own muse, my own path to
immortality. Creative expression is presumed to be largely independent of the
work of prior authors. Raw material is not needed. “Copyright is about
sustaining the conditions of creativity that enable an individual to craft out
of thin air an Appalachian Spring, a Sun Also Rises, a Citizen Kane.”~{Paul
Goldstein, “Copyright,” Journal of the Copyright Society of the U.S.A. 38
(1991): 109–110.}~

There are lots of reasons to doubt that this vision of “creation out of
nothing” works very well even in the arts, the traditional domain of copyright
law. The story of Ray Charles’s “I Got a Woman” bears ample witness to those
doubts. But whatever its merits or defects in the realm of the arts, the vision
seems completely wrongheaded when it comes to software. Software solutions to
practical problems do converge, and programmers definitely draw upon prior
lines of code. Worse still, as I pointed out earlier, software tends to exhibit
“network effects.” Unlike my choice of novel, my choice of word processing
program is very strongly influenced, perhaps dominated, by the question of what
program other people have chosen to buy. That means that even if a programmer
could find a completely different way to write a word processing program, he
has to be able to make it read the dominant program’s files, and mimic its
features, if he is to attract any customers at all. That hardly sounds like
completely divergent creation.

Seeing that software failed to fit the Procrustean bed of copyright, many
scholars presumed the process of forcing it into place would be catastrophic.
They believed that, lacking patent’s high standards, copyright’s monopolies
would proliferate widely. Copyright’s treatment of follow-on or “derivative”
works would impede innovation, it was thought. The force of network effects
would allow the copyright holder of whatever software became “the standard” to
extract huge monopoly rents and prevent competing innovation for many years
longer than the patent term. Users of programs would be locked in, unable to
shift their documents, data, or acquired skills to a competing program. Doom
and gloom abounded among copyright scholars, including many who shared Mr.
Gates’s basic premise—that software should be covered by property rights. They
simply believed that these were the wrong property rights to use.

Copyright did indeed cause problems for software developers, though it is hard
to judge whether those problems outweighed the economic benefits of encouraging
software innovation, production, and distribution. But the negative effects of
copyright were minimized by a remarkably prescient set of actions by courts
and, to a much lesser extent, Congress, so that the worst scenarios did not
come to pass. Courts interpreted the copyright over software very narrowly, so
that it covered little beyond literal infringement. (Remember Jefferson’s point
about the importance of being careful about the scope of a right.) They
developed a complicated test to work out whether one program infringed the
details of another. The details give law students headaches every year, but the
effects were simple. If your software was similar to mine merely because it was
performing the same function, or because I had picked the most efficient way to
perform some task, or even because there was market demand for doing it that
way, then none of those similarities counted for the purposes of infringement.
Nor did material that was taken from the public domain. The result was that
while someone who made literal copies of Windows Vista was clearly infringing
copyright, the person who made a competing program generally would not be.

In addition, courts interpreted the fair use doctrine to cover
“decompilation”—which is basically taking apart someone else’s program so that
you can understand it and compete with it. As part of the process, the
decompiler had to make a copy of the program. If the law were read literally,
decompilation would hardly seem to be a fair use. The decompiler makes a whole
copy, for a commercial purpose, of a copyrighted work, precisely in order to
cause harm to its market by offering a substitute good. But the courts took a
broader view. The copy was a necessary part of the process of producing a
competing product, rather than a piratical attempt to sell a copy of the same
product. This limitation on copyright provided by fair use was needed in order
to foster the innovation that copyright is supposed to encourage. This is a
nice variation of the Sony Axiom from Chapter 4.

These rulings and others like them meant that software was protected by
copyright, as Mr. Gates wanted, but that the copyright did not give its owner
the right to prevent functional imitation and competition. Is that enough?
Clearly the network effects are real. Most of us use Windows and most of us use
Microsoft Word, and one very big reason is because everyone else does.
Optimists believe the lure of capturing this huge market will keep potential
competitors hungry and monopolists scared. The lumbering dominant players will
not become complacent about innovation or try to grab every morsel of monopoly
rent, goes the argument. They still have to fear their raptor-like competitors
lurking in the shadows. Perhaps. Or perhaps it also takes the consistent threat
of antitrust enforcement. In any event, whether or not we hit the optimal point
in protecting software with intellectual property rights, those rights
certainly did not destroy the industry. It appeared that, even with convergent
creativity and network effects, software could be crammed into the Procrustean
bed of copyright without killing it off in the process. Indeed, to some, it
seemed to fare very well. They would claim that the easy legal protection
provided by copyright gave a nascent industry just enough protection to
encourage the investment of time, talent, and dollars, while not prohibiting
the next generation of companies from building on the innovations of the past.

In addition, the interaction between copyright and software has produced some
surprising results. There is a strong argument that it is the fact that
software is copyrightable that has enabled the “commons-based creativity” of
free and open source software. What does commons-based creativity mean?
Basically, it is creativity that builds on an open resource available to all.
An additional component of some definitions is that the results of the
creativity must be fed back into the commons for all to use. Think of English.
You can use English without license or fee, and you can innovate by producing
new words, slang, or phrases without clearance from some Academie Anglaise.
After you coin your term, it is in turn available to me to build upon or to use
in my own sentences, novels, or jokes. And so the cycle continues. As the last
chapter showed, for the entire history of musical creativity until the last
forty years or so, the same had been true of at least a low level of musical
borrowing. At the basic level of musical phrases, themes, snatches of melody,
even chord structures, music was commons-based creativity. Property rights did
not reach down into the atomic structure of music. They stayed at a higher
level—prohibiting reproduction of complete works or copying of substantial and
important chunks. So in some areas of both music and language, we had
commons-based creativity because there were no property rights over the
relevant level. The software commons is different.

The creators of free and open source software were able to use the fact that
software is copyrighted, and that the right attaches automatically upon
creation and fixation, to set up new, distributed methods of innovation. For
example, free and open source software under the General Public License—such as
Linux—is a “commons” to which all are granted access. Anyone may use the
software without any restrictions. They are guaranteed access to the
human-readable “source code,” rather than just the inscrutable “machine code,”
so that they can understand, tinker, and modify. Modifications can be
distributed so long as the new creation is licensed under the open terms of the
original. This creates a virtuous cycle: each addition builds on the commons
and is returned to it. The copyright over the software was the “hook” that
allowed software engineers to create a license that gave free access and the
right to modify and required future programmers to keep offering those
freedoms. Without the copyright, those features of the license would not have
been enforceable. For example, someone could have modified the open program and
released it without the source code—denying future users the right to
understand and modify easily. To use an analogy beloved of free software
enthusiasts, the hood of the car would be welded shut. Home repair, tinkering,
customization, and redesign become practically impossible.

Of course, if there were no copyright over software at all, software engineers
would have other freedoms—even if not legally guaranteed open access to source
code. Still, it was hard to deny that the extension of the property regime
had—bizarrely, at first sight—actually enabled the creation of a continuing
open commons. The tempting real estate analogy would be environmentalists using
strong property rights over land to guarantee conservation and open access to a
green space, where, without property rights, the space could be despoiled by
all. But as I have pointed out earlier, while such analogies may help us, the
differences between land and intellectual property demand that they be
scrutinized very carefully. It is hard to overgraze an idea.

So much for copyright. What about patents? U.S. patent law had drawn a firm
line between patentable invention and unpatentable idea, formula, or algorithm.
The mousetrap could be patented, but not the formula used to calculate the
speed at which it would snap shut. Ideas, algorithms, and formulae were in the
public domain—as were “business methods.” Or so we thought.

The line between idea or algorithm on the one hand and patentable machine on
the other looks nice and easy. But put that algorithm—that series of steps
capable of being specified in the way described by the Turing machine—onto a
computer, and things begin to look more complex. Say, for example, that
algorithm was the process for converting miles into kilometers and vice versa.
“Take the first number. If it is followed by the word miles, then multiply by
8/5. If it is followed by the word kilometers, multiply by 5/8 . . .” and so
on. In the abstract, this is classic public domain stuff—no more patentable
than E=mc2 or F=ma. What about when those steps are put onto the tape of the
Turing machine, onto a program running on the hard drive of a computer?

The Court of Appeals for the Federal Circuit (the United States’s leading
patent court) seems to believe that computers can turn unpatentable ideas into
patentable machines. In fact, in this conception, the computer sitting on your
desk becomes multiple patentable machines—a word processing machine, an e-mail
machine, a machine running the program to calculate the tensile strength of
steel. I want to stress that the other bars to patentability remain. My example
of mile-to-kilometer conversion would be patentable subject matter but, we
hope, no patent would be granted because the algorithm is not novel and is
obvious. (Sadly, the Patent and Trademark Office seems determined to undermine
this hope by granting patents on the most mundane and obvious applications.)
But the concern here is not limited to the idea that without a subject matter
bar, too many obvious patents will be granted by an overworked and badly
incentivized patent office. It is that the patent was supposed to be granted at
the very end of a process of investigation and scientific and engineering
innovation. The formulae, algorithms, and scientific discoveries on which the
patented invention was based remained in the public domain for all to use. It
was only when we got to the very end of the process, with a concrete innovation
ready to go to market, that the patent was to be given. Yet the ability to
couple the abstract algorithm with the concept of a Turing machine undermines
this conception. Suddenly the patents are available at the very beginning of
the process, even to people who are merely specifying—in the abstract—the idea
of a computer running a particular series of algorithmic activities.

The words “by means of a computer” are—in the eyes of the Federal Circuit—an
incantation of magical power, able to transubstantiate the ideas and formulae
of the public domain into private property. And, like the breaking of a minor
taboo that presages a Victorian literary character’s slide into debauchery,
once that first wall protecting the public domain was breached, the court found
it easier and easier to breach still others. If one could turn an algorithm
into a patentable machine simply by adding “by means of a computer,” then one
could turn a business method into something patentable by specifying the
organizational or information technology structure through which the business
method is to be implemented.

If you still remember the first chapters of this book, you might wonder why we
would want to patent business methods. Intellectual property rights are
supposed to be handed out only when necessary to produce incentives to supply
some public good, incentives that otherwise would be lacking. Yet there are
already plenty of incentives to come up with new business methods. (Greed and
fear are the most obvious.) There is no evidence to suggest that we need a
state-backed monopoly to encourage the development of new business methods. In
fact, we want people to copy the businesses of others, lowering prices as a
result. The process of copying business methods is called “competition” and it
is the basis of a free-market economy. Yet patent law would prohibit it for
twenty years. So why introduce patents? Brushing aside such minor objections
with ease, the Court of Appeals for the Federal Circuit declared business
methods to be patentable. Was this what Jefferson had in mind when he said “I
know well the difficulty of drawing a line between the things which are worth
to the public the embarrassment of an exclusive patent, and those which are
not”? I doubt it.

It is commonplace for courts to look at the purpose of the law they are
enforcing when seeking to understand what it means. In areas of regulation
which are obviously instrumental—aimed at producing some particular result in
the world—that approach is ubiquitous. In applying the antitrust laws, for
example, courts have given meaning to the relatively vague words of the law by
turning to economic analysis of the likely effects of different rules on
different market structures.

Patent law is as instrumental a structure as one could imagine. In the United
States, for example, the constitutional authorization to Congress to pass
patent and copyright legislation is very explicit that these rights are to be
made with a purpose in view. 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.” One might
imagine that courts would try to interpret the patent and copyright laws with
that purpose, and the Jefferson Warning about its constraints, firmly in mind.
Yet utilitarian caution about extending monopolies is seldom to be found in the
reasoning of our chief patent court.

The difference is striking. Jefferson said that the job of those who
administered the patent system was to see if a patent was “worth the
embarrassment to the public” before granting it. The Constitution tells
Congress to make only those patent laws that “promote the progress of science
and useful arts.” One might imagine that this constitutional goal would guide
courts in construing those same laws. Yet neither Jeffersonian ideals nor the
constitutional text seem relevant to our chief patent court when interpreting
statutory subject matter. Anything under the sun made by man is patentable
subject matter, and there’s an end to it. The case that announced the rule on
business methods involved a patent on the process of keeping accounts in a
“hub-and-spoke” mutual fund—which included multiplying all of the stock
holdings of each fund in a family of funds by the respective current share
price to get total fund value and then dividing by the number of mutual fund
shares that each customer actually holds to find the balance in their accounts.
As my son observed, “I couldn’t do that until nearly the end of third
grade!”~{State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d
1368, 1373 (Fed. Cir. 1998).}~

In theory of course, if the patent is not novel or is obvious, it will still be
refused. The Supreme Court recently held that the Court of Appeals for the
Federal Circuit has made “nonobvious” too easy a standard to meet.~{KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398 (2007) [Ed. note: originally published as
550 U.S. ___ (2007), 127 S. Ct. 1727 (2007); citation updated].}~ It is
unclear, however, whether that judgment will produce concrete effects on actual
practices of patent grants and litigation. The Patent and Trademark Office puts
pressure on examiners to issue patents, and it is very expensive to challenge
those that are granted. Better, where possible, to rule out certain subject
matter in the first place. Tempted in part by its flirtation with the “idea
made machine” in the context of a computer, the Court of Appeals for the
Federal Circuit could not bring itself to do so. Where copyright law evolved to
wall off and minimize the dangers of extending protection over software, patent
law actually extended the idea behind software patents to make patentable any
thought process that might produce a useful result. Once breached, the walls
protecting the public domain in patent law show a disturbing tendency to erode
at an increasing rate.

To sum up, the conceptual possibilities presented to copyright and patent law
by the idea of a Turing machine were fascinating. Should we extend copyright or
patent to cover the new technology? The answer was “we will extend both!” Yet
the results of the extension were complex and unexpected in ways that we will
have to understand if we want to go beyond the simple but important injunctions
of Jefferson and Macaulay. Who would have predicted that software copyrights
could be used to create a self-perpetuating commons as well as a monopoly over
operating systems, or that judges would talk knowingly of network effects in
curtailing the scope of coverage? Who would have predicted that patents would
be extended not only to basic algorithms implemented by a computer, but to
methods of business themselves (truly a strange return to legalized business
monopolies for a country whose founders viewed them as one of the greatest
evils that could be borne)?

2~ Synthetic Biology

If you are a reader of Science, PLoS Biology, or Nature, you will have noticed
some attractive and bizarre photographs recently. A field of bacteria that form
themselves into bull’s-eyes and polka dots. A dim photograph of a woman’s face
“taken” by bacteria that have been programmed to be sensitive to light. You may
also have read about more inspiring, if less photogenic, accomplishments—for
example, the group of scientists who managed to program bacteria to produce
artemesinin, a scarce natural remedy for malaria derived from wormwood. Poking
deeper into these stories, you would have found the phrase “synthetic biology”
repeated again and again, though a precise definition would have eluded you.

What is “synthetic biology”? For some it is simply that the product or process
involves biological materials not found in nature. Good old-fashioned
biotechnology would qualify. One of the first biotechnology patent cases,
Diamond v. Chakrabarty, involved some bacteria which Dr. Chakrabarty had
engineered to eat oil slicks—not their natural foodstuff.~{Diamond v.
Chakrabarty, 447 U.S. 303 (1980).}~ The Supreme Court noted that the bacteria
were not found in nature and found them to be patentable, though alive.
According to the simplest definition, Dr. Chakrabarty’s process would count as
synthetic biology, though this example antedates the common use of the term by
two decades. For other scientists, it is the completely synthetic quality of
the biology involved that marks the edge of the discipline. The DNA we are
familiar with, for example, has four “base pairs”—A, C, G, and T. Scientists
have developed genetic alphabets that involve twelve base pairs. Not only is
the result not found in nature, but the very language in which it is expressed
is entirely new and artificial.

I want to focus on a third conception of synthetic biology: the idea of turning
biotechnology from an artisanal process of one-off creations, developed with
customized techniques, to a true engineering discipline, using processes and
parts that are as standardized and as well understood as valves, screws,
capacitors, or resistors. The electrical engineer told to build a circuit does
not go out and invent her own switches or capacitors. She can build a circuit
using off-the-shelf components whose performance is expressed using standard
measurements. This is the dream of one group of synthetic biologists: that
biological engineering truly become engineering, with biological black boxes
that perform all of the standard functions of electrical or mechanical
engineering—measuring flow, reacting to a high signal by giving out a low
signal, or vice versa, starting or terminating a sequence, connecting the
energy of one process to another, and so on.

Of course an engineer understands the principle behind a ratchet, or a valve,
but he does not have to go through the process of thinking “as part of this
design, I will have to create a thing that lets stuff flow through one way and
not the other.” The valve is the mechanical unit that stands for that thought,
a concept reified in standardized material form which does not need to be taken
apart and parsed each time it is used. By contrast, the synthetic biologists
claim, much of current biotechnological experimentation operates the way a
seventeenth-century artisan did. Think of the gunsmith making beautiful one-off
classics for his aristocratic patrons, without standardized calibers, parts, or
even standard-gauge springs or screws. The process produces the gun, but it
does not use, or produce, standard parts that can also be used by the next
gunsmith.

Is this portrayal of biology correct? Does it involve some hyping of the new
hot field, some denigration of the older techniques? I would be shocked,
shocked, to find there was hype involved in the scientific or academic
enterprise. But whatever the degree to which the novelty of this process is
being subtly inflated, it is hard to avoid being impressed by the projects that
this group of synthetic biologists has undertaken. The MIT Registry of Standard
Biological Parts, for example, has exactly the goal I have just described.

_1 The development of well-specified, standard, and interchangeable biological
parts is a critical step towards the design and construction of integrated
biological systems. The MIT Registry of Standard Biological Parts supports this
goal by recording and indexing biological parts that are currently being built
and offering synthesis and assembly services to construct new parts, devices,
and systems. . . . In the summer of 2004, the Registry contained about 100
basic parts such as operators, protein coding regions, and transcriptional
terminators, and devices such as logic gates built from these basic parts.
Today the number of parts has increased to about 700 available parts and 2000
defined parts. The Registry believes in the idea that a standard biological
part should be well specified and able to be paired with other parts into
subassemblies and whole systems. Once the parameters of these parts are
determined and standardized, simulation and design of genetic systems will
become easier and more reliable. The parts in the Registry are not simply
segments of DNA, they are functional units.~{
http://parts.mit.edu/registry/index.php/Help:About_the_Registry. }~

Using the Registry, a group of MIT scientists organizes an annual contest
called iGEM, the International Genetically Engineered Machine competition.
Students can draw from the standard parts that the Registry contains, and
perhaps contribute their own creations back to it. What kinds of “genetically
engineered machines” do they build?

_1 A team of eight undergraduates from the University of Ljubljana in
Slovenia—cheering and leaping onto MIT’s Kresge Auditorium stage in green team
T-shirts—won the grand prize earlier this month at the International
Genetically Engineered Machine (iGEM) competition at MIT. The group—which
received an engraved award in the shape of a large aluminum Lego piece—explored
a way to use engineered cells to intercept the body’s excessive response to
infection, which can lead to a fatal condition called sepsis. The goal of the
380 students on 35 university teams from around the world was to build
biological systems the way a contractor would build a house—with a toolkit of
standard parts. iGEM participants spent the summer immersed in the growing
field of synthetic biology, creating simple systems from interchangeable parts
that operate in living cells. Biology, once thought too complicated to be
engineered like a clock, computer or microwave oven, has proven to be open to
manipulation at the genetic level. The new creations are engineered from
snippets of DNA, the molecules that run living cells.~{“Gene Machine: Cells
Engineered to Prevent Sepsis Win Synthetic Biology Competition,” Science Daily
(November 15, 2006), available at
http://www.sciencedaily.com/releases/2006/11/061114193826.htm. }~

Other iGEM entries have included E. coli bacteria that had been engineered to
smell like wintergreen while they were growing and dividing and like bananas
when they were finished, a biologically engineered detector that would change
color when exposed to unhealthy levels of arsenic in drinking water, a method
of programming mouse stem cells to “differentiate” into more specialized cells
on command, and the mat of picture-taking bacteria I mentioned earlier.

No matter how laudable the arsenic detector or the experimental technique
dealing with sepsis, or how cool the idea of banana-scented, picture-taking
bacteria, this kind of enterprise will cause some of you to shudder. Professor
Drew Endy, one of the pioneers in this field, believes that part of that
reaction stems from simple novelty. “A lot of people who were scaring folks in
1975 now have Nobel prizes.”~{ http://web.mit.edu/newsoffice/2006/igem.html. }~
But even if inchoate, the concerns that synthetic biology arouses stem from
more than novelty. There is a deep-seated fear that if we see the natural world
of biology as merely another system that we can routinely engineer, we will
have extended our technocratic methods into a realm that was only
intermittently subject to them in a way that threatens both our structure of
self-understanding and our ecosystem.

To this, the synthetic biologists respond that we are already engineering
nature. In their view, planned, structured, and rationalized genetic
engineering poses fewer dangers than poorly understood interventions to produce
some specific result in comparative ignorance of the processes we are employing
to do so. If the “code” is transparent, subject to review by a peer community,
and based on known parts and structures, each identified by a standard genetic
“barcode,” then the chance of detecting problems and solving them is higher.
And while the dangers are real and not to be minimized, the potential
benefits—the lives saved because the scarce antimalarial drug can now be
manufactured by energetic E. coli or because a cheap test can demonstrate
arsenic contamination in a village well—are not to be minimized either.

I first became aware of synthetic biology when a number of the scientists
working on the Registry of Standard Biological Parts contacted me and my
colleague Arti Rai. They did not use these exact words, but their question
boiled down to “how does synthetic biology fare in intellectual property’s
categories, and how can we keep the basics of the science open for all to use?”
As you can tell from this book, I find intellectual property
fascinating—lamentably so perhaps. Nevertheless, I was depressed by the idea
that scientists would have to spend their valuable time trying to work out how
to save their discipline from being messed up by the law. Surely it would be
better to have them doing, well, science?

They have cause for concern. As I mentioned at the beginning of this chapter,
synthetic biology shares characteristics of both software and biotechnology.
Remember the focus on reducing functions to black boxes. Synthetic biologists
are looking for the biological equivalents of switches, valves, and inverters.
The more abstractly these are described, the more they come to resemble simple
algebraic expressions, replete with “if, then” statements and instructions that
resolve to “if x, then y, if not x, then z.”

If this sounds reminiscent of the discussion of the Turing machine, it should.
When the broad rules for software and business methods were enunciated by the
federal courts, software was already a developed industry. Even though the
rules would have allowed the equivalent of patenting the alphabet, the very
maturity of the field minimized the disruption such patents could cause. Of
course “prior art” was not always written down. Even when it was recorded, it
was sometimes badly handled by the examiners and the courts, partly because
they set a very undemanding standard for “ordinary expertise” in the art.
Nevertheless, there was still a lot of prior experience and it rendered some of
the more basic claims incredible. That is not true in the synthetic biology
field.

Consider a recent article in Nature, “A universal RNAi-based logic evaluator
that operates in mammalian cells.”~{Keller Rinaudo et al., “A universal
RNAi-based logic evaluator that operates in mammalian cells,” Nature
Biotechnology 25 (2007): 795–801.}~ The scientists describe their task in terms
that should be familiar. “A molecular automaton is an engineered molecular
system coupled to a (bio)molecular environment by ‘flow of incoming messages
and the actions of outgoing messages,’ where the incoming messages are
processed by an ‘intermediate set of elements,’ that is, a computer.” The
article goes on to describe some of the key elements of so-called “Boolean
algebra”—“or,” “and,” “not,” and so on—implemented in living mammalian cells.

These inscriptions of Boolean algebra in cells and DNA sequences can be
patented. The U.S. Department of Health and Human Services, for example, owns
patent number 6,774,222:

_1 This invention relates to novel molecular constructs that act as various
logic elements, i.e., gates and flip-flops. . . . The basic functional unit of
the construct comprises a nucleic acid having at least two protein binding
sites that cannot be simultaneously occupied by their cognate binding protein.
This basic unit can be assembled in any number of formats providing molecular
constructs that act like traditional digital logic elements (flips-flops,
gates, inverters, etc.).

My colleagues Arti Rai and Sapna Kumar have performed a patent search and found
many more patents of similar breadth.~{Sapna Kumar and Arti Rai, “Synthetic
Biology: The Intellectual Property Puzzle,” Texas Law Review 85 (2007):
1745–1768.}~

What is the concern? After all, this is cutting-edge science. These seem like
novel, nonobvious inventions with considerable utility. The concern is that the
change in the rules over patentable subject matter, coupled with the Patent and
Trademark Office’s handling of both software and biotechnology, will come
together so that the patent is not over some particular biological circuit,
but, rather, over Boolean algebra itself as implemented by any biotechnological
means. It would be as if, right at the beginning of the computer age, we had
issued patents over formal logic in software—not over a particular computer
design, but over the idea of a computer or a binary circuit itself.

“By means of a computer” was the magic phrase that caused the walls around the
public domain of algorithms and ideas to crumble. Will “by means of a
biological circuit” do the same? And—to repeat the key point—unlike computer
science, biotechnology is developing after the hypertrophy of our intellectual
property system. We do not have the immune system provided by the established
practices and norms, the “prior art,” even the community expectations that
protected software from the worst effects of patents over the building blocks
of science.

Following the example of software, the founders of the MIT Registry of Standard
Biological Parts had the idea of protecting their discipline from overly
expansive intellectual property claims by turning those rights against
themselves. Free and open source software developers have created a “commons”
using the copyright over the code to impose a license on their software, one
that requires subsequent developers to keep the source open and to give
improvements back to the software commons—a virtuous cycle. Could the Registry
of Standard Biological Parts do the same thing? The software commons rests on a
license. But, as I pointed out in the last section, the license depends on an
underlying property right. It is because I have automatic copyright over my
code that I can tell you “use it according to these terms or you will be
violating my copyright.” Is there a copyright over the products of synthetic
biology? To create one we would have to take the extension of copyright that
was required to reach software and stretch it even further. Bill Gates might
argue for intellectual property rights over software using the logic of his
article in Dr. Dobb’s Journal. Will the argument for copyrights over synthetic
biological coding be “I need the property right so I can create a commons”?

In practice, I think the answer is, and should be, no. Of course, one could
think of this as just another type of coding, making expressive choices in a
code of A’s, C’s, G’s, and T’s, just as a programmer does in Java or C++. Yet,
software was already a stretch for copyright law. Synthetic biology strikes me
as a subject matter that the courts, Congress, and the Copyright Office are
unlikely to want to cram into copyright’s already distorted
outlines—particularly given the obvious availability of patent rights. As a
matter of conceptual intuition, I think they will see biological subject matter
as harder to fit into the categories of original expressive writing. On one
level, yes, it is all information, but, on another level, the idea of
programming with gene sequences will probably raise hackles that the idea of
coding inside a programming language never would. As a normative matter, I
think it would be a poor choice to apply copyright to the products of synthetic
biology. Attempting to produce a particular open commons, one might enable the
kind of hundred-year monopolies over functional objects that the critics of
software copyright initially feared.

If one wishes to keep the basic ideas and techniques of synthetic biology open
for subsequent innovators, there are alternatives to the idea of a synthetic
biology open source license. The Registry of Standard Biological Parts or the
BioBricks Foundation can simply put all their work into the public domain
immediately. (This, indeed, is what they are currently doing.) Such a scheme
lacks one key feature of open source software: the right to force subsequent
innovators to release their code back into the commons. Yet it would make
subsequent patents on the material impossible, because it had already been
published.

Regardless of the decisions made about the future of synthetic biology, I think
its story—coupled to that of software and biotechnology more generally—presents
us with an important lesson. I started the chapter with the metaphor of
Procrustes’s bed. But in the case of software and biotechnology, both the
bed—the categories of copyright and patent—and its inhabitants—the new
technologies—were stretched. Cracks formed in the boundaries that were supposed
to prevent copyright from being applied to functional articles, to prevent
patents extending to cover ideas, algorithms, and business methods.

Until this point, though the science would have been strange to Jefferson or
his contemporaries, the underlying issue would have been familiar. The
free-trade, Scottish Enlightenment thinkers of the eighteenth and nineteenth
centuries would have scoffed at the idea that business methods or algorithms
could be patented, let alone that one could patent the “or,” “if-then,” and
“not” functions of Boolean algebra as implemented by a biological mechanism.
The response, presumably, is to fine tune our patent standards—to patent the
mousetrap and the corkscrew, not the notion of catching mice or opening bottles
by mechanical means. Still less should we allow the patenting of algebra. These
are fine points. Later scholarship has added formulae, data, and historical
analysis to back up Jefferson’s concerns, while never surpassing his prose. As
I said at the beginning of the book, if we were to print out the Jefferson
Warning and slip it into the shirt pocket of every legislator and regulator,
our policy would be remarkably improved.

But it is here that the story takes a new turn, something that neither
Jefferson nor the philosophers of the Scottish Enlightenment had thought of,
something that goes beyond their cautions not to confuse intellectual property
with physical property, to keep its boundaries, scope, and term as small as
possible while still encouraging the desired innovation.

Think of the reaction of the synthetic biologists at MIT. They feared that the
basic building blocks of their new discipline could be locked up, slowing the
progress of science and research by inserting intellectual property rights at
the wrong point in the research cycle. To solve the problem they were led
seriously to consider claiming copyright over the products of synthetic
biology—to fight overly broad patent rights with a privately constructed
copyright commons, to ride the process of legal expansion and turn it to their
own ends. As I pointed out earlier, I think the tactic would not fare well in
this particular case. But it is an example of a new move in the debate over
intellectual property, a new tactic: the attempt to create a privately
constructed commons where the public domain created by the state does not give
you the freedom that you believe creativity needs in order to thrive. It is to
that tactic, and the distributed creativity that it enables, that I will turn
to now.

2~ Chapter 7: Further Reading

As the introduction to this chapter suggests, the intersection of intellectual
property law and science and technology has been attracting considerable
attention from scholars recently, some of it dismayed. The difficulty—and this
is why I chose the case-study method for this chapter—is that there are
multiple sets of concerns and they resist easy summary.

The first set of concerns is that the granting of intellectual property rights
far “upstream”—that is very close to basic science—is impeding the process of
science and technology. In addition, scholars have argued that the sheer volume
of intellectual property claims will produce an anti-commons effect or patent
thicket. Michael A. Heller and Rebecca S. Eisenberg, “Can Patents Deter
Innovation? The Anticommons in Biomedical Research,” Science 280 (1998):
698–701. The argument here is that the closer one is to basic research the
stronger the case is for leaving the information untouched by property
rights—allowing all to draw on it and develop “downstream” innovations, which
can then be covered by intellectual property rights. In practice, two concerns
are often alluded to: the fact that much of the basic research is state funded
and conducted in nonprofit universities and the belief that the transaction
costs of licensing will inhibit research or concentrate it in a few hands.
Research on genes indicating a propensity to breast cancer is a frequently
cited example of the latter problem. Fabienne Orsi and Benjamin Coriat, “Are
‘Strong Patents’ Beneficial to Innovative Activities? Lessons from the Genetic
Testing for Breast Cancer Controversies,” Industrial and Corporate Change 14
(2005): 1205–1221. But here, too, anecdote outweighs evidence. Timothy
Caulfield, Robert M. Cook-Deegan, F. Scott Kieff, and John P. Walsh, “Evidence
and Anecdotes: An Analysis of Human Gene Patenting Controversies,” Nature
Biotechnology 24 (2006): 1091–1094. On the other side of this debate is the
argument that having intellectual property rights, even on state-funded
university research, will facilitate commercialization—allowing the commercial
investor to know that it will acquire sufficient rights to exclude others from
the innovation. This is the premise behind “Bayh-Dole,” the act (P.L. 96-517,
Patent and Trademark Act Amendments of 1980; codified in 35 U.S.C. § 200–212
and implemented by 37 C.F.R. 401) that sets up the framework for technology
transfer from state funded university research.

To date, the evidence for the anti-commons effect inside academia has been
equivocal, at best. Walsh, Cohen, and Arora found no such effect—but one main
reason for the absence of problems appeared to be that scientists were simply
flouting the law (or were ignorant of it). John P. Walsh, Ashish Arora, and
Wesley M. Cohen, “Effects of Research Tool Patents and Licensing on Biomedical
Innovation,” in Patents in the Knowledge-Based Economy, ed. Wesley M. Cohen and
Stephen A. Merrill (Washington D.C.: National Academies Press, 2003), 285–340.
I would question whether a research system based on massive law-breaking is
sustainable, particularly after the U.S. Court of Appeals for the Federal
Circuit clarified for us that there effectively is no academic research
exemption in U.S. patent law. Madey v. Duke University, 307 F.3d 1351 (Fed.
Cir. 2002). The National Research Council’s committee on the subject found few
problems now but possible cause for concern in the future. Committee on
Intellectual Property Rights in Genomic and Protein Research and Innovation,
National Research Council, Reaping the Benefits of Genomic and Proteomic
Research: Intellectual Property Rights, Innovation, and Public Health
(Washington D.C.: National Academy Press, 2005). A study by the American
Academy for the Advancement of Science also reported few problems, though a
closer reading revealed that licensing produced delays in research—some of them
considerable—but did not cause it to be abandoned. The effects were greatest on
industry scientists. American Association for the Advancement of Science,
Directorate for Science and Policy Programs, International Intellectual
Property Experiences: A Report of Four Countries (Washington, D.C.: AAAS,
2007), available at http://sippi.aaas.org/Pubs/SIPPI_Four_Country_Report.pdf.
Fiona Murray and Scott Stern, “Do Formal Intellectual Property Rights Hinder
the Free Flow of Scientific Knowledge? An Empirical Test of the Anti-Commons
Hypothesis,” Journal of Economic Behavior & Organization 63 (2007): 648–687,
found a definite but modest anti-commons effect, restricting further research
and publication on patented materials. Similar concerns have been raised about
access to scientific data. J. H. Reichman and Paul Uhlir, “A Contractually
Reconstructed Research Commons for Scientific Data in a Highly Protectionist
Intellectual Property Environment,” Law and Contemporary Problems 66 (2003):
315–462.

What about the opposite question? Are we getting benefits from the process of
increasing the use of intellectual property rights in basic university
research? The best study of the effects of the current university technology
transfer process found little definitive evidence of net benefits and some
cause for concern that the traditional role of universities in freely supplying
knowledge is being undermined. David Mowery, Richard Nelson, Bhaven Sampat, and
Arvids Ziedonis, Ivory Tower and Industrial Innovation: University-Industry
Technology Transfer Before and After the Bayh-Dole Act (Palo Alto, Calif.:
Stanford Business Press, 2004).

Beyond the questions about the effects of upstream intellectual property rights
on basic research lay the much harder questions about the effects of
intellectual property rights on the development of technologies. Here there is
much evidence that decisions about patent scope are vital and, as Robert Merges
and Richard Nelson reveal, that poor decisions can hamper or cripple the
development of disruptive technologies. Robert Merges and Richard R. Nelson,
“On the Complex Economics of Patent Scope,” Columbia Law Review 90 (1990):
839–916; Suzanne Scotchmer, “Standing on the Shoulders of Giants: Cumulative
Research and the Patent Law,” Journal of Economic Perspectives 5 (1991): 29–41.
The fear, highlighted in this chapter, is that poor decisions about patent
scope and subject matter can inhibit technological change. On the subject of
that fear, there is much more evidence. James Bessen and Michael J. Meurer,
Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk
(Princeton: N.J.: Princeton University Press, 2008); and Adam Jaffe and Josh
Lerner, Innovation and Its Discontents: How Our Broken Patent System is
Endangering Innovation and Progress, and What To Do About It (Princeton, N.J.:
Princeton University Press, 2004).

1~ Chapter 8: A Creative Commons

If you go to the familiar Google search page and click the intimidating link
marked “advanced search,” you come to a page that gives you more fine-grained
control over the framing of your query. Nestled among the choices that allow
you to pick your desired language, or exclude raunchy content, is an option
that says “usage rights.” Click “free to use or share” and then search for
“physics textbook” and you can download a 1,200-page physics textbook, copy it,
or even print it out and hand it to your students. Search for “Down and Out in
the Magic Kingdom” and you will find Cory Doctorow’s fabulous science fiction
novel, online, in full, for free. His other novels are there too—with the
willing connivance of his commercial publisher. Search for “David Byrne, My
Fair Lady” and you will be able to download Byrne’s song and make copies for
your friends. You’ll find songs from Gilberto Gil and the Beastie Boys on the
same page. No need to pay iTunes or worry about breaking the law.

Go to the “advanced” page on Flickr, the popular photo sharing site, and you
will find a similar choice marked “Creative Commons License.” Check that box
and then search for “Duke Chapel” and you will get a selection of beautiful
photos of the lovely piece of faux Gothic architecture that sits about three
hundred yards from the office where I am writing these words. You can copy
those photos, and 66 million others on different subjects, share them with your
friends, print them for your wall, and, in some cases, even use them
commercially. The same basic tools can be found on a range of specialized
search engines with names like OWL Music Search, BlipTV, SpinExpress, and
OERCommons. Searching those sites, or just sticking with the advanced options
on Google or Yahoo, will get you courses in music theory, moral philosophy, and
C++ programming from famous universities; a full-length movie called Teach by
Oscar-winning director Davis Guggenheim; and free architectural drawings that
can be used to build low-cost housing. At the Wellcome Library, you will find
two thousand years of medical images that can be shared freely. Searching for
“skeleton” is particularly fun. You can even go to your favorite search engine,
type in the title of this book, find a site that will allow you to download it,
and send the PDF to a hundred friends, warmly anticipating their rapturous
enjoyment. (Better ask them first.)

All this copying and sharing and printing sounds illegal, but it is not (at
least if you went through the steps I described). And the things you can do
with this content do not stop with simply reproducing it, printing it on paper,
or sending it by e-mail. Much of it can be changed, customized, remixed—you
could rewrite the module of the class and insert your own illustrations,
animate the graphs showing calculus in action, morph the photo into something
new. If you search for a musician with the unpromising name “Brad Sucks,” you
will find a Web site bearing the modest subtitle “A one man band with no fans.”
Brad, it turns out, does not suck and has many fans. What makes him
particularly interesting is that he allows those fans, or anyone else for that
matter, to remix his music and post their creations online. I am particularly
fond of the Matterovermind remix of “Making Me Nervous,” but it may not be to
your taste. Go to a site called ccMixter and you will find that musicians,
famous and obscure, are inviting you to sample and remix their music. Or search
Google for Colin Mutchler and listen to a haunting song called “My Life
Changed.” Mr. Mutchler and a violinist called Cora Beth Bridges whom he had
never met created that song together. He posted a song called “My Life” online,
giving anyone the freedom to add to it, and she did—“My Life.” Changed.

On December 15, 2002, in San Francisco, a charitable organization called
Creative Commons was launched. (Full disclosure: I have been a proud board
member of Creative Commons since its creation.) Creative Commons was the
brainchild of Larry Lessig, Hal Abelson, and Eric Eldred. All the works I have
just described—and this book itself—are under Creative Commons licenses. The
authors and creators of those works have chosen to share it with the world,
with you, under generous terms, while reserving certain rights for themselves.
They may have allowed you to copy it, but not to alter it—to make derivative
works. Or they may have allowed you to use it as you wish, so long as you do so
noncommercially. Or they may have given you complete freedom, provided only
that you attribute them as the owner of the work. There are a few simple
choices and a limited menu of permutations.

What makes these licenses unusual is that they can be read by two groups that
normal licenses exclude—human beings (rather than just lawyers) and computers.
The textbooks, photos, films, and songs have a tasteful little emblem on them
marked with a “cc” which, if you click on it, links to a “Commons Deed,” a
simple one-page explanation of the freedoms you have. There are even icons—a
dollar with a slash through it, for example—that make things even clearer.
Better still, the reason the search engines could find this material is that
the licenses also “tell” search engines exactly what freedoms have been given.
Simple “metadata” (a fancy word for tags that computers can read) mark the
material with its particular level of freedoms. This is not digital rights
management. The license will not try to control your computer, install itself
on your hard drive, or break your TV. It is just an expression of the terms
under which the author has chosen to release the work. That means that if you
search Google or Flickr for “works I am free to share, even commercially,” you
know you can go into business selling those textbooks, or printing those photos
on mugs and T-shirts, so long as you give the author attribution. If you search
for “show me works I can build on,” you know you are allowed to make what
copyright lawyers call “derivative works.”

The idea behind Creative Commons was simple. As I pointed out in the first
chapter, copyright adheres automatically on “fixation.” As soon as you lift the
pen from the paper, click the shutter, or save the file, the work is
copyrighted. No formalities. No need even to use the little symbol ©. Once
copyrighted, the work is protected by the full might of the legal system. And
the legal system’s default setting is that “all rights are reserved” to the
author, which means effectively that anyone but the author is forbidden to
copy, adapt, or publicly perform the work. This might have been a fine rule for
a world in which there were high barriers to publication. The material that was
not published was theoretically under an “all rights reserved” regime, but who
cared? It was practically inaccessible anyway. After the development of the
World Wide Web, all that had changed. Suddenly people and institutions,
millions upon millions of them, were putting content online—blogs, photo sites,
videologs, podcasts, course materials. It was all just up there.

But what could you do with it? You could read it, or look at it, or play it
presumably—otherwise why had the author put it up? But could you copy it? Put
it on your own site? Include it in a manual used by the whole school district?
E-mail it to someone? Translate it into your own language? Quote beyond the
boundaries of fair use? Adapt for your own purposes? Take the song and use it
for your video? Of course, if you really wanted the work a lot, you could try
to contact the author—not always easy. And one by one, we could all contact
each other and ask for particular types of permissions for use. If the use was
large enough or widespread enough, perhaps we would even think that an
individual contract was necessary. Lawyers could be hired and terms hashed out.

All this would be fine if the author wished to retain all the rights that
copyright gives and grant them only individually, for pay, with lawyers in the
room. But what about the authors, the millions upon millions of writers, and
photographers and musicians, and filmmakers and bloggers and scholars, who very
much want to share their work? The Cora Beth Bridges of the world are never
going to write individual letters to the Colin Mutchlers of the world asking
for permission to make a derivative work out of “My Life.” The person who
translated my articles into Spanish or Mandarin, or the people who repost them
on their Web sites, or include them in their anthologies might have asked
permission if I had not granted it in advance. I doubt though that I would have
been contacted by the very talented person who took images from a comic book
about fair use that I co-wrote and mashed them up with words from a book by
Larry Lessig, and some really nice music from someone none of us had ever met.
Without some easy way to give permission in advance, and to do so in a way that
human beings and computers, as well as lawyers, can understand, those
collaborations will never happen, though all the parties would be delighted if
they did. These are losses from “failed sharing”—every bit as real as losses
from unauthorized copying, but much less in the public eye.


Creative Commons was conceived as a private “hack” to produce a more fine-tuned
copyright structure, to replace “all rights reserved” with “some rights
reserved” for those who wished to do so. It tried to do for culture what the
General Public License had done for software. It made use of the same
technologies that had created the issue: the technologies that made fixation of
expressive content and its distribution to the world something that people, as
well as large concentrations of capital, could do. As a result, it was able to
attract a surprising range of support—Jack Valenti of the Motion Picture
Association of America and Hillary Rosen of the Recording Industry Association
of America, as well as John Perry Barlow of the Grateful Dead, whose attitude
toward intellectual property was distinctly less favorable. Why could they all
agree? These licenses were not a choice forced on anyone. The author was
choosing what to share and under what terms. But that sharing created something
different, something new. It was more than a series of isolated actions. The
result was the creation of a global “commons” of material that was open to all,
provided they adhered to the terms of the licenses. Suddenly it was possible to
think of creating a work entirely out of Creative Commons-licensed
content—text, photos, movies, music. Your coursebook on music theory, or your
documentary on the New York skyline, could combine your own original material
with high-quality text, illustrations, photos, video, and music created by
strangers. One could imagine entire fields—of open educational content or of
open music—in which creators could work without keeping one eye nervously on
legal threats or permissions.

From one perspective, Creative Commons looks like a simple device for enabling
exercise of authorial control, remarkable only for the extremely large number
of authors making that choice and the simplicity with which they can do so.
From another, it can be seen as re-creating, by private choice and automated
licenses, the world of creativity before law had permeated to the finest, most
atomic level of science and culture—the world of folk music or 1950s jazz, of
jokes and slang and recipes, of Ray Charles’s “rewording” of gospel songs, or
of Isaac Newton describing himself as “standing on the shoulders of giants”
(and not having to pay them royalties). Remember, that is not a world without
intellectual property. The cookbook might be copyrighted even if the recipe was
not. Folk music makes it to the popular scene and is sold as a copyrighted
product. The jazz musician “freezes” a particular version of the improvisation
on a communally shared set of musical motifs, records it, and sometimes even
claims ownership of it. Newton himself was famously touchy about precedence and
attribution, even if not about legal ownership of his ideas. But it is a world
in which creativity and innovation proceed on the basis of an extremely large
“commons” of material into which it was never imagined that property rights
could permeate.

For many of us, Creative Commons was conceived of as a second-best solution
created by private agreement because the best solution could not be obtained
through public law. The best solution would be a return of the formality
requirement—a requirement that one at least write the words “James Boyle
copyright 2008,” for example, in order to get more than 100 years of legal
protection backed by “strict liability” and federal criminal law. Those who did
not wish to have the legal monopoly could omit the phrase and the work would
pass into the public domain, with a period of time during which the author
could claim copyright retrospectively if the phrase was omitted by accident.
The default position would become freedom and the dead weight losses caused by
giving legal monopolies to those who had not asked for them, and did not want
them, would disappear. To return to the words of Justice Brandeis that I quoted
at the beginning of the book:

_1 The general rule of law is, that the noblest of human productions—knowledge,
truths ascertained, conceptions, and ideas—become, after voluntary
communication to others, free as the air to common use. Upon these incorporeal
productions the attribute of property is continued after such communication
only in certain classes of cases where public policy has seemed to demand it.

Brandeis echoes the Jeffersonian preference for a norm of freedom, with
narrowly constrained exceptions only when necessary. That preference means that
the commons of which I spoke is a relatively large one—property rights are the
exception, not the norm. Of course, many of those who use Creative Commons
licenses might disagree with that policy preference and with every idea in this
book. They may worship the DMCA or just want a way to get their song or their
article out there while retaining some measure of control. That does not
matter. The licenses are agnostic. Like a land trust which has a local
pro-growth industrialist and a local environmentalist on its board, they permit
us to come to a restricted agreement on goals (“make sure this space is
available to the public”) even when underlying ideologies differ. They do this
using those most conservative of tools—property rights and licenses. And yet,
if our vision of property is “sole and despotic dominion,” these licenses have
created something very different—a commons has been made out of private and
exclusive rights.

My point here is that Creative Commons licenses or the tools of free and open
source software—to which I will turn in a moment—represent something more than
merely a second-best solution to a poorly chosen rule. They represent a visible
example of a type of creativity, of innovation, which has been around for a
very long time, but which has reached new salience on the Internet—distributed
creativity based around a shared commons of material.

2~ Free and Open Software

In 2007, Clay Shirky, an incisive commentator on networked culture, gave a
speech which anyone but a Net aficionado might have found simultaneously
romantic and impenetrable. He started by telling the story of a Shinto shrine
that has been painstakingly rebuilt to exactly the same plan many times over
its 1,300-year life—and which was denied certification as a historic building
as a result. Shirky’s point? What was remarkable was not the building. It was a
community that would continue to build and rebuild the thing for more than a
millennium.

From there, Shirky shifted to a discussion of his attempt to get AT&/T to adopt
the high-level programming language Perl—which is released as free and open
source software under the General Public License. From its initial creation by
Larry Wall in 1987, Perl has been adapted, modified, and developed by an
extraordinary range of talented programmers, becoming more powerful and
flexible in the process. As Shirky recounts the story, when the AT&T
representatives asked “where do you get your support?” Shirky responded, “ ‘we
get our support from a community’—which to them sounded a bit like ‘we get our
Thursdays from a banana.’ ” Shirky concluded the speech thus:

_1 We have always loved one another. We’re human. It’s something we’re good at.
But up until recently, the radius and half-life of that affection has been
quite limited. With love alone, you can plan a birthday party. Add coordinating
tools and you can write an operating system. In the past, we would do little
things for love, but big things required money. Now we can do big things for
love.~{Clay Shirky, “Supernova Talk: The Internet Runs on Love,” available at
http://www.shirky.com/herecomeseverybody/2008/02/supernova-talk-the-internet-runs-on-love.html;
see also Clay Shirky, Here Comes Everybody: The Power of Organizing Without
Organizations (New York: Penguin Press, 2008).}~

There are a few people out there for whom “operating systems” and “love” could
plausibly coexist in a sentence not constructed by an infinite number of
monkeys. For most though, the question is, what could he possibly have meant?

The arguments in this book so far have taken as a given the incentives and
collective action problems to which intellectual property is a response. Think
of Chapter 1 and the economic explanation of “public goods.” The fact that it
is expensive to do the research to find the right drug, but cheap to
manufacture it once it is identified provides a reason to create a legal right
of exclusion. In those realms where the innovation would not have happened
anyway, the legal right of exclusion gives a power to price above cost, which
in turn gives incentives to creators and distributors. So goes the theory. I
have discussed the extent to which the logic of enclosure works for the commons
of the mind as well as it did for the arable commons, taking into account the
effects of an information society and a global Internet. What I have not done
is asked whether a global network actually transforms some of our assumptions
about how creation happens in a way that reshapes the debate about the need for
incentives, at least in certain areas. This, however, is exactly the question
that needs to be asked.

For anyone interested in the way that networks can enable new collaborative
methods of production, the free software movement, and the broader but less
political movement that goes under the name of open source software, provide
interesting case studies.~{See Glyn Moody, Rebel Code: Linux and the Open
Source Revolution (Cambridge, Mass.: Perseus Pub., 2001); Peter Wayner, Free
for All: How Linux and the Free Software Movement Undercut the High-Tech Titans
(New York: HarperBusiness, 2000); Eben Moglen, “Anarchism Triumphant: Free
Software and the Death of Copyright,” First Monday 4 (1999),
http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/684/594
[Ed. note: originally published as
http://firstmonday.org/issues/issue4_8/index.html, the link has changed].}~
Open source software is released under a series of licenses, the most important
being the General Public License (GPL). The GPL specifies that anyone may copy
the software, provided the license remains attached and the source code for the
software always remains available.~{Proprietary, or “binary only,” software is
generally released only after the source code has been compiled into
machine-readable object code, a form that is impenetrable to the user. Even if
you were a master programmer, and the provisions of the Copyright Act, the
appropriate licenses, and the DMCA did not forbid you from doing so, you would
be unable to modify commercial proprietary software to customize it for your
needs, remove a bug, or add a feature. Open source programmers say,
disdainfully, that it is like buying a car with the hood welded shut. See,
e.g., Wayner, Free for All, 264.}~ Users may add to or modify the code, may
build on it and incorporate it into their own work, but if they do so, then the
new program created is also covered by the GPL. Some people refer to this as
the “viral” nature of the license; others find the term offensive.~{See Brian
Behlendorf, “Open Source as a Business Strategy,” in Open Sources: Voices from
the Open Source Revolution, ed. Chris DiBona et al. (Sebastopol, Calif.:
O’Reilly, 1999), 149, 163.}~ The point, however, is that the open quality of
the creative enterprise spreads. It is not simply a donation of a program or a
work to the public domain, but a continual accretion in which all gain the
benefits of the program on pain of agreeing to give their additions and
innovations back to the communal project.

For the whole structure to work without large-scale centralized coordination,
the creation process has to be modular, with units of different sizes and
complexities, each requiring slightly different expertise, all of which can be
added together to make a grand whole. I can work on the sendmail program, you
on the search algorithms. More likely, lots of people try, their efforts are
judged by the community, and the best ones are adopted. Under these conditions,
this curious mix of Kropotkin and Adam Smith, Richard Dawkins and Richard
Stallman, we get distributed production without having to rely on the
proprietary exclusion model. The whole enterprise will be much, much, much
greater than the sum of the parts.

What’s more, and this is a truly fascinating twist, when the production process
does need more centralized coordination, some governance that guides how the
sticky modular bits are put together, it is at least theoretically possible
that we can come up with the control system in exactly the same way. In this
sense, distributed production is potentially recursive. Governance processes,
too, can be assembled through distributed methods on a global network, by
people with widely varying motivations, skills, and reserve prices.~{One
organization theorist to whom I mentioned the idea said, “Ugh, governance by
food fight.” Anyone who has ever been on an organizational listserv, a global
production process run by people who are long on brains and short on social
skills, knows how accurate that description is. E pur si muove.}~

The free and open source software movements have produced software that rivals
or, some claim, exceeds the capabilities of conventional proprietary,
binary-only software.~{See Bruce Brown, “Enterprise-Level Security Made Easy,”
PC Magazine (January 15, 2002), 28; Jim Rapoza, “Open-Source Fever Spreads,” PC
Week (December 13, 1999), 1.}~ Its adoption on the “enterprise level” is
impressive, as is the number and enthusiasm of the various technical testaments
to its strengths. You have almost certainly used open source software or been
its beneficiary. Your favorite Web site or search engine may run on it. If your
browser is Firefox, you use it every day. It powers surprising things around
you—your ATM or your TiVo. The plane you are flying in may be running it. It
just works.

Governments have taken notice. The United Kingdom, for example, concluded last
year that open source software “will be considered alongside proprietary
software and contracts will be awarded on a value-for-money basis.” The Office
of Government Commerce said open source software is “a viable desktop
alternative for the majority of government users” and “can generate significant
savings. . . . These trials have proved that open source software is now a real
contender alongside proprietary solutions. If commercial companies and other
governments are taking it seriously, then so must we.”~{“UK Government Report
Gives Nod to Open Source,” Desktop Linux (October 28, 2004), available at
http://www.desktoplinux.com/news/NS5013620917.html. }~ Sweden found open source
software to be in many cases “equivalent to—or better than—commercial products”
and concluded that software procurement “shall evaluate open software as well
as commercial solutions, to provide better competition in the market.”~{ “Cases
of Official Recognition of Free and Open Source Software,” available at
http://ec.europa.eu/information_society/activities/opensource/cases/index_en.htm.
}~

What is remarkable is not merely that the software works technically, but that
it is an example of widespread, continued, high-quality innovation. The really
remarkable thing is that it works socially, as a continuing system, sustained
by a network consisting both of volunteers and of individuals employed by
companies such as IBM and Google whose software “output” is nevertheless
released into the commons.

Here, it seems, we have a classic public good: code that can be copied freely
and sold or redistributed without paying the creator or creators. This sounds
like a tragedy of the commons of the kind that I described in the first three
chapters of the book. Obviously, with a nonrival, nonexcludable good like
software, this method of production cannot be sustained; there are inadequate
incentives to ensure continued production. E pur si muove, as Galileo is
apocryphally supposed to have said in the face of Cardinal Bellarmine’s
certainties: “And yet it moves.”~{ E. Cobham Brewer, The Dictionary of Phrase
and Fable (London: John Cassell, 1894), 1111–1112. }~ Or, as Clay Shirky put
it, “we get our support from a community.”

For a fair amount of time, most economists looked at open source software and
threw up their hands. From their point of view, “we get our support from a
community” did indeed sound like “we get our Thursdays from a banana.” There is
an old economics joke about the impossibility of finding a twenty-dollar bill
lying on a sidewalk. In an efficient market, the money would already have been
picked up. (Do not wait for a punch line.) When economists looked at open
source software they saw not a single twenty-dollar bill lying implausibly on
the sidewalk, but whole bushels of them. Why would anyone work on a project the
fruits of which could be appropriated by anyone? Since copyright adheres on
fixation—since the computer programmer already has the legal power to exclude
others—why would he or she choose to take the extra step of adopting a license
that undermined that exclusion? Why would anyone choose to allow others to use
and modify the results of their hard work? Why would they care whether the
newcomers, in turn, released their contributions back into the commons?

The puzzles went beyond the motivations of the people engaging in this
particular form of “distributed creativity.” How could these implausible
contributions be organized? How should we understand this strange form of
organization? It is not a company or a government bureaucracy. What could it
be? To Richard Epstein, the answer was obvious and pointed to a reason the
experiment must inevitably end in failure:

_1 The open source movement shares many features with a workers’ commune, and
is likely to fail for the same reason: it cannot scale up to meet its own
successes. To see the long-term difficulty, imagine a commune entirely owned by
its original workers who share pro rata in its increases in value. The system
might work well in the early days when the workforce remains fixed. But what
happens when a given worker wants to quit? Does that worker receive in cash or
kind his share of the gain in value during the period of his employment? If
not, then the run-up in value during his period of employment will be gobbled
up by his successor—a recipe for immense resentment. Yet that danger can be
ducked only by creating a capital structure that gives present employees
separable interests in either debt or equity in exchange for their
contributions to the company. But once that is done, then the worker commune is
converted into a traditional company whose shareholders and creditors contain a
large fraction of its present and former employers. The bottom line is that
idealistic communes cannot last for the long haul.~{ Richard Epstein, “Why Open
Source Is Unsustainable,” FT.com (October 21, 2004), available at
http://www.ft.com/cms/s/2/78d9812a-2386-11d9-aee5-00000e2511c8.html. }~

There are a number of ideas here. First, “idealistic communes cannot last for
the long haul.” The skepticism about the staying power of idealism sounds
plausible today, though there are some relatively prominent counterexamples.
The Catholic Church is also a purportedly idealistic institution. It is based
on canonical texts that are subject to even more heated arguments about textual
interpretation than those which surround the General Public License. It seems
to be surviving the long haul quite well.

The second reason for doomsaying is provided by the word “commune.” The
problems Epstein describes are real where tangible property and excludable
assets are involved. But is the free and open source community a “commune,”
holding tangible property in common and excluding the rest of us? Must it worry
about how to split up the proceeds if someone leaves because of bad karma? Or
is it a community creating and offering to the world the ability to use, for
free, nonrival goods that all of us can have, use, and reinterpret as we wish?
In that kind of commune, each of us could take all the property the community
had created with us when we left and the commune would still be none the
poorer. Jefferson was not thinking of software when he talked of the person who
lights his taper from mine but does not darken me, but the idea is the same
one. Copying software is not like fighting over who owns the scented candles or
the VW bus. Does the person who wrote the “kernel” of the operating system
resent the person who, much later, writes the code to manage Internet Protocol
addresses on a wireless network? Why should he? Now the program does more cool
stuff. Both of them can use it. What’s to resent?

How about idealism? There is indeed a broad debate on the reasons that the
system works: Are the motivations those of the gift economy? Is it, as Shirky
says, simply the flowering of an innate love that human beings have always had
for each other and for sharing, now given new strength by the geographic reach
and cooperative techniques the Internet provides? “With love alone, you can
plan a birthday party. Add coordinating tools and you can write an operating
system.” Is this actually a form of potlatch, in which one gains prestige by
the extravagance of the resources one “wastes”? Is open source an implicit
résumé-builder that pays off in other ways? Is it driven by the
species-being, the innate human love of creation that continually drives us to
create new things even when homo economicus would be at home in bed, mumbling
about public goods problems?~{ For a seminal statement, see Moglen, “Anarchism
Triumphant,” 45: “ ‘[I]ncentives’ is merely a metaphor, and as a metaphor to
describe human creative activity it’s pretty crummy. I have said this before,
but the better metaphor arose on the day Michael Faraday first noticed what
happened when he wrapped a coil of wire around a magnet and spun the magnet.
Current flows in such a wire, but we don’t ask what the incentive is for the
electrons to leave home. We say that the current results from an emergent
property of the system, which we call induction. The question we ask is ‘what’s
the resistance of the wire?’ So Moglen’s Metaphorical Corollary to Faraday’s
Law says that if you wrap the Internet around every person on the planet and
spin the planet, software flows in the network. It’s an emergent property of
connected human minds that they create things for one another’s pleasure and to
conquer their uneasy sense of being too alone. The only question to ask is,
what’s the resistance of the network? Moglen’s Metaphorical Corollary to Ohm’s
Law states that the resistance of the network is directly proportional to the
field strength of the ‘intellectual property’ system. So the right answer to
the econodwarf is, resist the resistance.” }~

Yochai Benkler and I would argue that these questions are fun to debate but
ultimately irrelevant.~{Benkler’s reasoning is characteristically elegant, even
formal in its precision, while mine is clunkier. See Yochai Benkler, “Coase’s
Penguin, or, Linux and the Nature of the Firm,” Yale Law Journal 112 (2002):
369–446.}~ Assume a random distribution of incentive structures in different
people, a global network—transmission, information sharing, and copying costs
that approach zero—and a modular creation process. With these assumptions, it
just does not matter why they do it. In lots of cases, they will do it. One
person works for love of the species, another in the hope of a better job, a
third for the joy of solving puzzles, and a fourth because he has to solve a
particular problem anyway for his own job and loses nothing by making his hack
available for all. Each person has their own reserve price, the point at which
they say, “Now I will turn off Survivor and go and create something.” But on a
global network, there are a lot of people, and with numbers that big and
information overhead that small, even relatively hard projects will attract
motivated and skilled people whose particular reserve price has been crossed.

More conventionally, many people write free software because they are paid to
do so. Amazingly, IBM now earns more from what it calls “Linux-related
revenues” than it does from traditional patent licensing, and IBM is the
largest patent holder in the world.~{Yochai Benkler, The Wealth of Networks:
How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale
University Press, 2006), 46–47.}~ It has decided that the availability of an
open platform, to which many firms and individuals contribute, will actually
allow it to sell more of its services, and, for that matter, its hardware. A
large group of other companies seem to agree. They like the idea of basing
their services, hardware, and added value on a widely adopted “commons.” This
does not seem like a community in decline.

People used to say that collaborative creation could never produce a quality
product. That has been shown to be false. So now they say that collaborative
creation cannot be sustained because the governance mechanisms will not survive
the success of the project. Professor Epstein conjures up a “central committee”
from which insiders will be unable to cash out—a nice mixture of communist and
capitalist metaphors. All governance systems—including democracies and
corporate boards—have problems. But so far as we can tell, those who are
influential in the free software and open source governance communities (there
is, alas, no “central committee”) feel that they are doing very well indeed. In
the last resort, when they disagree with decisions that are taken, there is
always the possibility of “forking the code,” introducing a change to the
software that not everyone agrees with, and then letting free choice and market
selection converge on the preferred iteration. The free software ecosystem also
exhibits diversity. Systems based on GNU-Linux, for example, have distinct
“flavors” with names like Ubuntu, Debian, and Slackware, each with passionate
adherents and each optimized for a particular concern—beauty, ease of use,
technical manipulability. So far, the tradition of “rough consensus and running
code” seems to be proving itself empirically as a robust governance system.

Why on earth should we care? People have come up with a surprising way to
create software. So what? There are at least three reasons we might care.
First, it teaches us something about the limitations of conventional economics
and the counterintuitive business methods that thrive on networks. Second, it
might offer a new tool in our attempt to solve a variety of social problems.
Third, and most speculative, it hints at the way that a global communications
network can sometimes help move the line between work and play, professional
and amateur, individual and community creation, rote production and compensated
“hobby.”

We should pay attention to open source software because it shows us something
about business methods in the digital world—indeed in the entire world of
“information-based” products, which is coming to include biotechnology. The
scale of your network matters. The larger the number of people who use your
operating system, make programs for your type of computer, create new levels
for your game, or use your device, the better off you are. A single fax machine
is a paperweight. Two make up a communications link. Ten million and you have a
ubiquitous communications network into which your “paperweight” is now a hugely
valuable doorway.

This is the strange characteristic of networked goods. The actions of strangers
dramatically increase or decrease the usefulness of your good. At each stage
the decision of someone else to buy a fax machine increases the value of mine.
If I am eating an apple, I am indifferent about whether you are too. But if I
have a fax machine then my welfare is actually improved by the decisions of
strangers to buy one. The same process works in reverse. Buy a word processing
program that becomes unpopular, get “locked in” to using it, and find yourself
unable to exchange your work easily with others. Networks matter and increasing
the size of the networks continues to add benefits to the individual members.

What’s true for the users of networks is doubly so for the producers of the
goods that create them. From the perspective of a producer of a good that shows
strong network effects such as a word processing program or an operating
system, the optimal position is to be the company that owns and controls the
dominant product on the market. The ownership and control is probably by means
of intellectual property rights, which are, after all, the type of property
rights one finds on networks. The value of that property depends on those
positive and negative network effects. This is the reason Microsoft is worth so
much money. The immense investment in time, familiarity, legacy documents, and
training that Windows or Word users have provides a strong incentive not to
change products. The fact that other users are similarly constrained makes it
difficult to manage any change. Even if I change word processor formats and go
through the trouble to convert all my documents, I still need to exchange files
with you, who are similarly constrained. From a monopolist’s point of view, the
handcuffs of network effects are indeed golden, though opinions differ about
whether or not this is a cause for antitrust action.

But if the position that yields the most revenue is that of a monopolist
exercising total control, the second-best position may well be that of a
company contributing to a large and widely used network based on open standards
and, perhaps, open software. The companies that contribute to open source do
not have the ability to exercise monopoly control, the right to extract every
last cent of value from it. But they do have a different advantage; they get
the benefit of all the contributions to the system without having to pay for
them. The person who improves an open source program may not work for IBM or
Red Hat, but those companies benefit from her addition, just as she does from
theirs. The system is designed to continue growing, adding more contributions
back into the commons. The users get the benefit of an ever-enlarging network,
while the openness of the material diminishes the lock-in effects. Lacking the
ability to extract payment for the network good itself—the operating system,
say—the companies that participate typically get paid for providing tied goods
and services, the value of which increases as the network does.

I write a column for the Financial Times, but I lack the fervor of the true
enthusiast in the “Great Game of Markets.” By themselves, counterintuitive
business methods do not make my antennae tingle. But as Larry Lessig and Yochai
Benkler have argued, this is something more than just another business method.
They point us to the dramatic role that openness—whether in network
architecture, software, or content—has had in the success of the Internet. What
is going on here is actually a remarkable corrective to the simplistic notion
of the tragedy of the commons, a corrective to the Internet Threat storyline
and to the dynamics of the second enclosure movement. This commons creates and
sustains value, and allows firms and individuals to benefit from it, without
depleting the value already created. To appropriate a phrase from Carol Rose,
open source teaches us about the comedy of the commons, a way of arranging
markets and production that we, with our experience rooted in physical property
and its typical characteristics, at first find counterintuitive and bizarre.
Which brings us to the next question for open source. Can we use its techniques
to solve problems beyond the world of software production?

In the language of computer programmers, the issue here is “does it scale?” Can
we generalize anything from this limited example? How many types of production,
innovation, and research fit into the model I have just described? After all,
for many innovations and inventions one needs hardware, capital investment, and
large-scale, real-world data collection—stuff, in its infinite recalcitrance
and facticity. Maybe the open source model provides a workaround to the
individual incentives problem, but that is not the only problem. And how many
types of innovation or cultural production are as modular as software? Is open
source software a paradigm case of collective innovation that helps us to
understand open source software and not much else?

Again, I think this is a good question, but it may be the wrong one. My own
guess is that an open source method of production is far more common than we
realize. “Even before the Internet” (as some of my students have taken to
saying portentously), science, law, education, and musical genres all developed
in ways that are markedly similar to the model I have described. The
marketplace of ideas, the continuous roiling development in thought and norms
that our political culture spawns, owes much more to the distributed,
nonproprietary model than it does to the special case of commodified innovation
that we think about in copyright and patent. Not that copyright and patent are
unimportant in the process, but they may well be the exception rather than the
norm. Commons-based production of ideas is hardly unfamiliar, after all.

In fact, all the mottos of free software development have their counterparts in
the theory of democracy and open society; “given enough eyeballs, all bugs are
shallow” is merely the most obvious example. Karl Popper would have
cheered.~{See Karl Popper, The Open Society and Its Enemies (London: Routledge,
1945).}~ The importance of open source software is not that it introduces us to
a wholly new idea. It is that it makes us see clearly a very old idea. With
open source the technology was novel, the production process transparent, and
the result of that process was a “product” which outcompeted other products in
the marketplace. “How can this have happened? What about the tragedy of the
commons?” we asked in puzzlement, coming only slowly to the realization that
other examples of commons-based, nonproprietary production were all around us.

Still, this does not answer the question of whether the model can scale still
further, whether it can be applied to solve problems in other spheres. To
answer that question we would need to think more about the modularity of other
types of inventions. How much can they be broken down into chunks suitable for
distribution among a widespread community? Which forms of innovation have some
irreducible need for high capital investment in distinctly nonvirtual
components—a particle accelerator or a Phase III drug trial? Again, my guess is
that the increasing migration of the sciences toward data- and processing-rich
models makes much more of innovation and discovery a potential candidate for
the distributed model. Bioinformatics and computational biology, the open
source genomics project,~{See http://www.ensembl.org. }~ the BioBricks
Foundation I mentioned in the last chapter, the possibility of distributed data
scrutiny by lay volunteers~{ See, e.g., NASA’s “Clickworkers” experiment, which
used public volunteers to analyze Mars landing data, available at
http://clickworkers.arc.nasa.gov/top. }~ —all of these offer intriguing glances
into the potential for the future. Finally, of course, the Internet is one big
experiment in, as Benkler puts it, peer-to-peer cultural production.~{ Benkler,
“Coase’s Penguin,” 11. }~

If these questions are good ones, why are they also the wrong ones? I have
given my guesses about the future of the distributed model of innovation. My
own utopia has it flourishing alongside a scaled-down, but still powerful,
intellectual property regime. Equally plausible scenarios see it as a dead end
or as the inevitable victor in the war of productive processes. These are all
guesses, however. At the very least, there is some possibility, even hope, that
we could have a world in which much more of intellectual and inventive
production is free. “ ‘Free’ as in ‘free speech,’ ” Richard Stallman says, not
“free as in ‘free beer.’ ”~{ Free Software Foundation,
http://www.gnu.org/philosophy/free-sw.html [Ed. note: originally published at
http://www.gnu.ai.mit.edu/philosophy/free-sw.html, the link has changed]. }~
But we could hope that much of it would be both free of centralized control and
low- or no-cost. When the marginal cost of reproduction is zero, the marginal
cost of transmission and storage approaches zero, the process of creation is
additive, and much of the labor doesn’t charge, the world looks a little
different.~{Exhibit A: the Internet—from the software and protocols on which it
runs to the multiple volunteer sources of content and information. }~ This is
at least a possible future, or part of a possible future, and one that we
should not foreclose without thinking twice. Yet that is what we are doing. The
Database Protection Bills and Directives, which extend intellectual property
rights to the layer of facts;~{See, e.g., the Database Investment and
Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); The
Consumer Access Bill, HR 1858, 106th Cong. § 101(1) (1999); see also Council
Directive 96/9/EC of the European Parliament and the Council of 11 March 1996
on the Legal Protection of Databases, 1996 Official Journal of the European
Union, L77 (27.03.1996): 20–28. }~ the efflorescence of software patents;~{ See
generally Julie E. Cohen and Mark A. Lemley, “Patent Scope and Innovation in
the Software Industry,” California Law Review 89 (2001): 1–58; see also Pamela
Samuelson et al., “A Manifesto Concerning the Legal Protection of Computer
Programs,” Columbia Law Review 94 (1994): 2308–2431. }~ the UCITA-led
validation of shrinkwrap licenses that bind third parties;~{ Uniform Computer
Information Transactions Act, available at
http://www.law.upenn.edu/bll/archives/ulc/ucita/2002final.htm. }~ the Digital
Millennium Copyright Act’s anticircumvention provisions~{ 17 U.S.C. § 1201
(2002). }~ —the point of all of these developments is not merely that they make
the peer-to-peer model difficult, but that in many cases they rule it out
altogether. I will assert this point here, rather than argue for it, but I
think it can be (and has been) demonstrated quite convincingly.~{ This point
has been ably made by Pamela Samuelson, Jessica Litman, Jerry Reichman, Larry
Lessig, and Yochai Benkler, among others. See Pamela Samuelson, “Intellectual
Property and the Digital Economy: Why the Anti-Circumvention Regulations Need
to Be Revised,” Berkeley Technology Law Journal 14 (1999): 519–566; Jessica
Litman, Digital Copyright: Protecting Intellectual Property on the Internet
(Amherst, N.Y.: Prometheus Books, 2001); J. H. Reichman and Paul F. Uhlir,
“Database Protection at the Crossroads: Recent Developments and Their Impact on
Science and Technology,” Berkeley Technology Law Journal 14 (1999): 793–838;
Lawrence Lessig, “Jail Time in the Digital Age,” New York Times (July 30,
2001), A17; and Yochai Benkler, “Free as the Air to Common Use: First Amendment
Constraints on Enclosure of the Public Domain,” New York University Law Review
74 (1999): 354–446. Each has a slightly different focus and emphasis on the
problem, but each has pointed out the impediments now being erected to
distributed, nonproprietary solutions. See also James Boyle, “Cruel, Mean, or
Lavish? Economic Analysis, Price Discrimination and Digital Intellectual
Property,” Vanderbilt Law Review 53 (2000): 2007–2039. }~

The point is, then, that there is a chance that a new (or old, but
under-recognized) method of production could flourish in ways that seem truly
valuable—valuable to free speech, innovation, scientific discovery, the wallets
of consumers, to what William Fisher calls “semiotic democracy,”~{ William W.
Fisher III, “Property and Contract on the Internet,” Chicago-Kent Law Review 73
(1998): 1217–1218. }~ and, perhaps, valuable to the balance between joyful
creation and drudgery for hire. True, it is only a chance. True, this theory’s
scope of operation and sustainability are uncertain. But why would we want to
foreclose it? That is what the recent expansions of intellectual property
threaten to do. And remember, these expansions were dubious even in a world
where we saw little or no possibility of the distributed production model I
have described, where discussion of network effects had yet to reach the pages
of The New Yorker,~{ See James Boyle, “Missing the Point on Microsoft,”
Salon.com (April 7, 2000),
http://www.salon.com/tech/feature/2000/04/07/greenspan/index.html. }~ and where
our concerns about the excesses of intellectual property were simply the ones
that Jefferson, Madison, and Macaulay gave us so long ago.

2~ Learning from the Sharing Economy

Accept for the sake of argument that the free software community actually
works, actually produces high-quality products capable of competing in the
market with proprietary alternatives. Concede for a moment that the adoption of
Creative Commons licenses shows there are millions of creators out there who
want to share their works with others. Many of those creators even want to
allow the world to build on their material. Indeed, let us concede that the
whole history of the Web, from Wikipedia to the obsessive and usefully detailed
sites created on everything from Vikings to shoe polishes, shows a desire to
share one’s knowledge, to build on the work of others one has never met. These
efforts are remarkably varied. Some are ultimately aimed at profit—even if
their results are free. Think of IBM’s open source initiatives or musicians who
release Creative Commons-licensed work in order to get more club gigs. Some are
provided as a volunteer act of benevolence or civic duty, even if they
“compete” with expensive proprietary alternatives. Think of Wikipedia or MIT’s
OpenCourseWare. When the infrastructure for this collaboration does not exist,
it gets assembled—and quickly. Both the GPL and Creative Commons are examples.
Accept all of this. So what?

Lesson number one comes from the nonprofit activities—everything from Wikipedia
to Web sites created by enthusiasts. People like to create and wish to share.
In many cases they will do so without financial reward. A surprising amount of
useful, creative, or expressive activity is generated without any financial
incentive at all.

Should this cause us to throw out the economic case for copyrights? No. But it
should lead us to reassess it. As I explained in Chapter 1, copyright provides
an incentive for two distinct activities. First, it offers an incentive to
create the work in the first place. The author of Windows for Dummies or Harry
Potter gets a right to exclude others from copying the work, a right that he or
she can sell in the marketplace. The goal is to offer a financial reason to
devote time to this particular creative activity. It is this incentive that is
most often cited when attempting to persuade policy makers to expand
protection. Second, it offers an incentive to distribute the work—to typeset
and print large quantities of the work and to sell it to bookstores, or to
broadcast it, or put it on movie screens.

Each medium is economically different, of course. The economics of the feature
film are different from those of the book, the magazine, or the operating
system. Thus, we have never had very good figures on the relative importance of
these incentives. We can only guess at how much of the incentive from copyright
goes to encouraging creation and how much to distribution. Until recently, most
types of distribution demanded higher levels of capital. The industry structure
that resulted often consisted of creators who worked as wage or contract labor
for distributors—either never acquiring copyright in their work in the first
place or immediately transferring that copyright to their employers. Because
distribution was expensive, our experience with material generated for fun or
out of a love of sharing was an essentially private and local one. You might
have a neighbor’s photocopied sheet of baking recipes that worked well at high
altitudes, or of fishing techniques that worked well on a particular lake, a
song that a friend created for a special occasion, or a short story you wrote
for your kids—and then typed up for them to tell to theirs. Financial
incentives were not needed to encourage the creation of the work, but the cost
of distribution dramatically limited its dissemination.

The single most dramatic thing that the Web has done by lowering the cost of
communication and distribution, at the same moment that other electronic tools
lowered the cost of production, is to make this local and private activity a
global and public one. Someone, somewhere, will have written the guide to
fishing on that lake, baking at that altitude, washing windows, or treating
stings from Portuguese man-of-war jellyfish. Someone will have taken a photo of
the Duke Chapel or explained the history, economics, and chemistry of shoe
polish or distilling. Someone might even have created a great class on music
theory or C++programming. Someone will have written a handy little program
to manage DNS requests on a local network. Bizarrely, at least as far as the
economists were concerned, these people all wanted to share what they had made.
Because of the genius of search engines, and the implicit peer-review function
that those engines deduce from patterns of links to pages, I can find that
material when I need it.

True, much of the material on the Web is inane or insane, confused, badly
written, tendentious, and inaccurate. (It should be noted that this is hardly a
problem confined to the Web or volunteer-generated material. Personally, I
would not want People magazine or Fox News in a time capsule to represent my
civilization. But some of the material on the Web is clearly worse.) Yes,
Wikipedia is occasionally inaccurate—though in one test in Nature it stacked up
well against the Encyclopedia Britannica, and it is obviously much more
encyclopedic in its coverage. But all of this misses the point.

Consider how your expectations about information retrieval have changed in the
last fifteen years. We now simply assume that questions about a piece of
architecture, a bit of local history, a recipe, or the true author of a song
can all be answered within seconds. We have forgotten what it is like to be
routinely in ignorance because of the unavailability of some piece of
information. One podcaster I talked to called it being a member of “the
right-click generation”: “When I am walking around and I see a building, I
almost feel as though I ought to be able to ‘right click’ it and have the
architect’s name pop up.” Consider that it now seems normal for a gay Iraqi man
in Baghdad to have a blog that offers hundreds of thousands of readers around
the world a literate and touching account of the American occupation from a
perspective entirely different from that provided by the mainstream press.~{
See “Salam Pax,” Wikipedia, available at
http://en.wikipedia.org/wiki/Salam_Pax. }~ We think it normal for a person of
moderate resources to be able to speak to the world from a war zone, whether or
not he is affiliated with a newspaper or credentialed by a corporation.

These examples are not the end of the process. Our methods of sorting, ranking,
and verifying the material generated are still evolving. They may improve even
beyond this point. We are only fifteen years into this particular experiment,
after all. And a huge amount of this material is produced by our fellow
citizens without the profit motive.

Does this mean that we no longer need copyright or patent protection to
encourage the production and distribution of creative work? No. The fishing
tips are great, but I still might buy a handsomely illustrated guide to take on
the lake with me or, even better, just stay at home and read A River Runs
Through It. The New Yorker, and not a sheaf of printouts from the Web, still
sits on my coffee table, though much of the high-quality content I read comes
to me online, for free, from strangers who are generating it for pleasure, not
profit, or who profit from open sharing, not closed control. The online
blogosphere provides a vital counterpoint to mainstream media, but it exists in
a symbiotic—some would say parasitic—relationship with that media and the
network of professional news gatherers for which it pays. Some of the most
interesting open source production methods actually rely on copyright. Even if
they did not, open source production would not suffice to run our
pharmaceutical industry (though it might help with certain stages of the drug
discovery process).

Still, just as it would be silly to dismiss the importance of intellectual
property based on our experience of blogs and Wikipedia and open source
software, it would be equally silly to underestimate what the Web has taught
us. The Web has enabled an astonishing flowering of communication and
expression, an astounding democratization of creativity. We have learned just
how strong, and how useful, is the human urge to express, communicate, invent,
and create—provided the barriers to sharing are lowered. These are the very
things that copyright and patent are supposed to encourage. For us to portray
the Web—as the Internet Threat story line does—as predominantly a threat to
creativity is simply perverse. For us to base our policies only on that notion
would be a tragedy. We might end up stultifying one of the greatest explosions
of human creativity the world has ever seen by treating it as an unimportant
marginal case and instead designing our rules around the production processes
of commercial culture in the late twentieth century.

The shape of our copyright and to a lesser extent our patent system comes from
a world in which almost all large-scale distribution was an expensive,
capital-intensive enterprise. The roles of gatekeeper and financier, producer
and assembler, distributor and advertiser, tended naturally to coalesce into
vertically integrated firms or symbiotic commercial partnerships. Those firms
were presumed to be the proxy for the public interest when it came to
intellectual property policy. Who would know better than they what was needed?
Occasionally, device manufacturers would provide a counterweight—as in the Sony
case—where the defense of a particular “consumer freedom” actually created a
market for a complementary product. Artists and authors might be trotted out as
appealing spokespersons, though the laws that were made only sporadically
reflected their economic and artistic interests. Librarians and educational
institutions had influence at the edges. Most of the time, though, it was the
assemblers and distributors of content whose voices and assumptions about
markets would be heard.

Out of this pattern of habit and influence, and out of much deeper notions
about authorship and invention that I have explored elsewhere, developed an
ideology, a worldview. Call it maximalism. Its proponents sincerely believed in
it and pursued it even when it did not make economic sense. (Think how lucky
the movie industry is that it lost the Sony

This process was not—let me stress—was not a simple process of economic
determinism or industry conspiracy. Anyone who claims that is the thesis of
this book simply has not read it. (Reviewers beware.) Let us start with
economic determinism. It was not a situation in which the law mechanistically
recorded the interests of the most economically important industries in the
area. This was the creation of a worldview, not the steely-eyed calculation of
profit and loss. Not only did many of the rules we ended up with make no sense
from the point of view of some of the largest economic players in the
area—think of the device manufacturers, the search engines, and so on—they
frequently made no sense from the perspective of those proposing them.
Attempting to twist the law to make it illegal for technology to interfere with
your old business method is frequently bad for the industry seeking the
protection, as well as for the technology, the market, and the wider society.
Since this worldview makes incumbents systematically blind to profit-making
opportunities that could be secured by greater openness, rather than greater
control, it actually disables them from pursuing some of the most promising
methods by which they could have made money for their shareholders. Again, the
chapter on the Sony decision offers a salutary example.

Economic determinism does not explain the rules we have. Neither are those
rules simply a result of the manipulation of elected officials by incumbent
industries through crafty campaign contributions and distorted evidence (though
to be sure, there was a lot of that as well). Many of the people who put
forward this worldview—both lobbyists and lobbied—sincerely believe that more
rights will always lead to more innovation, that all property rights are the
same, that we do not need to think about both the input and output sides of the
equation, that cheaper copying techniques automatically require greater
protections, and so on. What of the modest suggestions I put forward here? We
could sum them up thus: do not apply identical assumptions to physical and
intellectual property. Focus on both the inputs to and the outputs of the
creative process; protecting the latter may increase the cost of the former.
Look both at the role of the public domain and the commons of cultural and
scientific material and at the need to provide incentives for creativity and
distribution through exclusive rights. More rights will not automatically
produce more innovation. Indeed, we should confine rights as narrowly as
possible while still providing the desired result. Look at the empirical
evidence before and after increasing the level of protection. Pay attention to
the benefits as well as the costs of the new technologies and the flowering of
creativity they enable.

To me, these points seem bland, boring, obvious—verging on tautology or pablum.
To many believers in the worldview I have described, they are either
straightforward heresy or a smokescreen for some real, underlying agenda—which
is identified as communism, anarchism, or, somewhat confusingly, both.

This account smacks of exaggeration, I know. How could things be so one-sided?
The best answer I can give came from a question I was asked at a recent
conference. The questioner pointed out politely that it was unlikely that the
policy-making process would ignore such a fundamental and obvious set of
points—points that I myself observed had been well understood for hundreds of
years. I had used many examples of intellectual property rights being
extended—in length, breadth, scope. Why had I not spoken, he asked, of all the
times over the last fifty years when intellectual property rights had been
weakened, curtailed, shortened? Since human beings were fallible, surely there
were occasions when the length of a copyright or patent term had proved to be
too long, or the scope of a right too large, and the rights had been narrowed
appropriately by legislation. Why did I not cite any of these? The answer is
simple. To the best of my knowledge, there are none. Legislatively,
intellectual property rights have moved only in one direction—outward. (Court
decisions present a more complex picture, as the previous chapter’s discussion
of software copyrights and business method patents shows.)

What are the odds that the costs of new technologies are always greater than
their benefits as far as intellectual property rights holders are concerned?
This pattern is not a matter of policies carefully crafted around the evidence.
It is the fossil record of fifty years of maximalism. If I lean toward the
other side of the story it is not because I am a foe of intellectual property.
It is because I believe our policies have become fundamentally
unbalanced—unbalanced in ways that actually blind us to what is going on in the
world of creativity.

We are living through an existence-proof that there are other methods of
generating innovation, expression, and creativity than the proprietary,
exclusionary model of sole control. True, these methods existed before. Yet
they tended to be local or invisible or both. The Internet has shown
conclusively and visibly that—at least in certain sectors—we can have a global
flowering of creativity, innovation, and information sharing in which
intellectual property rights function in a very different way than under the
standard model of proprietary control. In some cases, intellectual property
rights were simply irrelevant—much of the information sharing and indexing on
the Web falls within this category. In some cases they were used to prevent
exclusivity. Think of Creative Commons or the General Public License. In some,
they were actually impediments. Software patents, for example, have a negative
effect on open source software development—one that policy makers are only now
slowly beginning to acknowledge.

It is important not to overstate how far the sharing economy can get us. It
might help to cut the costs of early-stage drug development, as the Tropical
Disease Initiative attempts to do for neglected diseases. It will not generate
a Phase III drug trial or bring a drug to market. Sharing methods might be used
to generate cult movies such as Star Wreck: In the Pirkinning, which was
created using techniques borrowed from open source software and is available
under a Creative Commons license. They will not produce a mammoth blockbuster
like Ben Hur, or Waterworld for that matter—results that will generate mixed
feelings. So there are real limitations to the processes I describe.

But even acknowledging those limitations, it is fair to say that one of the
most striking events to occur during our lifetimes is the transformation
wrought by the Web, a transformation that is partly driven by the extraordinary
explosion of nonproprietary creativity and sharing across digital networks. The
cultural expectation that a web of expression and information will just be
there—whatever subject we are discussing—is a fundamental one, the one that in
some sense separates us from our children. With this as a background it is both
bizarre and perverse that we choose to concentrate our policy making only on
maintaining the business methods of the last century, only on the story line of
the Internet Threat, only on the dangers that the technology poses to
creativity (and it does pose some) and never on the benefits.

What would it mean to pay attention to the changes I have described? It would
mean assessing the impact of rules on both proprietary and nonproprietary
production. For example, if the introduction of a broad regime of software
patents would render open source software development more difficult (because
individual contributors cannot afford to do a patent search on every piece of
code they contribute), then this should be reflected as a cost of software
patents, to be balanced against whatever benefits the system brought. A method
for encouraging innovation might, in fact, inhibit one form of it.

Paying attention to the last ten years means we need to realize that
nonproprietary, distributed production is not the poor relation of traditional
proprietary, hierarchically organized production. This is no hippy lovefest. It
is the business method on which IBM has staked billions of dollars; the method
of cultural production that generates much of the information each of us uses
every day. It is just as deserving of respect and the solicitude of policy
makers as the more familiar methods pursued by the film studios and proprietary
software companies. Losses due to sharing that failed because of artificially
erected legal barriers are every bit as real as losses that come about because
of illicit copying. Yet our attention goes entirely to the latter.

The main thrust of the argument here is still firmly within the Jeffersonian,
Scottish Enlightenment tradition. Jefferson does not wish to give the patent to
Oliver Evans because he believes the invention will be (and has been) generated
anyway without the granting of an intellectual property right and that there
are sufficient information retrieval methods to have practical access to it. In
this case, the information retrieval method is not Google. It is a polymath
genius combing his library in Monticello for references to Persian irrigation
methods. The “embarrassment” caused by the unnecessary patent is added expense
and bureaucracy in agriculture and impediments to further innovators, not the
undermining of open source software. But it is the same principle of cautious
minimalism, the same belief that much innovation goes on without proprietary
control and that intellectual property rights are the exception, not the rule.
When Benjamin Franklin, a man who surely deserved patents under even the most
stringent set of tests, chooses to forgo them because he has secured so much
benefit from the contributions of others, he expresses Shirky’s norm nicely.

Indeed, Jefferson’s optimism depends partly on a view of information sharing
that captures beautifully the attitudes of the generation that built the Web.
The letter that I discussed in Chapter 2 was widely cited for precisely this
reason. Remember these lines?

_1 That ideas should freely spread from one to another over the globe, for the
moral and mutual instruction of man, and improvement of his condition, seems to
have been peculiarly and benevolently designed by nature, when she made them,
like fire, expansible over all space, without lessening their density in any
point, and like the air in which we breathe, move, and have our physical being,
incapable of confinement or exclusive appropriation.

What could encapsulate better the process by which information spreads on a
global network? What could more elegantly state the norms of the “information
wants to be free” generation? (Though those who quoted him conveniently omitted
the portions of his analysis where he concedes that there are cases where
intellectual property rights may be necessary and desirable.)

In some ways, then, the explosion of nonproprietary and, in many cases,
noncommercial creativity and information sharing is simply the vindication of
Jefferson’s comparison of ideas with “fire . . . expansible over all space.”
The Web makes the simile a reality and puts an exclamation point at the end of
the Jefferson Warning. All the more reason to pay attention to it. But the
creative commons I described here goes further. It forces us to reconceptualize
a form of life, a method of production, and a means of social organization that
we used to relegate to the private world of informal sharing and collaboration.
Denied a commons by bad intellectual property rules, we can sometimes build our
own—which may in some ways do even more for us than the zone of free trade,
free thought, and free action that Jefferson wished to protect.

Does all this mean that the Jefferson Warning is no longer necessary? Can we
mitigate the negative effects of intellectual property expansion through a
series of privately constructed commons? The answers to those questions are,
respectively, “no” and “sometimes.” Think of the story of retrospectively
extended copyright and orphan works. In many cases the problem with our
intellectual property rights is that they create barriers to sharing—without
producing an incentive in return—in ways that can never be solved through
private agreement. Twentieth century culture will largely remain off-limits for
digitization, reproduction, adaptation, and translation. No series of private
contracts or licenses can fix the problem because the relevant parties are not
in the room and might not agree if they were.

Even when the parties are available and agree to share, the benefits may not
flow to all equally. Beset by a multitude of vague patents of questionable
worth and uncertain scope, large information technology firms routinely create
patent pools. IBM tosses in thousands of patents, so does Hewlett or Dell. Each
agrees not to sue the other. This is great for the established companies; they
can proceed without fear of legal action from the landmine patents that litter
the technological landscape. As far as the participants are concerned, the
patent pool is almost like the public domain—but a privatized public domain, a
park that only residents may enter. But what about the start up company that
does not have the thousands of patents necessary for entry? They are not in as
happy a situation. The patent pool fixes the problem of poor patent quality and
unclear scope—one that Jefferson was worrying about 200 years ago. But it fixes
it only for the dominant firms, hurting competition in the process.

Attempts to form a commons may also backfire. The coordination problems are
legion. There are difficulties of compatibility in licenses and the process, no
matter how easy, still imposes transaction costs. Nevertheless, with all of
these qualifications, the idea of the privately created commons is an important
addition to the world view that Jefferson provided, a new tool in our attempt
to craft a working system of innovation and culture. No one who looks at the
Web can doubt the power of distributed, and frequently uncompensated,
creativity in constructing remarkable reference works, operating systems,
cultural conversations, even libraries of images and music. Some of that
innovation happens largely outside of the world of intellectual property. Some
of it happens in privately created areas of sharing that use property rights
and open, sometimes even machine-readable, licenses to create a commons on
which others can build. The world of creativity and its methods is wider than
we had thought. That is one of the vital and exciting lessons the Internet
teaches us; unfortunately, the only one our policy makers seem to hear is
“cheaper copying means more piracy.”

2~ Chapter 8: Further Reading

3~ Distributed Creativity

The most remarkable and important book on “distributed creativity” and the
sharing economy is Yochai Benkler, The Wealth of Networks: How Social
Production Transforms Markets and Freedom (New Haven, Conn.: Yale University
Press, 2006). Benkler sets the idea of “peer production” alongside other
mechanisms of market and political governance and offers a series of powerful
normative arguments about why we should prefer that future. Comprehensive
though this book may seem, it is incomplete unless it is read in conjunction
with one of Benkler’s essays: Yochai Benkler, “Coase’s Penguin, or, Linux and
the Nature of the Firm,” Yale Law Journal 112 (2002): 369–446. In that essay,
Benkler puts forward the vital argument—described in this chapter—about what
collaborative production does to Coase’s theory of the firm.

Benkler’s work is hardly the only resource however. Other fine works covering
some of the same themes include: Cass R. Sunstein, Infotopia: How Many Minds
Produce Knowledge (New York: Oxford University Press, 2006), and Rishab Aiyer
Ghosh, ed., CODE: Collaborative Ownership and the Digital Economy (Cambridge,
Mass.: MIT Press, 2005), which includes an essay by me presenting an earlier
version of the “second enclosure movement” argument. Clay Shirky’s recent book,
Here Comes Everybody: The Power of Organizing without Organizations (New York:
Penguin Press, 2008), is an extremely readable and thoughtful addition to this
body of work—it includes a more developed version of the speech I discuss. Eric
Von Hippel’s Democratizing Innovation (Cambridge, Mass.: MIT Press, 2005), is a
fascinating account of the way that innovation happens in more places than we
have traditionally imagined—particularly in end-user communities. In one sense,
this reinforces a theme of this chapter: that the “peer production” and
“distributed creativity” described here is not something new, merely something
that is given dramatically more salience and reach by the Web. Dan Hunter and
F. Gregory Lastowka’s article, “Amateur-to-Amateur,” William & Mary Law Review
46 (2004): 951–1030, describes some of the difficulties in adapting copyright
law to fit “peer production.” Finally, Jonathan Zittrain’s The Future of the
Internet—And How to Stop It (New Haven, Conn.: Yale University Press,
2008)—also relevant to Chapter 10—argues that if the democratically attractive
aspects of the Internet are to be saved, it can only be done through enlisting
the collective energy and insight of the Internet’s users.

3~ Free and Open Source Software

Free and open source software has been a subject of considerable interest to
commentators. Glyn Moody’s Rebel Code: Linux and the Open Source Revolution
(Cambridge, Mass.: Perseus Pub., 2001), and Peter Wayner’s Free for All: How
Linux and the Free Software Movement Undercut the High-Tech Titans (New York:
HarperBusiness, 2000), both offer readable and accessible histories of the
phenomenon. Eric S. Raymond, The Cathedral and the Bazaar: Musings on Linux and
Open Source by an Accidental Revolutionary, revised edition (Sebastopol,
Calif.: O’Reilly, 2001), is a classic philosophy of the movement, written by a
key participant—author of the phrase, famous among geeks, “given enough
eyeballs, all bugs are shallow.” Steve Weber, in The Success of Open Source
(Cambridge, Mass.: Harvard University Press, 2004), offers a scholarly argument
that the success of free and open source software is not an exception to
economic principles but a vindication of them. I agree, though the emphasis
that Benkler and I put forward is rather different. To get a sense of the
argument that free software (open source software’s normatively charged cousin)
is desirable for its political and moral implications, not just because of its
efficiency or commercial success, one should read the essays of Richard
Stallman, the true father of free software and a fine polemical, but rigorous,
essayist. Richard Stallman, Free Software, Free Society: Selected Essays of
Richard M. Stallman, ed. Joshua Gay (Boston: GNU Press, 2002). Another strong
collection of essays can be found in Joseph Feller, Brian Fitzgerald, Scott A.
Hissam, and Karim R. Lakhani, eds., Perspectives on Free and Open Source
Software (Cambridge, Mass.: MIT Press, 2005). If you only have time to read a
single essay on the subject it should be Eben Moglen’s “Anarchism Triumphant:
Free Software and the Death of Copyright,” First Monday 4 (1999), available at
http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/684/594
[Ed. note: originally published as
http://www.firstmonday.dk/issues/issue4_8/moglen/, the link has changed].

3~ Creative Commons

Creative Commons has only just begun to attract its own chroniclers. Larry
Lessig, its founder, provides a characteristically eloquent account in “The
Creative Commons,” Montana Law Review 65 (2004): 1–14. Michael W. Carroll, a
founding board member, has produced a thought-provoking essay discussing the
more general implications of organizations such as Creative Commons. Michael W.
Carroll, “Creative Commons and the New Intermediaries,” Michigan State Law
Review, 2006, n.1 (Spring): 45–65. Minjeong Kim offers an empirical study of
Creative Commons licenses in “The Creative Commons and Copyright Protection in
the Digital Era: Uses of Creative Commons Licenses,” Journal of
Computer-Mediated Communication 13 (2007): Article 10, available at
http://jcmc.indiana.edu/vol13/issue1/kim.html. However, simply because of the
rapidity of adoption of Creative Commons licenses, the work is already
dramatically out of date. My colleague Jerome Reichman and Paul Uhlir of the
National Academy of Sciences have written a magisterial study of the way in
which tools similar to Creative Commons licenses could be used to lower
transaction costs in the flow of scientific and technical data. J. H. Reichman
and Paul Uhlir, “A Contractually Reconstructed Research Commons for Scientific
Data in a Highly Protectionist Intellectual Property Environment,” Law and
Contemporary Problems 66 (2003): 315–462. Finally, the gifted author, David
Bollier, is reportedly writing a book on Creative Commons entitled Viral
Spiral: How the Commoners Built a Digital Republic of Their Own (New York: New
Press, forthcoming 2009).

Niva Elkin-Koren offers a more critical view of Creative Commons in “Exploring
Creative Commons: A Skeptical View of a Worthy Pursuit,” in The Future of the
Public Domain—Identifying the Commons in Information Law, ed. P. Bernt
Hugenholtz and Lucie Guibault (The Hague: Kluwer Law International, 2006).
Elkin-Koren’s argument is that Creative Commons has an unintended negative
effect by leading individuals to think of themselves through the reified
categories of legal subjects and property owners—forcing into a legalized realm
something that should simply be experienced as culture. Elkin-Koren is a
perceptive and influential scholar; some of her early work on bulletin boards
for example, was extremely important in explaining the stakes of regulating the
Internet to a group of judges and policy makers. I also acknowledge the truth
of her theoretical point; in many ways Creative Commons is offered as a second
best solution. But I am unconvinced by the conclusion. Partly, this is because
I think Elkin-Koren’s account of the actual perceptions of license users is
insufficiently grounded in actual evidence. Partly, it is because I think the
legalization—undesirable though it may be in places—has already happened. Now
we must deal with it. Partly, it is because I believe that many of the
activities that the licenses enable—a global commons of free educational
materials, for example—simply cannot be produced any other way in the political
reality we face, and I have a preference for lighting candles rather than
lamenting the darkness.

1~ Chapter 9: An Evidence-Free Zone

Perhaps some of the arguments in this book have convinced you. Perhaps it is a
mistake to think of intellectual property in the same way we think of physical
property. Perhaps limitations and exceptions to those rights are as important
as the rights themselves. Perhaps the public domain has a vital and tragically
neglected role to play in innovation and culture. Perhaps relentlessly
expanding property rights will not automatically bring us increased innovation
in science and culture. Perhaps the second enclosure movement is more troubling
than the first. Perhaps it is unwise to extend copyright again and again, and
to do so retrospectively, locking up most of twentieth-century culture in order
to protect the tiny fragment of it that is still commercially available.
Perhaps technological improvements bring both benefits and costs to existing
rights holders—both of which should be considered when setting policy. Perhaps
we need a vigorous set of internal limitations and exceptions within copyright,
or control over content will inevitably become control over the medium of
transmission. Perhaps the Internet should make us think seriously about the
power of nonproprietary and distributed production.

Saying all this gives us some guidance in how we should think. It points out
certain patterns of error. But its prescriptions are not simple. Precisely
because it is not a rejection of intellectual property rights, but rather a
claim that they only work well through a process of consciously balancing
openness and control, public domain and private right, it still leaves open the
question of where that point of balance is and how to strike it.

In this chapter I want to offer a suggestion that in any other field would be
stunningly obvious, boring even, but in the funhouse mirror of intellectual
property appears revolutionary. We should make our policy based on empirical
evidence of its likely effects and there should be a formal requirement of
empirical reconsideration of those policies after they have been implemented to
see if they are working. Why is this a good idea?

Imagine a process of reviewing prescription drugs that goes like this:
representatives from the drug company come to the regulators and argue that
their drug works well and should be approved. They have no evidence of this
beyond a few anecdotes about people who want to take it and perhaps some very
simple models of how the drug might affect the human body. The drug is
approved. No trials, no empirical evidence of any kind, no follow-up. Or
imagine a process of making environmental regulations in which there were no
data, and no attempts to gather data, about the effects of the particular
pollutants being studied. Even the harshest critics of regulation would admit
we generally do better than this. But this is often the way we make
intellectual property policy.

So how do we decide the ground rules of the information age? Representatives of
interested industries come to regulators and ask for another heaping slice of
monopoly rent in the form of an intellectual property right. They have
doom-laden predictions, they have anecdotes, carefully selected to pluck the
heartstrings of legislators, they have celebrities who testify—often
incoherently, but with palpable charisma—and they have very, very simple
economic models. The basic economic model here is “If you give me a larger
right, I will have a larger incentive to innovate. Thus the bigger the rights,
the more innovation we will get. Right?”

As I have tried to show here using the words of Jefferson and Macaulay and
examples such as term extension, software copyrights, and garage door openers,
this logic is fallacious. Even without data, the “more is better” idea is
obviously flawed. Copyrighting the alphabet will not produce more books.
Patenting E=mc2 will not yield more scientific innovation. Intellectual
property creates barriers to, as well as incentives toward, innovation.
Jefferson agonized over the issue of when the benefits exceed the costs of a
new right. “I know well the difficulty of drawing a line between the things
which are worth to the public the embarrassment of an exclusive patent, and
those which are not.” It is not clear that contemporary policy makers approach
issues with anything like the same sophistication or humility. But it would be
an equal mistake to conclude, as some do, that expansions of intellectual
property are never justified. Extensions of rights can help or hurt, but
without economic evidence beforehand and review afterward, we will never know.
This point should be obvious, banal, even deeply boring, but sadly it is not.

From Jefferson and Macaulay and Adam Smith, I derived a second point. In the
absence of evidence on either side, the presumption should be against creating
a new, legalized monopoly. The burden of proof should lie on those who claim,
in any particular case, that the state should step in to stop competition,
outlaw copying, proscribe technology, or restrict speech. They have to show us
that the existing protection is not enough. But this presumption is a
second-best solution and the empirical emptiness of the debates frustrating.

This makes an occasion where there is some evidence a time for celebration.
What we need is a test case in which one country adopts the proposed new
intellectual property right and another similarly situated country does not,
and we can assess how they are both doing after a number of years.

There is such a case. It is the “database right.”

2~ Owning Facts?

Europe adopted a Database Directive in 1996 which gave a high level of
copyright protection to databases and conferred a new “sui generis” database
right even on unoriginal compilations of facts. In the United States, by
contrast, in a 1991 case called Feist Publications, Inc. v. Rural Telephone
Service Co., 499 U.S. 340 (1991), the Supreme Court made it clear that
unoriginal compilations of facts are not copyrightable.

What does all this mean? Take the phone directory—that was the product at issue
in the Feist case. A white pages directory is a database of names and numbers,
compiled in alphabetical order by name. Does anyone have an intellectual
property right over it? Not the particular dog-eared directory lying next to
your phone. Does the phone company that compiled it own the facts, the numbers
inside that directory? Could they forbid me from copying them, adding others
from surrounding areas, and issuing a competing directory that I believed
consumers would find more valuable? This was an important issue for Feist
because it went to the heart of their business. They issued regional telephone
directories, combining records from multiple phone companies. In this case, all
the other companies in the region agreed to license their data to Feist. Rural
did not, so Feist copied the information, checked as many entries as possible,
adding addresses to some of the listings, and published the combined result.
Rural sued and lost. The Supreme Court declared that mere alphabetical listings
and other unoriginal assemblies of data cannot be copyrighted.

_1 It may seem unfair that much of the fruit of the compiler’s labor may be
used by others without compensation. As Justice Brennan has correctly observed,
however, this is not “some unforeseen byproduct of a statutory scheme.” It is,
rather, “the essence of copyright,” and a constitutional requirement. The
primary objective of copyright is not to reward the labor of authors, but “to
promote the Progress of Science and useful Arts.” To this end, copyright
assures authors the right to their original expression, but encourages others
to build freely upon the ideas and information conveyed by a work. This
principle, known as the idea/expression or fact/expression dichotomy, applies
to all works of authorship. As applied to a factual compilation, assuming the
absence of original written expression, only the compiler’s selection and
arrangement may be protected; the raw facts may be copied at will. This result
is neither unfair nor unfortunate. It is the means by which copyright advances
the progress of science and art.~{ Feist Publications, Inc. v. Rural Telephone
Service Co. , 499 U.S. 340 (1991). }~

Feist was not as revolutionary as some critics claimed it to be. Most of the
appeals courts in the United States had long held this to be the case. As the
Court pointed out in the passage above, it is a fundamental tenet of the U.S.
intellectual property system that neither facts nor ideas can be owned. Feist
merely reiterated that point clearly and stressed that it was not just a policy
choice, it was a constitutional requirement—a limit imposed by the
Constitution’s grant of power to Congress to make copyright and patent laws.

Daily politics cares little for the limitations imposed by constitutions or for
the structural principle the Court describes—that we should leave facts free
for others to build upon. Since 1991, a few database companies have lobbied the
Congress strenuously and continuously to create a special database right over
facts. Interestingly, apart from academics, scientists, and civil libertarians,
many database companies, and even those well-known property haters, the U.S.
Chamber of Commerce, oppose the creation of such a right. They believe that
database providers can adequately protect themselves with contracts or
technical means such as passwords, can rely on providing tied services, and so
on. Moreover, they argue that strong database protection may make it harder to
generate databases in the first place; the facts you need may be locked up. We
need to focus on the inputs as well as the outputs of the process—a point I
have tried to make throughout this book. The pressure to create a new right
continues, however, aided by cries that the United States must “harmonize” with
Europe, where, you will remember, compilations of facts are strongly protected
by intellectual property rights, even if their arrangement is unoriginal.

So here we have our natural experiment. One major economy rejects such
protection and resists pressure to create a new right. A different major
economic region, at a comparable level of development, institutes the right
with the explicit claim that it will help to produce new databases and make
that segment of the economy more competitive. Presumably government economists
in the United States and the European Union have been hard at work ever since,
seeing if the right actually worked? Well, not exactly.

Despite the fact that the European Commission has a legal obligation to review
the Database Directive for its effects on competition, it was more than three
years late issuing its report. At first, during the review process, no
attention was paid to the actual evidence of whether the Directive helps or
hurts the European Union, or whether the database industry in the United States
has collapsed or flourished. That is a shame, because the evidence was there
and it was fairly shocking. Yet finally, at the end of the process, the
Commission did turn to the evidence, as I will recount, and came to a
remarkable conclusion—which was promptly stifled for political reasons. But we
are getting ahead of ourselves.

How do we frame the empirical inquiry? Intellectual property rights allow the
creation of state-backed monopolies, and “the general tendency of monopolies,”
as Macaulay pointed out, is “to make articles scarce, to make them dear, and to
make them bad.” Monopolies are an evil, but they must sometimes be accepted
when they are necessary to the production of some good, some particular social
goal. In this case, the “evil” is obviously going to be an increase in the
price of databases and the legal ability to exclude competitors from their
use—that, after all, is the point of granting the new right. This right of
exclusion may then have dynamic effects, hampering the ability of subsequent
innovators to build on what went before. The “good” is that we are supposed to
get lots of new databases, databases that we would not have had but for the
existence of the database right.

If the database right were working, we would expect positive answers to three
crucial questions. First, has the European database industry’s rate of growth
increased since 1996, while the U.S. database industry has languished? (The
drop-off in the U.S. database industry ought to be particularly severe after
1991 if the proponents of database protection are correct; they argued the
Feist case was a change in current law and a great surprise to the industry.)

Second, are the principal beneficiaries of the database right in Europe
producing databases they would not have produced otherwise? Obviously, if a
society is handing over a database right for a database that would have been
created anyway, it is overpaying—needlessly increasing prices for consumers and
burdens for competitors. This goes to the design of the right—has it been
crafted too broadly, so that it is not being targeted to those areas where it
is needed to encourage innovation?

Third, and this one is harder to judge, is the new right promoting innovation
and competition rather than stifling it? For example, if the existence of the
right allowed a one-time surge of newcomers to the market who then use their
rights to discourage new entrants, or if we promoted some increase in databases
but made scientific aggregation of large amounts of data harder overall, then
the database right might actually be stifling the innovation it is designed to
foment.

Those are the three questions that any review of the Database Directive must
answer. But we have preliminary answers to those three questions and they are
either strongly negative or extremely doubtful.

Are database rights necessary for a thriving database industry? The answer
appears to be no. In the United States, the database industry has grown more
than twenty-five-fold since 1979 and—contrary to those who paint the Feist case
as a revolution—for that entire period, in most of the United States, it was
clear that unoriginal databases were not covered by copyright. The figures are
even more interesting in the legal database market. The two major proponents of
database protection in the United States are Reed Elsevier, the owner of Lexis,
and Thomson Publishing, the owner of Westlaw. Fascinatingly, both companies
made their key acquisitions in the U.S. legal database market after the Feist
decision, at which point no one could have thought unoriginal databases were
copyrightable. This seems to be some evidence that they believed they could
make money even without a database right. How? In the old-fashioned way:
competing on features, accuracy, tied services, making users pay for entry to
the database, and so on.

If those companies believed there were profits to be made, they were right.
Jason Gelman, a former Duke student, pointed out in a recent paper that
Thomson’s legal regulatory division had a profit margin of over 26 percent for
the first quarter of 2004. Reed Elsevier’s 2003 profit margin for LexisNexis
was 22.8 percent. Both profit margins were significantly higher than the
company average and both were earned primarily in the $6 billion U.S. legal
database market, a market which is thriving without strong intellectual
property protection over databases. (First rule of thumb for regulators: when
someone with a profit margin over 20 percent asks you for additional monopoly
protection, pause before agreeing.)

What about Europe? There is some good news for the proponents of database
protection. As Hugenholtz, Maurer, and Onsrud point out in a nice article in
Science magazine, there was a sharp, one-time spike in the number of companies
entering the European database market immediately following the implementation
of the Directive in member states.~{ Stephen M. Maurer, P. Bernt Hugenholtz,
and Harlan J. Onsrud, “Europe’s Database Experiment,” Science 294 (2001):
789–790. }~ Yet their work, and “Across Two Worlds,”~{ Stephen M. Maurer,
“Across Two Worlds: US and European Models of Database Protection,” paper
commissioned by Industry Canada (2001). }~ a fascinating study by Maurer,
suggests that the rate of entry then fell back to levels similar to those
before the directive. Maurer’s analysis shows that the attrition rate was also
very high in some European markets in the period following the passage of the
directive—even with the new right, many companies dropped out.

At the end of the day, the British database industry—the strongest performer in
Europe—added about two hundred databases in the three years immediately after
the implementation of the directive. In France, there was little net change in
the number of databases and the number of providers fell sharply. In Germany,
the industry added nearly three hundred databases immediately following the
directive—a remarkable surge—about two hundred of which rapidly disappeared.
During the same period, the U.S. industry added about nine hundred databases.
Bottom line? Europe’s industry did get a one-time boost and some of those firms
have stayed in the market; that is a benefit, though a costly one. But database
growth rates have gone back to predirective levels, while the anticompetitive
costs of database protection are now a permanent fixture of the European
landscape. The United States, by contrast, gets a nice steady growth rate in
databases without paying the monopoly cost. (Second rule of thumb for
regulators: Do no harm! Do not create rights without strong evidence that the
incentive effect is worth the anticompetitive cost.)

Now the second question. Is the Database Directive encouraging the production
of databases we would not have gotten otherwise? Here the evidence is clear and
disturbing. Again, Hugenholtz et al. point out that the majority of cases
brought under the directive have been about databases that would have been
created anyway—telephone numbers, television schedules, concert times. A review
of more recent cases reveals the same pattern. These databases are inevitably
generated by the operation of the business in question and cannot be
independently compiled by a competitor. The database right simply serves to
limit competition in the provision of the information. Recently, the European
Court of Justice implicitly underscored this point in a series of cases
concerning football scores, horse racing results, and so on. Rejecting a
protectionist and one-sided opinion from its Advocate General, the court ruled
that the mere running of a business which generates data does not count as
“substantial investment” sufficient to trigger the database right. It would be
nice to think that this is the beginning of some skepticism about the reach of
the directive. Yet the court provides little discussion of the economic reasons
behind its interpretation; the analysis is merely semantic and definitional, a
sharp contrast to its competition decisions.

So what kinds of creations are being generated by this bold new right? The
answer is somewhere between bathos and pathos. Here are some of the wonderful
“databases” that people found it worthwhile litigating over: a Web site
consisting of a collection of 259 hyperlinks to “parenting resources,” a
collection of poems, an assortment of advertisements, headings referring to
local news, and charts of popular music. The sad list goes on and on. The
European Commission might ask itself whether these are really the kind of
“databases” that we need a legal monopoly to encourage and that we want to tie
up judicial resources protecting. The point that many more such factual
resources can be found online in the United States without any legalized
database protection also seems worthy of note. At the very least, the evidence
indicates that the right is drawn much too broadly and triggered too easily in
ways that produce litigation but little social benefit.

Now, in one sense, these lawsuits over trivial collections of hyperlinks and
headlines might be seen as irrelevant. They may indicate we are handing out
rights unnecessarily—did we really need a legal monopoly, and court
involvement, to get someone to compile hyperlinks on a Web page? But it is hard
to see social harm. As with the patents over “sealed crustless” peanut butter
sandwiches or “methods of swinging on a swing,” we may shake our heads at the
stupidity of the system, but if the problems consist only of trivial creations,
at least we are not likely to grieve because some vital piece of information
was locked up. But we should not be so quick to declare such examples
irrelevant. They tend to show that the system for drawing the boundaries of the
right is broken—and that is of general concern, even if the issue at hand is
not.

Finally, is the database right encouraging scientific innovation or hurting it?
Here the evidence is merely suggestive. Scientists have claimed that the
European database right, together with the perverse failure of European
governments to take advantage of the limited scientific research exceptions
allowed by the directive, have made it much harder to aggregate data, to
replicate studies, and to judge published articles. In fact, academic
scientific bodies have been among the strongest critics of database protection.
But negative evidence, by its nature, is hard to produce; “show me the science
that did not get done!” Certainly, both U.S. science and commerce have
benefited extraordinarily from the openness of U.S. data policy. I will deal
with this issue in the next part of this chapter.

If the United States does not give intellectual property protection to raw
data, to facts, how is it that the database industry has managed to thrive here
and to do better than in Europe, which has extremely strong protection? The
economists described in Chapter 1 would surely tell us that this is a potential
“public goods” problem. If it is hard to exclude others from the resource—it is
cheap and easy to copy—and if the use of the resource is not “rival”—if I don’t
use up your facts by consulting them—then we ought to see the kind of dystopia
economists predict. What would that consist of? First it might result in
underproduction. Databases with a social value higher than their cost of
creation would not get made because the creator could not get an adequate
return on investment. In some cases it might even lead to the
reverse—overproduction, where each party creates the database for itself. We
get a social overinvestment to produce the resource because there is no legal
right to exclude others from it. If you gave the first creator an intellectual
property right over the data, they could sell to subsequent users at a price
lower than their own cost to create the database. Everyone would win. But the
United States did not give the intellectual property right and yet its database
industry is flourishing. There are lots of commercial database providers and
many different kinds of databases. How can this be? Is the economic model
wrong?

The answer to that is no, the model is not wrong. It is, however, incomplete
and all too often applied in sweeping ways without acknowledging that its basic
assumptions may not hold in a particular case. That sounds vague. Let me give a
concrete example. Westlaw is one of the two leading legal database providers
and, as I mentioned before, one of the key proponents of creating intellectual
property rights over unoriginal databases. (There is considerable question
whether such a law would be constitutional in the United States, but I will
pass over that argument for the moment.) Westlaw’s “problem” is that much of
the material that it provides to its subscribers is not covered by copyright.
Under Section 105 of the U.S. Copyright Act, works of the federal government
cannot be copyrighted. They pass immediately into the public domain. Thus all
the federal court decisions, from district courts all the way up to the Supreme
Court, all the federal statutes, the infinite complexity of the Federal
Register, all this is free from copyright. This might seem logical for
government-created work, for which the taxpayer has already paid, but as I will
explain in the next section of the chapter, not every country adopts such a
policy.

West, another Thomson subsidiary that owns Westlaw, publishes the standard case
reporter series. When lawyers or judges refer to a particular opinion, or quote
a passage within an opinion, they will almost always use the page number of the
West edition. After all, if no one else can find the cases or statutes or
paragraphs of an opinion that you are referring to, legal argument is all but
impossible. (This might seem like a great idea to you. I beg to differ.) As
electronic versions of legal materials became more prevalent, West began
getting more competition. Its competitors did two things that West found
unforgivable. First, they frequently copied the text of the cases from West’s
electronic services, or CD-ROMs, rather than retyping them themselves. Since
the cases were works of the federal government, this was perfectly legal
provided the competitors did not include West’s own material, such as summaries
of the cases written by its employees or its key number system for finding
related issues. Second, the competitors would include, within their electronic
editions, the page numbers to West’s editions. Since lawyers need to cite the
precise words or arguments they are referring to, providing the raw opinion
alone would have been all but useless. Because West’s page numbers were one of
the standard ways to cite case opinions, competitors would indicate where the
page breaks on the printed page would have been, just as West did in its own
databases.

West’s reaction to all of this was exactly like Apple’s reaction in the story I
told in Chapter 5 about the iPod or like Rural’s reaction to the copying of its
phone directory. This was theft! They were freeloading on West’s hard work!
West had mixed its sweat with these cites, and so should be able to exclude
other people from them! Since it could not claim copyright over the cases, West
claimed copyright over the order in which they were arranged, saying that when
its competitors provided its page numbers for citation purposes, they were
infringing that copyright.

In the end, West lost its legal battles to claim copyright over the arrangement
of the collections of cases and the sequence in which they were presented. The
Court held that, as with the phone directory, the order in which the cases were
arranged lacked the minimum originality required to sustain a copyright
claim.~{ Matthew Bender & Co. v. West Publishing Co. , 158 F.3d 674 (2nd Cir.
1998). }~ At this stage, according to the standard public goods story, West’s
business should have collapsed. Unable to exclude competitors from much of the
raw material of its databases, West would be undercut by competitors. More
importantly, from the point of view of intellectual property policy, its fate
would deter potential investors in other databases—databases that we would lose
without even knowing they could have been possible. Except that is not the way
it turned out. West has continued to thrive. Indeed, its profits have been
quite remarkable. How can this be?

The West story shows us three ways in which we can leap too quickly from the
abstract claim that some information goods are public goods—nonexcludable and
nonrival—to the claim that this particular information good has those
attributes. The reality is much more complex. Type www.westlaw.com into your
Internet browser. That will take you to the home page of West’s excellent legal
research service. Now, I have a password to that site. You probably do not.
Without a password, you cannot get access to West’s site at all. To the average
consumer, the password acts as a physical or technical barrier, making the good
“excludable”—that is, making it possible to exclude someone from it without
invoking intellectual property rights. But what about competitors? They could
buy access and use that access to download vast quantities of the material that
is unprotected by copyright. Or could they? Again, West can erect a variety of
barriers, ranging from technical limits on how much can be downloaded to
contractual restrictions on what those who purchase its service can do (“No
copying every federal case,” for example).

Let’s say the competitor somehow manages to get around all this. Let’s say it
somehow avoids copying the material that West does have a copyright over—such
as the headnotes and case synopses. The competitor launches their competing
site at lower prices amidst much fanfare. Do I immediately and faithlessly
desert West for a lower-priced competitor? Not at all. First of all, there are
lots of useful things in the West database that are covered by copyright—law
review articles and certain treatises, for example. The competitor frequently
cannot copy those without coming to the same sort of agreements that West has
with the copyright holders. For much legal research, that secondary material is
as important as the cases. If West has both, and the competitor only one, I
will stick with West. Second, West’s service is very well designed. (It is only
their copyright policies I dislike, not the product.) If a judge cites a law
review article in a case, West will helpfully provide a hyperlink to the
precise section of the article she is referring to. I can click on it and in a
second see what the substance of the argument is. The reverse is true if a law
review article cites a statute or a case. Cases have “flags” on them indicating
whether they have been overruled or cited approvingly in subsequent decisions.
In other words, faced with the competitive pressure of those who would
commoditize their service and provide it at lower cost, West has done what any
smart company would: added features and competed by offering a superior
service. Often it has done so by “tying” its uncopyrightable data structures to
its huge library of copyrighted legal material.

The company that challenged Westlaw in court was called Hyperlaw. It won
triumphantly. The courts declared that federal cases and the page numbers in
the West volumes were in the public domain. That decision came in 1998 and
Westlaw has lobbied hard since then to reverse it by statute, to create some
version of the Database Directive in the United States. To date, they have
failed. The victor, Hyperlaw, has since gone out of business. Westlaw has not.

This little story contains a larger truth. It is true that innovation and
information goods will, in general, tend to be less excludable and less rival
than a ham sandwich, say. But, in practice, some of them will be linked or
connected in their social setting to other phenomena that are highly
excludable. The software can easily be copied—but access to the help lines can
be restricted with ease. Audiences cannot easily be excluded from viewing
television broadcasts, but advertisers can easily be excluded from placing
their advertisements in those programs. The noncopyrightable court decisions
are of most use when embedded within a technical system that gives easy access
to other material—some of it copyrighted and all of it protected by technical
measures and contractual restrictions. The music file can be downloaded; the
band’s T-shirt or the experience of the live concert cannot. Does this mean
that we never need an intellectual property right? Not at all. But it does
indicate that we need to be careful when someone claims that “without a new
intellectual property right I am doomed.”

One final story may drive home the point. When they read Feist v. Rural, law
students often assume that the only reason Feist offered to license the white
pages listings from Rural is because they (mistakenly) thought they were
copyrighted. This is unlikely. Most good copyright lawyers would have told you
at the time of the Feist case that the “sweat of the brow” decisions that gave
copyright protection based on hard work were not good law. Most courts of
appeals had said so. True, there was some legal uncertainty, and that is often
worth paying to avoid. But switch the question around and suppose it is the day
after the Supreme Court decides the Feist case, and Feist is heading off into
another market to try to make a new regional phone directory. Do they now just
take the numbers without paying for them, or do they still try to negotiate a
license? The latter is overwhelmingly likely. Why? Well, for one thing, they
would get a computer-readable version of the names and would not have to retype
or optically scan them. More importantly, the contract could include a right to
immediate updates and new listings.

The day after the Feist decision, the only thing that had changed in the
telephone directory market was that telephone companies knew for sure, rather
than merely as a probability, that if they refused to license, their
competitors could laboriously copy their old listings without penalty. The
nuclear option was no longer available. Maybe the price demanded would be a
little lower. But there would still be lots of good reasons for Feist to buy
the information, even though it was uncopyrighted. You do not always need an
intellectual property right to make a deal. Of course, that is not the whole
story. Perhaps the incentives provided by other methods are insufficient. But
in the U.S. database industry they do not seem to have been. Quite the
contrary. The studies we have on the European and the American rules on
database rights indicate that the American approach simply works better.

I was not always opposed to intellectual property rights over data. Indeed, in
a book written before the enactment of the Database Directive, I said that
there was a respectable economic argument that such protection might be
warranted and that we needed research on the issue.~{ James Boyle, Shamans,
Software, and Spleens: Law and the Construction of the Information Society
(Cambridge, Mass.: Harvard University Press, 1996). }~ Unfortunately, Europe
got the right without the research. The facts are now in. If the European
Database Directive were a drug, the government would be pulling it from the
market until its efficacy and harmfulness could be reassessed. At the very
least, the Commission needed a detailed empirical review of the directive’s
effects, and needs to adjust the directive’s definitions and fine-tune its
limitations. But there is a second lesson. There is more discussion of the
empirical economic effects of the Database Directive in this chapter than in
the six-hundred-page review of the directive that the European Commission paid
a private company to conduct, and which was the first official document to
consider the issue.

That seemed to me and to many other academics to be a scandal and we said so as
loudly as we could, pointing out the empirical evidence suggesting that the
directive was not working. Yet if it was a scandal, it was not a surprising
one, because the evidence-free process is altogether typical of the way we make
intellectual property policy. President Bush is not the only one to make
“faith-based” decisions.

There was, however, a ray of hope. In its official report on the competitive
effects of the Database Directive, the European Commission recently went beyond
reliance on anecdote and industry testimony and did something aescribed the
directive as “a Community creation with no precedent in any international
convention.” Using a methodology similar to the one in this chapter on the
subject, the Commission found that “the economic impact of the ‘sui generis’
right on database production is unproven. Introduced to stimulate the
production of databases in Europe, the new instrument has had no proven impact
on the production of databases.”~{ First evaluation of Directive 96/9/EC on the
legal protection of databases, DG Internal Market and Services Working Paper
(Brussels, Belgium: Commission of the European Communities, 2005), 5. }~

In fact, their study showed that the production of databases had fallen to
pre-directive levels and that the U.S. database industry, which has no such
intellectual property right, was growing faster than the European Union’s. The
gap appears to be widening. This is consistent with the data I had pointed out
in newspaper articles on the subject, but the Commission’s study was more
recent and, if anything, more damning.

Commission insiders hinted that the study may be part of a larger—and
welcome—transformation in which a more professional and empirical look is being
taken at the competitive effects of intellectual property protection. Could we
be moving away from faith-based policy in which the assumption is that the more
new rights we create, the better off we will be? Perhaps. But unfortunately,
while the report was a dramatic improvement, traces of the Commission’s older
predilection for faith-based policy and voodoo economics still remain.

The Commission coupled its empirical study of whether the directive had
actually stimulated the production of new databases with another intriguing
kind of empiricism. It sent out a questionnaire to the European database
industry asking if they liked their intellectual property right—a procedure
with all the rigor of setting farm policy by asking French farmers how they
feel about agricultural subsidies. More bizarrely still, the report sometimes
juxtaposed the two studies as if they were of equivalent worth. Perhaps this
method of decision making could be expanded to other areas. We could set
communications policy by conducting psychoanalytic interviews with state
telephone companies—let current incumbents’ opinions determine what is good for
the market as a whole. “What is your emotional relationship with your
monopoly?” “I really like it!” “Do you think it hurts competition?” “Not at
all!”

There are also a few places where the reasoning in the report left one
scratching one’s head. One goal of the database right was to help close the gap
between the size of the European and U.S. database markets. Even before the
directive, most European countries already gave greater protection than the
United States to compilations of fact. The directive raised the level still
higher. The theory was that this would help build European market share. Of
course, the opposite is also possible. Setting intellectual property rights too
high can actually stunt innovation. In practice, as the Commission’s report
observes, “the ratio of European / U.S. database production, which was nearly
1:2 in 1996, has become 1:3 in 2004.”~{ Ibid., 22. }~ Europe had started with
higher protection and a smaller market. Then it raised its level of protection
and lost even more ground. Yet the report was oddly diffident about the
possibility that the U.S. system actually works better.

In its conclusion, the report offered a number of possibilities, including
repealing the directive, amending it to limit or remove the “sui generis” right
while leaving the rest of the directive in place, and keeping the system as it
is. The first options are easy to understand. Who would want to keep a system
when it is not increasing database production, or European market share, and,
indeed, might be actively harmful? Why leave things as they are? The report
offers several reasons.

First, database companies want to keep the directive. (The report delicately
notes that their “endorsement . . . is somewhat at odds with the continued
success of U.S. publishing and database production that thrives without . . .
[such] protection,” but nevertheless appears to be “a political reality.”)
Second, repealing the directive would reopen the debate on what level of
protection is needed. Third, change may be costly.

Imagine applying these arguments to a drug trial. The patients in the control
group have done better than those given the drug and there is evidence that the
drug might be harmful. But the drug companies like their profits and want to
keep the drug on the market. Though “somewhat at odds” with the evidence, this
is a “political reality.” Getting rid of the drug would reopen the debate on
the search for a cure. Change is costly—true. But what is the purpose of a
review if the status quo is always to be preferred?

The final result? Faced with what Commission staff members tell me was a tidal
wave of lobbying from publishers, the Commission quietly decided to leave the
directive unchanged, despite the evidence. The result itself is not remarkable.
Industry capture of a regulatory apparatus is hardly a surprise. What is
remarkable is that this is one of the first times any entity engaged in making
intellectual property policy on the international level has even looked
seriously at the empirical evidence of that policy’s effects.

To be sure, figures are thrown around in hearings. The software industry will
present studies showing, for example, that it has lost billions of dollars
because of illicit copying. It has indeed lost profits relative to what it
could get with all the benefits of cheaper copying and transmission worldwide
and with perfect copyright enforcement as well. (Though the methodology of some
of the studies, which assumes that each copier would have paid full price—is
ridiculous.) But this simply begs the question. A new technology is introduced
that increases the size of your market and decreases your costs dramatically,
but also increases illicit copying. Is this cause for state intervention to
increase your level of rights or the funds going toward enforcement of
copyright law, as opposed to any other law enforcement priority? The question
for empirical analysis, both before and after a policy change, should be “Is
this change necessary in order to maintain incentives for production and
distribution? Will whatever benefits it brings outweigh the costs of static and
dynamic losses—price increases to consumers and impediments to future
innovators?” The content companies might still be able to justify the
extensions of their rights. But they would be doing so in the context of a
rational, evidence-based debate about the real goals of intellectual property,
not on the assumption that they have a natural right to collect all the
economic surplus gained by a reduction in the costs of reproduction and
distribution.

2~ Does Public Information Want To Be Free?

The United States has much to learn from Europe about information policy. The
ineffectively scattered U.S. approach to data privacy, for example, produces
random islands of privacy protection in a sea of potential vulnerability. Until
recently, your video rental records were better protected than your medical
records. Europe, by contrast, has tried to establish a holistic framework, a
much more effective approach. But there are places where the lessons should
flow the other way. The first one, I have suggested, is database protection.
The second is a related but separate issue: the legal treatment of publicly
generated data, the huge, and hugely important, flow of information produced by
government-funded activities—from ordnance survey maps and weather data to
state-produced texts, traffic studies, and scientific information. How is this
flow of information distributed? The norm turns out to be very different in the
United States and in Europe.

In one part of the world, state-produced data flows are frequently viewed as
revenue sources. They are often copyrighted or protected by database rights.
Many of the departments which produce them attempt to make a profit or at least
to recover their entire operating costs through user fees. It is heresy to
suggest that the taxpayer has already paid for the production of this data and
should not have to do so twice. The other part of the world practices a benign
form of information socialism. By law, any text produced by the central
government is free from copyright and passes immediately into the public
domain. The basic norm is that public data flows should be available at the
cost of reproduction alone.

It is easy to guess which area is which. The United States is surely the
profit- and property-obsessed realm, Europe the place where the state takes
pride in providing data as a public service? No, actually, it is the other way
around.

Take weather data. The United States makes complete weather data available to
all at the cost of reproduction. If the superb government Web sites and data
feeds are insufficient, for the cost of a box of blank DVDs you can have the
entire history of weather records across the continental United States.
European countries, by contrast, typically claim government copyright over
weather data and often require the payment of substantial fees. Which approach
is better? I have been studying the issue for fifteen years, and if I had to
suggest a single article it would be the magisterial study by Peter Weiss
called “Borders in Cyberspace,” published by the National Academies of
Science.~{ In Open Access and the Public Domain in Digital Data and Information
for Science: Proceedings of an International Symposium (Washington, D.C.:
National Academies Press, 2004), 69–73, available at
http://books.nap.edu/openbook.php?record_id=11030&page=69. }~ Weiss shows that
the U.S. approach generates far more social wealth. True, the information is
initially provided for free, but a thriving private weather industry has sprung
up which takes the publicly funded data as its raw material and then adds value
to it. The U.S. weather risk management industry, for example, is more than ten
times bigger than the European one, employing more people, producing more
valuable products, generating more social wealth. Another study estimates that
Europe invests 9.5 billion Euros in weather data and gets approximately 68
billion back in economic value—in everything from more efficient farming and
construction decisions to better holiday planning—a sevenfold multiplier. The
United States, by contrast, invests twice as much—19 billion—but gets back a
return of 750 billion Euros, a thirty-nine-fold multiplier.

Other studies suggest similar patterns elsewhere, in areas ranging from
geospatial data to traffic patterns and agriculture. The “free” information
flow is better at priming the pump of economic activity.

Some readers may not thrill to this way of looking at things because it smacks
of private corporations getting a “free ride” on the public purse—social wealth
be damned. But the benefits of open data policies go further. Every year the
monsoon season kills hundreds and causes massive property damage in Southeast
Asia. One set of monsoon rains alone killed 660 people in India and left 4.5
million homeless. Researchers seeking to predict the monsoon sought complete
weather records from the United States and Europe so as to generate a model
based on global weather patterns. The U.S. data was easily and cheaply
available at the cost of reproduction. The researchers could not afford to pay
the price asked by the European weather services, precluding the “ensemble”
analysis they sought to do. Weiss asks rhetorically, “What is the economic and
social harm to over 1 billion people from hampered research?” In the wake of
the outpouring of sympathy for tsunami victims in the same region, this example
seems somehow even more tragic. Will the pattern be repeated with
seismographic, cartographic, and satellite data? One hopes not.

The European attitude may be changing. Competition policy has already been a
powerful force in pushing countries to rethink their attitudes to government
data. The European Directive on the Reuse of Public Sector Information takes
large strides in the right direction, as do studies by the Organization for
Economic Co-operation and Development (OECD) and several national
initiatives.~{ Directive 2003/98/EC of the European Parliament and of the
Council of 17 November 2003 on the Re-use of Public Sector Information,
Official Journal of the European Union, L 345 (31.12.2003): 90–96; Public
Sector Modernisation: Open Government, Organization for Economic Co-operation
and Development (2005), available at
http://www.oecd.org/dataoecd/1/35/34455306.pdf; The Socioeconomic Effects of
Public Sector Information on Digital Networks: Toward a Better Understanding of
Different Access and Reuse Policies (February 2008 OECD conference), more
information at
http://www.oecd.org/document/48/0,3343,en_2649_201185_40046832_1_1_1_1,00.html;
and the government sites of individual countries in the European Union such as
Ireland (http://www.psi.gov.ie/). }~ Unfortunately, though, most of these
follow the same pattern. An initially strong draft is watered down and the
utterly crucial question of whether data should be provided at the marginal
cost of reproduction is fudged or avoided. This is a shame. Again, if we really
believed in evidence-based policy making, the debate would be very different.

2~ Breaking the Deal

What would the debate look like if we took some of the steps I mention here?
Unfortunately there are very few examples of evidence-based policy making, but
the few that do exist are striking.

In 2006, the government-convened Gowers Review of intellectual property policy
in the United Kingdom considered a number of proposals on changes to copyright
law, including a retrospective extension of sound recording copyright terms.~{
Andrew Gowers, Gowers Review of Intellectual Property (London: HMSO, 2006),
available at http://www.hm-treasury.gov.uk/d/pbr06_gowers_report_755.pdf [Ed.
note: originally published at
http://www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf, the link
has changed]. }~ The copyright term for sound recordings in the United Kingdom
is fifty years. (It is longer for compositions.) At the end of the fifty-year
period, the recording enters the public domain. If the composition is also in
the public domain—the great orchestral works of Beethoven, Brahms, and Mozart,
for example, or the jazz classics of the early twentieth century—then anyone
can copy the recording. This means we could make it freely available in an
online repository for music students throughout Britain—perhaps preparing the
next generation of performers—or republish it in a digitally cleansed and
enhanced edition. If the composition is still under copyright, as with much
popular music, then the composer is still entitled to a licensing fee, but now
any music publisher who pays that fee can reissue the work—introducing
competition and, presumably, bringing down prices of the recording.

The recording industry, along with successful artists such as Sir Cliff Richard
and Ian Anderson of Jethro Tull, wished to extend the fifty-year term to
ninety-five years, or perhaps even longer—the life of the performer, plus
seventy years. This proposal was not just for new recordings, but for the ones
that have already been made.

Think of the copyright system as offering a deal to artists and record
companies. “We will enlist the force of the state to give you fifty years of
monopoly over your recordings. During that time, you will have the exclusive
right to distribute and reproduce your recording. After that time, it is
available to all, just as you benefited from the availability of public domain
works from your predecessors. Will you make records under these terms?”

Obviously, fifty years of legalized exclusivity was enough of an incentive to
get them to make the music in the first place. We have the unimpeachable
evidence that they actually did. Now they want to change the terms of the deal
retrospectively. They say this will “harmonize” the law internationally, give
recordings the same treatment as compositions, help struggling musicians, and
give the recording industry some extra money that it might spend on developing
new talent. (Or on Porsches, shareholder dividends, and plastic ducks. If you
give me another forty-five years of monopoly rent, I can spend it as I wish.)

Change the context and think about how you would react to this if the deal was
presented to you personally. You hired an artist to paint a portrait. You
offered $500. He agreed. You had a deal. He painted the painting. You liked it.
You gave him the money. A few years later he returned. “You owe me another
$450,” he said.

You both looked at the contract. “But you agreed to paint it for $500 and I
paid you that amount.” He admitted this was true, but pointed out that painters
in other countries sometimes received higher amounts, as did sculptors in our
own country. In fact, he told you, all painters in our country planned to
demand another $450 for each picture they had already painted as well as for
future pictures. This would “harmonize” our prices with other countries, put
painting on the same footing as sculpture, and enable painters to hire more
apprentices. His other argument was that painters often lost money. Only
changing the terms of their deals long after they were struck could keep them
in business. Paying the money was your duty. If you did not pay, it meant that
you did not respect art and private property.

You would find these arguments absurd. Yet they are the same ones the record
industry used, relying heavily on the confusions against which this book has
warned. Is the record companies’ idea as outrageous as the demands of my
imaginary painter? It is actually worse.

The majority of sound recordings made more than forty years ago are
commercially unavailable. After fifty years, only a tiny percentage are still
being sold. It is extremely hard to find the copyright holders of the
remainder. They might have died, gone out of business, or simply stopped
caring. Even if the composer can be found, or paid through a collection
society, without the consent of the holder of the copyright over the musical
recording, the work must stay in the library. These are “orphan works”—a
category that probably comprises the majority of twentieth-century cultural
artifacts.

Yet as I pointed out earlier, without the copyright holder’s permission, it is
illegal to copy or redistribute or perform these works, even if it is done on a
nonprofit basis. The goal of copyright is to encourage the production of, and
public access to, cultural works. It has done its job in encouraging
production. Now it operates as a fence to discourage access. As the years go
by, we continue to lock up 100 percent of our recorded culture from a
particular year in order to benefit an ever-dwindling percentage—the lottery
winners—in a grotesquely inefficient cultural policy.

Finally, fifty years after they were made, sound recordings enter the public
domain in the United Kingdom (though as I pointed out earlier, licensing fees
would still be due to the composer if the work itself was still under
copyright). Now anyone—individual, company, specialist in public domain
material—could offer the work to the public. But not if the record companies
can persuade the government otherwise. Like my imaginary painter, they want to
change the terms of the deal retrospectively. But at least the painter’s
proposal would not make the vast majority of paintings unavailable just to
benefit a tiny minority of current artists.

The recording industry’s proposal for retrospective extension was effectively a
tax on the British music-buying public to benefit the copyright holders of a
tiny proportion of sound recordings. The public loses three times. It loses
first when it is forced to continue to pay monopoly prices for older,
commercially available music, rather than getting the benefit of the bargain
British legislators originally offered: fifty years of exclusivity, then the
public domain. The public loses a second time when, as a side effect, it is
denied access to commercially unavailable music; no library or niche publisher
can make the forgotten recordings available again. Finally, the public loses a
third time because allowing retrospective extensions will distort the political
process in the future, leading to an almost inevitable legislative capture by
the tiny minority who find that their work still has commercial value at the
end of the copyright term they were originally granted. As Larry Lessig has
pointed out repeatedly, the time to have the debate about the length of the
copyright term is before we know whose works will survive commercially.

The whole idea is very silly. But if this is the silly idea we wish to pursue,
then simply increase the income tax proportionately and distribute the benefits
to those record companies and musicians whose music is still commercially
available after fifty years. Require them to put the money into developing new
artists—something the current proposal does not do. Let all the other
recordings pass into the public domain.

Of course, no government would consider such an idea for a moment. Tax the
public to give a monopoly windfall to those who already hit the jackpot,
because they claim their industry cannot survive without retrospectively
changing the terms of its deals? It is indeed laughable. Yet it is a far better
proposal than the one that was presented to the Gowers Review.

What happened next was instructive. The Review commissioned an economic study
of the effects of copyright term extension—both prospective and
retrospective—on recorded music from the University of Cambridge’s Centre for
Intellectual Property and Information Law. The resulting document was a model
of its kind.~{ University of Cambridge Centre for Intellectual Property and
Information Law, Review of the Economic Evidence Relating to an Extension of
Copyright in Sound Recordings (2006), available at
http://www.hm-treasury.gov.uk/d/gowers_cipilreport.pdf [Ed. note: originally
published at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf,
the link has changed]. }~

With painstaking care and a real (if sometimes fruitless) attempt to make
economic arguments accessible to ordinary human beings, the study laid out the
costs and benefits of extending the copyright term over sound recordings. It
pointed out that the time to measure the value of a prospective term extension
is at the moment the copyright is granted. Only then does it produce its
incentive effects. The question one must ask is how much value today does it
give an artist or record company to have their copyright extended by a year at
the end of the existing period of protection. Then one must look to see whether
the benefits of the added incentive outweigh the social costs it imposes. To
put it another way, if the state were selling today the rights to have
protection from year fifty to year ninety-five, how much would a rational
copyright holder pay, particularly knowing that there is only a small
likelihood the work will even be commercially available to take advantage of
the extension? Would that amount be greater than the losses imposed on society
by extending the right?

Obviously, the value of the extension is affected by our “discount rate”—the
annual amount by which we must discount a pound sterling in royalties I will
not receive for fifty-one years in order to find its value now. Unsurprisingly,
one finds that the value of that pound in the future is tiny at the moment when
it matters—today—in the calculation of an artist or distributor making the
decision whether to create. Conservative estimates yield a present value
between 3 percent and 9 percent of the eventual amount. By that analysis, a
pound in fifty years is worth between three and nine pence to you today, while
other estimates have the value falling below one penny. This seems unlikely to
spur much creativity at the margin. Or to put it in the more elegant language
of Macaulay, quoted in Chapter 2:

_1 I will take an example. Dr. Johnson died fifty-six years ago. If the law
were what my honourable and learned friend wishes to make it, somebody would
now have the monopoly of Dr. Johnson’s works. Who that somebody would be it is
impossible to say; but we may venture to guess. I guess, then, that it would
have been some bookseller, who was the assign of another bookseller, who was
the grandson of a third bookseller, who had bought the copyright from Black
Frank, the Doctor’s servant and residuary legatee, in 1785 or 1786. Now, would
the knowledge that this copyright would exist in 1841 have been a source of
gratification to Johnson? Would it have stimulated his exertions? Would it have
once drawn him out of his bed before noon? Would it have once cheered him under
a fit of the spleen? Would it have induced him to give us one more allegory,
one more life of a poet, one more imitation of Juvenal? I firmly believe not. I
firmly believe that a hundred years ago, when he was writing our debates for
the Gentleman’s Magazine, he would very much rather have had twopence to buy a
plate of shin of beef at a cook’s shop underground.~{ Ibid., 21–22. }~

The art form is different, but the thought of a 1960s Cliff Richard or Ian
Anderson being “cheered under a fit of the spleen” by the prospect of a
copyright extension fifty years hence is truly a lovely one.

Considering all these factors, as well as the effects on investment in British
versus American music and on the balance of trade, the Cambridge study found
that the extension would cost consumers between 240 and 480 million pounds, far
more than the benefits to performers and recording studios. (In practice, the
report suggested, without changes in the law, most of the benefits would not
have gone to the original recording artist in any case.) It found prospective
extension led to a clear social welfare loss. What of retrospective extension?

The report considered, and found wanting, arguments that retrospective
extension is necessary to encourage “media migration”—the digitization of
existing works, for example. In fact, most studies have found precisely the
reverse—that public domain works are more available and more frequently adapted
into different media. (Look on Amazon.com for a classic work that is out of
copyright—Moby-Dick, for example—and see how many adaptations and formats are
available.) It also rejected the argument that harmonization alone was enough
to justify extension—retrospective or prospective—pointing out the considerable
actual variation in both term and scope of rights afforded to performers in
different countries. Finally, it warned of the “hidden ‘ratcheting’ effect of
harmonisation which results from the fact that harmonization is almost
invariably upwards.” Its conclusion was simple:

_1 [R]etrospective term extensions reduce social welfare. Thus, in this case,
it would seem that basic theory alone is sufficient to provide strong, and
unambiguous, guidance for policy-makers. . . . We therefore see no reason to
quarrel with the consensus of the profession on this issue which as summed up
by Akerlof et al. . . . [states] categorically that . . . “[retrospective]
extension provides essentially no incentive to create new works. Once a work is
created, additional compensation to the producer is simply a windfall.”~{ Ibid.
}~

The Gowers Review agreed. Its fourth recommendation read simply, “Policy makers
should adopt the principle that the term and scope of protection for IP rights
should not be altered retrospectively.” Perhaps more important, though, was the
simple paragraph at the front of the document captioned “The Approach of the
Review.” It begins thus: “The Review takes an evidence-based approach to its
policy analysis and has supplemented internal analysis by commissioning
external experts to examine the economic impact of changes. . . .”

Why specify that one was taking an “evidence-based” approach? At first, the
comment seems unnecessary. What other approach would one take? Anecdotal?
Astrological? But there is a framework in which empirical evidence of the
effects of policy simply seems irrelevant—one based on natural right. When the
Review was given to the House of Commons Select Committee on Culture, Media and
Sport, that frame of mind was much in evidence:

_1 The Gowers Review undertook an extensive analysis of the argument for
extending the term. On economic grounds, the Review concluded that there was
little evidence that extension would benefit performers, increase the number of
works created or made available, or provide incentives for creativity; and it
noted a potentially negative effect on the balance of trade. . . . Gowers’s
analysis was thorough and in economic terms may be correct. It gives the
impression, however, of having been conducted entirely on economic grounds. We
strongly believe that copyright represents a moral right of a creator to choose
to retain ownership and control of their own intellectual property. We have not
heard a convincing reason why a composer and his or her heirs should benefit
from a term of copyright which extends for lifetime and beyond, but a performer
should not. . . . Given the strength and importance of the creative industries
in the U.K., it seems extraordinary that the protection of intellectual
property rights should be weaker here than in many other countries whose
creative industries are less successful.~{ House of Commons Select Committee on
Culture, Media and Sport, Fifth Report (2007), available at
http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcumeds/509/50910.htm.
}~

A couple of things are worth noting here. The first is that the Committee is
quite prepared to believe that the effects of term extension would not benefit
performers or provide incentives for creativity, and even to believe that it
would hurt the balance of trade. The second is the curious argument in the last
sentence. Other countries have stronger systems of rights and are less
successful. We should change our regime to be more like them! Obviously the
idea that a country’s creative industries might be less successful because
their systems of rights were stronger does not occur to the Committee for a
moment. Though it proclaims itself to be unaffected by economic thought, it is
in fact deeply influenced by the “more rights equals more innovation” ideology
of maximalism that I have described in these pages.

Nestling between these two apparently contradictory ideas is a serious argument
that needs to be confronted. Should we ignore evidence—even conclusive
evidence—of negative economic effects, harm to consumers, and consequences for
the availability of culture because we are dealing with an issue of moral
right, almost natural right? Must we extend the rights of the artists who
recorded those songs (or rather the record companies who immediately acquired
their copyrights) because they are simply theirs as a matter of natural
justice? Do performers have a natural right to recorded songs either because
they have labored on them, mixing their sweat with each track, or because
something of their personality is forever stamped into the song? Must we grant
an additional forty-five years of commercial exclusivity, not because of
economic incentive, but because of natural right?

Most of us feel the pull of this argument. I certainly do. But as I pointed out
in Chapter 2, there are considerable problems with such an idea. First, it runs
against the premises of actual copyright systems. In the United States, for
example, the Constitution resolutely presents the opposite picture. Exclusive
rights are to encourage progress in science and the useful arts. The Supreme
Court has elaborated on this point many times, rejecting both labor-based
“sweat of the brow” theories of copyright and more expansive visions based on a
natural right to the products of one’s genius—whether inventions or novels.
Britain, too, has a history of looking to copyright as a utilitarian
scheme—though with more reference to, and legal protection of, particular
“moral rights” than one finds in the United States. But even in the most
expansive “moral rights” legal systems, even in the early days of debate about
the rights of authors after the French Revolution, it is accepted that there
are temporal limits on these rights. If this is true of authors, it is even
more true of performers, who are not granted the full suite of author’s rights
in moral rights jurisdictions, being exiled to a form of protection called
“neighboring” rights.

In all of these schemes, there are time limits on the length of the rights (and
frequently different ones for different creators—authors, inventors,
performers, and so on). Once one has accepted that point, the question of how
long they should be is, surely, a matter for empirical and utilitarian
analysis. One cannot credibly say that natural rights or the deep deontological
structure of the universe gives me a right to twenty-eight or fifty-six or
seventy years of exclusivity. The argument must turn instead to a question of
consequences. Which limit is better? Once one asks that question, the Gowers
Review’s economic assessment is overwhelming, as the Select Committee itself
recognized. In the end, the government agreed—noting that a European Union
study had found precisely the same thing. The sound recording right should not
be extended, still less extended retrospectively. The evidence-free zone had
been penetrated. But not for long. As this book went to press, the European
Commission announced its support for an even longer Europe-wide extension of
the sound recording right. The contrary arguments and empirical evidence were
ignored, minimized, explained away. How can this pattern be broken?

In the next and final chapter, I try to answer that question. I offer a partial
explanation for the cognitive and organizational blindnesses that have brought
us to this point. I argue that we have much to learn from the history, theory,
and organizational practices of the environmental movement. The environmental
movement taught us to see “the environment” for the first time, to recognize
its importance, and to change the way we thought about ecology, property, and
economics in consequence. What we need is an environmentalism of mind, of
culture, of information. In the words of my colleague David Lange, we need to
“recognize the public domain.” And to save it.

2~ Chapter 9: Further Reading

3~ Database Rights

Mark J. Davison, The Legal Protection of Databases (Cambridge: Cambridge
University Press, 2003), provides a fine introduction to the legal, and
legalistic, issues surrounding the legal protection of databases. Precisely
because of the need to focus on those issues, and that audience, the discussion
is internal to the conceptual categories of the various legal systems he
discusses, rather than focusing on the external questions I discuss here.
Insiders will find the discussion indispensable. Outsiders may find it
hermetic. For those readers, an article by Davison and Hugenholtz may be more
accessible. It points out the ways in which the European Court of Justice has
tried to rein in the database right. Mark J. Davison and P. Bernt Hugenholtz,
“Football Fixtures, Horseraces and Spinoffs: The ECJ Domesticates the Database
Right,” European Intellectual Property Review 27, no. 3 (2005): 113–118.

When it comes to the general intellectual framework for thinking about database
rights, Jerome Reichman and Pamela Samuelson provide the germinal point of
view: J. H. Reichman and Pamela Samuelson, “Intellectual Property Rights in
Data?” Vanderbilt Law Review 50 (1997): 51–166. Frequent readers of Reichman
will be unsurprised that “take and pay” liability rules make an appearance as a
possible solution. Yochai Benkler’s article, “Constitutional Bounds of Database
Protection: The Role of Judicial Review in the Creation and Definition of
Private Rights in Information,” Berkeley Technology Law Journal 15 (2000):
535–604, indicates the free expression and self-determination problems
presented by intellectual property rights over facts. By contrast, J. H.
Reichman and Paul F. Uhlir, “Database Protection at the Crossroads: Recent
Developments and Their Impact on Science and Technology,” Berkeley Technology
Law Journal 14 (1999): 793–838, point out their negative effects on science and
technological development. Increasingly, science will depend on the
recombination of multiple databases to solve problems. At first, this will be
done for huge and important projects. But increasingly, it will be done to
solve smaller problems—scientists will seek to mix and mash a variety of data
sources into an interoperable whole in order to solve the scientific problem du
jour. Unfortunately, there are many obstacles to this promising tendency to
harness digital technology to scientific research. Some of them are technical,
some social, some semantic, some legal. One of the legal problems is posed by
the expansion of database rights: the tendency to have intellectual property
rights penetrate down to the most basic, unoriginal, or atomic level of data—a
move that, as I point out in this chapter, is empirically shown to be
counterproductive. Stephen M. Maurer, P. Bernt Hugenholtz, and Harlan J.
Onsrud, “Europe’s Database Experiment,” Science 294 (2001): 789–780. Further
information on the various barriers to data aggregation can be gleaned from the
website of Science Commons (http://www.sciencecommons.org), an organization
with which I am associated.

3~ Evidence-based Policy

The move toward evidence-based policy has garnered considerable support in
academia, but, as yet, only a little traction among policy makers. Readers
interested in exploring the issue further can find a series of my Financial
Times’s articles on the subject at http://www.ft.com/techforum. James Bessen
and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put
Innovators at Risk (Princeton, N.J.: Princeton University Press, 2008), is a
sterling example of the way in which we could and should be looking at policy
proposals. That book’s list of references provides a nice overview of recent
work in the field. As the title indicates, Bessen and Meurer do not grade our
current system highly. Adam Jaffe and Josh Lerner, Innovation and Its
Discontents: How Our Broken Patent System is Endangering Innovation and
Progress, and What To Do About It (Princeton, N.J.: Princeton University Press,
2004), offers an earlier, and similar, assessment backed by data rather than
faith. For us to have evidence-based policy, we need actual evidence. Here the
work of empiricists such as my colleague Wes Cohen has proven vital. Much of
this work is comparative in nature—relying on the kind of “natural experiment”
I describe in this chapter. A fine example is provided by Wesley M. Cohen,
Akira Goto, Akiya Nagata, Richard R. Nelson, and John P. Walsh, “R&D
Spillovers, Patents and the Incentives to Innovate in Japan and the United
States,” Research Policy 31 (2002): 1349–67.

All of this may seem obvious. Where else would intellectual property academics
turn in order to assess the effect of various policy alternatives than to
empirical and comparative data? Yet as the chapter points out, that simple
conclusion has yet to become a standard assumption in the making of policy. The
Gowers Review mentioned in the chapter is a nice example of how things might be
otherwise. Gowers Review of Intellectual Property (London: HMSO, 2006),
available at http://www.hm-treasury.gov.uk/d/pbr06_gowers_report_755.pdf [Ed.
note: originally published at
http://www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf, link has
changed]. Of course, a turn to evidence is only the beginning. It hardly means
that the evidence will be clear, the points of view harmonious, or the
normative assessments shared. But at least the conversation is beginning from a
rooting in facts rather than faith.

3~ Publicly Generated Information

Access to public, or state generated, data is not simply a matter of economic
efficiency. Wouter Hins and Dirk Voorhoof, “Access to State-Held Information as
a Fundamental Right under the European Convention on Human Rights,” European
Constitutional Law Review 3 (2007): 114–126. But in efficiency terms, it does
seem to present some clear benefits. Peter Weiss, “Borders in Cyberspace:
Conflicting Government Information Policies and their Economic Impacts,” in
Open Access and the Public Domain in Digital Data and Information for Science:
Proceedings of an International Symposium (Washington, D.C.: National Academies
Press, 2004), 69–73. The issues of publicly generated information are
particularly pressing in geospatial data—which can be vital for academic
research and economic development. Bastiaan van Loenen and Harlan Onsrud,
“Geographic Data for Academic Research: Assessing Access Policies,” Cartography
and Geographic Information Science 31 (2004): 3–17. It is an issue that is
gaining attention in Europe: “Directive 2003/98/EC of the European Parliament
and of the Council of 17 November 2003 on the Re-use of Public Sector
Information,” Official Journal of the European Union 46 (31.12.2003) 90–96 (L
345). However, there is a long way to go.

3~ Sound Recording Rights

A good place to start is the Gowers Review, cited above, and the report
generated by the Centre for Intellectual Property and Information Law,
University of Cambridge, Review of the Economic Evidence Relating to an
Extension of the Term of Copyright in Sound Recordings (2006), available at
http://www.hm-treasury.gov.uk/d/gowers_cipilreport.pdf [Ed. note: originally
published at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf,
the link has changed]. My own views are close to those put forward by this
excellent article: Natali Helberger, Nicole Dufft, Stef van Gompel, and Bernt
Hugenholtz, “Never Forever: Why Extending the Term of Protection for Sound
Recordings is a Bad Idea,” European Intellectual Property Review 30 (2008):
174–181.

1~ Chapter 10: An Environmentalism for Information

Over the last fifteen years, a group of scholars have finally persuaded
economists to believe something noneconomists find obvious: “behavioral
economics” shows that people do not act as economic theory predicts. But hold
your cheers. This is not a vindication of folk wisdom over the pointy-heads.
The deviations from “rational behavior” are not the wonderful cornucopia of
human motivations you might imagine. There are patterns. For example, we are
systematically likely to overestimate chances of loss and underestimate chances
of gain, to rely on simplifying heuristics to frame problems even when those
heuristics are contradicted by the facts.

Some of the patterns are endearing; the supposedly “irrational” concerns for
distributive equality that persist in all but the economically trained and the
extreme right, for example. But most of them simply involve the mapping of
cognitive bias. We can take advantage of those biases, as those who sell us
ludicrously expensive and irrational warranties on consumer goods do. Or we can
correct for them, like a pilot who is trained to rely on his instruments rather
than his faulty perceptions when flying in heavy cloud.

This book has introduced you to the wonders and terrors of intellectual
property law—the range wars of the Internet age. There have been discussions of
synthetic biology and musical sampling, digital locks and the hackers who break
them, Jefferson and Macaulay, and the fight over video recorders. Now it is
time to sum up.

I would argue that the chapters in this book present evidence of another kind
of cognitive bias, one that the behavioral economists have not yet identified.
Call it the openness aversion. Cultural agoraphobia. We are systematically
likely to undervalue the importance, viability, and productive power of open
systems, open networks, and nonproprietary production.

2~ Cultural Agoraphobia?

Test yourself on the following questions. In each case, it is 1991 and I have
removed from you all knowledge of the years since then. (For some, this might
be a relief.)

The first question is a thought experiment I introduced in Chapter 4. You have
to design an international computer network. One group of scientists describes
a system that is fundamentally open: open protocols and open systems so that
anyone could connect to the system and offer information or products to the
world. Another group—scholars, businesspeople, bureaucrats—points out the
problems. Anyone could connect to the system! They could do anything! The
system itself would not limit them to a few approved actions or approved
connections. There would be porn, and piracy, and viruses, and spam. Terrorists
could put up videos glorifying themselves. Your neighbor’s site could compete
with the New York Times or the U.S. government in documenting the war in Iraq.
Better to have a well-managed system in which official approval is required to
put up a site, where only a few selected actions are permitted by the network
protocols, where most of us are merely recipients of information, where spam,
viruses, and piracy (and innovation and participatory culture and anonymous
speech) are impossible. Which network design would you have picked? Remember,
you have no experience of blogs, or mashups, or Google; no experience of the
Web. Just you and your cognitive filters.

Imagine a form of software which anyone could copy and change, created under a
license which required subsequent programmers to offer their software on the
same terms. Imagine legions of programmers worldwide contributing their
creations back into a “commons.” Is this anarchic-sounding method of production
economically viable? Could it successfully compete with the hierarchically
organized corporations producing proprietary, closed code, controlled by both
law and technology? Be truthful.

Finally, set yourself the task of producing the greatest reference work the
world has ever seen. You are told that it must cover everything from the best
Thai food in Durham to the annual rice production of Thailand, from the best
places to see blue whales to the history of the Blue Dog Coalition. Would you
create a massive organization of paid experts, each assigned a topic, with
hierarchical layers of editors above them, producing a set of encyclopedic
tomes that are rigorously controlled by copyright and trademark? Or would you
wait for hobbyists, governments, scientists, and volunteer encyclopedists to
produce, and search engines to organize and rank, a cornucopia of information?
I know which way I would have bet in 1991. But I also know that the last time I
consulted an encyclopedia was in 1998. You?

It is not that openness is always right. It is not. Often we need strong
intellectual property rights, privacy controls, and networks that demand
authentication. Rather, it is that we need a balance between open and closed,
owned and free, and we are systematically likely to get the balance wrong. (How
did you do on the test?) Partly this is because we still don’t understand the
kind of property that lives on networks; most of our experience is with
tangible property. Sandwiches that one hundred people cannot share. Fields that
can be overgrazed if outsiders cannot be excluded. For that kind of property,
control makes more sense. Like astronauts brought up in gravity, our reflexes
are poorly suited for free fall. Jefferson’s words were true even of grain
elevators and hopper-boys. But in our world, the proportion of intangible to
tangible property is much, much higher. The tendency to conflate intellectual
and real property is even more dangerous in a networked world. We need his
words more than he did.

Each of the questions I asked is related to the World Wide Web. Not the
Internet, the collective name for the whole phenomenon, including the
underlying methods of sending and receiving packets. Some version of the
underlying network has been around for much longer, in one form or another. But
it only attracted popular attention, only revolutionized the world, when on top
of it was built the World Wide Web—the network of protocols and pages and
hyperlinks that is so much a part of our lives and which arose only from Tim
Berners-Lee’s work at CERN in 1991.

My daughter will graduate from college in the year 2011. (At least, we both
hope so.) She is older than the Web. It will not even have had its twentieth
birthday on her graduation day. By Christmas of 2012, it will be able to drink
legally in the United States. I wrote those sentences, but I find it hard to
believe them myself. A life without the Web is easy to remember and yet hard to
recapture fully. It seems like such a natural part of our world, too fixed to
have been such a recent arrival, as if someone suggested that all the roads and
buildings around you had arrived in the last fifteen years.

Some of you may find these words inexplicable because you live in a happy,
Thoreau-like bliss, free of any contact with computer networks. If so, I take
my hat off to you. The world of open sky and virtuous sweat, of books and sport
and laughter, is no less dear to me than to you. Having an avatar in a virtual
world holds the same interest as elective dental surgery. I care about the Web
not because I want to live my life there, but because of what it has allowed us
to achieve, what it represents for the potential of open science and culture.
That, I think, is something that Thoreau (and even Emerson for that matter)
might have cared about deeply. Yet, as I suggested earlier in this book, I
seriously doubt that we would create the Web today—at least if policy makers
and market incumbents understood what the technology might become early enough
to stop it.

I am not postulating some sinister “Breakages, Limited” that stifles
technological innovation. I am merely pointing out the imbalance between our
intuitive perceptions of the virtues and dangers of open and closed systems, an
imbalance I share, quite frankly.

In place of what we have today, I think we would try, indeed we are trying, to
reinvent a tamer, more controlled Web and to change the nature of the
underlying network on which it operates. (This is a fear I share with those who
have written about it more eloquently than I, particularly Larry Lessig and
Yochai Benkler.) We would restrict openness of access, decrease anonymity, and
limit the number of actions that a network participant could perform. The
benefits would be undeniable. It would cut down on spam, viruses, and illicit
peer-to-peer file sharing. At the same time, it would undercut the iconoclastic
technological, cultural, and political potential that the Web offers, the
ability of a new technology, a new service to build on open networks and open
protocols, without needing approval from regulators or entrenched market
players, or even the owners of the Web pages to which you link.

Imagine, by contrast, an Internet and a World Wide Web that looked like America
Online, circa 1996, or Compuserve, or the French state network Minitel. True,
your exposure to penis-enhancement techniques, misspelled stock tips, and the
penniless sons of Nigerian oil ministers would be reduced. That sounds pretty
attractive. But the idea that the AOL search engine would be replaced by Yahoo
and then Google, let alone Google Maps? That new forms of instant messaging
would displace Compuserve’s e-mail? That the Chinese dissident would have
access to anonymized Internet services, that you might make phone calls
worldwide for free from your computer, or that a blog like BoingBoing would end
up having more page views than many major newspapers? Forget it. Goodbye to the
radical idea that anyone can link to any page on the network without
permission. A revised network could have the opposite rule and even impose it
by default.

A tamer network could keep much tighter control over content, particularly
copyrighted content. You might still get the video of the gentlemen doing
strange things with Mentos and soda bottles, though not its viral method of
distribution. But forget about “George Bush Doesn’t Care About Black People”
and all your favorite mashups. Its controlled network of links and its limited
access would never unleash the collective fact-gathering genius the Web has
shown. For a fee, you would have Microsoft Encarta and the Encyclopedia
Britannica online. What about the “right-click universe” of knowledge about the
world gathered by strangers, shared on comparatively open sites worldwide, and
ordered by search engines? What about Wikipedia? I think not.

The counterfactual I offer is not merely a counterfactual. Yes, we got the Web.
It spread too fast to think of taming it into the more mature, sedate “National
Information Infrastructure” that the Clinton administration imagined. But as
Larry Lessig pointed out years ago, the nature of a network can always be
changed. The war over the control and design of the network, and the networked
computer, is never-ending. As I write these words, the battles are over
“trusted computing” and “Net neutrality.” Trusted computing is a feature built
into the operating system which makes it impossible to run processes that have
not been approved by some outside body and digitally identified. It would
indeed help to safeguard your computer from viruses and other threats and make
it harder to copy material the content owners did not want you to copy (perhaps
even if you had a right to). In the process it would help to lock in the power
of those who had a dominant position in operating systems and popular programs.
(Microsoft is a big supporter.) It would make open source software, which
allows users to modify programs, inherently suspect. It would, in fact, as
Jonathan Zittrain points out, change the nature of the general-purpose
computer, which you can program to do anything, back toward the terminal which
tells you what functions are allowed.~{ Jonathan Zittrain, The Future of the
Internet—And How to Stop It (New Haven, Conn.: Yale University Press, 2008). }~
Think of a DVD player.

The attack on Net neutrality, by contrast, is an attempt by the companies who
own the networks to be allowed to discriminate between favored and disfavored
content, giving the former preferential access. (One wit analogized it to
letting the phone company say, “we will delay your call to Pizza Hut for sixty
seconds, but if you want to be put through to our featured pizza provider
immediately, hit nine now!”) Taken together, these proposals would put the
control of the computer back in the hands of the owners of the content and the
operating system, and control of the network users’ choices in the hands of the
person who sells them their bandwidth. At the same time, our intellectual
property agenda is filled with proposals to create new intellectual property
rights or extend old ones. That is the openness aversion in action.

Now, perhaps to you, the closed alternatives still sound better. Perhaps you do
not care as much about the kind of technological dynamism, or anonymous speech,
or cultural ferment that thrills the digerati. Perhaps you care more about the
risks posed by the underlying freedom. That is a perfectly reasonable point of
view. After all, openness does present real dangers; the same freedom given to
the innovator, the artist, and the dissident is given to the predator and the
criminal. At each moment in history when we have opened a communications
network, or the franchise, or literacy, reasonable people have worried about
the consequences that might ensue. Would expanded literacy lead to a general
coarsening of the literary imagination? (Sometimes, perhaps. But it would and
did lead to much more besides, to literature and culture of which we could not
have dreamed.) Would an expanded franchise put the control of the state into
the hands of the uneducated? (Yes, unless we had free national educational
systems. “Now we must educate our masters” was the slogan of the educational
reformers after the enlargement of the franchise in Britain in the nineteenth
century. Openness sometimes begets openness.) Would translating the Bible from
Latin into the vernacular open the door to unorthodox and heretical
interpretations, to a congregation straying because they did not need to depend
on a priestly intermediary with privileged access to the text? (Oh, yes
indeed.) Would TV and radio play into the hands of demagogues? (Yes, and help
expose their misdeeds.)

Openness is not always right. Far from it. But our prior experience seems to be
that we are systematically better at seeing its dangers than its benefits. This
book has been an attempt, in the sphere of intellectual property, to help us
counteract that bias. Like the pilot in the cloud looking at his instruments,
we might learn that we are upside down. But what do we do about it?

2~ Learning from Environmentalism

I have argued that our policies are distorted not merely by industry capture or
the power of incumbent firms, but by a series of cultural and economic biases
or presuppositions: the equation of intellectual property to physical property;
the assumption that whenever value is created, an intellectual property right
should follow; the romantic idea of creativity that needs no raw material from
which to build; the habit of considering the threats, but not the benefits, of
new technologies; the notion that more rights will automatically bring more
innovation; the failure to realize that the public domain is a vital
contributor to innovation and culture; and a tendency to see the dangers of
openness, but not its potential benefits.~{ Of course, these are not the only
assumptions, arguments, and metaphors around. Powerful counterweights exist:
the ideas of Jefferson and Macaulay, which I described here, but also others,
more loosely related—the Scottish Enlightenment’s stress on the political and
moral benefits of competition, free commerce, and free labor; deep economic and
political skepticism about monopolies; the strong traditions of open science;
and even liberalism’s abiding focus on free speech and access to information.
If you hear the slogan “information wants to be free,” you may agree or
disagree with the personification. You may find the idea simplistic. But you do
not find it incomprehensible, as you might if someone said “housing wants to be
free” or “food wants to be free.” We view access to information and culture as
vital to successful versions of both capitalism and liberal democracy. We apply
to blockages in information flow or disparities in access to information a
skepticism that does not always apply to other social goods. Our attitudes
toward informational resources are simply different from our attitudes toward
other forms of power, wealth, or advantage. It is one of the reasons that the
Jefferson Warning is so immediately attractive. It is this attitudinal
difference that makes the political terrain on these issues so fascinating. }~

One of the most stunning pieces of evidence to our aversion to openness is
that, for the last fifty years, whenever there has been a change in the law, it
has almost always been to expand intellectual property rights. (Remember, this
implies that every significant change in technology, society, or economy
required more rights, never less, nor even the same amount.) We have done all
this almost entirely in the absence of empirical evidence, and without
empirical reconsideration to see if our policies were working. As I pointed out
in the last chapter, intellectual property policy is an “evidence-free zone.”
It runs on faith alone and its faith consists of the cluster of ideas I have
outlined in this book. Whether we call this cluster of ideas maximalism,
cultural agoraphobia, or the openness aversion, it exercises a profound
influence on our intellectual property and communications policy.

These ideas are not free-floating. They exist within, are influenced by, and in
turn influence, a political economy. The political economy matters and it will
shape any viable response. Even if the costs of getting the policies wrong are
huge and unnecessary—think of the costs of the copyright extensions that lock
up most of twentieth-century culture in order to protect the tiny fraction of
it that is still commercially available—they are spread out over the entire
population, while the benefits accrue to a small group of commercial entities
that deeply and sincerely believe in the maximalist creed. This pattern of
diffuse but large losses and concentrated gains is, as Mancur Olson taught us,
a recipe for political malfunction.~{ Mancur Olson, The Logic of Collective
Action: Public Goods and the Theory of Groups (Cambridge, Mass.: Harvard
University Press, 1965) and Mancur Olson, The Rise and Decline of Nations:
Economic Growth, Stagflation, and Social Rigidities (New Haven, Conn.: Yale
University Press, 1982). }~ Yet the problem is even deeper than that—in four
ways.

First, though intellectual property rules will profoundly shape science,
culture, and the market in the information age, they just seem obscure,
wonkish, hard to get excited about. Certainly, people can get upset about
individual examples—overbroad patents on human genes, copyright lawsuits
against whistleblowers who leak e-mails showing corporate misdeeds that
threaten the integrity of electronic voting, rules that paralyze documentary
filmmakers, or require payment for sampling three notes from a prior song,
extensions of rights that allow patents on auctions or business methods, make
genres such as jazz seem legally problematic, create new rights over facts, or
snarl up foundational technologies. But they see each of these as an isolated
malfunction, not part of a larger social problem or set of attitudes.

Second, what holds true for issues, also holds true for communities. What links
the person writing open source software, and trying to negotiate a sea of
software patents in the process, to the film archivist trying to stir up
interest in all the wonderful “orphan films”—still under copyright but with no
copyright owner we can find—before they molder away into nitrate dust? When a
university collaborates with Google to digitize books in their collection for
the purposes of search and retrieval, even if only a tiny portion of the text
will be visible for any work still under copyright, does it sense any common
interest with the synthetic biologist trying to create the BioBricks
Foundation, to keep open the foundational elements of a new scientific field?
Both may be sued for their efforts—one connection at least.

When a developing nation tries to make use of the explicit “flexibilities”
built into international trade agreements so as to make available a life-saving
drug to its population through a process of compulsory licensing and
compensation, it will find itself pilloried as a lawbreaker—though it is not—or
punished through bilateral agreements. Will that process form any common
interest with the high-technology industries in the United States who chafe at
the way that current intellectual property rules enshrine older technologies
and business methods and give them the protection of law? There are some links
between those two situations. Will the parties see those links, or will the
developing world’s negotiators think that the current intellectual property
rules express some monolithic “Western” set of interests? Will the high-tech
companies think this is just an issue of dumb lawyers failing to understand
technology? Each gap in understanding of common interest is a strike against an
effective response.

Third, an effective political response would actually be easier if our current
rules came merely from the relentless pursuit of corporate self-interest. (Here
I part company with those who believe that self-interest is simply “there”—not
shaped by socially constructed ideas, attitudes, ideologies, or biases.) In
fact, the openness aversion sometimes obscures self-interest as well as the
public interest. Think of the relentless insistence of the movie companies on
making video recorders illegal. Nor does the framework of maximalism help if
our goal is to have all the interested economic actors in the room when policy
is made. For example, by framing issues of communications policy or Internet
regulation as questions of intellectual property, we automatically privilege
one set of interested parties—content owners—over others who also have a large
economic stake in the matter.

Fourth, and finally, the biggest problem is that even if one could overcome the
problems of political interest, or ideological closed-mindedness, the answers
to many of these questions require balance, thought, and empirical evidence—all
qualities markedly missing in the debate. If the answer were that intellectual
property rights are bad, then forming good policy would be easy. But that is as
silly and one-sided an idea as the maximalist one I have been criticizing here.
Here are three examples:

# Drug patents do help produce drugs. Jettisoning them is a bad idea—though
experimenting with additional and alternative methods of encouraging medical
innovation is a very good one.

# I believe copyrights over literary works should be shorter, and that one
should have to renew them after twenty-eight years—something that about 85
percent of authors and publishers will not do, if prior history is anything to
go by. I think that would give ample incentives to write and distribute books,
and give us a richer, more accessible culture and educational system to boot, a
Library of Congress where you truly can “click to get the book” as my son asked
me to do years ago now. But that does not mean that I wish to abolish
copyright. On the contrary, I think it is an excellent system.

# All the empirical evidence shows that protecting compilations of facts, as
the European Database Directive does, has been a profound failure as a policy,
imposing costs on consumers without encouraging new database production. But if
the evidence said the opposite, I would support a new database right.

We need a political debate about intellectual property that recognizes these
trade-offs; that does not impose simplistic, one-sided solutions; that looks to
evidence. We need to understand the delicate and subtle balance between
property and the opposite of property, the role of rights, but also of the
public domain and the commons. Building a theory, let alone a movement, around
such an issue is hard. Doing so when we lack some of the basic theoretical
tools and vocabularies is daunting. We do not even have a robust conception of
the public domain. If they think of it as a legal issue at all, people simply
think of it as whatever is left over after an endless series of rights have
been carved out. Can one build a politics to protect a residue?

So we have at least four problems: an issue that is perceived as obscure,
affecting scattered groups with little knowledge of each other’s interest,
dominated by an ideology that is genuinely believed by its adherents, in the
place of which we have to make careful, balanced, empirically grounded
suggestions. Assume for a moment the need for a politics of intellectual
property that seeks a solution to these four problems. What might such a
politics look like?

I have argued that in a number of respects, the politics of intellectual
property and the public domain is at the stage that the American environmental
movement was at in the 1950s. In 1950, there were people who cared strongly
about issues we would now identify as “environmental”—supporters of the park
system and birdwatchers, but also hunters and those who disdained chemical
pesticides in growing their foods. In the world of intellectual property, we
have start-up software engineers, libraries, appropriationist artists,
parodists, biographers, and biotech researchers. In the 50s and 60s, we had
flurries of outrage over particular crises—burning rivers, oil spills, dreadful
smog. In the world of intellectual property, we have the kind of stories I have
tried to tell here. Lacking, however, is a general framework, a perception of
common interest in apparently disparate situations.

Crudely speaking, the environmental movement was deeply influenced by two basic
analytical frameworks. The first was the idea of ecology: the fragile, complex,
and unpredictable interconnections between living systems. The second was the
idea of welfare economics—the ways in which markets can fail to make activities
internalize their full costs.~{ “The source of the general divergences between
the values of marginal social and marginal private net product that occur under
simple competition is the fact that, in some occupations, a part of the product
of a unit of resources consists of something, which, instead of coming in the
first instance to the person who invests the unit, comes instead, in the first
instance (i.e., prior to sale if sale takes place), as a positive or negative
item, to other people.” Arthur C. Pigou, “Divergences between Marginal Social
Net Product and Marginal Private Net Product,” in The Economics of Welfare
(London: Macmillan, 1932), available at
http://www.econlib.org/Library/NPDBooks/Pigou/pgEW1.html. Ironically, so far as
I can find, Pigou does not use the word “externality.” }~ The combination of
the two ideas yielded a powerful and disturbing conclusion. Markets would
routinely fail to make activities internalize their own costs, particularly
their own environmental costs. This failure would, routinely, disrupt or
destroy fragile ecological systems, with unpredictable, ugly, dangerous, and
possibly irreparable consequences. These two types of analysis pointed to a
general interest in environmental protection and thus helped to build a large
constituency which supported governmental efforts to that end. The duck
hunter’s preservation of wetlands as a species habitat turns out to have wider
functions in the prevention of erosion and the maintenance of water quality.
The decision to burn coal rather than natural gas for power generation may have
impacts on everything from forests to fisheries. The attempt to reduce
greenhouse gases and mitigate the damage from global warming cuts across every
aspect of the economy.

Of course, it would be silly to think that environmental policy was fueled only
by ideas rather than more immediate desires. As William Ruckelshaus put it,
“With air pollution there was, for example, a desire of the people living in
Denver to see the mountains again. Similarly, the people living in Los Angeles
had a desire to see one another.” Funnily enough, as with intellectual
property, changes in communications technology also played a role. “In our
living rooms in the middle sixties, black and white television went out and
color television came in. We have only begun to understand some of the impacts
of television on our lives, but certainly for the environmental movement it was
a bonanza. A yellow outfall flowing into a blue river does not have anywhere
near the impact on black and white television that it has on color television;
neither does brown smog against a blue sky.”~{ William D. Ruckelshaus,
“Environmental Protection: A Brief History of the Environmental Movement in
America and the Implications Abroad,” Environmental Law 15 (1985): 457. }~ More
importantly perhaps, the technologically fueled deluge of information, whether
from weather satellites or computer models running on supercomputers, provided
some of the evidence that—eventually—started to build a consensus around the
seriousness of global warming.

Despite the importance of these other factors, the ideas I mentioned—ecology
and welfare economics—were extremely important for the environmental movement.
They helped to provide its agenda, its rhetoric, and the perception of common
interest underneath its coalition politics. Even more interestingly, for my
purposes, those ideas—which began as inaccessible scientific or economic
concepts, far from popular discourse—were brought into the mainstream of
American politics. This did not happen easily or automatically. Popularizing
complicated ideas is hard work. There were popular books, television
discussions, documentaries on Love Canal or the California kelp beds, op-ed
pieces in newspapers, and pontificating experts on TV. Environmental groups
both shocking and staid played their part, through the dramatic theater of a
Greenpeace protest or the tweedy respectability of the Audubon Society. Where
once the idea of “the Environment” (as opposed to “my lake,” say) was seen as a
mere abstraction, something that couldn’t stand against the concrete benefits
brought by a particular piece of development, it came to be an abstraction with
both the force of law and of popular interest behind it.

To me, this suggests a strategy for the future of the politics of intellectual
property, a way to save our eroding public domain. In both areas, we seem to
have the same recipe for failure in the structure of the decision-making
process. Democratic decisions are made badly when they are primarily made by
and for the benefit of a few stakeholders, whether industrialists or content
providers. This effect is only intensified when the transaction costs of
identifying and resisting the change are high. Think of the costs and benefits
of acid rain-producing power generation or—less serious, but surely similar in
form—the costs and benefits of retrospectively increasing copyright term limits
on works for which the copyright had already expired, pulling them back out of
the public domain. There are obvious benefits to the heirs and assigns of
authors whose copyright has expired in having Congress put the fence back up
around this portion of the intellectual commons. There are clearly some
costs—for example, to education and public debate—in not having multiple,
competing low-cost editions of these works. But these costs are individually
small and have few obvious stakeholders to represent them.

Yet, as I have tried to argue here, beyond the failures in the decision-making
process, lie failures in the way we think about the issues. The environmental
movement gained much of its persuasive power by pointing out that for
structural reasons we were likely to make bad environmental decisions: a legal
system based on a particular notion of what “private property” entailed and an
engineering or scientific system that treated the world as a simple, linearly
related set of causes and effects. In both of these conceptual systems, the
environment actually disappeared; there was no place for it in the analysis.
Small surprise, then, that we did not preserve it very well. I have argued that
the same is true about the public domain. The confusions against which the
Jefferson Warning cautions, the source-blindness of a model of property rights
centered on an “original author,” and the political blindness to the importance
of the public domain as a whole (not “my lake,” but “the Environment”), all
come together to make the public domain disappear, first in concept and then,
increasingly, as a reality. To end this process we need a cultural
environmentalism, an environmentalism of the mind, and over the last ten years
we have actually begun to build one.

Cultural environmentalism is an idea, an intellectual and practical movement,
that is intended to be a solution to a set of political and theoretical
problems—an imbalance in the way we make intellectual property policy, a legal
regime that has adapted poorly to the transformation that technology has
produced in the scope of law, and, perhaps most importantly, a set of mental
models, economic nostrums, and property theories that each have a public
domain-shaped hole at their center.

The comparison I drew between the history of environmentalism and the state of
intellectual property policy had a number of facets. The environmental movement
had “invented” the concept of the environment and used it to tie together a set
of phenomena that would otherwise seem very separate. In doing so, it changed
perceptions of self-interest and helped to form coalitions where none had
existed before—just as earth science built upon research into the fragile
interconnections of ecology and on the Pigouvian analysis of economic
externalities. I argue that we need to make visible the invisible contributions
of the public domain, the “ecosystem services” performed by the
underappreciated but nevertheless vital reservoir of freedom in culture and
science.~{ As always, Jessica Litman provides the clearest and most
down-to-earth example. Commenting on Rebecca Tushnet’s engrossing paper on fan
fiction (Rebecca Tushnet, “Payment in Credit: Copyright Law and Subcultural
Creativity,” Law and Contemporary Problems 70 (Spring 2007): 135–174), Litman
describes copyright’s “balance between uses copyright owners are entitled to
control and other uses that they simply are not entitled to control.” Jessica
Litman, “Creative Reading,” Law and Contemporary Problems 70 (Spring 2007),
175. That balance, she suggests, is not bug but feature. The spaces of freedom
that exist in the analog world because widespread use is possible without
copying are neither oversights, nor temporarily abandoned mines of monopoly
rent just waiting for a better technological retrieval method. They are
integral parts of the copyright system. }~ And, just as with environmentalism,
we need not only a semantic reorganization, or a set of conceptual and analytic
tools, but a movement of people devoted to bringing a goal to the attention of
their fellow citizens.

I have tried hard to show that there is something larger going on under the
realpolitik of land grabs by Disney and campaign contributions by the Recording
Industry Association of America. But it would be an equal and opposite mistake
to think that this is just about a dysfunctional discourse of intellectual
property. In this part of the analysis, too, the environmental movement offers
some useful practical reminders. The ideas of ecology and environmental welfare
economics were important, but one cannot merely write A Sand County Almanac and
hope the world will change. Environmentalists piggybacked on existing sources
of conservationist sentiment—love of nature, the national parks movement,
hikers, campers, birdwatchers. They built coalitions between those who might be
affected by environmental changes. They even stretched their political base by
discovering, albeit too slowly, the realities of environmental racism, on the
one hand, and the benefits of market solutions to some environmental problems
on the other. Some of these aspects, at least, could be replicated in the
politics of intellectual property.

Ten years ago, when I first offered the environmental analogy, I claimed that
intellectual property policy was seen as a contract struck between industry
groups—something technical, esoteric, and largely irrelevant to individual
citizens, except in that they were purchasers of the products that flowed out
of the system. Whether or not that view has ever been tenable, it is not so in
a digital age. Instead, I offered the basic argument laid out here—that we
needed a “politics of intellectual property” modeled on the environmental
movement to create a genuine and informed political debate on intellectual
property policy.~{ James Boyle, “A Politics of Intellectual Property:
Environmentalism for the Net?” Duke Law Journal 47 (1997): 87–116. }~

So far, I have concentrated on the theoretical and academic tools such a debate
would need—focusing particularly on property theory and on economic analysis
and its limits. But if there is to be a genuinely democratic politics of
intellectual property, we would need an institutional diversity in the
policymaking debate that was comparable to that of the environmental movement.

Environmentalism presents us with a remarkable diversity of organizational
forms and missions. We have Greenpeace, the Environmental Legal Defense Fund,
groups of concerned scientists, and the Audubon Society, each with its own
methods, groups of supporters, and sets of issues. Yet we also have local and
pragmatic coalitions to save a particular bit of green space, using the private
tools of covenants and contracts.~{ Molly Shaffer Van Houweling, “Cultural
Environmentalism and the Constructed Commons,” Law and Contemporary Problems 70
(Spring 2007): 23–50. }~ I think we can see the beginnings of the replication
of that institutional diversity in the world of intangible property.

Ten years ago, civil society had little to offer in terms of groups that
represented anything other than an industry position on intellectual property,
still less ones that took seriously the preservation of the public domain or
the idea that intellectual property policy was a matter of balance, rather than
simple maximization of rights. There were the librarians and a few academics.
That was about it. This position has changed radically.

There are academic centers that concentrate on the theoretical issues discussed
in this book—one of them at my university. Thanks in large part to the
leadership of Pamela Samuelson, there are law student clinics that do impact
litigation on issues such as fair use and that represent underserved clients
such as documentarians. But beyond academic work, there are organizations that
have dedicated themselves to advocacy and to litigation around the themes of
preservation of the public domain, defense of limitations and exceptions in
copyright, and the protection of free speech from the effects of intellectual
property regulation of both content and the communications infrastructure. The
Electronic Frontier Foundation did exist ten years ago, but its coverage of
intellectual property issues was only episodic. Its portfolio of litigation and
public education on the subject is now nothing short of remarkable. Public
Knowledge’s valuable lobbying and education is another obvious example.
International organizations with similar aims include the Open Rights Group in
the United Kingdom.~{ See http://www.eff.org/issues/intellectual-property [Ed.
note: originally published at http://www.eff.org/IP/, the link has changed],
http://www.openrightsgroup.org/, http://www.publicknowledge.org/. }~

Organizing has also taken place around particular cases—such as Eldred v.
Ashcroft, the challenge to the Sonny Bono Copyright Term Extension Act.~{
Eldred v. Ashcroft, 537 U.S. 186 (2003). Once again, Professor Lessig had the
central role as counsel for petitioners. }~ Activity is not confined to the
world of copyright. The Public Patent Foundation combats “patent creep” by
exposing and challenging bad patents.~{ See http://www.pubpat.org/. }~ It would
be remiss not to mention the international Access to Knowledge, or A2K,
movement, inspired by the work of Jamie Love.~{ See Access to Knowledge,
http://www.cptech.org/a2k/. Some of Mr. Love’s initiatives are discussed at
http://www.cptech.org/jamie/. }~ While its focus is on the kinds of issues
represented by the access-to-medicines movement, it has made the idea of
balance in intellectual property and the protection of the public domain one of
its central components. Mr. Love himself is also the central figure behind the
idea of a Research and Development Treaty which would amend international trade
agreements to make intellectual property merely one of a whole range of
economic methods for stimulating innovation.~{ Tim Hubbard and James Love, “A
New Trade Framework for Global Healthcare R&D,” PLoS Biology 2 (2004): e52. }~
His work has touched almost every single one of the movements discussed here.

The Access to Knowledge movement has many institutional variants. The
Development Agenda at the World Intellectual Property Organization (WIPO), put
forward by India and Brazil, includes similar themes, as do the Geneva
Declaration and the Adelphi Charter produced by the United Kingdom’s Royal
Society for the Encouragement of Arts, Manufactures and Commerce.~{ WIPO
Development Agenda, available at http://www.cptech.org/ip/wipo/da.html. The
Geneva Declaration on the Future of the World Intellectual Property
Organization, available at
http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf. In the interest of
full disclosure, I should note that I wrote one of the first manifestos that
formed the basis for earlier drafts of the Declaration. James Boyle, “A
Manifesto on WIPO and the Future of Intellectual Property,” Duke Law &
Technology Review 0009 (2004): 1–12, available at
http://www.law.duke.edu/journals/dltr/articles/PDF/2004DLTR0009.pdf. The
Adelphi Charter on Creativity, Innovation, and Intellectual Property, available
at http://www.adelphicharter.org/. The Charter was issued by the British Royal
Society for the Encouragement of Arts, Manufactures and Commerce (RSA). For
discussion of the Charter see James Boyle, “Protecting the Public Domain,”
Guardian.co.uk (October 14, 2005), available at
http://education.guardian.co.uk/higher/comment/story/0,9828,1591467,00.html;
“Free Ideas,” The Economist (October 15, 2005), 68. Again, in the interest of
full disclosure, I should note that I advised the RSA on these issues and was
on the steering committee of the group that produced the Charter. }~ History is
full of wordy charters and declarations, of course. By themselves they mean
little. Yet the level of public and media attention paid to them indicates that
intellectual property policy is now of interest beyond a narrow group of
affected industries. To underscore this point, several major foundations have
introduced intellectual property initiatives, something that would have been
inconceivable ten years ago.~{ An example is the MacArthur Foundation Program
on Intellectual Property and the Public Domain: “The General Program . . . was
begun in 2002 as a short-term project to support new models, policy analysis,
and public education designed to bring about balance between public and private
interests concerning intellectual property rights in a digital era.” See
www.macfound.org/grantmaking_guidelines_ippd [Ed. note: originally published as
http://www.macfound.org/site/c.lkLXJ8MQKrH/b.943331/k.DA6/General_Grantmaking__Intellectual_Property.htm,
the link changed]. The Ford Foundation has a similar initiative. Frédéric
Sultan, “International Intellectual Property Initiative: Ford Foundation
I-Jumelage Resources,” available at
http://www.vecam.org/ijumelage/spip.php?article609. }~

Finally, to complete the analogy to the land trust, we have the organizations I
mentioned earlier, such as Creative Commons and the Free Software Foundation.~{
See http://www.creativecommons.org and http://www.fsf.org. }~ The latter group
pioneered within software the attempt to create a licensed “commons” in which
freedoms are guaranteed. The licensed commons replaces the law’s default rules
with choices made by individuals, the effects of which are magnified by
collective action. The end result is a zone of public freedom enabled by
private choice.

If one looks at these institutions and actors and at the range of issues on
which they focus—from software to drug patents, from reverse engineering to
access to archival records—the obvious question is, how did they overcome the
collective action problem? What ties together a critique of digital locks and
the access-to-medicines movement? Again, I think the answer points to the
usefulness of the environmental analogy. As I pointed out, the invention of the
“environment” trope tied together groups whose interests, considered at a lower
level of abstraction, seemed entirely different—hunters and birdwatchers,
antipollution protesters and conservation biologists. The idea of the
“environment” literally created the self-interest or set of preferences that
ties the movement together. The same is true here. Apparently disparate
interests are linked by ideas of the protection of the public domain and of the
importance of a balance between protection and freedom in cultural and
scientific ecology.~{ This process runs counter to the assumptions of theorists
of collective action problems in a way remarkable enough to have attracted its
own chroniclers. See Amy Kapczynski, “The Access to Knowledge Mobilization and
the New Politics of Intellectual Property,” Yale Law Journal 117 (2008):
804–885. Economists generally assume preferences are simply given, individuals
just have them and they are “exogenous” to the legal system in the sense that
they are unaffected by the allocation of legal rights. The emergence of the
movements and institutions I am describing here paints a different picture. The
“preferences” are socially constructed, created through a collective process of
debate and decision which shifts the level of abstraction upwards; and, as
Kapczynski perceptively notes, they are highly influenced by the legal
categories and rights against which the groups involved initially defined
themselves. }~

But even a broad range of initiatives and institutions would not, in and of
themselves, produce results. One must convince people that one’s arguments are
good, one’s institutional innovations necessary, one’s horror stories
disturbing. Environmentalism has managed to win the battle for clarity—to make
its points clearly enough that they ceased to be dismissed as “arcane” or
technical, to overcome neglect by the media, to articulate a set of concerns
that are those of any educated citizen. The other striking phenomenon of the
last ten years is the migration of intellectual property issues off the law
reviews or business pages and onto the front pages and the editorial pages.
Blogs have been particularly influential. Widely read sites such as Slashdot
and BoingBoing have multiple postings on intellectual property issues each day;
some are rants, but others are at a level of sophistication that once would
have been confined to academic discussion.~{ See “News for Nerds: Stuff That
Matters,” http://www.slashdot.org, and “A Directory of Wonderful Things,”
http://www.boingboing.net. }~ Scientists passionately debate the importance of
open access to scholarly journals. Geographers and climatologists fume over
access to geospatial data. The movement has been pronounced enough to generate
its own reaction. The popular comics site “xkcd” has strips critical of the
Digital Millennium Copyright Act,~{ Pub. L. No. 105-304, 112 Stat. 2860 (1998)
(codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.). }~ but
also a nerdily idyllic picture of a stick figure reclining under a tree and
saying, “Sometimes I just can’t get outraged over copyright law.”~{ For the
former see “Content Protection,” http://xkcd.com/c129.html, and “Digital Rights
Management,” http://xkcd.com/c86.html. For the latter, see “Copyright,”
http://xkcd.com/c14.html. }~ That cartoon now resides on my computer desktop.
(It is under a Creative Commons license, ironically enough.)

Who can blame the stick figure? Certainly not I. Is it not silly to equate the
protection of the environment with the protection of the public domain? After
all, one is the struggle to save a planetary ecology and the other is just some
silly argument about legal rules and culture and science. I would be the first
to yield primacy to the environmental challenges we are facing. Mass extinction
events are to be avoided, particularly if they involve you personally. Yet my
willingness to minimize the importance of the rules that determine who owns
science and culture goes only so far.

A better intellectual property system will not save the planet. On the other
hand, one of the most promising sets of tools for building biofuels comes from
synthetic biology. Ask some of the leading scientists in that field why they
devoted their precious time to trying to work out a system that would offer the
valuable incentives that patents provide while leaving a commons of “biobricks”
open to all for future development. I worry about these rules naturally; they
were forced to do so. A better intellectual property system certainly will not
end world hunger. Still it is interesting to read about the lengthy struggles
to clear the multiple, overlapping patents on GoldenRice™—a rice grain
genetically engineered to cure vitamin deficiencies that nearly perished in a
thicket of blurrily overlapping rights.~{ R. David Kryder, Stanley P. Kowalski,
and Anatole F. Krattiger, “The Intellectual and Technical Property Components
of Pro-Vitamin A Rice (GoldenRice™): A Preliminary Freedom-to-Operate Review,”
ISAAA Briefs No. 20 (2000), available at
http://www.isaaa.org/Briefs/20/briefs.htm. }~

A better intellectual property system will not cure AIDS or rheumatoid
arthritis or Huntington’s disease or malaria. Certainly not by itself. Patents
have already played a positive role in contributing to treatments for the first
two, though they are unlikely to help much on the latter two; the affected
populations are too few or too poor. But overly broad, or vague, or confusing
patents could (and I believe have) hurt all of those efforts—even those being
pursued out of altruism. Those problems could be mitigated. Reforms that made
possible legal and facilitated distribution of patented medicines in Africa
might save millions of lives. They would cost drug companies little. Africa
makes up 1.6 percent of their global market. Interesting alternative methods
have even been suggested for encouraging investment in treatments for neglected
diseases and diseases of the world’s poor. At the moment, we spend 90 percent
of our research dollars on diseases that affect 10 percent of the global
population. Perhaps this is the best we can do, but would it not be nice to
have a vigorous public debate on the subject? Some possible innovations are
much easier. A simple rule that required the eventual free publication online
of all government-funded health research, under open licenses, rather than its
sequestration behind the paywalls of commercial journals, could help fuel
remarkable innovations in scientific synthesis and computer-aided research
while giving citizens access to the research for which they have already paid.

Good intellectual property policy will not save our culture. But bad policy may
lock up our cultural heritage unnecessarily, leave it to molder in libraries,
forbid citizens to digitize it, even though the vast majority of it will never
be available publicly and no copyright owner can be found. Would you not prefer
the world in which your children could look at the Library of Congress online
catalogue and click to get the book or film or song that otherwise languished
as an “orphan work”? Good intellectual policy will not necessarily give us
great new music. But the policy we have today would make some of the music we
most cherish illegal, or at least legally questionable. Does that inspire
confidence for the future? As for the World Wide Web, I offer again my thought
experiment from the first part of this chapter. Would we be more likely to
invent it or forbid it today? We are certainly working busily to change the
openness of the general-purpose computer, the neutrality of the network, and
the degree of control that content companies can exert over hardware.

I do not claim that the issues I have written about here are the most important
problem the world faces. That would be ridiculous. But I do claim that they are
facets of a very important problem and one to which we are paying far too
little attention.

I would also be the first to admit that these issues are complicated. Even if
we heeded the precepts I have outlined in this book, even if we actually
started to look at intellectual property as an empirical question, even if we
turned to data rather than faith for our assessments, reasonable people would
disagree about much. Some of the most ludicrous recent excesses—huge
retrospective copyright term extensions, database rights, proposed webcasting
treaties, business method patents—do not pass the laugh test, in my view and
that of most scholars. Stopping and then reversing that tide would be valuable,
even transformative, but other issues are a closer call.

It is also true that we do not have all the tools we need. A lot remains to be
done, both academically and practically. We need better evidence. We need
property theories that give us as rich a conception of property’s outside—of
the public domain and the commons—as we have of property itself. We need to
rethink some of our policies of international harmonization and reconsider what
types of policy actually benefit the developing world. We should explore ways
of compensating artists that are very different from the ones we use now, and
study the use of distributed creativity and open source in new areas of science
and culture.

Difficulties aside, I have tried here to show that we need a cultural
environmental movement, a politics that enables us first to see and then to
preserve the public domain, to understand its contributions to our art, our
technology, and our culture. Where is that movement now?

There is cause for both concern and optimism. Concern, because it is still hard
for courts, legislators, policy makers, and citizens to see beyond the word
“property” to the reality underneath. I started this book with the question
from my son about the online catalogue of the Library of Congress: “Where do
you click to get the book?” In 2003 the Supreme Court heard Eldred v. Ashcroft,
the challenge to retrospective copyright term extension. Over two strong
dissents, the Court upheld the constitutionality of the act against both First
Amendment and Copyright Clause challenges. The dead had their copyrights
extended yet again. The widest legal restriction of speech in the history of
the Republic—putting off-limits most twentieth-century books, poems, films, and
songs for another twenty years without a corresponding speech benefit or
incentive—can proceed without significant First Amendment review. Does such a
decision mean the task this book undertakes—to take seriously the contributions
of the public domain to innovation, culture, and speech—is ultimately doomed,
whatever its intellectual merits, to face a hostile or uncomprehending
audience? Admittedly, Eldred focused specifically on two particular
constitutional claims. Still, the attitude of the majority toward the
importance of the public domain—whether in the textual limitations on
Congress’s power or the application of the First Amendment—can hardly be cause
for optimism. And yet . . . The media reaction was remarkable.

The New York Times was sufficiently unfamiliar with the term “public domain”
that it was not entirely sure whether or not to use the definite article in
front of it. But unfamiliarity did not imply complacency. An editorial declared
that this decision “makes it likely that we are seeing the beginning of the end
of public domain and the birth of copyright perpetuity. 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.”~{ “The Supreme Court Docket: The
Coming of Copyright Perpetuity,” New York Times editorial (January 16, 2003),
A28. }~ The Washington Post, though more inclined to agree that retrospective
extension might be constitutional, declared the copyright system to be “broken”
in that it “effectively and perpetually protects nearly all material that
anyone would want to cite or use. That’s not what the framers envisioned, and
it’s not in the public interest.”~{ “Free Mickey Mouse,” Washington Post
editorial (January 21, 2003), A16. }~

I could not agree more. But as I have tried to show here, the process is not
limited to copyright, or culture, or texts, or the United States. Think of the
stories about business method patents, or synthetic biology, or the regulation
of musical borrowing on the atomic level. Think of the discussion of the
openness aversion that began this chapter. In the middle of the most successful
and exciting experiment in nonproprietary, distributed creativity in the
history of the species, our policy makers can see only the threat from
“piracy.” They act accordingly. Our second enclosure movement is well under
way. The poem with which I began Chapter 3 told us: “And geese will still a
common lack / Till they go and steal it back.” I cannot match the terseness or
the rhyme, but if we assume that the enclosure of the commons of the mind will
bring us prosperity, great science, and vibrant culture, well, we will look
like very silly geese indeed.

2~ Chapter 10: Further Reading

Those who are interested in the evolution of the analogy between
environmentalism and the movement to recognize and safeguard the public domain
can start with the editors’ introductions to the Symposium Cultural
Environmentalism @ 10, James Boyle and Lawrence Lessig, eds., Law and
Contemporary Problems 70 (2007) 1–21, available at
http://www.law.duke.edu/ce10.

The single best chronicle of the Access to Knowledge (“A2K”) movement is Amy
Kapczynski, “The Access to Knowledge Mobilization and the New Politics of
Intellectual Property,” Yale Law Journal 117 (2008): 804–885. Lawrence Lessig’s
work has been a common point of reference: Lawrence Lessig, The Future of
Ideas: The Fate of the Commons in a Connected World (New York: Random House,
2001), and Lawrence Lessig, Free Culture (New York: Penguin, 2004). Many of the
key political initiatives have come from James Love and the Consumer Project on
Technology. A wealth of material can be found at http://www.cptech.org/a2k/ and
at Knowledge Ecology International, http://www.keionline.org/index.php. The
inaugural edition of the journal Knowledge Ecology Studies presents an informal
discussion of the origins of the idea at
http://www.kestudies.org/ojs/index.php/kes/article/view/29/53.

For the ways in which the A2K movement has involved both criticism of and
attempts to reform international bodies such as the World Intellectual Property
Organization (“WIPO”) see James Boyle, “A Manifesto on WIPO and the Future of
Intellectual Property,” Duke Law and Technology Review 0009 (2004): 1–12,
available at
http://www.law.duke.edu/journals/dltr/articles/PDF/2004DLTR0009.pdf, and
Christopher May, The World Intellectual Property Organization: Resurgence and
the Development Agenda (London: Routledge, 2006).

The minimalist or antimonopolistic attitude toward intellectual property has a
long history, as this book has tried to show. The specific concern with the
public domain is of more recent origin. The foundational essay was published by
my colleague David Lange, “Recognizing the Public Domain,” Law and Contemporary
Problems 44, no. 4 (1981): 147–178. I would also recommend Collected Papers,
Duke Conference on the Public Domain, ed. James Boyle (Durham, N.C.: Center for
the Study of the Public Domain, 2003), which contains scholarly articles on the
history, constitutional status, scientific importance, musical significance,
property theory, and economic effects of the public domain. The entire volume
can be read online at http://www.law.duke.edu/journals/lcp/indexpd.htm.

Finally, Duke’s Center for the Study of the Public Domain, which has generously
supported the writing of this book has a wide variety of resources—ranging from
scholarly texts to films and comic books—on the subjects of intellectual
property, the public domain and idea of an environmentalism for information.
Those resources can be found at http://www.law.duke.edu/cspd.